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the only section in our constitution dealing with religion, section 116, does not state there is a separation of church and state in Australia. The founding fathers intended separation but section 116 does not spell it out.

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What has got under nearly everyone’s radar is the fact that in 1981 the High Court in the Defence of Government Schools (DOGS) case interpreted section 116 to mean there is no separation of church and state in Australia. The Court deliberately eschewed the US Supreme Court’s interpretation of the First Amendment of the US Constitution in the Everson case of 1947 confirming a “wall of separation”.

I say the DOGS 6-1 decision (with Lionel Murphy dissenting) was a political coup more serious than the Whitlam sacking. The judges who split hairs over the meaning of small words in section 116 to distinguish the section from its derivation in the First Amendment were faced with a constitutional fork in the road. Either (a) section 116 entailed separation of church and state with inevitable republican consequences, especially the matter over which the case was fought, the funding of religious schools, or (b) it could be given a black letter law interpretation which allowed the funding to flow (unlike in the US) and the implied threat to Constitutional Monarchy government could be quietly scuttled.

The six judges who had all been knighted not surprisingly chose the latter course. I say when they accepted knighthoods they compromised themselves if and when an issue with republican consequences came before them. That is what happened.

As it currently stands, there is no Freedom of Religion, only that the Commonwealth cannot "establish" one - ie make it the favoured or compulsory one on grounds that it is a particular religion. Catholic schools have traditionally received more money per head (in general) than others because they tended to be in the lower socio-economic areas but a combination of growing affluence and "redressing the balance" under Howard have meant that the balance is less in their favour.

As an aside, there have been periodic attempts to ban Scientology for instance on the grounds that it was not a religion BUT they are still regarded as a religion (and so the definitions of what constitutes one have started to be evolved).

Section 116 was also touched in the case of Kruger v Commonwealth ("Stolen Generations case") [1997] HCA 27; (1997) 190 CLR 1; (1997) 146 ALR 126; (1997) 71 ALJR 991 (31 July 1997).