AUSTRALIAN COUNCIL FOR THE DEFENCE OF GOVERNMENT SCHOOLS

PRESS RELEASE 438

CHAPLAINCY CASE IN THE HIGH COURT

9 AUGUST 2011

The case of Williams v The Commonwealth  commenced in the High Court on Tuesday 9  August 2011. That case involves a legal challenge to the Commonwealth’s $222 million National School Chaplaincy Program, under which the government funds school chaplains to provide students of both private and government schools with pastoral care, counselling, ‘‘spiritual guidance’’ and oversight of their ‘‘spiritual wellbeing’’. The controversial program, criticised extensively in a recent Ombudsman’s report, is established by policy guidelines beset by what Justice Gummow termed acerbically on the first day of the hearing as ‘‘somewhat loose expressions which have never been subject to legislative scrutiny and any attempt at legislative precision’’ and ‘‘the sort of stuff [that] would never get through parliamentary counsel’’.  The case dealt with

 

1.      Firstly, the confines of the Commonwealth’s constitutional legislative power with respect to providing ‘‘benefits to students’’, and,

2.      secondly, limitations upon the executive’s power to spend appropriated monies without supporting legislation.

3.      Thirdly, The plaintiff, Williams, , the Commonwealth was imposing  a ‘‘religious test ... for office or public trust under the Commonwealth,’’ Thus infringing  the final limb of the ‘‘freedom of religion’’ provision at section 116 of the Australian constitution

 

The third argument gave the court a chance to explore in depth and reorient its interpretation of the ‘‘freedom of religion’’ provision; As in the DOGS case, the court’s construction had been narrow.

 

However, since 1981 a worm has been turning in the Australian community, confronted as it has been with billions of dollars being siphoned off from public enterprises like education into private, sectarian institutions. There was however, little or no debate on Section 116 and the ‘religious test.’

 

It will be very interesting to watch the High Court’s reaction.

For further information see Article by Anna Verney, Canberra Times, 15 August 2011. at

http://www.canberratimes.com.au/news/opinion/editorial/general/missed-opportunity-to-debate-school-chaplain-religious-test/2258330.aspx