The High Court has unanimously decided that the school chaplaincy program funded by the Commonwealth Government has no basis in the Australian Constitution, and is therefore invalid. The decision is an important one as it 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.

The history of the proceedings is that in 2012, Ronald Williams, whose four children attended a public school in Queensland, brought proceedings against the Commonwealth Government and the Scripture Union of Queensland (SUQ). He argued that the Commonwealth funding of SUQ to provide school chaplaincy programs was invalid, even though the funding was provided for in “appropriation legislation” in accordance with s.81 and s.83 of the Constitution. Section 81 states that all money raised by the Commonwealth (such as through taxes) is to be held in a Consolidated Revenue Fund and dispensed in accordance with the Constitution. Section 83 states that “No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law”.

The High Court agreed with Mr Williams, finding that it is not sufficient for the funding to be given in accordance with appropriation legislation, as required by the Constitution. After this decision, the Commonwealth appropriation legislation was re-drafted and re-enacted to specifically support the Commonwealth executive earmarking funding for the school chaplaincy program.

In its decision dated 19 June 2014, the High Court has again struck the relevant legislation down in strong terms, holding that compliance with sections 81 and 83 is insufficient because those sections of the Constitution “do not confer a substantive spending power”. Rather, “the power to spend appropriated moneys must be found elsewhere in the Constitution or in statutes made under it”. Since the Commonwealth does not have any head of power in relation to school education, it cannot direct funding to specific programs relating to education.

The High Court also rejected arguments that the funding was permissible under the trading and financial head of power in the Constitution (s.51(xx)) or the Commonwealth’s power to provide benefits to students as set out in s.51(xxiiiA). That benefits power has an interesting history as described in the separate judgment of Crennan J. It was inserted into by a referendum to allow the Commonwealth to legislate to provide enlarged forms of social security, such as unemployment benefits and medical services, following World War II. With the exception of Crennan J, the High Court decided that the school chaplaincy program “which does not provide material aid in the form of any service rendered or to be rendered to or for any identified or identifiable student” was not a benefit within the meaning of s.51(xxiiiA), even if it may have “desirable ends”. While Crennan J thought that the term “benefit” was capable of a wider meaning, nevertheless she found that it did not extend to payments to the Scripture Union of Queensland.

Further Reading

  • NSW Parliamentary Research Service case note (link)

 

kate burnsKate Burns is RoLIA’s Chief Executive Officer. Join the discussion about rule of law issues on Twitter @RoLAustralia.