Religiously Defending the Right to Remain Secular

Leslie Cannold provided a piece in The Age today in which I believe she stepped quite outside her journalistic brief of reporting or commenting on matters - in this case the High Court challenge to Commonwealth funding of school chaplaincy, particularly in public schools.

In her second paragraph she doesn't mince her words, saying that we should all be hoping this challenge succeeds and she concludes the article with the suggestion that this matter this matter goes to the heart of what she loves about Australia.

I decided to write directly to her and I offer my thoughts on the matter for your consideration.

Dear Leslie,
I am conversant with the many lines of argument in support of and against the federal funding of the National School Chaplaincy Program and in your article published in The Age today you mostly reflect familiar territory to me. However in two matters I believe you are in error and perhaps even intentionally misleading.

Firstly, you claim that the government is being less than transparent by placing the annual funding for the NSCP within general supply bills rather than in specific appropriation bills which would be subject to specific parliamentary debate and approval. Your implication is that this is sinister, a strategy to prevent the proper scrutiny of the matter by the parliament.

However, the parliament did have its say when the matter was fully debated in 2006/7 thus establishing the program, and as a result of that Bill being passed, the Federal Government through the Department of Education, Employment & Workplace Relations entered into contractual relationships with individual schools across the nation to provide funding for three years, contracts which were subsequently extended until the end of 2011. Since the funding being provided to these schools was now subject to a contract and no longer a matter for parliamentary debate, provision for the funding was made in the general Supply Bills.

The establishment of a new program beyond 2011, which the Government and the current Opposition promised to do in the lead-up to the recent election, will provide the appropriate place for the program to be subjected to parliamentary scrutiny.

This is not sinister in any way. It is not an abuse of power by anyone. It is simply the proper way government is carried out every day in this nation.

Secondly, in your second but last paragraph you have, I believe, misrepresented the meaning and intention of Section 116 of the Constitution by suggesting that this Bill is requiring "an Australian to be a person of faith ... to get a job."

The statement in the Constitution is clear - The Commonwealth shall not make any law establishing any religion, or 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.

I assume it is the last clause of this Section that Mr Williams and you think is being contravened by this program and the Bill establishing it. The Bill does no such thing. It simply provides special-purpose funding to schools, public and private, right across the nation. With this funding schools are able to purchase the services of a chaplain from a third party. Public schools are not allowed to employ chaplains directly and I suspect that this is because in that case a chaplain could be regarded as holding an office or public trust under the Commonwealth. Having said that, if state (not Commonwealth) schools were the employers then it would still have to be argued that this constituted an office or public trust under the Commonwealth.

The only places I am aware of in which such public officers could be at risk of contravening this provision is in the armed forces and in Commonwealth-run Health and Correctional services where chaplains have been part of the furniture since times pre-dating the establishment of the Commonwealth. No-one in politics or society in general has ever raised a question about the legitimacy of this.

I am not sure if the High Court judges will take into account the historical context in which Section 116 was crafted in their interpretation of it, but the clause you seem to be relying on relates to standard practice under British Law that prevented people who were Roman Catholic holding certain offices or public trusts, a practice this clause and our Human Rights and Equal Opportunity legislation equally abhor.

Finally, I wonder if I might offer you an observation. The "religious neutrality of the state" that you desire does not require that all public places and publicly-funded institutions be what I call "religion-free zones." The religious neutrality of the state is reflected in the universal provision of freedom-of-choice in matters of religion.

Officers in the armed forces are not rquired to confide in the chaplains nor are they required to attend the religious services they provide - but they can.

Patients in hospitals are not required to consult chaplains or attend services in the hospital chapels - but they can.

And students and staff of schools are not required to consult chaplains - but they can. Indeed, in the public schools in my state, Principals are required to ensure parents are given the opportunity to withdraw their children from school events at which prayers, sacred songs and writings are going to be used, as well as from formal religious education classes - whether or not those classes are provided by school teachers or visiting religious people.

Equally important is the fact that no school was required to appoint a chaplain. Indeed the Federal Legislation specifically required school Principals to demonstrate that they had consulted their school community about the matter and that the request for funding reflected the views of the school community.

Having said all this, and by way of being completely transparent, I must make it clear that I am a senior manager of an organisation that provides chaplains into public schools in Western Australia. Consequently, on behalf of our members (which are churches, not individuals) and our exisiting employees, I have a vested interest in the continued funding of the NSCP.

I am of the view that the matter before the High Court is very similar to a previous case challenging the application of Commonwealth Funding to Private Schools, particularly those that are faith-based. In that case it was decided that it was not improper, nor contrary to any law or provision of the Constitution for Commonwealth funds to be provided to faith-based organisations for the purposes of education.

NSCP funding is explicitly provided for the pursposes of providing pastoral care - proselytising and some religious activities in public schools are explicitly prohibited. But over-riding all this is still the matter of freedom of choice. Mr Williams has exercised his choice by not just withdrawing his consent for his children to meet with the chaplain or attend any events at school in which the chaplain plays a part, he has remoeved them altogether to a school where the school community has chosen not to have a chaplain at all. I would religiously defend his right to make that choice, but not the subtext of this case which seems to me to be to seek to confine religious faith and expression entirely to private settings.

It will be interesting to see how this matter pans out in the High Court and what, if any, consequences there are for the many chaplaincy services provided in our community.

What do you think?