This year could be remembered as the year the 17th century came back to haunt us.

First was the revival of the debate over torture, which the English-speaking world was supposed to have settled more than three hundred years ago. Now, in Australia, we find ourselves arguing about the establishment of religion.

For many centuries, it was taken for granted in the West that promotion of religion was one of the core functions of government. As long as religious uniformity could be taken for granted, that didn’t upset anyone very much. But that assumption fell apart with the Reformation in the 16th century.

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The result was a long period of religious war, followed in turn by a dawning recognition that imposing religion by government fiat was divisive and counterproductive. Eventually countries came to embrace religious toleration: belief should remain a private matter, with no “official” religion.

Hence provisions like section 116 of the Australian constitution, which, echoing similar provisions in the US Bill of Rights and elsewhere, provides that “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”

When the federal government first made grants to religious schools, it raised the question of whether this was an “establishment” of religion.

In 1981, the High Court rejected the American precedents and ruled that it was not. Now John Howard proposes to wade further into that disputed territory with his plan for government-funded school chaplains.

Unlike the simple grant of operating funds to church schools, the chaplains plan necessarily involves the government deciding what religious teachings are permissible – exactly the sort of decision from which the establishment clause was supposed to exclude the government.

As Andrew Lynch remarks in today’s Age, “Talk of insulating religion from the power of the state is not merely a resort to a vague ideal. It has clear constitutional text behind it.”

The plan also contains a deliberate bias in favour of religion: only religious chaplains will be funded, not secular counsellors. Secular schools will therefore be disadvantaged, since they are less likely to agree on which chaplain to appoint.

If that does not fall foul of section 116, it’s hard to see what would.

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Peter Fray
Peter Fray
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