Australia - School chaplaincy program is 'constitutionally invalid': High Court Read

My kids go to a Catholic School and receive Catholic Education and also Comparative Religious studies. My choice, as it should be.

Now our last conservative PM implemented a plan that saw funding for a chaplaincy program to be introduced into all schools. This has been hijacked by some real fundy types and stories abound of kids coming home crying because they are going to hell. I was one of those that opposed this and good news it has been ruled as ‘constitutionally invalid’ by our High Court due to funding agreements.

But we must be vigilant in our pursuit of not allowing state funded religion as these bastards are gunna keep trying and it is slippery slope before we are teaching ID alongside Evolution. If you want that kind of stuff, start your own freaken school.

It is, sadly, only invalid because the executive over-reached it’s s61 powers - essentially it can’t just make it so with an order, it has to get the Parliament to pass a law.

This actually calls into question quite a LOT of things the executive has done, so they will be scrambling. Its directly overturning a 1981 decision which broadened executive powers.

s116 is the religious test for office, which the chapliancy program does not violate, as chaplains are contractors.

So what will happen is Parliament will quickly pass a law to keep the NSCP in place. I’m more interested (although I contributed to the funding of this case) to see what the implications are across the board for government funding.

Gleena, hear you loud and clear. An Exec order could overturn this but I just hope that all the noise and hassle makes them think twice about bending to the Hillsongers and Brethren groups who were behind this in the first place.

I worry that the Government can say they don’t employ Chaplains but that they hire a company and they contract to them. Seems slippery to me!

It’s pretty standard in terms of 3rd party providers.

I predict Parliament will have a law passed in minutes to support the current chaplaincy program since Gillard is in the shit and it’s popular in boganland.

It’s a pity, but there you go.

ETA just to be clear - the program itself wasn’t found to be invalid, the way it was funded was found to be constitutionally invalid. A law must be passed to fund the program, and I am (sadly) sure Parliament will do so.

Yep but i wouldnt have thought it was bogan land she would pander to here, more likely hillsongers etc who would tell their sheep to not vote labor if she doesnt push for it.

Jeez we need a 3rd party to keep the bastards honest :smack:

What are the s. 61 powers? I looked at the Constitution, but only got that s. 61 maintains the Crown as the executive.

Right.

Const. was two semesters ago. :wink:

s61 is the only part of the AU Const that direct addresses executive power. It gives the courts so much to work with!

It’s been read to mean (with this decision) that the executive is limited to simply executing the laws, and following a much older decision of the High Court.

There’s only been one other s61 case that addressed those powers directly, which was the Pape case, where the government distributed stimulus cheques a few years ago. It was upheld on the basis that that was within scope as that was an executive power - power that flowed from the Queen.

What they’ve said with this case is that funding this program (and other government programs funded this way) does not meet the description of an executive power.

What I suspect is they are backing off from Pape a bit, because that judgement was all a bit flimsy.

Directly from the judgement:

Williams v Commonwealth of Australia [2012] HCA 23 (20 June 2012), French CJ at 35

So in essence, the HCA is saying, “Dude, you wanna go for this, go make a law.”

Williams also challenged the program under s116, which says there shall be no religious test for office, but these are contractors, and not office holders.

So Nicola Roxon, our AG, has already said they’ll pass the law.

It’s being widely reported that the actual program was invalid, but the judgement says this is not the case - the way the program was funded was invalid under s61.

As I said, no other case bar Pape has directly addressed s61, although of course others have talked about executive power. I think it might be like s51(xxix), the External Affairs power, which was mostly ignored until the '70s by the Court. Perhaps they are moving towards further defining that section, but that’s just a guess.

Fascinating to watch, though!