On Tuesday night on ABC Radio National's Religion Report, Stephen Crittenden interviewed David Nicholls, president of the Atheist Foundation, about the government's controversial $90 million funding scheme for state schools to recruit chaplains. (Read the transcript here or download the mp3 here.) The Atheist Foundation is obviously critical of the proposal and had released a media release to that effect (see here). That media release included this statement:
Moreover, whether the official promotion of Christianity is an infringement of the overall intent of Section 116 of the Australian Constitution is a moot point.
Crittenden asked Nicholls section 116, prompting this rather uninformed exchange:
Stephen Crittenden: David you raise in your press release, the question of whether official promotion of Christianity in the public school system in this way is an infringement of the overall intent of Section 116 of the Constitution, and you say that's a moot point. Is it possible that there are grounds for a legal challenge?
David Nicholls: I think if somebody had enough money, enough incentive, yes there would be, especially if this program goes ahead and the results are seen to be negative, which they will be seen, because we already see those results in the States that have chaplaincy programs such as Queensland and South Australia where the fundamentalist evangelical Pentecostal side of Christianity has far outweighed any other chaplaincy and there are many cases where children are being given information from those chaplains that is detrimental to their mental health.
Stephen Crittenden: Just going back to the Constitution, what might the grounds be, the legal grounds, for a challenge?
David Nicholls: Well I would go to the film The Castle. It is the vibes of the Constitution, of that section. It is the essence of establishing a religion, the words are.
Stephen Crittenden: Is there perhaps a legal argument that by funding a particular chaplain from a particular denomination at a particular public school, it's effectively establishing a religion in that school?
David Nicholls: Well that could be one of the arguments, yes, I agree with that. The imprimatur will be that Christianity is okay because the teacher says it's okay, the school says it's okay, the government says it's okay, so kids are going to be - that's indoctrination: where children who have not the ability yet to critically examine propositions put before them. They are being disprivileged by this if you like, I don't think there is such a word, by this action.
If the Atheist Foundation (or someone else) was to try to challenge the constitutionality of this scheme, they would be relying on the establishment in clause in section 116: "The Commonwealth shall not make any law for establishing any religion ...". However, the proposed funding scheme for state schools to recruit chaplains is not going to contravene this constitutional guarantee. The leading case on the establishment is clause is Attorney-General (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559, which held that the provision of financial support to non-government schools (which are usually religious schools) did not "establish" a religion. Barwick CJ held at 583 that the establishment clause referred to laws "intended and designed to set up the religion as an institution of the Commonwealth". Similarly, Gibbs J, with whom Aickin J agreed, held at 604 that the establihsment clause only prevented the Commonwealth from making any law conferring the status of a State religion or State Church upon a particular religion or religious body. Similars views expressed by Mason J at 616 and Wilson J at 653.
The facts of Attorney-General (Vic); Ex rel Black v Commonwealth is clearly analogous to the funding a school chaplain scheme. Accordingly, the scheme is clearly not going to be held as setting up a religion as an institution of the Commonwealth.
It is worth noting, however, that this scheme would be inconsistent with the broader interpretation of the establishment clause adopted by the US Supreme Court in Everson v Board of Education, 330 US 1 (1947), 15-16:
The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between Church and State."