Creation in Australia—the legal question
The topic of this paper, of course, deals with the question of the presentation of scientific creationism in Australian schools. It is entitled a working paper and in no way attempts to cover the whole of the challenge or provide all the answers. Rather its purpose is to pose certain questions for consideration.
The great battle of our age has begun between the forces of Humanism and Christianity. The focus of this battle are the questions: ‘Who shall teach the young?’ and ‘What shall they be taught?’
The first question deals with the conflict between the humanist view that children are the property of the State (whatever form the State may take) and the Christian view that children are the responsibility of their parents, who are in turn responsible to their Creator God.
The second question follows from the first. In the humanist view the state determines the curriculum and, of course, humanist presuppositions pervade every area of study. The Christian position is that the parents of children shall control the subject matter of the children’s study.
As we can see, the controversy over whether the theory of scientific creationism should be taught in public schools (we shall leave the question of private schools for the time being) alongside evolution theory really is an argument over which presuppositions shall prevail.
The answer to the question, ‘Did man and all other life on Earth evolve from a single living cell?’, really answers the questions ‘to whom do the children belong?’ and ‘who shall determine what they are taught?’ For if man is a product of evolution then his society is also a product of evolution and the State represents the highest form of human existence— ‘corporate man’. As it is more complex than its individual components, it must be superior.
How, you might ask, does this lead to a ‘legal question’? I would now draw your attention to the Educational System in Queensland. While each State in Australia has its own constitution and its own equivalent to the Queensland Education Act, they are for the most part quite similar and for the purpose of our discussion shall be considered to be so. The scope of this paper does not cover the comparative analysis of the several states, a study which might prove profitable in the future.
Suffice it to say that the Constitution of Queensland as those of its sister states, is a document which addresses itself solely to the mechanics of government. It is in fact a conglomeration of documents spanning the period from 1861 to the present. It contains no statement of purpose, no vision of the end to be achieved. Apart from the creative provisions which brought it into being it is very like an instruction manual for driving a car. It describes the vehicle and its individual parts. It contains detailed instructions on how to start it and keep it going, how to steer it from left to right, speed it up and slow it down. But it says nothing about where the vehicle is to take its passengers, nor about the benefits, if any, for the passengers of a journey in this particular vehicle. Having created the vehicle and set out its manner of operation, its purpose and function is left to the driver—for the time being, the government of the day.
The Queensland Education Act is a case in point. The Act states it is to be administered by the Minister through the Director-General who can delegate his authority. Having created an authority, arranged its structure, and created an obligation on the part of the citizens to obey its dictates, its purpose, goals and directions are left as it were to the driver for the time being. The powers of the Minister and Director-General are delegated to various bodies who are answerable to no higher authority than those who appointed them.
School attendance is compulsory for children of defined ages unless some reasonable excuse exists. The definition of reasonable excuse, Section 30 of the Act, contains among the more usual excuses the following excuse, ‘that the child concerned is receiving instruction in some manner which in the opinion of the Minister is efficient.’
Consider the import of such a provision for a moment. The sole criteria upon which a child of school age in Queensland may attend a private school (Christian or otherwise) is the Minister’s opinion that the instruction in that school is efficient. ‘Efficient instruction’ we might add is not defined in the Act and is thus not a term of art with a technical meaning but the term used in its usual sense. It is a totally subjective concept. Thus the whole question of parents exercising any right to determine the content of their child’s education turns on the subjective judgment of the Minister of Education, for the time being. I believe that those of you who come from other states will find very similar situations in your home states.
The specific syllabus content is determined by Boards advised by Advisory Committees, all of whom are appointed and owe their positions ultimately to the government of the day. This battle for the minds of our children is far advanced in the US. Unlike Australia the battle is being fought in the Courts both state and federal.
The United States Constitution unlike its Australian counterpart, states the purpose of American government to be essentially to secure certain basic rights to its citizens namely life, liberty, and the pursuit of happiness and then guarantees those citizens in various ways the expression of those rights. Among the rights guaranteed is the ‘free exercise of religion’.
The right of parents to determine the religious upbringing of their children is a right recognized to some degree or other in most western countries. However in the US it has been legally recognized that the provision of religious education for their children is a religious exercise for many diverse religions. For many, a religious weekday school is as much an exercise of religion as attendance at Sunday School.
It has also been held that the ‘free exercise’ clause is violated by burdensome state regulation of religious schools. Furthermore, the form of religious schools does not have to comply with conventional structures of public education which burden that ‘free exercise’. Neither does the curriculum content and educational policies of religious schools have to comply with prescribed subjects and policies of public schools that burden ‘free exercise’.
It has even been ruled that state minimum standards for nonpublic schools requiring ‘equivalent education’ have to give way to the ‘free exercise’ clause. This is true even in respect to compulsory attendance on an equivalency basis, that is, state regulations regarding compulsory attendance at a school providing an education equivalent to the state school, cannot be enforced in respect to children attending religious schools which do not meet the states minimum requirements.
You can see the vast difference between the rights of parents in Australia and the US to determine their child’s education.
With slight variation, we are all living in states in which the rights of individuals, other than by convention, are legally few and far between. In the specific area of education the parents right to determine their child’s education exists on the sufferance of the government of the day. Private schools exist at the sufferance of the Minister or some delegated authority and thus the parents control is similarly restricted.
I would like to turn briefly to the status of scientific creationism in state school curriculums vis-a-vis evolutionary theory. The subject divides itself into two categories. One, those states where creationism is in the syllabus and, two, those states where it is not.
Queensland is fortunate in that the secondary school syllabus requires the teaching of special creation alongside evolution as a theory of origins. Which states do and which do not is a subject which might be worthy of further investigations, but is not within the scope of this paper. Even in Queensland however there is substantial resistance to giving special creation an equal hearing as the system over the years has developed a tremendous bias through indoctrination of students at the level of teacher training colleges and at tertiary institutions.
Because a Department of Education cannot be held accountable for its failure to meet some outside standard in respect to the existing syllabus or to its implementation in the classroom the individual parent or teacher has no legal basis upon which to contend for the introduction of creationism into the syllabus, or if it is present, for its energetic implementation in the classroom.
In the US it is possible for parents to argue that to exclude the teaching of special creation from the public school is a violation of a Constitutional right, that is, the constitutional prohibition of the establishment of religion by the government. That is, to prefer one religious institution over another or to advance or disadvantage one religious faith in respect to another. In the US it is possible for parents to argue that to exclude special creation is to disadvantage the Christian religion. Such arguments are not available to Australian Christians.
It is my belief that the battle to have special creation taught in Australian schools must be fought outside the court room.
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