A neutral state?: constitutional, legal and historical aspects of church-state relations in Australia

Abstract

Today, freedom of religion is important for faith leaders in Australia and also in Europe, the United States and other parts of the world. My study aims to explore how the church and state relationship in contemporary Australia has been influenced by constitutional, legal and historical arrangements. My focus is on the spheres of education, the law and legal system as these are the most common areas of church-state contention. I argue that pragmatic changes to the church and state relationship are increasingly recognising the value of religious freedom but not always protecting it as an existing human right. My data comprise a sample of nineteenth and twentieth century newspaper articles, interviews with Australian faith leaders, public submissions received from two national consultations and six court cases, all from Australia. My study is a contribution to existing scholarship on the church and state relationship in contemporary Australia. My study found that from European settlement to the twenty-first century the church and state relationship has been characterised by four different arrangements: establishment, plural establishment, liberal separationism, and pragmatic pluralism. Australia has no overriding legal or policy principle to guide state limitations on freedom of religion. State neutrality as an aspirational goal is not fully realised in contemporary Australia, as state neutrality can be used as a vehicle to discriminate against some or all faith groups. Against a backdrop of increasing religious diversity, the aspirational goal towards state neutrality is not just an academic question but an every-day reality that has consequences for Australia and Australians. Two recommendations are made. First, that a range of stakeholders from faith leaders to policy makers and academics convene a national forum with a view to reaching agreement on an overarching church-state framework that can accommodate the growth of religious diversity in contemporary Australia. Second, that as part of these national discussions, the government considers the need to reconceptualise the principles and institutions of liberal democracy that are important for accommodating religious diversity.