Commonwealth funding of school chaplaincy program

The 2021-21 budget has continued funding for the National School Chaplaincy Program (NSCP), however while the NSCP will continue to support the wellbeing of students and school communities through the provision of pastoral care services and strategies delivered by chaplains, the idea that a chaplain should be responsible for students’ well-being continues to attract controversy.

The landmark decision of Williams v Commonwealth of Australia [2010] HCA 23 sets limits on the extent to which the Commonwealth can take over and direct operations over which the states, not the Commonwealth, has power. It affirms that the executive power of the Commonwealth is limited by the Constitution, unlike the situation in Great Britain where its constitutional practice is that the Parliament is supreme and can decide the extent of the executive’s power to spend money. In rule of law terms, it makes clear that in Australia, the parliament and the executive are subject to the Constitution”.

CASENOTE

The decision of Williams v Commonwealth of Australia [2010] HCA 23 is a good example of why it is so important for Parliament’s legislative and executive powers to be kept separate, as the Australian Constitution seeks to ensure. This case examined the extent to which the Commonwealth could enter into contracts with private parties. The critical question in the case was whether, in the absence of statutory authority, the Commonwealth’s executive power as set out in the Constitution was broad enough to enable it to enter into a funding agreement with a school and make payments under it.

The Australian Constitution (“the Constitution”) provides that the executive power of the Commonwealth is vested in the Queen but in practice, it is exercised by the Governor-General. (Section 61). Section 51 of the Constitution provides the specific areas in relation to which the Parliament can make laws.

The National School Chaplaincy Program (NSCP) was introduced in 2006 by the then Coalition (Howard) government. Under this program, schools could apply for financial support from the Commonwealth to establish a chaplaincy program or enhance an existing program within their school. Originally, the NSCP provided funding only for religiously affiliated chaplain service providers but in 2011, the subsequent Labor government extended the program to provide funding for non-religious social workers for “secular” schools. (NB: The term “secular” was used by media and commentators during the period when this case was being reported, hence the use of the word here).

The plaintiff, Ronald Williams, was a father of four whose children were enrolled at Darling Heights State School in Queensland. Mr Williams challenged the right of a federal government or even a state government to fund programs such as this in public schools. As it transpired, Williams would go on to mount two High Court challenges, supported by like-minded parents and individuals who supported his push to stop the government from funding an “overtly religious” program.

From a legal perspective, the key issues in relation to which the High Court needed to provide clarity did not centre around the religious identity of the program nor whether the funding agreement entered into between the Commonwealth and the Scripture Union of QLD (a chaplain service provider) in a public education setting should be “secular”. Mr Williams’s initial High Court challenge argued that by requiring school chaplains to be formally ordained or commissioned by a religious institution or state-approved chaplaincy service, the Commonwealth was imposing a ”religious test”, in breach of the ”freedom of religion” right enshrined in Section 116 of the Constitution. However, the High Court unanimously rejected this aspect of Mr Williams’ argument because in its view, chaplains did not hold an “office” under the Commonwealth for the purposes of section 116.

The constitutional question to be resolved in the High Court was not about religion in the end, but rather, about the scope of the Commonwealth’s spending powers.

This brings our discussion to the second basis of Mr Williams’ challenge. Prior to the decision in Williams, many assumed that the scope of the Commonwealth’s executive powers (as set out in Section 61) extended at least to the heads of Commonwealth legislative power contained within Section 51 of the Constitution. Moreover, it was assumed that the Commonwealth executive did not require any specific statutory authority to engage in activities related to those particular subject matters.

Mr Williams submitted that the Commonwealth’s executive powers did extend so far as to vest in the executive the power to enter into the subject funding agreement and make payments to NSCP providers pursuant to that agreement. Importantly, he submitted no statute was enacted for the creation, administration or funding of the NSCP. The Commonwealth’s defence was that it could rely on its executive power, as set out in Section 61 of the Constitution, which was sufficient.

The High Court analysed the scope of the Executive Power and the particular wording of Sections 61 and 51 of the Constitution. Prior to this case, there had been a long-held assumption that the Commonwealth executive power extended to entering into contracts and funding agreements in, at least, areas that fell within the Commonwealth’s legislative heads of power – even where the Parliament had not passed legislation authorising those contracts and agreements.

The judges discussed the breadth of the Commonwealth Executive’s power and whether that extended to spending money and entering into contracts, noting that Section 61 of the Constitution was ill-defined. Six members of the majority rejected the notion that the Commonwealth’s power to spend public money was unlimited. Furthermore, French, Gummow, Crennan and Bell JJ rejected the Crown’s submission that the Commonwealth executive could spend money on any subject matter that corresponded to a “head of power” under Section 51.

The High Court decision was ultimately handed down in favour of Mr Williams. The plurality decided the NSCP program was unconstitutional, on the basis that even if the Parliament had the power to enact laws to support the program, the Executive could not enter into an agreement and make payments for the program unless the Federal Parliament had been authorised to do so by legislation. It opined in most circumstances, the Commonwealth Executive would have to pass additional legislation through Parliament before it could enter into contracts with private parties to spend public money.

This case set an important precedent for the Federal Government and heralded a turning point in the public’s understanding of the Commonwealth’s Executive power. The decision confirmed the Commonwealth Executive’s capacity to enter into contracts is not unlimited. The Executive is only empowered to enter into contracts on matters that are the subject of legislation and have been enacted.

The legacy of this High Court precedent is that if the Commonwealth Executive wishes to spend money in areas beyond the day-to-day expenditure of the government, it has to seek authorisation via separate legislation or alternatively, utilise the provisions of section 96 of the Constitution to grant money to a state or territory to enable that. The case confirmed it is beyond the Executive power of the Commonwealth to act alone and to spend money in areas beyond the day-to-day needs of the government, and that Parliament must be more involved in such decision making. To allow otherwise would result in government policies potentially being implemented without scrutiny from the Federal Parliament.

For all of these reasons, Williams sets an important precedent for parliamentary accountability and federalism. The decision upholds the federal nature of our constitutional system, and the importance of the principles of responsible and representative government as well as the separation of powers.

Following this landmark decision, doubt was cast upon the constitutional validity of a significant proportion of Commonwealth expenditure. Around that time, there were another 400-odd Commonwealth-funded activities, accounting for up to 10 per cent of federal government spending, that were similarly invalidated by this decision. Only days after the High Court decision, the Gillard government rushed through new legislation to enable 427 grants and programs to be funded without additional legislation. The Gillard government also paid the Scripture Union of Queensland around $6.2 million, some of which was given to Mr Williams’s children’s school to enable it to run its chaplaincy program.https://www.smh.com.au/politics/federal/ron-williams-took-on-school-chaplaincy-program-and-won-in-high-court-20140619-zsf6n.html

The actions of the Gillard government motivated Mr Williams to return to the High Court and challenge the constitutional validity of the new legislation.

In the subsequent matter of Williams v Commonwealth of Australia [2012] HCA 23, in a unanimous decision, the High Court held the newly passed legislation was unconstitutional and that the Parliament did not have the power to enact laws to fund school chaplains. http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2012/23.html?context=1;query=Williams%20v%20Commonwealth%20of%20Australia;mask_path=

Following the second High Court challenge in which the judges unanimously held the Commonwealth had overreached its funding powers by providing direct payments to chaplain providers, the government was forced to redesign the $244 million scheme. In a Cabinet meeting and bid to prevent a further High Court challenge, the then Abbott government ministers explored options to extend the scheme to include funding for secular welfare workers. The Prime Minister argued the government should stand by its existing policy and the scheme’s original intent and focus should be to supporting pastoral care in schools. Consideration was also given to extending the scheme to include funding for secular workers. https://www.smh.com.au/politics/federal/tony-abbott-to-keep-secular-workers-out-of-school-chaplaincy-program-20140827-1091u0.html

The end result was that the Government had to enable the scheme a different way. It used the power to make grants to the States under section 96 of the Constitution to fund the program. The funding agreement contracts stipulated that the States had to use the funding to pay for chaplaincy providers.

In a statement to the media following the outcome of the second High Court decision, Mr Williams said:

“My cases weren’t about having chaplains taken out of schools, but questioning the right of a federal government or even a state government to fund programs such as this in public schools.”

The Williams decisions have not been without criticism. Some critics have suggested the High Court misunderstood the role of the Parliament and in particular the Senate in protecting responsible and representative government and federalism. Other critics argue the High Court decisions set an important precedent regarding the role of the Executive Government as defined in the Constitution and re-affirm the importance of: