Thursday 19 June 2014
The High Court has upheld the second Williams challenge to the constitutionality of the National Chaplaincy Program.
As far as I can tell, the Court’s argument goes something like this:
- the Commonwealth argued it had authority to fund the Chaplaincy Program because of section 51 (part xxiiiA) of the Constitution. This section says that the Commonwealth may fund programs which, among other things, provide benefits to students.
- the Court found however that the Commonwealth could not rely on this section because chaplaincy program services “is not a provision of benefits to students within the meaning of section 51 (part xxiiiA)”
- this is because the chaplaincy program does not provide material aid to identifiable recipients, nor is it directed to students in their capacity as students, as required by section 51 (part xxiiiA.
While this is a strong decision, there are ways the Commonwealth can get around it to continue the Chaplaincy scheme. The Prime Minister Tony Abbott has already come out and said “This is a policy that was invented by the Coalition, it was supported by the Coalition … so we very much support it and we want it to continue.”
One way for this to happen would be for the Commonwealth to direct the quarter of a billion dollars through the States. Given Victoria’s strong stance narrowly restricting the delivery of Special Religious Instruction, it would be interesting to see its response to such a move.