Williams v Commonwealth [2012] HCA 23: Constitutional Freedom of Religion and State School Funding

In a landmark decision today Williams v Commonwealth of Australia [2012] HCA 23, the High Court held by majority that a funding agreement between the Commonwealth of Australia and Scripture Union Queensland for the provision of chaplaincy services at a State school in Queensland was invalid due to a breach of the executive powers relating to funding contained in the Commonwealth Constitution.

Mr Ronald Williams, a father of four from Toowoomba in Queensland, challenged the chaplaincy scheme on two grounds: that it violated religious freedom protections in the constitution, and exceeded Commonwealth funding powers.

The High Court unanimously dismissed the part of Mr Williams' challenge based on s 116 of the Constitution and the violation of religious freedom. Relevantly, s 116 provides that "no religious test shall be required as a qualification for any office or public trust under the Commonwealth". The High Court decided that the school chaplain was engaged by an outside contractor and did not enter into any contractual arrangements with the Commonwealth itself.

By majority, the High Court upheld the contention of Mr Williams that the funding for the school chaplain exceed the executive powers of the Commonwealth for funding. In the absence of legislation authorising the Commonwealth to enter into the Funding Agreement, the Commonwealth relied upon the executive power granted by s 61 of the Constitution. Relevantly, s 61 provides that the executive power of the Commonwealth "extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth". A majority of the High Court held that, in the absence of statutory authority, s 61 did not empower the Commonwealth to enter into the Funding Agreement or to make the funding payments for the school chaplain. In particular, a majority of the Court held that the Commonwealth's executive power does not include a power to do what the Commonwealth Parliament could authorise the Executive to do, such as entering into agreements or contracts, whether or not the Parliament had actually enacted the legislation.

The decision could have wide ramifications for other Commonwealth Government initiatives which require direct Commonwealth funding including roads funding, arts grants and private school funding and may require a more creative solution involving funding given to the States to be employed.

To see the text of the case, please click here.

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