EPISODE 13: Why is our secular government allowed to fund religious schools?

Australians traditionally sees themselves as pretty secular compared to the rest of the world. But how Australians choose to fund their children’s education paints a very different picture.

For every dollar the Federal Government spends per student in a private or independent school, public schools receive only around 75 cents per student.

In 2017, Catholic schools received $8.4 billion in government funding, despite also being funded by fee-paying families. The Catholic Church in Australia is estimated to be worth between $20 billion to $30 billion.

How can a secular government, in a country which espouses the separation of church and state, be allowed to fund religious schools? And when it comes to school funding, is our government playing favourites with religion?

The answer lies in a court case stemming from a fight over a Catholic school toilet block in 1962.


Show notes

+ Transcript

JUST CASES EPISODE 13: Why is our secular government allowed to fund religious schools?

Melissa Castan: Australia traditionally sees itself as a pretty secular country compared to the rest of the world, but as today's guests will tell us, it's a country with a massive blind spot, actually more than one. But today's case, he says is an example of how Australia plays favourites with religion.

Scott Morrison: I'm pleased to announce together with the Minister for Education that we have been able to come to an arrangement, a final arrangement to deal with the issues in education funding that have been a concern to the independent school sector and the Catholic Education Commission.

James Pattison: That's Prime Minister Scott Morrison there, announcing a new school funding deal at the end of 2018 which had the impact of increasing funding to Victorian private schools over the next decade. Dr Luke Beck is a Constitutional law and religious freedom expert at Monash Law. Luke, welcome to Just Cases.

Luke Beck: Hello. Thanks for having me.

James Pattison: Luke, first off, do you agree with Melissa's rigorous psychoanalysis of Australia?

Luke Beck: Yeah, in general terms, I do. I think we have some blind spots when it comes to separation of religion and government in Australia among other things.

James Pattison: Do you think that we're a quite a religious country?

Luke Beck: Well I think it depends what you mean by a religious country. We certainly don't have any official religion like they do in the United Kingdom or in parts of the Middle East or Asia, but religion does have quite a bit of influence. Government does provide all sorts of preferences and benefits including cash to various particular religious groups and not to others. So there's religious influence, but we're not a religious country officially nor are we sort of a French style, strictly separation of church and state type country.

James Pattison: Take me through that separation of church and state. Do we have that in our Constitution?

Luke Beck: Well, the expression separation of church and state is a bit of a umbrella slogan. So the legal position is that there is a section in the Australian Constitution, section 116, which prohibits the federal government, but not the state governments from setting up established or official religions, from imposing religious observances on people, for prohibiting the free exercise of anyone's religion or imposing religious tests for jobs in the federal government. So there's limitation on the powers of the federal government to interfere with religion or play favourites with religions, but there's no equivalent limitations on the states, although in practice the states tend not to do those things.

Melissa Castan: So you're saying we could actually, there's a prohibition on saying, "Oh everyone has to ascribe to the Church of Australia," but there's no prohibition on saying, "Everyone in Victoria has to be part of the Church of Victoria."

Luke Beck: Yes, absolutely. So Victoria would have power to pass a law to set up an official religion, to compel everybody to go to church on Sundays, to say that jobs in the Victorian public service are open only to say, Baptists or whatever it is. The states have power to do that, but the federal government doesn't, but obviously just because they have the power to do that doesn't mean they're likely to do that.

Melissa Castan: Yeah, and clearly that hasn't happened-

Luke Beck: No it hasn't happened.

Melissa Castan: ... in the last 200 years, but how did we end up with the Constitution having that particular Section 116 and what were aiming to prevent then?

Luke Beck: Well, they were aiming to prevent religious intolerance on the part of the federal government and the backstory to how this section got into the Constitution is quite interesting. In the late 1800s in the states, the colonies at the time, there were still old Sunday closing laws that Australia had inherited from England on the books that would essentially ban people from working in their ordinary jobs on Sundays in order to observe the Sabbath, the Christian Sabbath. Now those laws were generally not enforced. Among the worst offenders in breaking those laws where the state governments. They operated railways and museums and libraries and fairs, et cetera, but some Protestant church leaders at the time found that quite offensive that people were working on Sundays and not following the Sabbath.

Luke Beck: So they sort of agitated to the state premiers to enforce these laws. Now the premiers didn't really want to enforce these laws. So they ended up and enforcing them selectively against unpopular minorities. Among those were Seventh Day Adventists who unlike other Christians, they observed Saturday as the Sabbath rather than Sunday and they insist on working on Sundays or at least they used to and so Seventh Day Adventists in the late 1890s got caught by a police officer working at the brick layer on a building site in Sydney and he was charged with Sabbath breaking for working on a Sunday and he was convicted and the penalty for working on the Sabbath under this old English law, that we had inherited was either paying a fine or if you refuse to pay the fine to be locked in the stocks for several hours.

James Pattison: What?

Luke Beck: Yeah, so to be locked in the stock for several hours.

Melissa Castan: That's pretty old worldly stuff.

Luke Beck: Yes, but the problem it's so old, worldly that in the 1890s, so the guy who was convicted said, "I refuse to pay. This is outrageous. I'm going to be a prisoner."

Melissa Castan: Take the stocks.

Luke Beck: "I'm going to take the stocks -" but the new South Wales, this happened in New South Wales, but there are equivalent laws in Victoria and elsewhere. The government didn't have any stocks. This was the 1890s. We didn't use stocks anymore, so the State Attorney General's department, the Justice Department came up with plans to construct stocks and the newspapers had a lot of fun with describing in great detail what the stocks look like, where they would be set up in the courthouse front steps, et cetera.

James Pattison: This is amazing.

Luke Beck: The Minister at the time was out in his electorate in regional New South Wales campaigning for an election. So he was out of Sydney and wasn't sort of keeping a close eye on what his departmental staff were doing and when he got back to Sydney, he put a stop to this and arranged for the state governor to remit the sentence. So the guy was guilty of Sabbath breaking, but because of the public outrage of the notion that we're going to lock someone in the stocks for the shocking crime of being a brick layer on Sunday, the government arranged for the guy to be let off.

James Pattison: And for him to instead be tarred and feathered.

Luke Beck: Well, no. So perhaps some people might've liked that, but the story, that is actually the origins of Section 116. The Seventh Day Adventists had quite a sophisticated sort of public lobbying apparatus at the time and it's quite sophisticated for those times. They were deeply concerned that the Protestant church leaders who had encouraged the state government to selectively enforce the Sunday observance laws, they were worried that they would persuade the new federal government to pass nationwide Sunday closing laws. So this situation might be replicated all over the country and so they meant it. So the Seventh Day Adventists got up this big petition campaign to lobby the politicians who were drafting the federal Constitution to put in a section to make absolutely sure that the Federal Parliament would not be able to impose nationwide Sunday closing laws or to interfere with religious freedom. So they were quite successful.

Luke Beck: The reason the Seventh Day Adventist were concerned that this was the motive of the Protestant church leaders is because at the same time, the Protestant church leaders had their own big petition campaign going and they wanted what they called recognition of God in the Constitution and they got thousands of signatures begging essentially the politicians drafting the federal Constitution to put in some mention somewhere in some way of God in the Constitution and initially the politicians thought this was ridiculous. Religion has nothing to do with what we're doing. Religion is fine, you can do that, but it's got nothing to do with drafting a Constitution, but politicians being what they are, they were all the people drafting the Constitution were all colonial politicians. Some of them had ambitions to be reelected to the state parliament. Some of them had ambitions to be elected to the new Federal Parliament and lots of them were. So politicians being politicians gave in and gave everybody a little bit of a prize.

Melissa Castan: So where's the mention of God in the Constitution now?

Luke Beck: So in the Constitution now we have a vague reference to God in the Constitutional preamble and the preamble says that the Australian people quite humbly relying on the blessing of all mighty God, have agreed to unite in one indissoluble federal Commonwealth and that the Seventh Day Adventists thought might somehow authorise the federal government to impose Sunday closing laws. So in order to reassure the Seventh Day Adventists and others who supported them, because Seventh Day Adventists were just a tiny, tiny minority. So they got support from elsewhere in Australian society. They put it in a section, Section 116 and that has four clauses. Three of those clauses are copied from, without very much thinking on the part of the Australian politicians, just sort of copied and pasted from the American Constitution from the First Amendment and their religious tests clause and then added in an extra fourth clause that says the Commonwealth should not make any law for imposing any religious observance to make doubly sure that we could not possibly have federal Sunday closing walls.

Melissa Castan: That God mention in the preamble, that's not really legal. That doesn't have any legal effect-

Luke Beck: No, that has no-

Melissa Castan: ... on doctrine. It's just a nice statement.

Luke Beck: It has absolutely no legal effect whatsoever.

Melissa Castan: Whereas Section 116 is actually a Constitutional rule. So when you weigh out the two together-

Luke Beck: It's absolutely clear that we can not have federal religious observances passed in Australia, absolutely. So the Seventh Day Adventists kind of got the bigger prize out of that. So the Protestant church leaders kind of shot themselves in the foot. If they'd stayed mum, there might have been some way that Federal Parliament could have passed some types of religious laws, but because of they sort of antagonised their potential victims in [inaudible 00:08:59] commerce so to speak, they were able to get up a provisioned, get inserted a provision in the Constitution to make sure that that would never be able to happen. So in effect, they shot themselves in the foot.

James Pattison: Now I'm well aware that today I'm talking to two Constitutional law experts and I'm going to be supremely out of my depth, having famously scraped by, famously to me, scraped by with one of my trademark passes in Constitutional law.

Melissa Castan: That was the Hawaii 5-0, wasn't it James?

James Pattison: So I'm well aware that I'm out of my depth. I'm talking about Constitutional law because from a big picture perspective, Constitutional law sounds really, really sexy and then when you get into the nuts and bolts of it, it is like, it's so technical that I get extremely overwhelmed and as I've told you before, I'm extremely slow. So if at any point you start to get a little bit too Constitutional law-y, you're going to hear this sound, [MUSIC], at which point-

Melissa Castan: That actually sounds like it's from the 1800s.

James Pattison: At which point I will jump in and ask you to reexplain for the normal people out there.

Melissa Castan: Luke and I think it is very sexy actually.

Luke Beck: We do.

James Pattison: And you'll make it sexy today. I know you will.

Luke Beck: We make it sexy everyday.

James Pattison: Now the case in question, toilets. I'm really bringing this podcast right down, but stick with me, toilets.

Luke Beck: Yes.

James Pattison: Luke, why are toilet's so important for what we're going to talk about today?

Luke Beck: So toilets are really important because in the 1960s in Australia there was no such thing as government funding of private schools which might be shocking to some people now given there's sort of enormous amounts of government funding of private schools, but in the 60s there wasn't and there was a particular Catholic school that needed a new toilet block because their toilets were a bit run down. It was time for an upgrade and this was a Catholic school and the Catholic education authorities said, "We can't afford to upgrade the toilets, but our kids need, our students need new toilets because you can't have a functioning school without proper toilets."

James Pattison: Catholic church famously has no money.

Luke Beck: The Catholic church famously has no money and so they said to the government, "You should give us money to build these toilets," and the government said, "Our policy is we only fund public schools. We don't fund non government schools. We don't fund Catholic schools either," and so what the Catholics did was they essentially shut down a whole bunch of their schools in protest to try and force the government to give them money. So they shut down schools which led to approximately 2000 students being without school, well being without places in Catholic schools anymore. So those kids all had to go enrol in the local public schools, but there was no space in the local public schools for the 2000 extra kids.

Melissa Castan: And they probably needed more toilets then, too.

Luke Beck: And they would have needed more toilets obviously as well. So in effect, this was kind of a way to blackmail the federal government in to start funding non-government schools, including Catholic schools and it worked. So as a result-

Melissa Castan: Great strategy.

Luke Beck: ... over time that protest, because of the toilet, the need for money shutting down the schools, flooding public schools with 2000 Catholic students, former Catholic school students, essentially forced the federal government's hand to start providing government funding to non-government schools and taught an organisation called the Association for the Defence of Government Schools, sometimes just called DOGS because of the acronym. They were sort of a community activist group who believed very strongly in the importance of public education and very strongly as well in principles of separation of church and state and the idea that government money, public money, taxpayer money should never be given to churches including to church schools. So they wanted to say that the federal government's new policy about giving funding to Catholic schools was unconstitutional because it breached that section, Section 116 and in particular the part of that section that says the Federal Parliament shall not make any law for establishing any religion.

Luke Beck: The DOG's group wanted to say that funding a religion amounts to establishing a religion and in the United States that sort of argument has been accepted under the First Amendment. So they thought they had a case. Now to get the case into the High Court was a bit of a hassle. Just because you think the federal government or someone else is doing something illegal doesn't mean you can be a busy body and go to court and challenge it.

Melissa Castan: So you have to have standing, don't you?

Luke Beck: You have to have standing. You have to demonstrate that somehow this policy affects you personally. There's a but. So these were just concerned citizens and concerned citizens, even though they are taxpayers and indirectly it's their money going to being spent, that doesn't count for standing, but the person who always has standing is each Attorney General. So there's an Attorney General for each state and one for the federal government and the DOG's organisation managed to persuade one of the state Attorneys General to issue what's called a fiat, which essentially allows this group to sue in the name of the Attorney General.

Melissa Castan: So it's not a small Italian car is what you're saying.

Luke Beck: No, it's not a small Italian car. It's a fancy legal document that essentially means that you can pretend or stand in the shoes of the Attorney General in order to bring your case. So that's how they got their case up into the High Court.

James Pattison: So the DOGs were unable to stand on their own four feet?

Luke Beck: No, maybe their tails were wagging, I don't know.

James Pattison: Now there was-

Melissa Castan: Just stop that now.

James Pattison: Why is, we're getting to all the technicalities of this decision in a moment and because I know that there's certain parts of the decision that you agree with.

Luke Beck: Yup.

James Pattison: There's others that you don't, but from a general perspective, looking at this decision which was in the 80s, 1981, why is this case so important? Why is it going to be so important for right now?

Luke Beck: For two reasons, number one because government funding of private schools, including religious schools keeps increasing and the arguments that some categories of private school get special deals as opposed to others which wasn't the case previously and also because the definition of what Section 116 was said to be in this case effects everything else the federal government might want to do in respect of religion or religious groups. So this is not an issue that's confined simply to funding of Catholic schools or funding of private schools. The definitions or the principles set out in this case impact what the federal government can do in respect of religion much more generally.

James Pattison: So it's not just the matter, I mean the figure that's quoted currently about funding for public versus private schools is that public schools receive roughly three quarters of the public funding per student that a private school does and that has caused a lot of alarm amongst people because it looks so inequitable. You're saying that the issue is broader than that? It's actually got more to do with the relationship of government to religion across Australia.

Luke Beck: Yes.

Melissa Castan: You're listening to Just Cases from Monash Law. Today we're speaking to Dr Luke Beck about whether the government is allowed to fund religious schools.

James Pattison: And if you've ever considered studying law, this could be your chance. Applications for the Monash JD are open now. Classes are held in the heart of Melbourne's legal precinct, the Melbourne CBD. If you've got any kind of non-law undergraduate degree and always fancied yourself as a lawyer or you want to compliment your Undergrad with some legal knowledge, the Monash JD is your ticket. Head to monash.edu/law for more info. That's monash.edu/law and check out the section called Study With Us. Now back to Dr Luke Beck. He is the author of Religious Freedom and the Australian Constitution and a constitutional law expert at Monash University.

Melissa Castan: And this is one of the very few section 116 cases that ever actually got up.

Luke Beck: And this is this case is one of the reasons why there are so few cases. So the decision in this case at a very high level, simply says that nondiscriminatory funding of private schools is okay. In this case, the High Court said Catholic schools get the same dollar per student as other private schools. The federal government is not playing favourites between Catholic schools. If Catholic schools are getting more money overall, that's simply because they have more students. So there's no discrimination going on here. There are arguments today that there are special funding deals for Catholic schools and that they might get more as opposed to other independent non-government schools or say Muslim schools or Jewish schools for example.

Luke Beck: So if that's true and federal funding formulas for schools is enormously complex, but if that's true. If Catholic schools are getting a special deal, then based on the reasoning in the DOG's case itself, there's a big Constitutional question mark about whether that's funding. The basic rule is, you can't play favourites. You have to treat different religious groups evenhandedly. [MUSIC] Do we dance?

James Pattison: I think we should. Now I have a question. Who would have thought from that little stint? Can you run me through what the arguments were from both sides to start with and then what parts of this decision you agree with and what you don't?

Luke Beck: Right. So the section initially here was the part of Section 116 that says parliament shall not make any law for establishing any religion and what the High Court said was essentially two things. Number one, establishing a religion means setting up a single national, official religion. Anything else is not establishing a religion. So on that and there are some problems with that which we'll come to. The second thing they said is that from that it follows that non-discriminatory funding of Catholic schools, which is evenhanded with other categories of non-government school is perfectly fine.

James Pattison: Sure. So if you're not, if you aren't setting up a state, by state I mean national, national religion. Everything else is cool.

Luke Beck: Essentially, yes. Essentially that's what they said, but there's a problem with that. They said a single national official religion, which would seem to suggest that if Federal Parliament passed a law that said-

Melissa Castan: And they should pass a law like Melissa is the Supreme Being of Australia, right?

James Pattison: You've been pushing that for a while, yeah.

Melissa Castan: I have been pushing this for a while.

Luke Beck: Perhaps people might support that to her.

Melissa Castan: You sound so doubtful Luke.

Luke Beck: I'm a little bit doubtful, but let's say part Federal Parliament passed a law that said Buddhism and Hinduism are the official religions of the Northern Territory. According to the High Court in the DOGS case, that's perfectly cool because the High Court said it has to be a single national religion. So that would be multiple sub national religions, but surely that's obviously a law for establishing a religion and if you want to draw comparisons with overseas, think about England where they have an official religion. The Church of England as by law established. That is not a single national religion. That is a sub national religion. The Church of England is only established in England. It has been disestablished in Wales. It has been disestablished in Ireland and it has never ever been established in Scotland-

Melissa Castan: Because of many, many wars I guess.

Luke Beck: Yes, and so according to the High Courts reasoning, it would seem to suggest that the High Court does not think England, that the United Kingdom has an established church because it's not-

Melissa Castan: And yet that was kind of what that means at the time, right?

Luke Beck: And surely that's the paradigm example in our system of what an official religion looks like and so because I think that's obviously incorrect, that part of the reasoning is obviously incorrect. We've got to ask, well how did they get to that reasoning? And at the time of this case, the High Court had a really bizarre rule of interpretation that said, when you go about working out what the words of the Constitution mean, you must never ever look at the drafting history of the Constitution. You must never ever look at what the people who wrote the Constitution said. We just have to work really hard, really close with the words, stare very deeply at them and then we'll be able to work it out.

New Speaker: [MUSIC]

Melissa Castan: Not again.

James Pattison: So I want to bring this back to every single podcast that we do, not just constitutional law.

Melissa Castan: You can, you can.

James Pattison: That's life changing. What you're doing here for our listeners who aren't familiar with law or somehow less familiar than me which is impossible.

Melissa Castan: Sorry, you have a very expert understanding of law James.

James Pattison: Is you are now going to take us through why it is that you agree with the decision-

Luke Beck: Yes.

James Pattison: ... but you disagree with the reasoning.

Luke Beck: Correct.

James Pattison: Can you lay out how that's even possible? Because you tend to think the outcome of a court case if it says it's this one thing, that's what the case stands for, right? Sometimes it doesn't happen, does it?

Luke Beck: Right. So the best analogy is to think about a high school math problem. You get the correct answer, but your working out is wrong. That's essentially what's happened in this case.

Melissa Castan: See, I just didn't do very well in high school math. So I must have failed because of that. I can't hold two thoughts in my head at the same time.

Luke Beck: So what the High Court has done here is like a school kid who's made a mistake in their reasoning but somehow miraculously got to the correct answer. So the correct answer is I agree that non-discriminatory funding of private schools, including religious schools is fine, but the reasoning, the idea that it has to be a single national official religion, I think is completely wrong because the Church of England on that definition is not established.

James Pattison: And what's the problem that if the reasoning is incorrect, doesn't it just matter that the outcome was right?

Luke Beck: No, the reasoning is what matters. The reasoning matters quite significantly because that reasoning applies in all future cases. So if somebody else wants to bring a case saying some other law might be invalid, that reasoning has to apply to that new challenge.

Melissa Castan: And that's what we call precedent.

Luke Beck: And that's what we're called precedent and so if the reasoning is wrong, that has flow on effects for the future. So the way they got to that reasoning was to say, "We're not going to look at the history of how this section got in, so we're just going to stare closely at the words and we'll figure it out," but the problem is they then referred to, they then said things about why this section was inserted in the Constitution, but remember, the rule is that you can't look at the history. So when they said what they thought the purpose of the section was, they were quite literally on their own admission, pulling that out of thin air, making it up.

Melissa Castan: So just as an addendum there, I mean now the High Court will look at the previous debate to see why, what's the purpose.

Luke Beck: And that's why it's important. A few years after this case was decided, the High Court changed that silly rule. The High Court said, henceforth we will look at the history behind a section and the drafting history to help us work out.

Melissa Castan: It's not always the full answer, it's always part of it.

Luke Beck: It's not always the full answer, but it's part of the reasoning process. It can help you work it out. So if the methodology of reasoning has now changed by using the wrong methodology in this case, that means that in a future case the High Court is likely to be open to changing the reasoning.

Melissa Castan: Or they still may come to the correct outcome.

Luke Beck: But still may keep coming to this same conclusion that nondiscriminatory funding of religious schools is okay and I think that's the correct answer. There's a second aspect of the reasoning in this case that's also problematic and that is at the time of this case, the High Court said the rule is that in provisions like Section 116 that limit Parliament's power, you must try very hard to adopt very limited and narrow interpretations. That rule has also changed. Now the rule is that every provision of the Constitution should be interpreted with all the generality with which the words used will admit. So you should lean toward broad interpretations.

Melissa Castan: You shouldn't kind of artificially constrain the meaning of the words just because of the impacts on Parliament's power.

Luke Beck: Exactly. So there's two. so the two reasoning approaches, the two methodologies have changed. So that means that there is good reason to think that in a future case the High Court will adopt a different definition of what establishing a religion means and of course that doesn't mean that government funding of religious schools then becomes unconstitutional. That just has impacts for other cases where people might want to run an argument about some other law breaching Section 116.

Melissa Castan: So did you have another law in mind that might be the subject of a case like this or other issues that are current that might rise this Section 116 issue?

Luke Beck: Well, so there are some issues. So number one is in fact the example of government funding of religious schools because there's an argument now and government funding of schools is quite a complex area to understand, but there is an argument that Catholic schools have got a special funding deal. They get more per student than other schools such as, you know, Islamic schools or Jewish schools or just independent non-government schools. If that's true, if that's true, then there would be a good reason to think that the High Court might say that's actually unconstitutional. You can't give special deals to one category of religious schools versus others and there are other examples. So every day Parliament starts, both Houses of Parliament, the House of Reps and the Senate, they both start with an Anglican prayer and there's a law, there's a rule, a standing order of Parliament that says at the opening of each day of Parliament, the President of the Senate and the Speaker of the House of Representatives shall read the following prayer.

Melissa Castan: So I'd find that quite difficult if I was the President of the Senate.

Luke Beck: Yeah, if you're not an Anglican-

Melissa Castan: It's hard to read that prayer.

Luke Beck: Yeah, and so you're in effect being compelled to pray and so there are a number of arguments you could make. You could make an argument that that is a law establishing a religion, setting up official prayers. You're identifying and Anglicanism with the heart of the Australian state. You're sort of giving it an official status. So there would be an argument to be made that that's establishing religion. There's also arguments made about other clauses Section 116. Remember the Seventh Day Adventists clause Parliament shall not make any law for imposing any religious observance. Well the Speaker must read this prayer. Must is clearly imposing and a prayer is clearly a religious observance.

Melissa Castan: But it's a standing order, so it's non-justiciable, right?

Melissa Castan: Well, no. So-

New Speaker: [MUSIC]

James Pattison: Non-justiciable?

Melissa Castan: Means no Easter eggs. It means that the court, the High Court won't review that rule because it's not actually a law law. It's an internal law of Parliament, an internal law of Parliament.

Luke Beck: It's like a process that they go into rather than-

Melissa Castan: A Parliamentary process rather than our law laws.

Luke Beck: Well, so the rule is actually more complicated than that. So the non-justiciable rule-

New Speaker: [MUSIC]

James Pattison: Sorry.

Luke Beck: So the rule that Parliament won't rule on what goes on inside Parliament, that rule applies to the goings on in Parliament, but if you were to challenge a standing order, you're not challenging the goings on in Parliament. You're challenging a legal document on its face and so that's different and there are cases where courts have ruled on the validity of standing orders in Australia. So it is possible to challenge the validity of standing orders. The tricky question is, does a standing order meet the definition of a law because Section 116 only applies, only prohibits laws -

Melissa Castan: LA Law laws.

Luke Beck: Yeah, and so is that a law? So there are competing arguments in the literature that suggests that a law means a statute passed by Parliament, but then there are other cases that say things like regulations and bylaws and directives also counters laws and there are also cases that refer to standing orders themselves as laws. So the tricky question on the Parliamentary prayers front is not is it imposing religious observance. It very clearly is. It's the trick-

Melissa Castan: Is it a law?

Luke Beck: It's the technical question is a standing order a law?

Melissa Castan: And that's a case that's going to come up for sure.

Luke Beck: That's going to be a juicy case in the future.

Melissa Castan: What about the issue of school chaplains and the program that the federal government had of paying for chaplains to work in schools?

Luke Beck: Well not had, still has. So we've had the school chaplains program for well over a decade now and this is a program whereby the federal government pays to put youth workers into schools, which on the face of it sounds perfectly fine.

James Pattison: Just government schools, right? Or is it all schools?

Luke Beck: All schools. So government schools, public schools and private schools, the federal government will pay to have youth workers in schools to provide youth work services to the kids, but in order to get these jobs as a youth worker in a school, the federal government's funding rules say you must be endorsed by or a member of a recognised religious group. So if you are a fully qualified atheist youth worker, these jobs aren't available to you. If you look online at school chaplain jobs, for in government schools online, on the job websites, one of the selection criteria is must be Christian and almost all of the jobs say must be Christian. The federal education department used to collect statistics on the religious affiliations of these youth workers and it shows it's something like 98 point something percent were Christian, but they stopped collecting that data a few years ago because that data looks a little bit suspicious.It's not the case that 98% of the population is Christian. So they've stopped. So they've stopped collecting that, those statistics and reporting that because it's pretty embarrassing for the government. So this federal government program plays favourites.

Melissa Castan: And in a nondenominational non-faith based school.

Luke Beck: Public schools.

Melissa Castan: Or an independent school-

Luke Beck: Or an independent, yeah.

Melissa Castan: Real independent, not non religious affiliation would have to have a youth worker slash-

Luke Beck: Who is the, who has to-

Melissa Castan: Who has an affiliated religion.

Luke Beck: Yes and this is the case. So in government schools, pretty much every single youth worker who gets the job title chaplain is Christian and that's not just by happenstance in the same way that the math teacher might happen to be at a Catholic or the English teacher might happen to be a Buddhist. That's part of the rules to get the job.

Melissa Castan: Ah, I can see some issues there with Section 114 [sic]. (Editor's note: correction s116) So how's that panned out?

Luke Beck: Well, so there have been a couple of legal challenges to this, but that was the legal challenges to the technicalities of how the money has been distributed and so now the way the federal-

Melissa Castan: Now what kind of funding, the constitutionality of funding is the question.

Luke Beck: Yeah, so the question was about the rules about how federal government spends money and it just happened to apply to this case along with others, but the way the federal government does it now is they have a law that gives the money to the states and then the states actually distribute the funding and pay the salary to the chaplains and the organisations that employ them, but there's a federal law that's funnels that money off to the states. So we don't have to worry about do we have an L-A-W law that we clearly have a federal law here, but the question is, will someone go to court and say, "This is a law for establishing a religion," and no one's run that argument yet.

Melissa Castan: It would be another DOG's group, wouldn't it?

Luke Beck: It would have to be, it would have to be another DOGS group or perhaps a State Attorney General, but what state wants to turn down a lot of, I mean some, some over the past few years, something like $240 million has been spent on this school chaplain's program. So I can't see a state wanting to turn down roughly a quarter of a billion dollars. A Christian youth worker is probably just as good as any other sort of youth worker and states will take what they can get, but there doesn't seem to be really any good reason why you should restrict the pool of job applicants to people belonging to one religion.

Melissa Castan: So it looks like actually this case from 1991 kind of, it had the right answer. It had the wrong reasoning and what it's left us with is this whole realm of kind of consequences that have yet... 40 years afterwards we're still trying to work out the ramifications of what this means in the real world for us.

Luke Beck: Yeah, it's left a long trail of question marks and eventually someone is going to go to the High Court and the High Court will give us a fresh answer, hopefully with persuasive and correct reasoning.

James Pattison: Luke Beck, thanks so much for speaking to Just Cases.

Luke Beck: My pleasure.

James Pattison: Let's let Dr Luke Beck from Monash Law and you can follow Luke on Twitter. His handle is @DrLukeBeck. That's @DrLukeBeck.

Melissa Castan: Thanks Luke.

Luke Beck: Pleasure.

James Pattison: Music in today's episode by Midair Machine and Nathaniel Wyvern and you can find a whole heap of other information on the Just Cases website, justcasespodcasts.com. And we love hearing your story suggestions. So get in touch with us on Twitter. Our handle is @justcasesshow.



Dr Luke Beck, Associate Professor, Monash Law School.

Associate Professor Luke Beck is a leading scholar in the field of separation of religion and government and religious freedom under the Australian Constitution. The principal focus of his research is on developing a deeper and more sophisticated understanding of section 116 of the Australian Constitution in terms of its history and underlying purposes, its relationship and interaction with broader Australian constitutional culture and how it might be best interpreted and applied.


Dr Melissa Castan & James Pattison

Reading material

Music in this episode


Law topics

Constitutional law, separation of church and state, law and religion, politics, High Court, state and federal powers.