Just Cases | Season 3 | Episode 3 | Why is our secular government allowed to fund religious schools?

A fight over a new toilet block at a Catholic school in 1962 turns into a major constitutional and ideological war, the effects of which last until today.

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?

Storyteller: Dr Luke Beck, Associate Professor, Monash Law School.

Hosts: Dr Melissa Castan & James Pattison

Extra material: Attorney-General (Vic); Ex Rel Black v Commonwealth ("DOGS case") [1981] HCA 2; (1981) 146 CLR 559 (2 February 1981) http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1981/2.html

Music in this episode:
- Nathaniel Wyvern - ‘Sanctuary of the Sky Gods’
- Mid-Air Machine - ‘Breathing Out’
- John Bartman - ‘Pepper the Pig’

Explore more Monash Law podcasts

Transcript | Just Cases | Season 3 | Episode 3 | Why is our secular government allowed to fund religious schools?

[00:00:00] Professor 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 pays favorites with religion.

[00:00:17] Prime Minister Scott Morrison: I'm pleased to announce together with the Minister for Education that we have been able to come to a, an arrangement, a final arrangement to deal with the issues, uh, in education funding that have been concerned.

[00:00:29] Two, the independent school sector and the Catholic Education Commission,

[00:00:33] 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.

[00:00:50] Luke, welcome to Just Cases. Hello. Thanks for having me, Luke. Uh, first off, do you agree with Melissa's rigorous

[00:00:58] Professor Luke Beck: psychoanalysis of Australia? Uh, yeah. Uh, 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, do you think that we're a, quite a religious.

[00:01:10] Country? Well, I think that depends what you mean by our religious country. We certainly don't have any, 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, not to others.

[00:01:28] So there's religious influence, but we're not a, a religious country officially nor would I, nor are we sort of a French style, strictly separation of church and state. Type country. Take me through that separation of church and state. Do we have that in our constitution? Well, the expression separation of church and state is a bit of a umbrella slogan.

[00:01:46] So the legal position is that there's 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.

[00:02:03] Or imposing religious tests for jobs in the federal government. So there are, there's limitation on the powers of the federal government to interfere with religion or play favorites with religions, but there's no equivalent limitations on the states. Although in practice the states tend not to do those things.

[00:02:19] So, so

[00:02:20] Professor Melissa Castan: you're saying we could actually, there's a prohibition on saying, oh, everyone has to. You know, ascribe to the Church of Australia, but there's no prohibition on saying everyone has, everyone in Victoria has to be part of the Church of Victoria.

[00:02:32] Professor Luke Beck: Yes, absolutely. So Victoria would have power to pass the 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, you know, Baptists or whatever it is.

[00:02:43] 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. Yeah.

[00:02:51] Professor Melissa Castan: And and clearly that hasn't happened over the last, no, it hasn't happened 200 years. But how did we end up with the Constitution having that particular section 1 1 16 and and what were they aiming to prevent then?

[00:03:00] Professor 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 18 hundreds 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.

[00:03:19] Banned 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 were the state governments. They operated railways and museums and libraries, and faires, et cetera.

[00:03:34] But Protestant, some Protestant church leaders at the time found that quite offensive that people were working on Sundays and not following the Sabbath, 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 enforcing them selectively against unpopular minorities.

[00:03:53] Among those were Seventh Day Adventists, who unlike. Other Christians, they observe Saturday as the Sabbath rather than Sunday, and they insist on working on Sundays or at least they used to. And so, uh, seventh Day Adventist in late 1890s got caught by a police officer working at the bricklayer in on a building site in Sydney, and he was charged with Sabbath breaking for working on a Sunday, and he was convicted.

[00:04:18] 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. What? Yeah. So to be locked in the stock for several hours. This, this is

[00:04:31] Professor Melissa Castan: a pretty old worldy stuff.

[00:04:33] Professor Luke Beck: Yes. And, but the problem, it's so old worldy that in the 18 nine, so the guy who was convicted said, I refuse to pay.

[00:04:39] This is outrageous. I'm gonna, you know, be a prisoner, take the stock, I'm gonna take the stocks. But the New South Wales, this happened in New South Wales, but their 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, you know, describing in great detail what the stock looked like, where they would be set up on the courthouse, front steps, et cetera.

[00:05:06] This is amazing. 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.

[00:05:23] So the guy was guilty of Sabbath breaking, but because of the public outrage of the notion that we're gonna lock someone in the stocks for the shocking crime of. Being a brick layer on Sunday, uh, the government arranged for the guy to be let off and for him to instead be tarred and feathered. Well, no.

[00:05:38] So perhaps some people might have liked that. So, 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, for those, for those times, they were deeply concerned that the Protestant church leaders who had encouraged the state go government to selectively enforce the Sunday observance laws.

[00:06:01] 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 managed, so the Seventh Day Adventist got up this big petition campaign to. To lobby the politicians who are 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, or ought to interfere with religious freedom.

[00:06:27] Mm. So they were quite successful. And the reason the Seventh Day Adventists 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.

[00:06:43] Mm, in the Constitution. Mm. 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.

[00:07:00] Religion. Is it 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. They, 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.

[00:07:16] And lots of them were so politicians, being politicians gave in and gave everybody a little bit of a prize.

[00:07:22] Professor Melissa Castan: So where's the mention of God in the Constitution now?

[00:07:24] Professor Luke Beck: So, so in the Constitution now we have a vague reference to. God in the, in the constitutional preamble and that the preamble says that the Australian people quote humbly, relying on the blessing of Almighty God, have agreed to unite in, in one insoluble federal commonwealth, and that the Seventh Day Adventist thought might somehow authorize the federal government to impose Sunday closing laws.

[00:07:46] So in order to, to reassure the Seventh Day Adventists and others who supported them, 'cause Seventh Day Adventists were just a tiny, tiny minority. So they got support from elsewhere in Australian society. They put in a section, section 116, and that has four clauses. Three of those clauses are copied from.

[00:08:03] 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 they 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 laws in Australia.

[00:08:22] And

[00:08:22] Professor Melissa Castan: that, that God mentioned in the preamble that that's not really illegal. That doesn't have any legal effect. No. That has the doctrine. It's just a nice statement, isn't it? Yeah. It

[00:08:30] Professor Luke Beck: has absolutely no legal effect whatsoever. Whereas section 116 is actually a constitutional rule. Yeah, that's right. So when you

[00:08:35] Professor Melissa Castan: weigh up the two together, the,

[00:08:37] Professor Luke Beck: it's, it's absolutely clear that we cannot have federal religious observances passed in Australia.

[00:08:41] Absolutely. So the seventh, eighth has kind of got the bigger prize out of that. So the, the Protestant church leaders kind of shot themselves in the foot if they'd stayed Mom, there might have been some way that. Federal Parliament could have passed some types of religious laws, but because they sort of antagonized their potential, you know, victims in inverted comm, so to speak, they were able to get up a provision to get inserted a provision into the constitution to make sure that that would never be able to happen.

[00:09:06] So in effect, they shot themselves in the foot.

[00:09:09] James Pattison: Now I'm well aware that today I'm talking to two constitutional law experts and, um, I'm going to be supremely out of my depth having famously scraped by famously to me scraped by with, um, one of my trademark. Passes in constitutional law,

[00:09:26] Professor Melissa Castan: that was the Hawaii five R, wasn't it?

[00:09:27] Chimes.

[00:09:28] James Pattison: So I'm, I'm well aware that I'm out of my depth, um, 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, as I've told you before, I'm extremely slow.

[00:09:49] So if at any point you start to get a little bit too constitutional lawry, you're gonna hear this sound.

[00:10:00] At which point I'll, that actually sounds

[00:10:01] Professor Melissa Castan: like it's from the 18 hundreds,

[00:10:04] James Pattison: at which point I'll jump in. And ask you to re-explain for the normal people out there,

[00:10:10] Professor Melissa Castan: Luke. And I think it is very sexy, actually. We do.

[00:10:13] James Pattison: And you'll make it sexy today. I know you will. We make it sexy every day. Now the case in question toilets, I'm really bringing this podcast right down, but stick with me.

[00:10:26] Toilets. Yes. Luke, why are toilets so

[00:10:29] Professor Luke Beck: important for what we're gonna talk about today? 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 sixties there wasn't, and there was a particular Catholic school.

[00:10:51] That needed a new toilet block. 'cause their toilets were a bit, you know, run down. It was time for an upgrade. And the, this was a Catholic school and the Catholic Educational Authority said we can't afford to upgrade the toilets, but our kids need, our students need new toilets. 'cause you can't have a functioning school without proper toilets.

[00:11:08] Catholic Church famously has no money. 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.

[00:11:24] 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 enroll in the local public schools.

[00:11:44] But there was no space in the local public schools for 2000 extra kids, and they

[00:11:48] Professor Melissa Castan: probably needed more toilets then too, and they would've

[00:11:50] Professor Luke Beck: 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.

[00:12:01] So as a great strategy over time, that act that that protest because of the toilet, the need for money shutting down the schools flooding public schools. With 2000 Catholic schools, former Catholic school students essentially forced the federal government's hand to start providing government funding to non-government schools.

[00:12:20] Enter an organization called the Association for the Defense of Government Schools, sometimes just called Dogs 'cause 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.

[00:12:39] 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.

[00:13:04] Mm-hmm. The dogs group wanted to say that funding a religion. Amounts to establishing a religion. Mm. 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.

[00:13:23] Mm. Doesn't mean you can be a busy body and go to court and challenge it.

[00:13:27] Professor Melissa Castan: So you have to have standing, don't you? You have

[00:13:29] Professor Luke Beck: 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're taxpayers and indirectly it's their money going to being spent.

[00:13:43] That doesn't count for standing. But the person who always has standing is each attorney general, so that there's a attorney general for each state and one for the federal government. And the dogs organization managed to persuade one of the state attorneys general to issue what's called a Fiat. Mm, which essentially allows this group.

[00:14:01] To sue in the name of the Attorney General. So they kind of, it's, it's

[00:14:04] Professor Melissa Castan: not a small Italian car, is what you're saying? No, it's not a

[00:14:06] Professor Luke Beck: small Italian car. It's a fancy legal document. Yeah. That essentially it means that you can pretend or stand in the shoes of the Attorney General in order to bring your case.

[00:14:14] So that's how they got their case up into the high court. So the dogs weren't able to stand on their own four feet. No, they weren't. Sorry. They, you know, maybe they, maybe their tails were wagging. I don't know.

[00:14:25] James Pattison: Now there was a lot.

[00:14:26] Professor Melissa Castan: Just start that now.

[00:14:28] James Pattison: Why, why is, we'll get into all the technicalities of this decision in a moment and 'cause I, I know that there's certain parts of the decision that.

[00:14:38] Do you agree with? Yep. There's others that you don't. But from a general perspective, looking at this decision, which was in the eighties Yep. 1981, why is this case so important? Why is that gonna be so important

[00:14:51] Professor Luke Beck: for right now? For two reasons. Number one, because government funding of private schools, including religious schools, keeps increasing and.

[00:14:58] 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, affects everything else the federal government might want to do in respect of religion or religious groups.

[00:15:13] 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. So it's not

[00:15:26] James Pattison: just the matter, I mean the, the figure that's quoted, um, 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.

[00:15:48] You are saying that the. The issue is broader than that. It's actually got more to do with the relationship of government to religion across Australia. Yes,

[00:15:58] Professor 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,

[00:16:06] James Pattison: and if you've ever considered studying law, this could be your chance.

[00:16:09] 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 wanna compliment your undergrad with some legal knowledge, the Monash JD is your ticket.

[00:16:26] Head to Monash do edu slash law for more info, that's monash.edu/law. And check out the section called Study With Us.

[00:16:38] Now back to Dr. Luke Beck. He's the author of Religious Freedom and the Australian Constitution, and a constitutional law expert at Monash University.

[00:16:47] Professor Melissa Castan: And this is one of the, the very few, section one one exactly. This case is that we've ever

[00:16:51] Professor Luke Beck: actually got up and this is, this case is one of the reasons why there are so few cases.

[00:16:55] So the decision in this case. At a very, at a very high level, simply says that non-discriminatory 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 favorites between Catholic schools.

[00:17:12] 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.

[00:17:30] 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 favorites.

[00:17:48] You have to treat different religious groups even handedly. Hmm.

[00:17:55] James Pattison: Do we dance youi? I think we should. Now I have a question. Who would've thought from that little sting? Uh, 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.

[00:18:13] Professor Luke Beck: Right, so, so the section in issue here was the part of section 116 that says, parliament shall not make any law for establishing any religion.

[00:18:21] And what the high courts 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 look, 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 even handed with other categories of non-government school is perfectly fine.

[00:18:48] Sure. So

[00:18:48] James Pattison: if you're not,

[00:18:49] Professor Luke Beck: if you're not

[00:18:49] James Pattison: setting up a. State Re No. By state I mean national, national religion. Everything else is

[00:18:57] Professor Luke Beck: cool. Essentially. Yes, essentially that's what they said.

[00:19:00] Speaker 5: Mm-hmm.

[00:19:00] Professor Luke Beck: 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.

[00:19:09] Um,

[00:19:09] Professor Melissa Castan: oh, they should pass a law. Like Melissa is the supreme being of Australia. Right? You've been pushing that for a while. Yeah. I have been pushing this for a while. While perhaps

[00:19:16] Professor Luke Beck: people might support that too.

[00:19:18] Professor Melissa Castan: You sound so doubtful. I'm a little bit doubtful,

[00:19:21] Professor Luke Beck: but let's say pa Federal Parliament passed a law that said, uh, Buddhism and Hinduism are the official religions of the Northern Territory according to the high court in the dog's case.

[00:19:32] That's perfectly cool. Because the high court said it has to be a single national religion, so that would be. Multiple subnational religions, but surely that's obviously a law for establishing a religion. Mm-hmm. And if you wanna draw comparisons with overseas, think about England, where they have an official religion.

[00:19:50] The Church of England, as by law, established that is not a single national religion. That is a subnational 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. The cause of

[00:20:08] Professor Melissa Castan: many, many wars, I guess.

[00:20:09] Yes.

[00:20:10] Professor Luke Beck: And so, according to the high court's 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. And yet that

[00:20:20] Professor Melissa Castan: was kind of what they were thinking at the time. Right. And surely

[00:20:22] Professor Luke Beck: that's the paradigm example in a, in our system of what an official religion looks like.

[00:20:27] And so, because I think that's obviously incorrect, that part of the reasoning is obviously incorrect. We've gotta ask, well, how did they get to that reasoning? And at the time of this case, um, the high court had a really bizarre rule of interpretation that said, when you, when you go about working out what the words of the Constitution mean, you must never ever.

[00:20:47] 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 look really hard, really close with the words, words, stare very deeply at them, and then we'll be able to work it out

[00:21:02] Professor Melissa Castan: again.

[00:21:04] James Pattison: So I hope wanna bring this back to every single podcast that we do, not just constitutional law.

[00:21:08] You can. You can, because that's, 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, sorry.

[00:21:19] Professor Melissa Castan: You, you have a very expert understanding of law. James

[00:21:22] James Pattison: is, you are now gonna take us through why it is that you agree with the decision Yes.

[00:21:29] But you disagree with the reasoning. Correct. Can you lay out how that's even possible? Because A, you tend to think an outcome of a, of a court case. Hey, if it says this one thing. Um, that's what the case stands for, right? But sometimes

[00:21:45] Professor Luke Beck: it doesn't happen, does it? Right. So the best, uh, analogy is to think about a high school maths problem.

[00:21:50] You get the correct answer, but you're working out is wrong.

[00:21:53] Professor Melissa Castan: Ah,

[00:21:53] Professor Luke Beck: that's essentially what's happened in the case. So I just didn't

[00:21:55] Professor Melissa Castan: do very well in high school maths, so I I must have failed them by the case of that. Yeah.

[00:21:59] Professor Luke Beck: So I can't hold

[00:22:00] Professor Melissa Castan: two thoughts in my head at the same time. So what the

[00:22:02] Professor Luke Beck: 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.

[00:22:08] 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.

[00:22:22] And what's the problem That if, if the reasoning is incorrect, doesn't it just matter that the outcome was right? No, the reasoning is what matter, 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.

[00:22:38] Professor Melissa Castan: Mm-hmm. And that's what we call precedent, isn't it? And that's what we

[00:22:41] Professor Luke Beck: call 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 gonna look at the history. Of how this section got in. So we're just gonna stare closely at the words and we'll figure it out.

[00:22:56] But the problem is they then referred to, they then said things about why this section was inserted in the Constitution. But the 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.

[00:23:10] Pulling that outta thin air, making it up.

[00:23:13] Professor Melissa Castan: So just as a addendum there, I mean now the high court will look at the, yeah, the previous debates, right. To see why the purpose

[00:23:20] Professor Luke Beck: of a section was this is 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.

[00:23:29] Professor Melissa Castan: It's not always the full answer, it's part of, it's always the full answer,

[00:23:32] Professor Luke Beck: 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.

[00:23:48] Professor Melissa Castan: Or they still may come to the correct

[00:23:50] Professor Luke Beck: outcome, but still may keep coming to this same conclusion that non-discriminatory 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.

[00:24:09] Try very hard to adopt very limited and narrow interpretations. That rule has also changed. Mm. 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 towards broad interpretations.

[00:24:24] Professor Melissa Castan: Yeah. You shouldn't kind of artificially constrain.

[00:24:26] Yeah. The meaning of the words. Just because of the impacts on parliament's powers. Exactly.

[00:24:29] Professor Luke Beck: 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.

[00:24:44] Mm-hmm. 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 want, might want to run an argument about some other law breaching Section 116. So did you have

[00:24:56] Professor Melissa Castan: another law in mind that might be the subject of a case like this or other issues that are current that might raise this section 1 1 16 issue?

[00:25:03] Professor Luke Beck: Also, there are some issues. So number one is, is in fact the example of government funding of religious schools because there's an exam, there's an argument now. Government funding of schools is quite a complex area, area to understand, but there is an argument that Catholic schools have got a special funding deal.

[00:25:19] 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, to think that the high court might say that's actually unconstitutional. You can't give special deals to, to one category of religious schools versus others.

[00:25:38] And there are other examples, so. You know, every day Parliament starts, both houses, parliament, the House of Reps, and the Senate. They both start with an end Lincoln Prayer.

[00:25:47] Speaker 5: Hmm.

[00:25:48] Professor Luke Beck: And there's a law, there's a, there's a, a rule I called 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.

[00:25:59] Professor Melissa Castan: Mm. So I'd find that quite difficult if I was the, the. The president of the Senate.

[00:26:04] Professor Luke Beck: Yeah. If you're not anan, you know, it's hard to read that prayer. Yeah. And so you, you're in effect, you know, being compelled to pray. Mm-hmm. 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.

[00:26:20] And Lism with the heart of the Australian State, you are sort of giving it an official status, so there would be an argument to be made that that's establishing a religion. There's also arguments to be made about other clause of Section 116. Remember the seventh day Adventists clause. Parliament shall not make any law for imposing any religious observance.

[00:26:37] Well. The speaker must read this prayer must is clearly imposing and a prayer is clearly a religious observant. Oh, but it's

[00:26:44] Professor Melissa Castan: a standing order, so it's non just disable Luke. It's

[00:26:47] Professor Luke Beck: a Well, no, so

[00:26:54] James Pattison: non just disable

[00:26:55] Professor Melissa Castan: means, um, no Easter eggs. Uh, it means that the court, the high court won't review that. That rule because it's not actually a law law, it's an internal law of parliament. Oh, internal. Internal rule of parliament's. It's

[00:27:06] James Pattison: like a, A process that they go through rather than, yeah, a

[00:27:08] Professor Melissa Castan: parliamentary process rather than a law law.

[00:27:10] Well,

[00:27:10] Professor Luke Beck: so the rule is actually more complicated than that. So the non-usable rule, sorry. 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.

[00:27:26] You are 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, uh, in Australia. So. It is possible to challenge the validity of standing orders. God, stop me there. The tricky question is, does a standing order meet the definition of a law?

[00:27:44] Because Section 116 only apply. Only prohibits laws for a standard. Yeah. LA law laws. Yeah. And so is that a law? And so there are competing arguments in the literature that suggests, you know, well a law means a statute passed by parliament. But then there are other cases that say things like regulations and bylaws and directives also count as laws.

[00:28:03] And there are also. Cases that refer to standing orders themselves as laws. Mm. So the tricky question on the parliamentary prayers front is not, is it imposing a religious observance? It very clearly is. Mm. It's the tricky, it's, is it a law? It's, it's the technical question. Is a standing order a law?

[00:28:19] Professor Melissa Castan: Well, that's a case that's gonna come up.

[00:28:20] That's gonna be a juicy

[00:28:21] Professor Luke Beck: case in the future, perhaps. And what about the

[00:28:23] Professor Melissa Castan: issue of school chaplains and, and the program that the federal government had of paying for chaplains to work in? In schools.

[00:28:30] Professor Luke Beck: Well, not had. Still has. So this, 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.

[00:28:43] And they just, just government schools, right? Or is it all schools? All schools. So governments, pub, 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 recognized religious group.

[00:29:06] 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, they will also, one of the selection criteria is must be Christian, and almost all of the jobs say, must be Christian.

[00:29:25] The Federal education Department used to collect statistics on the. Religious affiliations of these youth workers, and it shows that 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.

[00:29:43] So they've stopped. Yeah. Wow. So they've stopped collecting that, those statistics and reporting that because it's pretty embarrassing for the government. So this federal government program, it, it means plays favorites. It

[00:29:51] Professor Melissa Castan: means that a non-denominational, non-faith based school.

[00:29:55] Professor Luke Beck: Public schools? Uh,

[00:29:56] Professor Melissa Castan: or Or independent schools.

[00:29:57] Or schools or independent, yeah. Like real independent. Yeah. Not non-religious affiliation would have to have a Yes. Youth worker who is slash

[00:30:06] Professor Luke Beck: who is a, who has to, who

[00:30:07] Professor Melissa Castan: has an affiliated religion.

[00:30:09] Professor 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.

[00:30:18] And that's not, that's not just by happenstance in the same way that the math teacher might happen to be a, a Catholic or that the English teacher might happen to be a Buddhist. That's part of the rules to get the job.

[00:30:27] Professor Melissa Castan: Ah, I can see some issues there with section 1 1 4. So how's that panned out?

[00:30:31] Professor Luke Beck: Well, so there have been a couple of legal challenges to this, but that was legal challenges to the technicalities of how the money has been distributed.

[00:30:38] Mm. And so now the way the federal, they were kind

[00:30:40] Professor Melissa Castan: of funding. The constitutionality of funding questions. So the question was

[00:30:44] Professor Luke Beck: about how 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.

[00:30:59] To the chaplains and the organizations that employ them. But there's a federal law that funnels that money off to the states. So we don't have to worry about, do we have an LAW 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.

[00:31:17] Mm-hmm. And no one's run that argument yet. It would be another

[00:31:19] Professor Melissa Castan: dogs group, wouldn't it? That would, it would have

[00:31:21] Professor Luke Beck: to be, it would have to be another dogs group or perhaps a state attorney general.

[00:31:25] Professor Melissa Castan: Yeah. Who

[00:31:25] Professor Luke Beck: but, but what state wants to turn down a lot of, I mean, funding some, some, over the past few years, something like $240 million has been spent on this school chaplains program.

[00:31:34] So I can't see a state wanting to turn down, states wanting to turn down roughly a quarter of a billion dollars. You know, a Christian youth worker is probably just as good as any other sort of youth worker and, you know, states will take what they can get, but there doesn't seem to be really any good reason why you should restrict the.

[00:31:49] The pool of job applicants to people belonging to one religion.

[00:31:52] Professor Melissa Castan: So Luke, it, it looks like actually this case from 1981, kind of. It had the right answer, it had the wrong reasoning, and what it's left us with was this whole realm of kind of consequences that have yet, you know, 40 years afterwards. We are still trying to work out the ramifications of what this means in the real world for us.

[00:32:10] Professor Luke Beck: Yeah, it's left a long trail of question marks and eventually someone is gonna go to the high court and the high court will give us a fresh answer, hopefully with persuasive and correct reasoning. Luke Beck, thanks so much for

[00:32:21] James Pattison: speaking to just Cases. My pleasure. That's Luke Dr. Luke Beck from Monash Law, and you can follow Luke on Twitter.

[00:32:29] His handle is at Dr. Luke Beck. That's Dr. Luke Beck.

[00:32:33] Professor Melissa Castan: Thanks Luke.

[00:32:34] James Pattison: Pleasure Music in today's episode by Midair Machine and Nathaniel Wen. And you can find a whole heap of other information on the Just Cases website. Just Cases podcast. Dot com and we love hearing your story suggestions. So get in touch with us on Twitter.

[00:32:51] Our handle is at just Cases show.