Alex Kohn
27 July 2012

School Chaplaincy Program Unconstitutional – High Court Ruling

Alex Kohn

Partner And Chairman

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The High Court of Australia yesterday delivered its long-awaited decision in the school chaplaincy case holding that the Federal Government school chaplaincy program is invalid:  see Williams v The Commonwealth of Australia [2012] HCA 23.

The High Court held that the Funding Agreement which the Commonwealth Government had made for the provision of the chaplaincy services at a State school in Queensland was invalid.  The High Court also held that the payments made by the Commonwealth Government to the chaplaincy provider under the agreement were not validly made in accordance with the Constitution.

Scripture Union Queensland had entered into a Funding Agreement with the Federal Government to provide chaplaincy services at a State school in Queensland.  The chaplaincy services were provided in accordance with Guidelines and the Funding Agreement was made pursuant to a Federal Government Program.  The funding for the Chaplaincy Program was not provided under Federal legislation but under a series of funding arrangements made by the Federal Government.

Mr Williams, a father whose children attended a State school in Queensland which had a chaplain funded by the Program, challenged its validity.

The High Court ruled that the Funding Agreement, which was not supported by Commonwealth legislation, was invalid to provide for the program as it was beyond the executive power of the Federal Government. 

In addition to this argument, Mr Williams also challenged the program on the basis that it breached the provisions of the Constitution prohibiting the establishment of religion.  The High Court held that the making of the agreement to fund chaplaincy services did not provide for the holding of an office under the Commonwealth and, therefore, the challenge to the Program on this basis failed.

In summary, the High Court held that the Program was invalid because of its funding arrangements.  If the Federal Government wished to re-implement the Program, the Program would need to undergo legislative change.

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