Wrap - The High Court Challenge to Federally-Funded Chaplains in Australian Schools

WILLIAMS V. THE COMMONWEALTH

By Max Wallace

On 20 June 2012 the High Court of Australia handed down their decision in  Willliams v The Commonwealth. The case concerned the question of whether it was unconstitutional for the federal government to fund religious chaplains in public schools. The argument against the funding was on technical, financial grounds. The government had avoided making a law in the parliament to fund the chaplains. That way, they were able to avoid a legal complaint that the funding breached Australia's s.116, the section in the constitution that mimics America's First Amendment. The funding therefore would avoid a major separation of church and state dispute.

Nevertheless, the High court found 6-1 in favour of Ron Williams whose complaint centred around his childrens' exposure to religious chaplains in a public school in Queensland.  For the first time in Australian history since state governments decided to withdraw state aid to church schools in the 1870s (later massively reinstated), the High Court said government funding of religion was unconstitutional, albeit on technical grounds unrelated to s.116. The government reacted swiftly. Government and Opposition supported legislation (the Financial Framework Legislation Bill (No.3) 2012) rushed through Parliament to override the High Court's decision so the funding could continue to flow.

In order to protect this funding the Parliament was prepared to give the Executive ( Prime Minister and Cabinet) new authority to fund anything they liked, outraging the legal profession and other commentators (see especially Simon Breheny, 'Democracy sidelined in panic over chaplains', Sydney Morning Herald, 5 July 2012.) Professor of constitutional law at the University of Sydney, Anne Twomey, commented: 'never has such enormous power been surrendered by the Parliament to the Executive in one hit.' Their point is that without legislation and parliamentary scrutiny of government spending, the very structure of government itself, the separation of powers, Executive, Legislature and Judiciary, is compromised.

In doing this, the government has galvanised opposition and moved the Greens closer to a secular position. In rushing through this astonishing law to guarantee the funding, the government has exposed itself to another High Court challenge by 2012 Humanist of the Year Ron Willliams. Advice already received indicates a good chance of success for a new case, especially before the bench of a High Court that must be deeply offended that their decision in Williams was treated with so much contempt.