The $254 million Federal Government School Chaplaincy Program has been dealt a significant blow today after the High Court of Australia ruled the Commonwealth does not have the authority to fund the program, meaning its continuation is now contingent on a series of agreements being established with state and territory governments.
Anne Twomey, a Professor of Constitutional Law at the University of Sydney, told New Matilda that while the law allowing the Commonwealth to fund the scheme had been ruled invalid, the Court’s decision did not mean federal money could not flow to the program via an alternate route.
“The Commonwealth doesn’t have a head of legislative power to legislate at all with respect to chaplains. That’s now decided by the High Court.” Prof Twomey said.
“But what the Commonwealth can do is make a grant to Queensland [and other states]that is subject to a condition that it gets used on the chaplaincy program.”
The challenge to the current funding arrangement arose after an earlier ruling in 2012 forced the Gillard Government to introduce legislation to sure up the program, and around 400 other federally funded schemes.
The scramble followed litigation pursued by Queensland man Ronald Williams, who went to court after the Commonwealth began providing funding to Scripture Union Queensland, allowing it to oversee a chaplaincy program at the state school where his children studied.
In the May budget, the Coalition Government committed $245 million funding to the National School Chaplaincy Program, and ended assistance to non-religious counsellors. The program was initiated by the Howard Government in 2006, and supported by the subsequent Labor Government.
While today’s ruling found the Commonwealth could not fund the chaplaincy program, it is unclear what will happen to the other programs the Gillard Government moved to protect with its 2012 legislation.
Twomey said each one of those programs — including direct Commonwealth funding to local government road programs – could now be tested in court.
“In that list of those 400-odd programs, very many of them will be supported by a Commonwealth Heads of Power, so they will be validly authorised. But there will be other ones among them that just aren’t,” Twomey said.
“The question is how do you find out which are the valid ones and which are the invalid ones? And the problem here is because of the fact the High Court has focused solely on this particular issue, the chaplaincy, you’d have to challenge other ones in order to find out whether or not they’re validly supported by Heads of Power.”
The Commonwealth Heads of Power are established in Section 51 of the Constitution and determine in which areas the Commonwealth Government has powers to legislate.
Twomey said that although these programs were now in limbo, it was unclear which, if any, would face further challenge.
“You’ve got to remember that for the most part people don’t object to being given money, so it’s extremely rare for anyone to challenge these things,” Twomey said.
“It’s usually a litigant, a person who has a particular bee in their bonnet.”
In the case of today’s ruling, that person was Ronald Williams, whose name will now be preserved on the historic judgement, to be memorised and cursed by a generation of law students across the country.
After his successful litigation in 2012, Williams returned to the courts again to challenge the laws the Gillard Government enacted to help the chaplaincy program survive his initial victory.
Despite twice overcoming the Commonwealth, Williams may again be frustrated.
“It may well still be the case that the Commonwealth money ends up funding chaplains in Ron Williams’ children’s school, but it’s done by a grant under section 96 of the Constitution, not by direct legislation,” Twomey explained.
Williams may have failed to keep God out of his children’s classroom but he may be able to take solace from the fact he has created an almighty headache for the Commonwealth.
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