AUSTRALIAN COUNCIL FOR THE DEFENCE OF GOVERNMENT
SCHOOLS
PRESS RELEASE 438
CHAPLAINCY CASE IN THE HIGH COURT
9 AUGUST 2011
The
case of Williams v The Commonwealth
commenced in the High Court on Tuesday 9 August 2011. That case involves a legal
challenge to the Commonwealth’s $222 million National School Chaplaincy
Program, under which the government funds school chaplains to provide students
of both private and government schools with pastoral care, counselling,
‘‘spiritual guidance’’ and oversight of their ‘‘spiritual wellbeing’’. The
controversial program, criticised extensively in a recent Ombudsman’s report,
is established by policy guidelines beset by what Justice Gummow
termed acerbically on the first day of the hearing as ‘‘somewhat loose
expressions which have never been subject to legislative scrutiny and any
attempt at legislative precision’’ and ‘‘the sort of stuff [that] would never
get through parliamentary counsel’’. The
case dealt with
1.
Firstly,
the confines of the Commonwealth’s constitutional legislative power with
respect to providing ‘‘benefits to students’’, and,
2.
secondly,
limitations upon the executive’s power to spend appropriated monies without
supporting legislation.
3.
Thirdly,
The plaintiff, Williams, , the Commonwealth was imposing a ‘‘religious test ... for office or public
trust under the Commonwealth,’’ Thus infringing
the final limb of the ‘‘freedom of religion’’ provision at section 116
of the Australian constitution
The third argument gave the court a chance to explore in depth and
reorient its interpretation of the ‘‘freedom of religion’’ provision; As in the DOGS case, the court’s construction had been
narrow.
However, since 1981 a worm has been turning in the Australian
community, confronted as it has been with billions of dollars being siphoned
off from public enterprises like education into private, sectarian
institutions. There was however, little or no debate on Section 116 and the
‘religious test.’
It will be very interesting to watch the High Court’s reaction.
For further information see Article by Anna Verney,
Canberra Times, 15 August 2011. at