# Australia - School chaplaincy program is 'constitutionally invalid': High Court Read **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [June 20, 2012, 1:44am UTC](https://boards.straightdope.com/t/australia-school-chaplaincy-program-is-constitutionally-invalid-high-court-read/625711 "2012-06-20T01:44:36Z")\ **Posts on this page:** 7\ **Page:** 1
**Author:** ![sisu](https://avatars.discourse-cdn.com/v4/letter/s/df705f/32.png) [@sisu](https://boards.straightdope.com/u/sisu)\ **Post date:** [June 20, 2012, 1:44am UTC](https://boards.straightdope.com/t/australia-school-chaplaincy-program-is-constitutionally-invalid-high-court-read/625711/1 "2012-06-20T01:44:36Z")
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. > [@](#): > > The High Court has ruled that the national school chaplaincy program is constitutionally invalid because it exceeds the Commonwealth’s funding powers. > The court this morning ruled on a challenge to the scheme by Queensland father Ron Williams. > > The Howard government introduced the scheme in 2007, offering schools up to $20,000 a year to introduce or extend chaplaincy services. > > About 2700 schools have received funding under the program to date. The Gillard government has promised to extend the scheme to up to 1000 further schools. > The judgment could have implications for a raft of other federal government initiatives, from roads funding to arts grants and even private school funding. > Mr Williams, a father of four from Toowoomba, challenged the scheme on two grounds: that it violated religious freedom protections in the constitution, and exceeded Commonwealth funding powers. > > But the High Court ruled that the case did not impact on the freedom of religion, unanimously dismissing Mr William’s charge that school chaplains’ religious position breached the Constitution. > > The constitution says, ‘‘no religious test shall be required as a qualification for any office or public trust under the Commonwealth’’ and Mr Williams had argued that the definition of school chaplains included a ‘‘religious test’’ for office. > > But the court found that school chaplains were not Commonwealth employees, but rather were engaged by an external organisation, Scripture Union Queensland, and the Commonwealth did not enter into contractual or other arrangements with the chaplains. > > But by majority the court held that the funding agreement between chaplaincy provider Scripture Union Queensland and the Commonwealth was invalid because it was beyond the executive power of the Commonwealth. > > Because there is no legislation authorising the agreement, the Commonwealth argued the payments were supported by the executive power granted by section 61 of the constitution, which provides that the executive power ‘‘extends to the execution and maintenance of this constitution, and of the laws of the Commonwealth’’. > > But the majority of the court rejected this, finding that section 61 did not empower the Commonwealth to enter into the funding agreement or make the challenged payments. > > Australia’s largest employer of chaplains, Scripture Union Queensland, which was the defendant to the High Court action, said today’s decision was about a particular historical funding model. > > ‘‘Even though that model might be invalid, it does not keep chaplains from supporting school communities,’’ CEO Peter James said. '‘Instead, it means that a new funding model is needed.’ > Read more: [Chaplains safe despite High Court ruling: Roxon](http://www.theage.com.au/opinion/political-news/school-chaplaincy-program-is-constitutionally-invalid-high-court-20120620-20n2d.html#ixzz1yIG7VeZx) ---
**Author:** ![Gleena](https://avatars.discourse-cdn.com/v4/letter/g/b3f665/32.png) [@Gleena](https://boards.straightdope.com/u/Gleena)\ **Post date:** [June 20, 2012, 2:01am UTC](https://boards.straightdope.com/t/australia-school-chaplaincy-program-is-constitutionally-invalid-high-court-read/625711/2 "2012-06-20T02:01:02Z")
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. ---
**Author:** ![sisu](https://avatars.discourse-cdn.com/v4/letter/s/df705f/32.png) [@sisu](https://boards.straightdope.com/u/sisu)\ **Post date:** [June 20, 2012, 2:09am UTC](https://boards.straightdope.com/t/australia-school-chaplaincy-program-is-constitutionally-invalid-high-court-read/625711/3 "2012-06-20T02:09:52Z")
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! ---
**Author:** ![Gleena](https://avatars.discourse-cdn.com/v4/letter/g/b3f665/32.png) [@Gleena](https://boards.straightdope.com/u/Gleena)\ **Post date:** [June 20, 2012, 2:51am UTC](https://boards.straightdope.com/t/australia-school-chaplaincy-program-is-constitutionally-invalid-high-court-read/625711/4 "2012-06-20T02:51:02Z")
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. ---
**Author:** ![sisu](https://avatars.discourse-cdn.com/v4/letter/s/df705f/32.png) [@sisu](https://boards.straightdope.com/u/sisu)\ **Post date:** [June 20, 2012, 5:54am UTC](https://boards.straightdope.com/t/australia-school-chaplaincy-program-is-constitutionally-invalid-high-court-read/625711/5 "2012-06-20T05:54:30Z")
> [@Gleena](#): > > 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: ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 20, 2012, 7:17am UTC](https://boards.straightdope.com/t/australia-school-chaplaincy-program-is-constitutionally-invalid-high-court-read/625711/6 "2012-06-20T07:17:09Z")
> [@Gleena](#): > > It is, sadly, only invalid because the executive over-reached it’s s61 powers What are the s. 61 powers? I looked at the [Constitution](http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/chapter2), but only got that s. 61 maintains the Crown as the executive. ---
**Author:** ![Gleena](https://avatars.discourse-cdn.com/v4/letter/g/b3f665/32.png) [@Gleena](https://boards.straightdope.com/u/Gleena)\ **Post date:** [June 20, 2012, 8:49am UTC](https://boards.straightdope.com/t/australia-school-chaplaincy-program-is-constitutionally-invalid-high-court-read/625711/7 "2012-06-20T08:49:22Z")
> [@Northern\_Piper](#): > > What are the s. 61 powers? I looked at the [Constitution](http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/chapter2), but only got that s. 61 maintains the Crown as the executive. Right. Const. was two semesters ago. 😉 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: > [@](#): > > In\* R v Duncan; Ex parte Australian Iron and Steel Pty Ltd\*[36], Mason J held that Commonwealth executive power extended to the making of inter-governmental agreements between the Commonwealth and the States “on matters of joint interest, including matters which require for their implementation joint legislative action”, so long as the means used and the ends sought were consistent with the Constitution[37]. His Honour said that the executive power of the Commonwealth was not “limited to heads of power which correspond with enumerated heads of Commonwealth legislative power under the Constitution.” (NOTE FROM GLEENA: the enumerated heads of power are in s51)[38] Referring back to what he had said in the AAP case, he added[39]: > “Of necessity the scope of the power is appropriate to that of a central executive government in a federation in which there is a distribution of legislative powers between the Parliaments of the constituent elements in the federation.” > These remarks are consistent with a concept of executive power in which the character and status of the Commonwealth as a national government is an aspect of the power and a feature informing all of its aspects, including the prerogatives appropriate to the Commonwealth, the common law capacities, powers conferred by statutes, and the powers necessary to give effect to statutes. His Honour’s conception of executive power was consistent with that most recently discussed by this Court in _Pape v Federal Commissioner of Taxation_[40]. It does not afford support for the broad proposition that the Executive Government of the Commonwealth can do anything about which the Parliament of the Commonwealth could make a law. [Williams v Commonwealth of Australia [2012] HCA 23 (20 June 2012)](http://www.austlii.edu.au/au/cases/cth/HCA/2012/23.html), 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!