We turn now to the issue: What is the legal and constitutional result of these extraordinary, and indeed, for Victoria historic mutations in the field of religion?  Not in the field of religion only are their effects: the mutant is expressible in the area of the Victorian and Federal constitutions.  In the former case, the matter is direct; in the latter, indirect but of deep importance in potentially reversing a trend made manifest in the U.S. Constitution and embraced with some tenderness in the Australian Constitution of 1901.

Minor questions we need not enter into - but they would include such as these:

• Should,  in any sense of obligation whatsoever, a State body which accepts Commonwealth educational  aid in any sphere, personal or corporate, rigorously violate the very essence of the brief but quite distinctive Commonwealth Constitution provisions - those on the freedom of religion in particular?

 
• Should not a State make most clear, its reasons for such departure as this would represent?  Although a Commonwealth Constitutional Law affecting only the Commonwealth's power in religion does not ipso facto bind a State which has, directly not the same anti-establishment of religion and anti-discriminatory rules, yet should there be no cognisance taken of that more equitable freedom, found and enforceable at the federal level? Should Australians, as it were, as a last resort, need to seek out some State which, at least in measure, has the federal equability in the field of religion?

 
• Need they forfeit federal amplitude in a State where religious establishmentarianism* is in force or in vogue, by virtue of aggressive and repressive law? Must they MOVE to a more tolerant State within the more gracious Commonwealth?  (*That is, a view forwarding the idea of ESTABLISHING by State rule, what is to be believed, received, religiously, with whatever CONCESSIONS it may be elected to permit! In this case, the view would be IN OPERATION!) The relevance to the Russell Report Religion has been made too often and too comprehensively to require amplification of the point here.

But let us suppose that the enlightened reader, snuffing with relish the zephyrs of establishmentarianism, feels that such more ethical and quasi-legal questions as these, carry no adequate weight to induce him to relinquish one of the best chances at religious intolerance and uniformity (in vital respects as has been shown) since the Inquisition - at least in this country.  If equity but nauseates, as conveying the too loud cry of the potentially oppressed; and freedom of religion is redolent with those divisive and weakening marks of a non-totalitarian State (dread thought), deemed not too likely to 'survive' - what then?

What if the reader feels that Douglas Pike also in his Churches and the Modern State ^*51 is far too sentimental or at least affected by historic trends, when he cites:

'The heart of the pluralistic thesis in the conviction that government must recognize that it is not the sole assessor of sovereignty, and that private groups within the community are entitled to lead their own free lives and exercise within the area of their competence, an authority so effective as to justify labeling it a sovereign authority.  To make this assertion is to suggest that private groups have liberties similar to those of individuals and that those liberties, as such, are to be secured by law from governmental infringement' ( i.e. kept secure from government infringement - italics added).

• 'If there is faith in the method of democracy, Church, State and individual gain from separation.

Churches are free to perform their special function of preparing souls for heaven, without State interference, free to criticize the State's morals; freer then any State Church.  The State is relieved from deciding on religious truth, for which it in incapable anyway; it gains stability by avoiding controversy and the compulsion of conformists; it is wedded to no orthodoxy which may lose its hold on the people. The individual finds freedom of conscience, opening the way to toleration and wider social 1iberty.' (Italics added.)

It is quite bad enough when the blind lead the blind; but when the blind 'adjust' the eyes of the young, we have an outrage so profound that the millstone result attested by Christ, does not seem in the  least degree surprising (Matthew 18:6-8). When there is no fear of God, that just and reverential trust and regard, so that His property becomes a mere governmental chattel, woe the day and woe to the State that so excels in presumption, acts in arrogance and disregards its own basis for authority, itself.

But let us return to the quoted statements and to the Russell Report directly, in their relationship.

Contrast now the quoted statement from Pike above,  with a parallel one, but one so very different, in this area of the Russell Report and you will find a virtual contradiction.  Not only no: you will find it couched in the terms of almost compulsive conviction, suitable to a type of religious experience, of some kind, intense, assured and in this case, apparently more existential than rational, in type; and certainly, there is no divine revelation!
 

• If, then, the parent's right to withdraw his child from courses of study he finds objectionable cannot validly be maintained in disregard of the indefeasible rights and responsibilities of the public education authority and the teaching profession ... (p.124).

This of course has been considered before; but the easy and arrogant seeming assumptions in this approach are too tendentious to be left unattended in the present context.  After all, this, as we showed, was a merely preliminary approach, one leading to the threat to the continuance of specifically religious rights of withdrawal, from what was becoming State indoctrination in the field of the nature of God, religions and commitment. This development was seen in a later chapter of the same Report. To be sure, then, the immediate result re withdrawal at the earlier stage, had a scintilla of leniency (the need for such a term shows the tenor of the original Report);  but as we saw, this was evidently temporary, was ready to depart when certain so legal niceties concerning the term 'secular' were legally accomplished!

By contrast, Douglas Pike's moderation seems almost to proceed from outer space; for its quiet and reasonable, its humane and careful provisions for things called people,  minds called private,  convictions deemed personal and concern deemed moral, is of an entirely different order.

From U.S. space?  Not really: not only is Pike's post in the University of Adelaide, but his topic ranges from Westminster to Washington and Canberra.  There are questions or relationships; but the social monarchist view which, as to results and conclusions seems dominant in the Victorian Report (despite all their initial small bow, in that document's stylistic labyrinths) has little to offer to harmonise in the wider setting.

The Leviathan seems to come to life again in a seemingly Western setting, clad in Hobbes' nailed boots!

The point in made merely to emphasise the consideration of the significance of the tenor and the freedom enshrined in the Federal Constitution, in Australia,  relative to religion; so that the relevance of the points made so far in Law and Constitution (supra) might not be in any way overlooked.

Nevertheless, we have asked what is to happen if such moderate considerations are in fact dismissed?  What then is the contribution the law might make?

We have already noted the contribution which might be made by the Education Act of 1958, Section 23 in its insistence that 'no teacher within the meaning of this Act shall give any instruction other than secular instruction in any State school building.' This was touched on above,  in our space dealing with the magnificent delusion of using 'secular' instruction to mean religious instruction: surely one of the most noteworthy verbal aspirations and manipulations to be found outside a totalitarian State.  In short, the State teacher of Report Religion would have legal problems, if the relevant State legal officer would not agree to support such a proposition.

Might that legal officer, however,  not do this with great ease, declining with rich 'appropriateness' , to undertake such a ride;  and indeed might he/she not add a word to the effect that if the 'secular' religious instruction were permitted, then the right of withdrawal (through this  delightful and advanced semantic riddle) would of course be lost... a grief to some of the voters who do not subscribe to the social monarchist view. It is just ... that what evaluates religion, enters religion; and what posits concerning religion, is religious. Characterisation of ANY religion is a religious action, whatever its ground; and of ALL religions, is ... in Report language, what one could almost call a supra-religious action, like that of a pope, prelate or patriarch. It is absolutist as well as in the grand manner. If it demeans absolutism meanwhile, this merely makes it the more absolutistly ridiculous, denying what it employs.
 
 

But suppose the idea of having a testamental Report institute the ingredients of a religion (whatever it calls it), as has been creedally shown, DID appeal, and it were deemed ... 'secular' and legally acceptable?

This highlights the fact that  we must now add a further consideration.  It is this.  The Victorian State Constitution is undoubtedly, in its original form, not secular.  That is:  it provided for property and even at times for salary for church leaders.  Section LIII ^*52, exudes a sort of non-sectarian religiosity which  some might deem Christian.

It provides, it sympathises, it relates,  it seeks to establish religious activities in this alleged area which shall be - going-concerns.

It is quite plain from the proportionality language in Section LIII and the phrase 'advancement of the Christian religion' , that this original provision would not foster what might be termed sectarianism.
There is a stark departure from any slightest suggestion of fostering - one format rather than another.
This seems to signify an awareness that if the State (in the 1850's) is not non-religious, then neither is its commitment within a Christian field designated in any specialised manner.  This is not to commend or indeed to confirm the viability - logically or religiously - of such a concept (the terms of reference would need to be stated, considered, analysed and estimated for harmonisability, in certain internal and external regards).  It IS however to provide a background for the present move.

In the Report Religion there is, as we have rather minutely examined and attested,  a creed implicit. There are in that Religion of the Report, to be found religious attitudes, as determined and as fixed as those of the pseudo-saintly pole-sitters, of times gone-by.  These relate to some theological conceptions, and indeed preconceptions, rather closely; and to others by way of contradiction - a fact we have sufficiently shown for the purpose. Positively and negatively, they are there.
 

• For this Report Religion -

 
• so recommended as to be likely to receive a virtually compulsory audit, not of those who assess but of those who MUST listen -

 
• even occasional comparison,  say,  with the Westminster Confession of Presbyterian fame,  the Confession that once formally occupied over 100 British scholars for years would, as we have seen,

 
• lead to a ready perception of the contradiction to one historic form of Christianity ... one which figured prominently in British history. The two, Report Religion and this background, agree like light and darkness, or Russia and the US in the Cold war; or rather, less.

It is certainly not that all-things-to-all-men approach to some sort of Christianity initially enshrined in the Victorian Constitution, in l9th century Australia.  If it be deemed close enough to Christianity (by virtue of the considerable assimilation by some Churches, for their part,  of more radically divergent contemporary norms) to be thought of as a 'sectarian' variation, then its establishment - in any respect distinctively and competitively with others - is anathema to the past Constitution and contrary to the present. (Those who regret such vigorous personification might prefer: 'immiscible with'.  They should not be denied a hearing, and are accorded a parenthesis.) The point however remains.

'Ah!' the knowing reader might aver, not so! Have you not noticed that the excursions into some mutant or other variety of Christianity, appearing in the Report, are enshrined in careful, hypothetical language?

'Did you not observe that the Report Religion was at its very heart too vacillatory to be Christian?
It did, indeed, issue strictures about absolutisms, which one had thought you had glanced at. '

Thus far, as Virgil might put it,  the reader.

The answer to this is in two sections.  First, to a fine point: it is ostensibly true that this is the case.  There is this type of protestation in the Report, as we have indeed sufficiently seen. The difficulty simply is that what it protests is not what it presents.  It is authoritarian to the matrix.

Second, however, within these claims which it makes, there are assimilations such as we have noticed, of certain theological-philosophical complexes (perhaps reminiscent of the once evocative 'military-industrial complex') which would make the Report Religion quite close to certain of the more radical mutants of what is alleged to be in some sense 'Christian'.  Indeed, to pursue the matters we might specify: Some might call the matter 'Christian' in the contemporary cultural setting, as tending to advance the flavour already noted, of the US Presbyterian Confession of 1967.

There is considerable force in either presentation.  The reason is not hard to discern.  Philosophic incorporation, of mutants of elements distinctive of Biblical Christianity, has been a topic already dwelt on in this work; and when a relativistic syncretism is prominent in what is deemed a form of Christianity, its relation in turn to another form of religion deemed by its proponents to be not specifically Christian, could be well understood.
 
 

The two outstretched hands have clasped; and who shall determine in the union - fistula rather than fusion? Interpenetration? mutual permeability? synthesis?  The union might be conceived from the part of either personality; but it in the same coalescing which is observed.

Indeed,  there are phases of relativity between these two Camps so great that they could almost with equal ease be relegated to a general or a nominally specific pattern, without duress.

It is not however, for our purposes, necessary to determine the direction of approach beyond one element.  We must indicate the basic point that where the absolute criteria of Christianity in its Biblical format are surrendered, then  two consequences may readily appear;  and historically they do so.
The name may be kept without the differentia, and the result could be considered with facility either

1) relativistically mutant (erstwhile absolutist) Christianity; or else

2) relativistically established, contemporary philosophy in its religious guise, form, formula or even formulation (a symbol here, a fable there...); but nothing with any real authority anywhere, unless it happens to be ...liked.

If now the former aspect be taken, then the Report Religion is sectarian intrusion into the State, and that at a most sensitive point: education.  As such, it is constitutionally unthinkable - unthinkable as sectarian,  in terms of the State Constitution. It is of course  at all times, constitutionally unspeakable from the point of view of the Federal Constitution.

If however we stress the latter alternative, the non-Christian one confessedly so, then the case is, if possible, worse.  Then into this State, once specifically favouring the Christian religion, and never withdrawing from this position by a distinct reformulation, but merely cutting off funds for the purpose; into this Victoria, increasingly moving from the non-sectarian to the freedom of religion position in notable harmony with the Federal Constitution, we find thrust upon us and coming like a devouring bull, a contradictory establishment.  It would conform its children (for it tells us in prospect, in the Report at least, of its inalienable and indefeasible properties vested in the educational authority) to its own 'desirable' and 'secular' religious 'best'.

In all fairness, this aspect of the Report does seem at least to fail to make a quite fundamental distinction between two basic items.
 
 

1) When GOD thinks it best, when it is HIS good pleasure, that is one absolute creator who has expressed with absolute knowledge. People may or not like it. They may or may not believe in Him, by their own assertion. Yet that is the status of the claim being made.

2) When however men  per se, think this or that evaluation of ultimate understanding,  or perspective on the same,  to  be 'best';  and proceed to have this interpreted as in ANY way to be something moral and with religious relevance, because it so seems, is very simply - in Biblical implication, and from this standpoint - a confusion of the finite with the infinite!

The finite is infinitely less than the infinite. To confuse the two types of proposition is infinitely astray.

It is all right for men to say WE THINK, or WE FEEL, or this is HOW IT SEEMS TO US; or to set about PROVING something; but when in a RELIGIOUS SETTING, call it by any name at all, you ADJUST AND ADJUDICATE AND CREATE A PLATEAU AND PLATFORM because it so seems, relay what is a series of religious propositions of your own, and have the State relate to THAT, then religion is your field, and you are the maestro, creator, originator and propagator:

then

• 1) if it is be said to be from God, the danger is simple blasphemy.

 
• 2) if it is not, it is ludicrous irrationality. The absolute is not obtained by relative means; and to absolutise what is so obtained, is uncertified invasion of a domain both irrelevant and unreachable for such means.

Yet it must be stressed amidst the gently circling quotation-wafting sibilance of the Report, that if Section LIII, relative to funds for religions of Christian concept was terminated - and it was;  yet there is no question of altering the basic sentiments to the point of authorising a non-Christian religion and seeking "the advancement of non-Christian religion." This we do not read in the State Constitution, at ANY time.  The advancement of some non-Christian variety of religion would, if possible, be yet further removed.

It would run amok in dual fields.  There would be gratuitous contradiction of the original base, through contrary substitution reinforced by the assertion of a sort of non-Christian sectarianism. In short,
it would be both non-Christian and particularistic in that field. If as shown, it is also self-contradictory and irrational, the appeal is the more decidedly limited...

For good measure, it would also countermand the whole trend to freedom of religion and co-ordination at State and Federal  Constitutions, in this field^*54.

Now since the Report Religion has a creed, a distinctive and characterisable creed, indeed,  and is either seeking a particular place NEVER granted to ANY alleged Christian religion, even when that religion was specifically and explicitly, in general, favoured; or pursuing in effect, a contra-Constitutional sectarian establishment - what shall we make of this?

Merely this: for it there is no shelter of law.  If it flies to the Law (at least in that doughty form called the Constitution), it is impaled federally;  and  swept back with a frown of either sectarian or of unsanctioned novelty, at the State Constitutional level.

This is as it should be -  for by what referendum, what popularity is this new Religion to be assured of the support of the people's purses, the access to their children's minds and the moulding influence on their characters?  If such a referendum has transpired, then  this writer did not notice. Another one was noticed, in which increasing federal powers were rebuffed; but not one sanctioned increasing State powers, or changed federal ones, indeed, in this area.

What then follows?

Such an approach as by Committee proposed,  would force the State to exceed its powers, doubly deny its past and to assume what in these A.D.  years has been the historically unlovely mantle of politico-religious authoritarianism.

How then could this Report be even contemplated! Perhaps it is because its creedal commitment is so well camouflaged, that even none concerned seemed to have noticed it was there.
 

*51    State

Contribution in Legal Personality and Political Pluralism, Ed., Leicester
C. Webb.

*52

Section LIII

The situation regarding the Victorian Constitution in these regards is of great interest.

The original Constitution,  as recorded in Vol. II, p.269 of  'The Victorian Statutes of 1958' - where it is included for convenience, specifies a large sum of money "for the advancement of the Christian religion in Victoria, and in particular "to promote the erections of buildings for public worship and the maintenance of ministers of religion". This was to be "apportioned to each denomination according to the relative proportion of the members of such denominations by the last census..."

In the Repeal of 1870 (proclaimed in 1871), there is merely a reference to "An Act to provide for the abolition of State Aid to Religion" and it is noted that after the specified date,  "no moneys shall be set apart for the advancement of Christian religion in Victoria under the provision of the Fifty-third Section and for public worship under the Eighth Part of Schedule D of the "Constitution Act" and as from that day such provisions ... are hereby repealed."

There is a cessation of means for the advancement of the Christian religion; but there is no reference to an alternative to the concept of favour to the Christian religion, the concept which was the base for the practical step of aid, originally given.  Rather is there provision made for retention of property and houses for Ministers on the part of denominations; and even indeed for their disposal by the Churches, under certain restrictions and specifications.

Also significant is the reference in the Repeal of 1871 to a definition of terms in which "denomination"
is to refer to any "kind of faith or form of belief soever".  This does not of course alter the original stated purpose on which property changed hands from State to Church.  No doubt,  however, this definition facilitated practical considerations associated with the retention of property by whatever body (soever) now had it; and possibly, it discouraged non-Christian aspirations for financial aid.  The movement if discernible, however, is towards more freedom of religion relative to State auspices.

In this vein, it is of  interest that the 1958 Education Act, No. 6240, stipulates a ceremony ''at which the pupils make a declaration including the following words:- "I love God..."

Certainly there is a non-sectarian approach, more specifically merely theistic in some sense, as time passes; and the concept of freedom of religion relative to education appears in the Universities Act of 1958 in which no form of belief is to limit entry, involvement and such things, on the part of a student at University. The trend is in the direction of the Commonwealth Constitution's 'freedom of religion' provision.

The statements of the 1958 Education Act, Section 23, make provision for Churches relating to a Council to send in accredited representatives; but it pointedly excuses those whose parents so desire.  It appears  then as a provision - not a promulgation.  It is not the case that the State, having first financially favoured the Christian religion with a STATED view to its advancement, and having then attenuated its connection, now rushes in with a vigorous and sudden movement in the opposite direction.  It is not seen here as wishing - having repealed its direct Involvement as such - to take over church work on its own part, systematising for all churches what they are REALLY about, and determining the status of their promulgations; far less, desiring to establish a religion, Christian,  pseudo-Christian, anti-Christian or other.

The present Report however would in effect promulgate, preferably compulsorily, another religion as we have been at pains to document.  This Report Religion, though not declared to be such - is susceptible to specification, and rendering in formal creedal format, as has been demonstrated.  Now this religion, this other religion, is specifically not identifiable with Christianity; it is statedly not so identifiable,

*53

Federal Constitution

Le Nauze in his "The Making of the Australian Constitution" (pp.228-229) gives his perspective on Higgins efforts to secure freedom from "intolerant or restrictive legislation" in the field of religion.
He failed to gain a reference here to the States as well; but later secured the present Federal result.  As La Nauze with some spice, notes - "As a final irony a ban referring exclusively to Commonwealth legislation was left as a puzzling anomaly in a chapter of the Constitution headed 'the States' ."

It reads then, in this Chapter V,  The States, Section 116:

The Commonwealth shall not make any law for establishing any religion, or for 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.
 
 

*54

Field

A rider exists.  If the State and Federal Constitution should both be deemed applicable to some point and be contrary, then the Federal Constitution prevails - Federal Constitution Chapter V, Section 109.