Government Funding For School Chaplaincy Ruled Unconstitutional

Opposition Education spokesman Christopher Pyne supports chaplains in schools.
Opposition Education spokesman Christopher Pyne supports chaplains in schools.

Opposition Education spokesman Christopher Pyne supports chaplains in schools.

Yesterday, the High Court of Australia handed down a decision declaring that the funding of the school chaplaincy program by the federal government was invalid.

You can read the full decision here, but I doubt you’re going to want to. It is very long and quite legally technical, as most court decisions are. Though there is a quick “Q and A” of all the application points in italics at the beginning of the judgment.

The challenge made by way of application to the highest court in the land was made by a Toowoomba father, Ronald Williams, who sends his seven children to Darling Heights High School in the region. He objected to any “religious missionary” being placed in public schools and argued that the program was unconstitutional.

The program, introduced in 2006 by the Howard government was amended by Labor to include funding for either a school chaplain or a secular student welfare officer.

The High Court found the receipt of federal funding by the Scripture Union of Queensland (“SUQ“) were not supported by s61 of the constitution (about executive power).

SUQ is the organisation that provided chaplaincy services in Queensland. An exert from the judgment shows some details of the company constitution:

 It is designated in its Constitution as “the Mission”. Its objects are “to make God’s Good News known to children, young people and their families” and “to encourage people of all ages to meet God daily through the Bible and prayer”. In furtherance of these objects, SUQ shall “undertake … a variety of specialist ministries”, “shall preach the need of true conversion and of holiness in heart and life” and “shall aid the Christian Church in its ministries.” Williams v Commonwealth of Australia [2012] HCA 23 at [6]

The Court commented:

For the reasons that follow, s 61 does not empower the Commonwealth, in the absence of statutory authority, to contract for or undertake the challenged expenditure on chaplaincy services in the Darling Heights State School. That conclusion depends upon the text, context and purpose of s 61 informed by its drafting history and the federal character of the Constitution. It does not involve any judgment about the merits of public funding of chaplaincy services in schools. It does not involve any conclusion about the availability of constitutional mechanisms, including conditional grants to the States under s 96 of the Constitution and inter-governmental agreements supported by legislation, which might enable such services to be provided in accordance with the Constitution of the Commonwealth and the Constitutions of the States. Williams v Commonwealth of Australia [2012] HCA 23 at [4]

Basically, the Court declined to make any judgment about the merit of a school chaplaincy program being funded by the federal government. However, they found that executive power of the Commonwealth doesn’t extend to allow the federal government to enter into contracts and spend federal money relating to any subject matter that falls within a head of Commonwealth legislative power.

So the key is the issue of funding, and relying on executive power to fund a program provided in state education by a religious based corporation. Not the federal government funding the chaplaincy program per se, but the power that was relied upon to fund it. It’s an incredibly important decision and will have far reaching implications into federal government funding.

The government has indicated that they will continue to fund the school chaplaincy program. They just won’t be able to rely on the s61 power to do so.

For more information, read about it on ABC here.

What do you think? Do you think that the decision was right? Do you agree with government funded school chaplaincy programs?

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  • Sonja van Woerkom

    First & foremost I have to preference this comment by saying that yes, I am a Christian.

    Ok, now that we’ve got that out of the way…My very public, multicultural multifaith high school had a school chaplain. He was partly funded by the government and partly by a group of local churches. He was a pretty cool guy – in a former life he was a high school maths teacher (and a funny one at that!)Yes, he taught scripture (non-compulsory 40 minutes a week for 16 weeks a year per grade 7-10). The rest of his time was spent in his “office” where hot chocolates, tea, muffins and couches resided. Many students went to him with their problems as he was someone who could be relied on to listen to you (and actually listen – not like our counsellor).

    I know this is only one story out of many, but it’s my only experience with a school chaplain. His purpose at my school was to help people – and he did. It was to listen to them, not judge and offer solutions (or just a place to cry) – and he did. So yes, I agree with government funded school chaplains. Not because I’m a Chrisitian, but because our chaplain was so awesome!

    S :)

    p.s I’m 99% sure that a person of any faith can become a school chaplain under this act. true?

    • Whippersnapper

      The Labor government amended the program to include a secular child welfare officer. Realistically though, I’ve heard the chaplains in schools don’t ever nor are they supposed to mention anything to do with religion in their services.

      It is funding by the government of SUQ to provide the services which was the application point by Mr Williams. Even getting more technical – the power the government relied upon (the executive power) to draw public funds to pay for it – the court said “nuh uh you can’t rely on the executive power to pay a religious corporation to provide services in a state school”. In other words, go ahead and fund it, just find another power to rely upon to do so.

      • Sonja van Woerkom

        I think the reason the chaplain at my school ran the scripture classes was that he was jointly funded by the government (for welfare – most of his time, half of his funding) and the local churches…

  • http://music.johnanthonyjames.com/ John James

    I think this is one of these High Court decisions that simply reflects a conflict between what our constitution says and how our Government works…it’s quite possible that a change to legislation will fix this issue and make this decision irrelevant…there may even be bi-partisan support for this, believe it or not…

    The High Court has correctly ruled on the legality of the program, not the validity of the program…I still think school counselling programs should be secular in State Schools.

    • Whippersnapper

      Technically, they ruled on the use of the executive power with s61 to justify the funding the program, not the legality of the program.

  • Melissa Savage

    Ah…

    Thanks for this. I have no problem with chaplains: from what I’ve seen, they do a wonderful job, but I don’t think religious ministers/priests/nuns/sheiks/mahatmas/swamis should be funded by government money. Which is of course not why the program was deemed unconstitutional. Sigh.

    • Whippersnapper

      I know – when I skimmed over the decision, I was like “what a technical legal decision”, it’s not the funding or the program itself that they disagree but the constitutional power relied on by the government to fund it. They also talked about s116 (which is about religion), but the main focus was s61 of the Constitution.

      They’ll just get some smart government/constitutional lawyers to sort it out for them and find another way to fund it.

  • Mandi Aylmore

    Like Sonja, I’m also a Christian.

    I have gone to both private and public schools. Pymble Ladies College is a presbyterian school. I don’t remember there being a chaplain, but I do remember doing scripture every week. Non attendance to scripture wasn’t an option.

    Asquith Girls High School on the other hand is a public school. No school chaplain, but there was a scripture teacher. Scripture was optional, however, if you chose not to do Scripture, you had to sit outside the Geography departments office for 30 minutes.

    My opinion is, religion is a deeply personal thing. I don’t think the school should teach religion. Each religion and belief system is so completely different. And what about atheists?

    Unless you are going to a religious specific school, I think it should be left to the parents. But that’s just me :)

    • Whippersnapper

      I’m curious Cuppy, what does being a Christian encompass for you? If that is not too personal of a question.

      I mean, I’m baptised Catholic, but I’m best described as agnostic. I haven’t been to church (discounting funerals and weddings) since I was in high school and it was forced on me. Is that the same for you, or are you actively involved in practising your religion?

      • Mandi Aylmore

        Ooooooo. Ok well. I do go to church. Not as regularly as I used to. I’ve kinda lost my way a little. But happy do have done so if that makes sense. I believe in God. Just wishing I could do it my own way I suppose.

        Vague I know. There’s lots I’m leaving out. Just not prepared to discuss really.

        Ugh. Sounds terrible doesn’t it!

        • Whippersnapper

          Sorry, Cuppy, I wasn’t trying to be snoopy, I just notice a few people identify themselves as being Christian, and I’m curious because I’m not sure what that statement encompasses for each person.

          To me, when I see it, it is similar to saying “I have hair” – and that is hard for someone to work out what *type* of hair you have!

          I suppose there are several religions that identify as being Christian, too, so that makes it even more confusing!

    • http://tamsinhowse.com/blog Tamsin Howse

      I think religion should be taught in public schools, but more like the Studies Of Religion subject I did for my HSC, which covered the 5 major world religions (Christianity, Judaism, Hinduism, Buddhism and Islam).

      This subject has been hugely beneficial for me in life, and I would argue has been one of the most valuable subjects I ever did because it has given me a basic understanding of those religions, and many others that we studied extremely briefly.

      This basic understanding has provided me with the ability to understand the religious & cultural viewpoint of a large number of people upon meeting them and learning more about them. Of course it only gives me a starting point, but a starting point that has proved very valuable in every line of work I have been in.

      • Mandi Aylmore

        See that’s completely different. The Scripture I’m talking about is the one sided christian belief structure.

        The Studies of Religion course wasn’t offered at my school, but I think it should have been. I would have been interested in that one.

      • Whippersnapper

        I did SOR at school. It was a highly ranked board subject (not sure how anyone outside of Queensland ranks their exit scores for high school but I think Queensland is quite different to everywhere else), equal to that of Chemistry in board rankings. So I did it. It was HARD. But so worth the work competing against another girl for the 400 score for it!

        We either did SOR or we had to go to “religious education” (catholic school) which wasn’t a board subject.

        • http://tamsinhowse.com/blog Tamsin Howse

          Same! We had a choice between “Religious Studies” which is like the Scripture Cuppy has mentioned above, or “Studies of Religion” which was a Board of Studies subject, but we had to do one or the other.

          I figured why do the one that didn’t count towards anything?