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SMH — s.116 of the Constitution – Op-ed

Re-print of the 3.6.04 Sydney Morning Herald column by Professor Helen Irving:

Constitution s.116:  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.

Australia’s foundations were definitely and deliberately not Christian.
Professor Helen Irving, SMH 3 June 2004.   Still relevant in 2016.

Does Australia have an official religion? You could be forgiven for thinking so, if recent statements by senior members of government are anything to go by. In the words of Treasurer, Peter Costello at the recent National Day of Thanksgiving Commemoration, the Ten Commandments “are the foundation of our law and our society”.

Not only our law, but our moral standards and values derive, Costello said, from the “Judeo-Christian tradition” or more specifically (as the rest of his speech made clear) from Australia’s “historic Christian faith”. Prime Minister Howard has similarly claimed that “we are predominantly a society instructed by the Judeo-Christian ethic”. And according to our Governor-General, Major General Michael Jeffrey, Australia has a “Christian heritage” and “faith in God has been an important establishing and unifying principle for our nation”.

Today’s parliamentarians and opinion leaders continue to make such claims. (Ed)

Such claims are not only offensive to the many decent and honourable Australians who are either non-religious or follow another faith. More significantly, they distort our history and disturb our carefully-wrought constitutional settlement.

Australia has a ‘secular heritage’. Throughout the nineteenth century, colonial governments took pains not to encourage sectarianism and refused to give official recognition to one church over others. State schools were required to be secular. Unlike in England, there was no established church.

This policy was reflected nationally in the Commonwealth Constitution. The Constitution’ framers faced two questions head-on: was Australia a nation with a particular religious character? Should the Constitution recognise this?

They answered no to both. During debate, much concern was expressed about the potential for religious intolerance, even official support for religious persecution. Governments, framers said, should not inquire into the beliefs of individuals.

In the words of future first Prime Minister, Edmund Barton, the “whole mode of government, the whole province of the State, is secular … and there is no justification for inserting into your secular documents of State provisions or expressions which refer to matters best dealt with by the churches”.

Finally, in response to a flood of petitions from church organisations, praying for references both to God and to Christian practice to be included in the Constitution, they added eight words to its hitherto-secular Preamble: Humbly relying on the blessing of Almighty God.  But in doing so, the framers made it abundantly clear that the formula was intended to be “universal, and not necessarily applicable only to Christians”.

Even then, they were worried that the words might be mistaken for an endorsement of a national religion.  So they added section 116 to the Constitution expressly prohibiting the Commonwealth from establishing a religion, requiring or prohibiting religious practice, or imposing any religious test for public office.

Not only did it depart from English practice, it went even further than the First Amendment in the United States Constitution which does not expressly prohibit the imposition of religious worship. Departing again from English precedent, they also gave incoming Australian parliamentarians the constitutional alternative of either a religious oath or a secular affirmation.

Certainly, a majority of Australians still identify as Christians.* Members of Parliament are entitled to do so like anyone else but, as section 116 makes clear, religion is not the business of Australia’s government.

*  A clear majority are now non-Christian, according to Morgan Research in 2014. (Ed)

Costello also commented that governments should “never get into religious endeavours”. Why, then, does his speech appear on the Treasurer’s website? Why are government members hosting and endorsing religious organisations? Why was there a special advance screening of Mel Gibson’s Passion of the Christ for members and their staff, in Parliament House in February?

When senior leaders claim that moral standards are grounded in a particular religion, and admonish those who fail the test of faith, they are crossing the line that carefully separates church and state in Australia. They are intruding into the consciences of individuals, as officials in theocratic nations do. This is not the “Australian heritage”.

  Professor Helen Irving teaches Australian, comparative, and United States constitutional law at the University of Sydney.  She has researched and written on the making of the Australian Constitution and her current major research is on the history of constitutional citizenship and gender.


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