High Court decision on school chaplaincy - updated

This is a very quick, initial reaction to the recent High Court of Australia decision in Williams v Commonwealth of Australia [2012] HCA 23, relating to the capacity of the Commonwealth government to fund chaplaincy in schools.  (you can find a summary here).  The decision has been reported by the ABC and there is reference to it on the website of SU Tasmania.  (Although the ABC coverage seems unbalanced to me).

The case

The case was brought by the father of four children at a Queensland school (the Plaintiff).  He challenged a funding agreement made between the Commonwealth Government and Scripture Union Queensland.  The funding agreement was a fairly simple contract.  There was no Commonwealth legislation (law) that supported it specifically.  

The plaintiff argued a number of points - that the agreement was unconstitutional or unlawful; and/or that school chaplains could never be supported by the Commonwealth Government because it breached s. 116 of the Constitution, which prevents the Commonwealth from establishing a religion.

The decision

The High Court decided that the funding arrangement was not supported by the Constitution, nor by the Commonwealth Parliament.  On this basis, the plaintiff won the battle (because the specific funding arrangement that he challenged has been struck down by the High Court).  The "war" is as yet undecided, as you will see shortly.

The High Court also decided that school chaplains do not occupy an "office ... under the Commonwealth" (s. 116), and so the requirement that they be members of a faith community did not infringe the Constitution.

So the victory is a narrow one - I'll describe why below.

A narrow victory

The Commonwealth Parliament is a powerful body, within fairly strict boundaries.  The Commonwealth Government is limited by similar boundaries. When the Government wants to spend money, it needs the approval of the Parliament to do so.  Usually it gets this with a very short "line item" in what is called a "supply bill", which allows it to spend money for specified purposes or projects.  It is usually literally a "line item", along the lines of "Services for which money is appropriated: ... Attorney-General's ... $3,799,557" (from Appropriation Act (No. 1) 2011-2012).

The Commonwealth Government has a lot of scope to spend money this way, but it is still limited - it has to fall within the "executive power of the Commonwealth", as set out in section 61 of the Constitution (and the following sections).

The funding arrangement that was challenged in Williams was a contract between the Commonwealth Government and SU Queensland, supported by a line item in similar legislation.  The Commonwealth said that it was supported by the executive power.  The High Court said "no", and so the funding arrangement fails.

This is a narrow victory, because it struck down the way in which chaplaincy is funded, rather than the principle of commonwealth government support for chaplaincy itself.  Off the top of my head, there are two ways in which the Commonwealth can continue to fund school chaplains, it the Parliament and the Government decide that they want to.

Options to continue school chaplaincy

The first option (which would probably be challenged successfully), would be for the Commonwealth Parliament to pass legislation which permitted or required the Government to fund chaplaincy in schools, set out some guidelines/boundaries for what the program might look like.  The legislation would probably just look like the program guidelines which already exist.  If such legislation were passed, and approved by the High Court, then the Government could spend the money.  The problem with this approach is that the Commonwealth Parliament probably doesn't have the power to do this.

The second option would be by funding the program through a series of grants to State governments.  The Commonwealth has power to grant money to States, with or without conditions, under section 96 of the Constitution.  This power is very broad.  The Parliament could grant money for school chaplaincies to the states, which would then fund the program.

So the ball is now back in the Commonwealth Government and Parliament courts.  The Opposition Leader has come out in support of the program.  The Government says it is looking at options, and has some contingencies in place.

With sufficient political will, the program can and will continue, and there shouldn't be much noticeable difference on the ground.

(This post has been composed fairly hastily.  If I find any errors when I get time to look more carefully at it, I will publish transparently as an update to the post.  If you notice any errors, or find that I've misunderstood the decision or its effects, please comment!)


UPDATE 21 June: You can find a response by SU Queensland to the decision here.  SU Tasmania issued this press release along similar lines.