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Australia: High Court Strikes Down Government Funding of School Chaplains

(June 23, 2014) On June 19, 2014, the High Court of Australia (the highest court in Australia) ruled unanimously that the federal government’s funding of the national school chaplaincy program was invalid under the Australian Constitution. (Williams v Commonwealth of Australia [2014] HCA 23 [Williams (No.2)]; Case S154/2013: Williams v. Commonwealth of Australia & Ors, High Court of Australia website (last visited June 20, 2014).)

2012 Decision on the Issue

The High Court had previously ruled on this issue in 2012, in a case brought by the same plaintiff, Ron Williams, who had challenged the validity of the federal government’s agreement with and payments made to the organization Scripture Union Queensland (SUQ), to deliver chaplaincy services in Queensland schools. (Williams v Commonwealth of Australia [2012] HCA 23 [Williams (No. 1)], Australasian Legal Information Institute (AustLII).) In that case, six out of seven members of the High Court held that “the agreement providing for payments to SUQ was invalid, because it was beyond the executive power of the Commonwealth under s 61 of the Constitution, and that the making of the relevant payments by the Commonwealth to SUQ under that agreement was not supported by the executive power of the Commonwealth under s 61,” and that “there was no authority in the Constitution or in statutes made under it to spend the moneys appropriated for the purposes of what was then called the National School Chaplaincy Program.” (Williams (No. 2), ¶ 24; Australian Constitution s 61, ComLaw website.)

Funding for School Chaplains Before and After 2012

As a result of the 2012 decision, the Australian Parliament quickly enacted legislation to provide legislative authority for certain spending, including in relation to the school chaplaincy program. (Financial Framework Legislation Amendment Act (No. 3) 2012 (Cth), ComLaw website; see also Financial Framework Legislation Amendment Bill (No. 3) 2012, Parliament of Australia website.)

Funding for the school chaplaincy program has been provided by the federal government since 2007. In the 2014 federal budget, AU$243.8 million (about US$228.8 million) was allocated to the program over a four- year period. (Press Release, Hon. Scott Ryan, Keeping Our Commitments: Funding a National School Chaplaincy Programme, Ministers’ Media Centre website (May 13, 2014); Australian Government, Budget 2014-15, Budget Paper No. 2: Budget Measures, Part 2: Expense Measures (Continued) – Education (May 2014), Australian Government website.) As a result of the High Court proceedings in Williams (No. 1), the program was expanded and renamed the “National School Chaplaincy and Student Welfare Program,” with schools able to employ “either a chaplain or a secular student welfare worker.” (Marilyn Harrington, Changes to the National School Chaplaincy Program, FLAG POST (Sept. 8, 2011).)

The Second Challenge Against Chaplaincy Funding

Williams brought a challenge against the 2012 legislation and other relevant legislation and the new funding agreement with SUQ made under it. In particular, the Court was tasked with determining whether the school chaplaincy program is sufficiently connected to section 51(xxiiA) of the Australian Constitution, which the federal government relied on “as the relevant head of power to support validity.” (Williams (No. 2), ¶ 101; see also ¶¶ 13, 37–48.) This constitutional provision gives the federal Parliament the power to pass laws with respect to “the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances.” (Australian Constitution s 51(xxiiA).)

The High Court held that providing at a school the services of a chaplain or welfare officer “does not provide material aid to provide for the human wants of students,” and further that

It does not provide material aid in the form of any service rendered or to be rendered to or for any identified or identifiable student. There is no payment of money by the Commonwealth for or on behalf of any identified or identifiable student. And the service which is provided is not directed to the consequences of being a student. There is no more than the payment of an amount (in this case to an intermediary) to be applied in payment of the wages of a person to ‘support the wellbeing’ of a particular group of children: those who attend an identified school. And the only description of how the ‘support’ is to be given is that it includes ‘strengthening values, providing pastoral care and enhancing engagement with the broader community’. These are desirable ends. But seeking to achieve them in the course of the school day does not give the payments which are made the quality of being benefits to students.

… Providing money to pay persons to provide such services at a school is not to provide benefits which are directed to the consequences of being a student. It is not a provision of benefits to students within the meaning of s 51(xxiiiA). (Williams (No. 2), ¶¶ 47 & 48.)

The Court therefore held that the relevant provisions, in their operation with respect to the SUQ funding agreement and the payments made under it, are not valid. (Id. ¶ 90.) The Court also held again that the Commonwealth’s expenditure of money under the funding agreement was not supported by the executive power of the Commonwealth set out in the Constitution. (Id. ¶ 92.)

Aftermath of the Decision

According to the Attorney-General, the decision means that the program payments already made are now debts owed to the federal government. (Daniel Hurst, School Chaplains Funding Struck Down by High Court, THE GUARDIAN (June 19, 2014).) However, the government has decided to waive its rights to recover these payments. (Press Release, Department of Education,National School Chaplaincy and Student Welfare Program (June 19, 2014), Australian Government Department of Education website.) The Prime Minister of Australia, Tony Abbott, said that the government continues to support the school chaplaincy program and wants it to continue. The National School Chaplaincy Association called on the government “to put in place an alternative funding solution.” (Jane Lee & Matthew Knott, Father Wins High Court Challenge on Federal Funding of School Chaplains Program, THE SYDNEY MORNING HERALD (June 19, 2014).)