: National chaplains in schools program: 
Watch this space

National chaplains in schools program: 
Watch this space

Renae Barker
Federal

In January 2010 Ronald Williams, a Queensland father, instigated proceedings in the High Court challenging the National School Chaplaincy Program (‘NSCP’) [Williams v Commonwealth of Australia and Ors]. The NSCP was started in 2007 under the Howard government to ‘support schools to establish or expand chaplaincy services.’

Mr Williams is challenging the NSCP on two constitutional grounds: first that the granting of funds for chaplaincy is outside the executive’s power, and second that the qualifications for the position of chaplains imposes a religious test for office contra to section 116 of the Constitution.

In regard to the first ground Mr Williams contends that the executive’s power to expend appropriated funds and enter into contracts did not extend to a program like the NSCP because such a program is not an activity ‘peculiarly adapted to the government of a Nation’ nor did the executive have the required power under s 61 when read together with either s 51(xxiiA) or s 51(xx) of the Constitution. He further contends that at no point have funds been correctly appropriated for the NSCP. In relation to the second ground Mr Williams contends that chaplains are in effect ‘officers’ of the Commonwealth and that a religious test is being imposed contra to s 116 of the Constitution. According to the NSCP Guidelines a school chaplain is a person who is recognised:

(a)    by a local school, its community and the appropriate governing authority of the school as having the skills and experience to deliver school chaplaincy services to the school and its community; and
b)    through formal ordination, commissioning, recognised qualifications or endorsement by a recognised or accepted religious institution or a state/territory government approved chaplaincy service.

The defendants in the case are the Commonwealth, the Minister for School Education, Early Childhood and Youth, the Minister for Finance and Deregulation, and Scripture Union Queensland. The Attorneys General for six states have all intervened in the case. While there are some differences between the submissions, they roughly fall into two groups. Western Australia, NSW, Tasmania and Victoria support the plaintiff’s position that the NSCP is unconstitutional, while Queensland and South Australia support the defendants’ position.

Since Mr Williams commenced proceedings the Federal government has released a Discussion paper on the NSCP, the program has been granted additional funds in the 2011/2012 Budget and the Commonwealth Ombudsman has released a report.

The Discussion paper is part of a two-stage consultation process being undertaken by the Department of Education, Employment and Workplace Relations on the NSCP. In stage one, a series of meetings were held with key stakeholders. Stage two commenced with the release of the Discussion paper with the aim of eliciting further responses from the general community. A final report has not been published.

The Commonwealth Ombudsman’s report, released in July 2011, followed a report by the NT Ombudsman released in November 2010. The incidents investigated by the NT Ombudsman occurred before the commencement of the NSCP; however the NT Ombudsman expressed concern about the administration of the NSCP. Many of the areas of concern were beyond the jurisdiction of the NT Ombudsman who referred the issue to the Commonwealth Ombudsman. The Commonwealth Ombudsman made eight recommendations relating to the administration of the NSCP.

Williams v Commonwealth and Ors was heard on 9 August. It will be interesting to see if this program, which has been funded to 2014, will be found to be constitutionally valid.

RENAE BARKER is a PhD student at the UWA.

(2011) 36(3) AltLJ 205
You are here: Home News & Views DownUnderAllOver DUAO - Vol 36(3) National chaplains in schools program: 
Watch this space

Keep in Touch

Twitter Icon
Follow Alt Law Journal on Facebook

Sponsors

Monash University Logo