Today's High Court decision in Williams v Commonwealth held unanimously that Australia's Constitution's does not prevent the Commonwealth Government from legislating to provide schools money to employ religious chaplains on the grounds of freedom of religion.
The media headlines have focussed on the fact that the High Court upheld Williams' case, granting a declaration that the Commonwealth Executive lacked power to allocate money to schools without an explicit appropriation from parliament.
But, if Williams' aim was to prevent religious chaplains in government schools, his victory appears likely to be short-lived. If not quite a Pyrrhic victory, it does not appear likely to be long savoured. My first impression is that the Commonwealth government could fix this through legislation. And given the Opposition were in government when the program was introduced, one would think there would be bipartisan support if the Government proposed remedial legislation.
So the decision will not offer much comfort for those who, from a policy stand-point, oppose the government funding religious persuasions in schools. Australia's constitution, unlike America's, does not erect what Thomas Jefferson called a "wall of separation between church and state".
The relevant section of the Constitution is section 116, which provides
Williams argued that a chaplain employed under the program was an office under the Commonwealth. But the Court held this argument "fails at the threshold" (Gummow and Bell JJ, paragraph 108). The chaplains "hold no office under the Commonwealth", they were not employed by the Commonwealth nor had any contract with the Commonwealth. The Commonwealth was only a source of funding for the Scripture Union of Queensland which employed the chaplains.
Or as Heydon J (who agreed with the majority on this point) says
But what of the strong line of US cases which have held that there is a huge wall of separation between church and state? And that government can do nothing to vaguely benefit any religion?
The US Constituion provides:
This was clearly the model on which clause 116 of the Australian Constitution was based. The words, though not identical, are very similar. Surely higher courts ought to reach similar conclusions about their interpretation? No. And it wasn't really argued in this case.
This is because the High Court of Australia had already reached a conclusion on this point back in 1981 with the Defence of Government Schools (DOGS) case. This argument was not revisited and not raised by the plaintiff.
Interestingly, the judgment of Gummow and Bell does advert to the similarly phrased US constitution:
"The similar terms in which the "religious test clause" is expressed in Art VI, cl 3 of the United States Constitution was emphasised by the plaintiff but there is no clear stream of United States authority on this provision which points to any conclusion contrary to" the conclusion that a chaplain was not an office under the Commwonwealth.
This seems to be a suggestion that the High Court would feel itself persuaded by decisions of the US Supreme Court on this clause, at least where the High Court itself had not previously decided on an aspect.
But the doctrine of precedent holds that the High Court of Australia will be bound by its own authoritative decisions, notwithstanding their inconsistency with those of other superior courts in other jurisdictions.
(I have not dealt here with the most significant feature of this far reaching decision, High Court held (by a 6:1 majority) that the Commonwealth had not acted within its legal powers when the Executive, without an explicit appropriation by parliament, directly allocated money to schools. My first impression is that the Commonwealth government could fix this through legislation This is the legally most significant aspect of the case, which could well have profound implications for many aspects of Commonwealth policy. But I shall not primarily focus on it in this post.)
In one sense this isn't really a case about education law, but a High Court case involving schools comes up only rarely, so too good a chance to pass up.
The media headlines have focussed on the fact that the High Court upheld Williams' case, granting a declaration that the Commonwealth Executive lacked power to allocate money to schools without an explicit appropriation from parliament.
But, if Williams' aim was to prevent religious chaplains in government schools, his victory appears likely to be short-lived. If not quite a Pyrrhic victory, it does not appear likely to be long savoured. My first impression is that the Commonwealth government could fix this through legislation. And given the Opposition were in government when the program was introduced, one would think there would be bipartisan support if the Government proposed remedial legislation.
So the decision will not offer much comfort for those who, from a policy stand-point, oppose the government funding religious persuasions in schools. Australia's constitution, unlike America's, does not erect what Thomas Jefferson called a "wall of separation between church and state".
The relevant section of the Constitution is section 116, which provides
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.The Williams case, because of the way it was pleaded, did not focus on the highfalutin aspects of "free exercise of any religion." It was a question of whether there was, by the requirments of the National School Chaplaincy Program, a "religious test" required as "a qualificaiton for any office or public trust under the Commonwealth".
Williams argued that a chaplain employed under the program was an office under the Commonwealth. But the Court held this argument "fails at the threshold" (Gummow and Bell JJ, paragraph 108). The chaplains "hold no office under the Commonwealth", they were not employed by the Commonwealth nor had any contract with the Commonwealth. The Commonwealth was only a source of funding for the Scripture Union of Queensland which employed the chaplains.
Or as Heydon J (who agreed with the majority on this point) says
"The Commonwealth has no legal relationship with the "chaplains". It cannot appoint, select, approve or dismiss them. It cannot direct them. The services they provide in a particular school are determined by those who run that school. The provision of those services is overseen by school principals." (at445)So the Court did not really address the question of the separation between Church and State. They did not need to address it because they could quickly dismiss the argument that the engagement of a chaplain was an office under the Commonwealth.
But what of the strong line of US cases which have held that there is a huge wall of separation between church and state? And that government can do nothing to vaguely benefit any religion?
The US Constituion provides:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...." [first amendment] and "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." [article VI]
This was clearly the model on which clause 116 of the Australian Constitution was based. The words, though not identical, are very similar. Surely higher courts ought to reach similar conclusions about their interpretation? No. And it wasn't really argued in this case.
This is because the High Court of Australia had already reached a conclusion on this point back in 1981 with the Defence of Government Schools (DOGS) case. This argument was not revisited and not raised by the plaintiff.
Interestingly, the judgment of Gummow and Bell does advert to the similarly phrased US constitution:
"The similar terms in which the "religious test clause" is expressed in Art VI, cl 3 of the United States Constitution was emphasised by the plaintiff but there is no clear stream of United States authority on this provision which points to any conclusion contrary to" the conclusion that a chaplain was not an office under the Commwonwealth.
This seems to be a suggestion that the High Court would feel itself persuaded by decisions of the US Supreme Court on this clause, at least where the High Court itself had not previously decided on an aspect.
But the doctrine of precedent holds that the High Court of Australia will be bound by its own authoritative decisions, notwithstanding their inconsistency with those of other superior courts in other jurisdictions.
(I have not dealt here with the most significant feature of this far reaching decision, High Court held (by a 6:1 majority) that the Commonwealth had not acted within its legal powers when the Executive, without an explicit appropriation by parliament, directly allocated money to schools. My first impression is that the Commonwealth government could fix this through legislation This is the legally most significant aspect of the case, which could well have profound implications for many aspects of Commonwealth policy. But I shall not primarily focus on it in this post.)
In one sense this isn't really a case about education law, but a High Court case involving schools comes up only rarely, so too good a chance to pass up.
