Australia: Constitutional responses to religious rights

Introduction Religion has played a significant role in the education of young people in Australia from the early days of British settlement. During the 18th and 19th centuries, in addition to the arrival of colonists, Australia’s settlement was characterised by the transportation of huge numbers of convicts from Great Britain. The education of the children of these convicts and poorer settlers was largely seen as a function of the churches. A compulsory and secular system of government schooling was introduced in Australia in the second half of the 19th century. Despite this, non-government and predominantly religious schools within the Catholic systemic education system, continue to play an important role in the education of young Australians. Controversially they receive a significant amount of Commonwealth government funding. In 2016 more than 765,000 students (one in every five students across Australia) are educated in Catholic schools. The primary purpose of this article is to discuss the cases which have asked the High Court of Australia to consider the constitutional validity, of this funding and of the funding of a religious-based program within schools. We begin however by considering the place of religion generally within Australia’s ‘secular’ education system. Australian society generally, as elsewhere, is confronted with issues relating to freedom from religion and freedom of religion. Australian schooling is not immune from these issues and there are many indications that this tension is increasing as Australia becomes more and more multi-cultural and multi-ethnic , and each group is understandably concerned to educate their children within their own religious beliefs and convictions, and to protect them from other, or any, religious influences. Australian courts and tribunals have seen only a ‘sprinkling’ of matters in the education context, largely concerning freedom from religion in government schools. At their heart they question the extent to which ‘secular’ means non-denominational rather than non-religious. First, what is the Australian system of education, and how does it fit within the constitutional foundation of Australian government and society? Australia is a Federation of six states and two territories. Each state and territory (with the exception of the Australian Capital Territory (ACT)) has its own government. The Commonwealth or Federal Government is based in Canberra in the ACT. The relationship between states and territories, and the Commonwealth is established primarily by the Australian Constitution enacted in 1900. The affirmation of Australia as a secular society is contained in Section 116 of this document. Known as ‘the establishment clause’ it is loosely based on that contained in the First Amendment to the US Constitution. It states: 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. Schooling in Australia is provided under a combination of State and Commonwealth legislation. The Governments of the states, New South Wales, South Australia, Victoria, Queensland, Western Australia and Tasmania and the Northern Territory are responsible for state education and receive funding from the Commonwealth government for the provision of state schools and the payment of teachers. Independent or private schools, and systemic religious schools, are established and administered privately and, in the case of the latter, by religious organisations for example the Catholic Education Commission. They receive a large part of their funding from the Commonwealth Government pursuant to a series of appropriation and other statutes. Questions relating to the position of religion in Australian schools arise in two ways. There have been challenges to religious practices in state schools before various state courts and tribunals within the frame of state education and anti-discrimination legislation. We discuss these briefly at the outset to set the context of the secular education system and what this means in terms of freedom from religion in government schools. But the primary purpose of this article is a discussion of the cases which have much wider constitutional implications as they focus on section 116, and we move to these actions next. They have asked the High Court of Australia to consider the validity of first, the long-standing practice of Commonwealth funding of non-government religious schools, and secondly, the recent government policy of funding a policy of School Chaplains within government schools.