Williams challenged the constitutionality of the NSCP on several grounds, which are discussed in more detail in DUAO 36(3). In a 6:1 decision the Court held that the NSCP was unconstitutional. While the case had been heralded as a test case for the place of religion in schools and church state separation more generally, the case was not decided on this point. Only the joint judgment of Gummow and Bell JJ and the dissenting judgment of Heydon J considered this point in any detail. Both judgments dismissed the argument that chaplains employed by the NSCP were ‘officers … under the Commonwealth’ on the basis that there was no legal relationship between the Commonwealth and the chaplains. The chaplains were employed, in this case, by Scripture Union not the Commonwealth. With the dismissal of this line of arguments the High Court continued its long tradition of avoiding s 116 issues.
Instead the case was determined on the basis that the executive government did not have the authority to spend money on the NSCP under s 61 of the Constitution. The NSCP was not created via statute but rather as a program of the Department of Education, Science and Training. While Gummow and Bell JJ reach their conclusion through slightly different reasoning, the majority view (French CJ, Gummow, Bell and Crennan JJ) was that s 61 did not authorise the executive to spend money on programs like the NSCP without legislative authority. The majority did not rule out the possibility that there were some things which the executive could expend money on without legislative authority, but held that the NSCP was not in that category.
The Federal Attorney-General Nicola Roxon and Federal Education Minister Peter Garrett have both indicated that they continue to support the NSCP and will look at ways in which the Federal Government can continue to fund the program. Federal Opposition leader Tony Abbott has echoed these sentiments while the Greens continue to oppose the program. While legislating may seem to be the obvious option, Hayne and Kiefel JJ held that the program was not with in the legislative powers of the Commonwealth under s 51(xx) or (xxiiA), the two heads of power advanced by the Commonwealth as supporting the program. The use of the so-called Nationhood power was also rejected. As a result the most likely avenue for the Federal government to retain the NSCP will be to use s 96 of the Constitution.
While Williams only invalidated the NSCP it raises questions for all other government programs undertaken through Executive contracts. The Federal Attorney-General’s department will be very busy over the next few months.
RENAE BARKER is a PhD law student at University of Western Australia.