High Court Finds Funding School Chaplaincy Program Outside Commonwealth’s Constitutional Power
Thursday 19 June 2014 @ 11.52 a.m. | Legal Research
The High Court this morning unanimously upheld a constitutional challenge to the Federal Government’s school chaplaincy program in Williams v Commonwealth of Australia [2014] HCA 23. In a joint judgment, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ found the legislation supporting the provision of funding for the program was not a valid law of the Commonwealth as they were not supported by a relevant head of legislative power under the Constitution.
Facts & Legislation
Queensland father Ron Williams had already successfully challenged the original arrangements (See Williams v Commonwealth [2012] HCA 23: Constitutional Freedom of Religion and State School Funding). The High Court found in 2012 that the funding arrangement between the Commonwealth and the provider of the chaplaincy services, Scripture Union Queensland (SUQ), was not appropriately supported by section 61 of the Constitution.
In response, the then Labor Government introduced legislation designed to remedy the problem - the Financial Framework Legislation Amendment Act (No 3) 2012 (Cth) (the FFLA Act), which inserted a new Division 3B into the Financial Management and Accountability Act 1997 (Cth) (the FMA Act), among other changes. The new section 32B(1) provided:
"(1) If:
(a) apart from this subsection, the Commonwealth does not have power to make, vary or administer:
(i) an arrangement under which public money is, or may become, payable by the Commonwealth; or
(ii) a grant of financial assistance to a State or Territory; or
(iii) a grant of financial assistance to a person other than a State or Territory; and
(b) the arrangement or grant, as the case may be:
(i) is specified in the regulations; or
(ii) is included in a class of arrangements or grants, as the case may be, specified in the regulations; or
(iii) is for the purposes of a program specified in the regulations;
the Commonwealth has power to make, vary or administer the arrangement or grant, as the case may be, subject to compliance with this Act, the regulations, Finance Minister's Orders, Special Instructions and any other law.”
Mr Williams then brought new proceedings against the Commonwealth, arguing that the new provisions were invalid “both generally, and in their particular operation with respect to the payment of money by the Commonwealth to SUQ” [joint judgment, at 7]. Mr Williams was also supported in his argument by the states and their Attorneys-General as interveners, who according to ABC News were “concerned the Commonwealth is using the mechanism to bypass them”. The Commonwealth and SUQ argued that the provisions were made validly under s 51(xxiiiA) of the Constitution as laws with respect to the provision of benefits to students. SUQ also argued that the provisions were laws with respect to trading or financial corporations under s 51(xx).
The Decision
The High Court first looked at the validity of the new provisions of the FMA Act. They found that reading section 32B literally would give it “a very wide field of actual and potential application”, but said that “ordinary principles of statutory limitation require rejection of such a reading of those words” [at 36]. They instead found:
“s 32B should be read as providing power to the Commonwealth to make, vary or administer arrangements or grants only where it is within the power of the Parliament to authorise the making, variation or administration of those arrangements or grants.” (emphasis added, at 36].
They then considered whether the provisions could be considered to be “the provision of benefits to students” under s 51(xxiiiA). The High Court accepted that “it may be assumed that provision of chaplaincy services at a school will help some students” but did not believe that was sufficient for the purposes of the section. While the judges were careful not to provide a comprehensive definition of the word “benefit”, the joint judgment concluded:
“Providing those services does not provide material aid to provide for the human wants of students. It does not provide material aid in the form of any service rendered or to be rendered to or for any identified or identifiable student. There is no payment of money by the Commonwealth for or on behalf of any identified or identifiable student. And the service which is provided is not directed to the consequences of being a student.” [at 47]
The Court also rejected SUQ’s argument on s 51(xx), saying this was clearly not a law with respect to trading or financial corporations. The judges also refused to reopen Williams (No 1), and rejected an argument based on the incidental powers in s 51(xxxix).
Comments & Consequences
Mr Williams told the Sydney Morning Herald he believed “the decision was a huge win for the ‘silent majority of parents’”, especially considering the program had been funded in the budget while other education and health programs were cut.
Prime Minister Tony Abbott told the Sydney Morning Herald, that the Federal Government was considering the judgment, saying:
“This is a policy that was invented by the Coalition. It was supported by the Coalition. It was confirmed by the Coalition. So we very much support it and we want it to continue… we’ll make an appropriate response after we’ve made that study.”
Social Services Minister Kevin Andrews said the Coalition had tried to warn Labor that its legislation would not hold up in Court, telling Sky News “[t]he previous government didn’t get it right”.
Chief executive of the National School Chaplaincy Association, Peter James, earlier said that the program was “for the support and benefit of students” and that “[s]pirituality is an important part of psychological wellbeing and developing successful educational outcomes”.
The decision could have potentially far reaching ramifications, as the law also covers funding for a number of other programs that may include as much as 10 per cent of Federal expenditure. The High Court judgment seems to indicate that each area of funding may need to be considered individually to determine if it falls under an appropriate head of power.
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Sources:
Williams v Commonwealth of Australia [2014] HCA 23 (19 June 2014)
