Introduction
In a video trailer recorded to promote the forthcoming Inaugural Secular Australia Conference in Sydney on 2 December 2023, Michael Kirby, former Justice of the High Court, and co- founder of Australians For Constitutional Monarchy, said that Australia should be grateful for ‘British secularism’.
I pointed out straightaway that this claim was ridiculous when our colleagues at the National Secular Society (NSS) in London were campaigning for the ‘Bishop’s Bench’ to be abolished in the House of Lords.
It is spectacularly non-secular to have two Anglican archbishops and 24 bishops appointed by the prime minister participating in debates in parliament about secular law. The only other country to appoint clerics, like this, as the NSS points out, is the theocratic Islamic Republic of Iran.
Also, the Church of England is the established church i.e. it is the official religion of England, the church that identifies as part of the state which is undeniably theocratic.
So, what did Mr Kirby mean by the term ‘British secularism’, and why does he support the anti-republican Australians for Constitutional Monarchy who state on their website that their Charter was written by Kirby in 1992?
Seen from a constitutional separation of government and religion perspective the Charter includes alarming statements:
- We oppose the attempt of a minority group to promote a republican form of government.
- We believe that as a system of government, ours works well and should not be tinkered with in the name of theory or to satisfy the envy or ambition of a select few.
- Some of us believe that Australia is already a republic under the Crown: ‘a crowned republic.’ Australia now enjoys all the desirable features of a republican government and a constitutional monarchy without any disadvantage of either system. Agitation for change is unnecessary, divisive and distracting; and
- Some of us simply admire Her Majesty the Queen of Australia. We are hurt and angry at the attacks on her in recent times despite her exemplary lifetime of service to her people – including the people of Australia.
In his opening words to the Secular Australia Conference which lasted about 30 minutes, he said nothing at all about the concept of secularism except his support for public education, in particular, his old school, Fort St High, and some comments on how recent Census results should be acknowledged by government by way of policy reforms.
A full transcript of his speech is on the Website of the Secular Association of NSW.
His argument about British secularism was detailed in a speech he gave to the Royal Melbourne Iinstiture of Technology in 2013, also on this website.
British Secularism
Mr Kirby argued that:
Secularism in English law and society can be traced to the religious turmoil of 16th century England.
He details ‘intensity of the religious and nationalistic differences’ between Protestants and Catholics and he identifies British secularism which …
.. spread to the early colonies and settlements of Britain and beyond the seas, notably in North America, Australia and New Zealand.
But what exactly was it? He argues secularism was realised by the early 19thC and it has these aspects:
- Roman Catholic and Protestant subjects of the British Crown were allowed to practise their beliefs in peace
- They enjoyed equal rights as citizens
- They could hold office under the Crown and participate in civic affairs including elections
- Although the Church of England remained the established church it was just one of many
- Religion was a private matter where believers and those of no religion could live in harmony
That was his definition of secularism. I will argue those aspects of secularism are necessary but not sufficient.
Another statement of his views about secularism was his speech titled ‘Sentinels of Secularism’ made for the Annual Speech Day of Fort St School at Sydney Town Hall on 21 February 2020.
By ‘sentinels’ he meant public schools. He rightly argued that s.116 of the constitution ‘has been given a needlessly and mistakenly narrow interpretation by the High Court of Australia.’ He argued – importantly – s.116 was ‘incapable of enforcing effective secularism. This is particularly so in the funding of public schools.’
He was critical of the Religious Discrimination Bill 2022 which at that time was meant to assuage the concerns of the religious who had opposed the 2017 same-sex marriage amendment to the Marriage Act.
Divine Right
If we were to take Michael Kirby’s definition at face value, we would accept that over centuries, democratic government eventually got to the stage where law was not being made by a monarch with a God-given right to rule, but where the monarch reigned, but did not rule, because power had shifted to the members of parliament.
Was this the end of rule by a monarch with ‘divine attributes’? Not really. The Bill of Rights of 1689 just curtailed the ‘Divine Right’ of the monarch who later became the Supreme Governor of the Church of England, as well as head of state, but not head of the Church of England which became the title of the Archbishop of Canterbury.
It would seem the reason why the monarch became the Supreme Governor rather than the Head of the Church was to separate the King from Jesus Christ who was inherently the Head of the Church. It seems it was decided the Archbishop of Canterbury could be designated as the earthly Head of the church while Jesus Christ was the Heavenly Head of the church.
Accordingly, in the 2008 Vescio case, discussed below, Justice Kirby said
The Queen is not the head of the Anglican church. The Queen is the Supreme Governor of the Anglican Church and that is a secular civil status.
As well as this curious ‘secular civil status’ as Supreme Governor, the King is also the ‘Defender of the Faith’. He appoints archbishops, bishops and deans of cathedrals, all religious appointments.
So, while the Divine Right was curtailed, the Church of England remains the church, as noted, that identifies as part of the state, the Bishops Bench is untouched, prayers in parliament remain, with much symbolism discussed below.
Professor Ian Bradley, author of God Save the King: The Sacred Nature of the Monarchy, wrote the day before the coronation of King Charles III:
Packed with religious symbolism, it will bind together church and state through the person of the monarch, clearly proclaim the derivation of all power and authority from God and the Christian basis on which government is exercised and justice administered.
The sacred ritual of the coronation is the very stuff of Protestant Christian religion: they really believe that this ritual, and the Oaths of Office, make the monarch the Christian God’s representative on Earth. The monarch essentially runs God’s post office, and the mail is to do with ensuring that secular law is recognised ultimately as a function of the authority from God.
Bradlaugh and the bishops
There was sectarianism in who was eligible to sit in the British parliament right up to the 19thC when atheist Charles Bradlaugh, later founder of the National Secular Society, initially refused to take his seat.
The NSS tells his story on their website:
As an atheist and republican, he preferred not to take an oath of allegiance to God and the Queen – although he would do so if it meant he could take his seat, the words of the oath being meaningless to him.
The House of Commons refused to allow his affirmation, so Bradlaugh applied to take the oath. Again, he was refused. Bradlaugh was effectively barred from taking his hard-won seat. To Bradlaugh and many others this was a grievous breach of democratic rights. He was refused his seat because of what others thought of his opinions and parliament was ignoring the wishes of his constituents.
Later, the parliament backed down and passed legislation to ensure that no injustice like this could happen again. Nevertheless, the British system of government is still very much entangled with religion with its official state church, and the Divine Right has been transformed into an important symbolic part of government.
For example, the NSS reported in its Newsline 21 February 2025 that an Anglican bishop called for the disestablishment of the Church of England:
The bishop of Birkenhead rightly tied the Church’s inability to address the abuse scandals that have engulfed it in recent months to its established status. [He said] ‘Part of our inherited arrogance comes with our status as the established Church.’ Synod members report bishops believe they are ‘untouchable’ and ‘can act with impunity.’
Church hierarchy has become accustomed to the deference that comes with being an arm of the state: peers in the Lords are expected to give way when a bishop wishes to speak, and the Lords Spiritual are granted access to the highest echelons of government.
So, what about today, here in Australia? Is the Divine Right a part of Australia’s laws?
Australia
In the Letters Patent of 13 November 2014 to establish the Royal Commission into Institutional Responses to Child Sexual Abuse, Her Majesty addresses the Royal Commissioners with this introductory sentence:
ELIZABETH THE SECOND, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth …
‘Grace of God’. There is the Divine Right – right there – in an Australian legal document.
But does it apply in parliament?
Yes. Elected members cannot take their seats unless they swear allegiance to the King.
They can choose to take the Oath:
I, [elected representative] do solemnly swear That I will be faithful and bear true allegiance to His Majesty King Charles, the Third, His heirs and successor according to law. So help me God!
Or they can Affirm:
I, [elected representative] do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to His Majesty King Charles the Third, His heirs and successors according to law.
Now, there are certain aspects to this procedure:
- It is normally the case that they cannot take their seats unless they take the Oath or Affirm and sign a written Affirmation. This means the true authority as to whether politicians can take their seats after being democratically elected, rests not with the electors who voted for the politician, but the King because
- The Australian Constitution requires senators and members of the House of Representatives to take the Oath or Affirm and
- The only way this state of affairs can change is by a referendum of all citizens to change it!
Like it or not, they are in a Bradlaugh kind of situation. They could refuse to take their seat and possibly cause a by-election. No politician has chosen to confront this situation since federation.
If you are a republican who does not recognise the legitimacy of the monarchy in faraway England, or if you are an atheist, you are snookered. The final assertion of power is that of constitutional monarchy telling you what you must do, whether you are elected or not, whether you like it or not.
In 2022 the President of the Senate, Sue Lines, a latter-day Bradlaugh, objected to saying the prayer before the start of business. She said:
On the one hand we’ve had almost every parliamentary leader applaud the diversity of the Parliament and so if we are genuine about the diversity of the Parliament we cannot continue to say a Christian prayer to open the day. Personally, I would like to see the prayers gone. I’m an atheist. I don’t want to say the prayers. If others want to say the prayers they’re open to do that.
She was overruled.
Praying
The elected members of the House of Representatives also habitually say the ‘Lord’s Prayer’ before the start of business which includes the words ‘Thy kingdom come’ which means the majority are unwittingly praying for an end to parliamentary democracy in the hope that Jesus will return and rule the earth. Could the federal government simply abolish the prayers?
In 2017, the Humanist Society of Queensland sought a Legal Opinion, at significant expense, on the compulsory prayer the President of the Senate must say before the start of business. The Legal Opinion said that such an argument made to the High Court that the prayer was unconstitutional was very unlikely to succeed.
This is theocratic constitutional monarchy at work.
Indeed, before the full High Court sits, it pays homage to God and His Representative. The Court Crier declares ‘God Save the King!’ – the Divine Right again – and then the judges enter and sit down.
The Governor-General of Australia must also take the oath of allegiance, detailed above, to be sworn in. That is, allegiance to the King and his authority, and his authority, as described above, is the Christian God.
Atop the parliament on its flagpole, the Australian flag features the British Union Jack including the crosses of three Christian saints. It sends the message of just who is in charge here.
Knighthoods and Damehoods
In his report to our association on this subject, Steven Unthank detailed the main points about these honours that were awarded to those that did not shake the constitutional monarchist boat:
- Over 1,100 men and women have been honoured with a damehood or a knighthood since colonial times. During the 19thC, knighthoods were typically awarded to colonial administrators, governors, and influential settlers. These honours reinforced Australia’s status as a British colony, embedding a hierarchical social structure influenced by British aristocratic norms.
- In 1975 the Australian government introduced its own award system but knighthoods and damehoods were not abolished until 1986. They were reintroduced by prime minister, Tony Abbott in 2015, who controversially decided to award an Australian Knighthood to Prince Phillip, the Queen’s husband. That absurdity helped undermine his declining credibility and he was replaced as prime minister by Malcolm Turnbull, who abolished knighthoods again in 2016. They have not returned.
- The knighthoods/damehoods system was highly differentiated with six kinds of these awards. Only one Australian, Sir Ninian Stephen, a former Governor-General, who was one of the judges who refused to acknowledge federal funding of private, religious schools was unconstitutional, receiving no less than six knighthoods. Sir Ninian said outright that s.116 of the constitution could not be interpreted to mean separation of church and state.
- Knighthoods and Damehoods were criticised for perpetuating a sense of elitism, contradicting Australia’s egalitarian ethos. Critics argue such honours reinforce class distinctions, which are increasingly out of step with modern Australian values. Despite the inclusion of titles for women (Dames) the system historically privileged men, further entrenching systemic inequalities in the recognition of women’s contributions.
- The highest honour now is the more secular sounding Companion of the Order of Australia.
In the case of Sir Ninian Stephen, while he was happy to receive these honours from Her Majesty the Queen, Supreme Governor of the Church of England, he seems to have kept quiet about an aspect of himself which I magnified a little in a letter to the Sydney Morning Herald of 3 November 2017:
Buried in endnote 16 on page 255 of Phillip Ayres’ biography Fortunate Voyage: The Worlds of Sir Ninian Stephen is buried the detail that Sir Ninian was an atheist. It would seem he waited to the very end before he revealed that private information about himself.
[Endnote 16: Asked by the author why he was an atheist, he replied: ‘When you’re in your mother’s womb there’s no God’; that is to say, God is a human construct learned from others, not inherent.]
Ironically, Sir Ninian Stephen, the private atheist, was given a State funeral in St Paul’s Anglican Cathedral of Melbourne.
The point of the above is that the British system of honours demonstrated that there was a very small minority in Australia of citizens who achieved high profiles, who moved in the rarefied air of those with an understanding of ‘polite society’: manners, decorum, etiquette, concern for one’s reputation, especially those from law, the military, religion, business and commerce, many of them socialised in Australia’s private, government-funded, mostly religious private schools, that also charge high fees, that exclude the undeserving. Some of these citizens mimicked the behaviours of British elites and they still do.
They tend not to mix with those who they might characterise as nonentities, which recalls W.C. Wentworth’s 1853 attempt to set up a system of British style heritage peerage in colonial NSW of which his critic, Daniel Deniehy said, in a now famous turn of phrase:
Here, [in Australia] we all know the common water mole was transferred into the duck-billed platypus, and in some distant emulation of this degeneration, I suppose we are to be favoured with a bunyip aristocracy.
Deniehy’s ‘bunyip aristocracy’ satire killed off the peerage idea, but variations on the theme still exist.
[A ‘bunyip’ was a mythological monstrous creature that aboriginal people believed lived in Australian waterways.]
An example of this elitist phenomenon was provided by the Sydney Morning Herald of 12 February 2025. It is worth citing in full:
The gothic revival spires of NSW Government House remain a traditionalist, archaic place, despite their occupant, Margaret Beazley’s reputation as a trailblazer of the legal world. Among the more quaint of those traditions that come with the office is the commemoration of Proclamation Day, which Falls on February 7, and marks the moment in 1788 when Arthur Phillip was ‘proclaimed’ as the first governor of NSW. To mark the occasion last Friday, Beazley’s official secretary, Michael Miller, hosted a private luncheon on Government House grounds. It was a fancy affair, we hear, with three courses, matched wines, waiters in black ties, all on the public dime, and attended by past official secretaries, who take their duties as the top underling of the state’s top ribbon-cutter very seriously. So fancy was the affair the governor’s official vice-regal program made no mention of it. And Government house didn’t respond to our queries either.
What knighthoods and damehoods did was to reinforce the elitist notion that some are more equal, and deserving, than others.
Intermezzo
A question that must arise is whether all this affectation, ceremony, ritual, prayers, means God’s mail concerning the Divine Right to oversight of law is still being delivered – apart from the examples above – or whether it all just superficial stuff that only those with Christian fervour take seriously.
It is often argued that the King, in giving Royal Assent to the laws of parliament, is just a very expensive rubber stamp, that His Majesty is there in England because this regal-theocratic-democratic political arrangement is preferred by citizens to a republican alternative.
On the former point that the monarchy is just a rubber stamp, Professor Anne Twomey has argued in 2021 that behind the scenes the monarch is in the thick of things when the monarch perceives it is in their interest to do so.
She says:
[the Queen] exercises extensive soft power by influencing government policy and bills before they are introduced to parliament. Her power is exercised behind closed doors, and is more potent because of it.
An example:
In the UK’s National Archives [the Guardian newspaper] discovered documents from 1973 showing the Queen’s personal solicitor lobbied public servants to change a proposed law so that it would not allow companies, or the public, to learn of the Queen’s shareholdings in Britain.
Moreover,
Queen’s consent is required where a bill would affect governmental powers formally vested in the Queen (such as powers to enter treaties, declare war, dissolve parliament or grant mercy), matters directly affecting the monarchy … the property and revenue interests of the Queen and her heir held by the Duchy of Lancaster and the Duchy of Cornwall … a bill cannot proceed through parliament without such consent.
Then there are the weekly private discussions between the prime minister and the monarch that are never made public.
Most of these matters discussed by the Queen were probably secular in various ways, so is the Divine Right just a fig leaf? And when the next in line for the throne, the much less churchy Prince William, becomes King, will all this these Christian assertions of the holiness of government just fade away?
Of course not.
The Crown
Another consideration is that the contemporary expression of the ‘holy sovereignty’ of the monarch has long been found in the use of the term ‘The Crown’ which Australians for Constitutional Monarchy, and Michael Kirby, defend. Professor Cheryl Saunders explains in her long article on ‘The Crown’ that
… the long evolutionary progression towards constitutional democracy left in its train the potential for ambiguity about the source of authority for government, which never formally shifted from sovereignty of the Crown, whether effectuated through Parliament or not, to the sovereignty of the people.
Another way of looking at this would be the say that the British never had a French Revolution which disposed of the monarch making the sovereignty of the people the main principle of their secular republic.
Michael Kirby would disagree. In a paper discussing the constitutional differences between Australian and Indian law he cites three cases (Kirmani v Captain Cook Cruises (1985); Breavington v Godleman (1988); Leeth v Commonwealth (1992); McGinty v WA (1996) which he believes show that:
… the High Court of Australia has declared that the true foundation of the sovereignty expressed in the Australian Commonwealth is the will of the Australian people.
Unfortunately, it would be fair to say that very, very few Australian people would have read these cases so what understanding would they have of the High Court’s reasoning, and would they care?
Compare that to France where liberté, égalité, fraternité is chiselled into the walls of public buildings and well understood by the population who often cite them when they have a grievance.
In his later article published on his website after 2022 ‘Does Section 128 of the Australian Constitution apply to turning Australia into a republic?’ he makes the point that this sovereignty question is not so black and white:
‘Some justices [have argued that] the ultimate sovereign in the case of the Australian nation is the people of the Commonwealth … this view has not yet attracted a majority of the justices of the High Court, it has scarcely been tested in a case that raises a matter so fundamental.’
Questions
As noted above, Michael Kirby helped to found Australians for Constitutional Monarchy in response to former Australian prime minister, Paul Keating, who supported Australia becoming a republic.
His position on this question would echo the views of one of the key founders of Australian government, the above-mentioned W.C. Wentworth, who said in 1853 of the Bill concerning the first constitution of Australia, the Constitution of NSW, that it would be ‘a conservative one – a British, not a Yankee constitution.’
So, what would Michael Kirby say to all the detailed entanglement of religion and government in the preceding sections of this essay?
What are his views on prayers in parliament; the Court Crier’s ‘God Save the King!’ in the High Court itself; the secrecy concerning legislation influenced by the Queen; the appointment of bishops to the House of Lords; the British complaints, raised in their parliament, about the increasing huge wealth of the monarchy?
What would he say to an elected politician who does not want to say the Oath of Allegiance and sign a written Affirmation and therefore cannot take their seat? What would he say to the citizens who elected that politician? What would he say to the President of the Senate who is obliged to say the prayers even if that person is an atheist?
What is his view on the protected wealth and privileges of churches? What is his view on the protected wealth and privileges of the monarchy? He has not reflected on the point that contemporary tax privileges of the churches and the monarchy approximate le servage [bondage, thraldom] and la dîme [tithe] of the Middle Ages.
Constitutional monarchists are usually reluctant to talk about these matters because they go to the finer points of the use of power in our governments. They do not want to concede that they are ordering us to do what they say, and they are staying mostly silent on their financial privileges. They want to impose aspects of theocracy on a democracy without seeming to do so.
For sure, all ideologies from the left to the right want to normalise their beliefs, framing them as common sense, which no one in their right mind would question. The constitutional monarchist system of government is no different.
The questions are: just how secular can a constitutional monarchy be with all the qualities and properties detailed above? Can s.116 of the constitution ever be interpreted in a way that would not favour religious interests? As noted above, Michael Kirby said in 2020 that it was ‘incapable of enforcing effective secularism’.
On that point, in the 2012 Williams case when we sought advice about the constitutionality of the federal funding of religious chaplains in public schools, we were told in no uncertain terms that we could not argue this funding was a breach of separation of church and state in the First Amendment American sense.
The American sense is the First Amendment (upon which s.116 was based) prohibits the establishment of a single church with special privileges but also government aid to religion in general.
This point is discussed in the following section.
The Vescio Case
Interestingly, on 20 June 2008 Justice Kirby presided, with two other justices, over a hearing in the High Court concerning a case brought by one Carmelo Vescio, described as a non-practising Catholic, against the federal government concerning its funding of the Pope’s World Youth Day in Sydney that year. Vescio wanted the court to recognise this federal funding was unconstitutional.
An interesting and informative exchange occurred between Justice Kirby and barrister Peter King:
JUSTICE KIRBY: Do you say that any [religious] observance in the United States would not have been funded by the United States government?
PETER KING: Could not possibly have been under the US law and the provisions of the Constitution.
JUSTICE KIRBY: Is the provision in the United States constitution – it is a long time since I studied that – of the same language as the provision in s.116 of our Constitution?
PETER KING: Almost exactly the same … we say the law [allowing Catholic World Youth Day funding] involves intermixture that is impermissible and that that fundamental constitutional guarantee is utterly important to the health of a democracy of a country in the long term.
Later in Vescio, Justice Kirby asks of the barrister representing the federal government:
JUSTICE KIRBY: Why is not the American approach, apparently in Cohen’s case, why is that not a correct principle, or at least a reasonably arguable principle, that, if that has been the view taken in the United States, why would that not be a reasonable arguable position for standing in respect to the challenge of a payment, having a religious character?
[In Flast v Cohen U.S. 83 (1968) a group of New York taxpayers alleged the enforcement of the Elementary and Secondary Education Act of 1965 and its expenditure for funds for textbooks, instructional tools, and transportation for religious schools violated the free exercise and establishment clauses of the First Amendment.]
And later,
JUSTICE KIRBY: In a society where there are increasing subventions to religious bodies, why is that not an increase in seriousness? Why has it not increased in seriousness since Black? (Defence of Government Schools case).
Good question! But it raises another point. Since Justice Kirby recognised the serious subvention of private, mostly religious school funding, which he recognised in his ‘Sentinels of Secularism’ speech noted above, he does not seem to have done much about protesting about it.
Vescio’s appeal was declined. Justice Heydon, who was not present in the court, sided with Justice Gummow in declining the appeal. Justice Kirby dissented.
Education funding
It is interesting Justice Kirby raised school funding in Vescio, albeit briefly, given it could be fairly said, following his remarks about the importance of secular public education at the Inaugural Australian Secular Conference, that had he been a Justice on the High Court early around 1980, he may have dissented from the majority view.
However, Sir Garfield Barwick, also educated at Fort St High, was the Chief Justice on the High Court for the Defence of Government Schools case. Together with his fellow judges, he denied the appeal of the plaintiffs in this case that led to the woeful funding situation that exists today between private and public schools in Australia.
Only Justice Lionel Murphy argued that s.116 of the constitution should be read as being near identical to the US First Amendment from which it had been derived, and therefore federal funding of religious schools was unconstitutional.
In his Oration to Sydney Grammar School on 3 December 2009, Michael Kirby bemoaned …
… in the United States, more than 90 per cent of young citizens are still educated in public schools, in the melting pot of shared American civil values, [whereas] in Australia, secular public education (at least in secondary school) extends to just over 60 per cent of the nation’s children. Most of the balance are now educated in schools that have a religious connection.
The reason why 90 per cent of American children go to public schools, which is now under threat in the Trump ascendancy, was that their Supreme Court decided a number of cases establishing separation of church and state, a principle that Justice Murphy in the Defence of Government Schools case supported.
The Supreme Court at that time would have never accepted the Australian court’s decision that the federal funding was for education, not religion, and that it was discrimination not to have an equal right to federal funding.
That, in principle, I suggest, is the difference between a republican government that recognises separation of government and religion and a constitutional monarchy that muddies the waters on this key question.
It is a bit rich now for Michael Kirby to be exalting the virtues of public schools when the constitutional monarchy system of government he favours has caused so much damage to the public school system.
As Maeve McGregor argued
… as any objective autopsy of the nation’s schools shows, what’s … manifested is one of the most segregated education systems in the Western world, and one defined by impenetrable barriers of class, privilege and wealth.
Trevor Cobbold’s Save Our Schools website has been detailing, empirically, the sad saga of school funding in Australia.
While the funding agreements between the Commonwealth and Western Australia, Tasmania and the Northern Territory increase funding for public schools they will remain significantly under-funded until at least 2029 … [the funding agreements for] Victoria and South Australia announced by the prime minister are a landmark and set a new funding standard [they] will ensure the public schools on those states are fully funded albeit not until 2034. (Emphasis added)
These very belated attempts to catch up on school funding are shutting the gate after the horse has bolted, a process of inequality of funding that started after the Defence of Government Schools case was lost.
This had the effect of diminishing the educational opportunities for generations of Australian public school children meaning that an untold number have been unable to realise their capabilities, no small matter for them and the nation.
The parliament and the High Court shut the door in their face.
To make sure it remained shut, the Catholic Church opposed the 1988 Referendum which had three clauses which aimed to extend federal issues to the Australian states. One of the proposed clauses of the Referendum concerned enhancing ‘freedom of religion’. The church was fearful that this could create an opportunity for the Defence of Government Schools case to be reopened, discussed below.
Notwithstanding that, in 2022 our Association sought a Legal Opinion on whether prime minister Scott Morrison’s extra $4B dollars for Catholic Schools was unconstitutional reasoning that this extra grant contradicted the High Court’s findings in the Defence of Government Schools case. Once again, the Legal Opinion was that we were very unlikely to succeed, and, by the way, we would now need about one million dollars to run a case.
Where to from here?
Some final points. The Rationalist Society of Australia invited Michael Kirby to be a Patron of the Society, but the RSA on its website supports …
… a clear, constitutionally guaranteed division between religion and the state. In Australia, the legal separation of religion and state is not sufficiently guaranteed by s.116 of the Australian Constitution. We support moves to strengthen and expand this section of our Constitution and to include similar provisions in the constitutions of the states.
That is right. It is very similar to what their Patron, Michael Kirby, believes. What he concludes about secularism in Australia is contained in this long quotation from his 2013 RMIT talk:
One day, the narrow interpretation of s.116 of the Australian Constitution will be reconsidered by a bench of the High Court of Australia, prepared to interpret the section as a fundamental constitutional guarantee with respect to government connection with religion. Such an interpretation would be resistant to narrow constructions of the section that essentially defeat its antecedents. It would be alert to the interpretations of similar constitutional language, adopted by the Supreme Court of the United States. It would be informed by the powerful dissenting opinion of Justice Murphy in the DOGS [Defence of Government Schools] case of 1981. However, the likelihood is that no such reconsideration will happen until more Justices of the High Court are appointed from backgrounds that include education in public schools, imbued with the values intended in the principle of our constitutional provision for secularism that arose at approximately the same historical time as the creation of the continent-wide systems of public education in Australia.
This statement omits any discussion of the kind of resistance that the churches would mount should any future federal governments begin to preference High Court appointments in the manner he hopes for.
I addressed that point in my article ‘Public School Funding and Republicanism in Australia’ in Dissent magazine Summer 2011-12.
I referred to the 1988 Referendum which, among other things tried to extend ‘freedom of religion’, by which was meant the text of s.116 of the federal constitution, could apply to state constitutions.
This was hotly contested by the Catholic Church and other religions.
On Michael Kirby’s very point that a future High Court could follow Justice Murphy’s interpretation of s.116 sometime in the future, Senator Harradine said, in the Senate:
What if, in twenty years’ time, Senator Gareth Evans is Attorney-General and in his period in office has appointed [to the High Court] clones of the late Lionel Murphy?
He said,
A Bench full or Murphys would end state aid to religious schools.
The Australian Catholic Bishops Conference expressed similar alarm.
In 2012 Family Voice Australia commented on the 1988 referendum question, saying:
The Minister of Justice at the time, Senator Tate, said: ‘I cannot, nor can anyone, give an absolute … guarantee’ that government funding for Christian schools would be upheld by the High Court under the proposed new constitutional provision.’
There is little to no hope that while Australia remains a constitutional monarchy any future High Court will reinterpret s.116 irrespective of possible future justices coming from public school backgrounds. In fact, our school, Fort St High, is one of NSW’s selective schools which require students to sit a test to be offered a place. They are now more like private schools without the high fees attached.
Conclusion
In principle it was a good idea to have a religious person of Michael Kirby’s status supporting secularism for the Inaugural Secular Conference. But his weak, undefined version of secularism, and his embrace of the constitutional monarchist version of what he calls British Secularism falters on this point: given that is very unlikely s.116 will ever be reinterpreted, the notion that plaintiffs could then bring a case to argue some aspect of religious privilege is unconstitutional is untenable.
Another possibility is that legislation to separate church and state in Australia could be tabled in the federal parliament via a petition.
On that point, on 12 December 2013 I organised a paper petition of 370 citizens, to do just that. The petitioners included former Labor minister, Barry Jones, and former leader of the Australian Democrats, Lyn Allison, which asked the House …
To legislate for separation of church and state in Australia in keeping with the changing values of contemporary Australians. We request legislation that prohibits (1) government establishing any religion, not just a national religion, but providing any advantage to any religion or non-faith as an effect of legislation (2) passing any law or undertaking any administrative action that allows the sponsoring or supporting (financially or otherwise) of any religions or alternative non-faiths such as atheism. We ask the House to recognise the words of our first prime minister, Edmund Barton, that ‘the whole mode of government, the whole province of the State is secular’, allowing the manifestation or any belief, or non-faith, subject only to limitation by law, but sponsoring none.
The 12 May 2014 response from the Attorney-general, George Brandis, was that:
The Government has no plans to legislate in such a manner. The Government considers the prohibitions in s.116 of the Constitution adequately protects religious freedom.
The Attorney-General’s reply could be taken to mean the Government could legislate for constitutional separation of church and state, but chooses not to do so – or, it may be that such legislation would be unconstitutional.
The more likely way for reform would be for Australia to become a republic with a formal separation of government and religion built into the referendum question.
But, as a constitutional monarchist, that is something Michael Kirby would never agree to. In fact, as an Anglican and constitutional monarchist, it is unnecessary for Michael Kirby to say further about separation of government and religion, for, as in the quotation above from Professor Bradfield, the coronation of the King:
will bind together church and state through the person of the monarch.
At the core of Michael Kirby’s voluntaristic wish that s.116 be reinterpreted by the High Court to liberate the question of government school funding of private, religious schools, is a central contradiction: a constitutional monarchy that has a track record of appointing conservative judges will not do that, while judges in some future Australian republic might. In his foreword to a 2009 book published to celebrate Michael Kirby’s life at 70, the age when justices must retire from the High Court, his close friend Geoffrey Robertson said:
As for the monarchy, [your] Ulster-Protestant roots must explain your veneration for it, because nothing you have ever said on the subject stands up to rational scrutiny.
Clerics debating legislation in a parliament is characteristic of theocracies. While clerics elected to parliaments in Australia debating legislation are uncommon, their presence is not really required as they have very many committed proxies willing to protect religious interests.
I end with AI’s definition of my term ‘soft theocracy’ which summarises my perspective.
A soft theocracy is a state where, despite appearing to be a democracy, the government maintains a close, symbiotic relationship with religious institutions, resulting in public policy, financial privileges, and tax exemptions that favour religious organizations. It represents a subtle entanglement of church and state rather than a formal, strict rule by religious leaders.
Key features of a soft theocracy include:
- Financial & Legal Privilege: Religious institutions often receive significant government grants, tax exemptions, and exceptions to discrimination laws.
- Symbolic Entanglement: Religious symbols or rituals are embedded in state functions, such as prayers in parliament, the use of religious imagery on flags, or oaths of allegiance to a monarch who is also the head of a church.
- Influence on Law-making: Religious ideologies or lobby groups heavily influence or hinder legislation on social issues like marriage, assisted dying, and abortion.
- Lack of Formal Separation: Unlike a “hard” theocracy where clergy rule directly, a soft theocracy functions within a democratic framework but lacks a strict constitutional separation between government and religious institutions.
Australia is commonly cited as a primary example of a soft theocracy by secular commentators.
A great summary of my position except that it falls at the last hurdle. Secular commentators are not talking about it at all, partly because opinions about secularism, like Michael Kirby’s, muddies the waters.
References
Bradfield, I. ‘Consecrated to God’, 5 May 2023.
Cobbold, T. https://saveourschools.com.au
Kirby, M. https://michaelkirby.com.au
‘Oration, Sydney Grammar School’, 2009
‘Oration on Secularism’ to Melbourne Institute of Technology, 2013 (not on Mr Kirby’s website)
‘The Australian and Indian Constitutions’, 2019
‘Sentinels of Secularism’, Fort St Speech Day, 2020
‘Australians for Constitutional Monarchy: Does Section 128 of the Australian Constitution Apply to Turning Australia into a Republic?’ 2022
McGregor, M. ‘The school funding wars are over: rich people won and the country lost’, Crikey 13 June 2023.
Rand, D. Stillbirth: The Failure of Secularism in the English-Speaking World, Atheology Publications, Montreal, 2022.
Rishworth, P. ‘Coming Conflicts over Religious Freedom’, (eds) G. Huscroft and P. Rishworth, Rights and Freedoms, Brookers, Wellington, New Zealand, 1996.
Robertson, G. ‘Your Honour …’ in I. Freckelton & H. Selby (eds) Appealing to the Future, Michael Kirby and His Legacy, Thomson Reuters, Pyrmont NSW, 2009.
Saunders, C. ‘The Concept of the Crown’, Melbourne University Law Review, Vol.38, 2015.
Twomey, A. ‘The Queen’s gambit: new evidence shows Her Majesty wields influence on legislation’ The Conversation, 8 February 2021.
Unthank, S. Knighthoods and Damehoods. A Report prepared for the Secular Association of NSW, 2025.
Wallace, M. ‘Catholic School Funding and Republicanism in Australia’, Dissent, Summer 2011-2012.
Cases
1981 Defence of Government Schools: Attorney-General (Vic) ex rel Black v Commonwealth. 2008 Vescio
https://www.austlii.edu.au/cgi-bin/sinosrch.cgi?meta=&mask_path=au%2Fcases%2Fcth%2FHCATrans&method=auto&query=Vescio
2012 & 2014 Williams v Commonwealth of Australia.
* Max Wallace: Fort St Boys High 1960-64, PhD Macquarie, Secretary/Treasurer of the Secular Assn of NSW Inc.