Will a second High Court challenge against chaplains in schools succeed?

In my previous post I pointed out that the High Court of Australia had unanimously held that the Australian Constitution does not prevent the Australian Government funding chaplains in schools on the grounds of freedom of religion.

But they did rule (in a 6:1 decision) that the National School Chaplaincy program was invalid. Why? Because the Australian Government had not passed legislation authorising that expenditure, and the Australian Constitution requires the Executive government's access to public funds to be explicitly supervised and authorised by parliament.

The ground has shifted quickly in the couple of weeks since the decision was handed down. As I had suggested it might, the Australian parliament, supported by both major parties (but subject to questioning as to its legal validity by the Liberals), passed legislation purporting to give the necessary authority.

And today, Williams, the Queensland father who ran the first high court case, has announced a possible new challenge to the this legislation.

So will the new legislation survive a new challenge?
There are some reasons to think it may not, at least in part.

To oversimplify, the new legislation purports to grant the Commonwealth executive power to make payments (and to have made payments in the past) in relation to other legal persons in relation to a whole raft of existing programs. These range across

• school chaplaincy
• school security
• solar panels in schools
• early childhood education
• teacher shortages
• cadets in schools
• diagnostic tools for NAPLAN testing
• the development of the Australian Baccalaureate
• student resilience and well-being
• Indigenous education
• Digital education
• seat belts on school buses

And that's just a selection of the programs affecting schools. Whatever one's view of chaplains in schools, it is clear the legislation seeks to protect Commonwealth funding of a vast range of school programs.

 The legislation also seeks to rescue expenditure in many other areas:

• climate change
• water reform
• human rights assistance
• mental health
• local health initiatives
• small business support

In fact the list of programs protected runs to some 60 pages, and represents up to 10 percent of all Commonwealth government expenditure.  But this breadth of expenditure has nothing to do with whether the legislation will be successful.

The legislation appears to attempt to do two things:

1. it asserts a general right of the Commonwealth to make arrangements or grant assistance to other legal entities, whether or not there is a specific head of legislative power under the Constitution; and
2. it requires any of the grants of financial assistance which are to States and Territories to be done subject to a written agreement with the recipient.

This second step is an attempt to shore up the spending by utilising the tied grants mechanism under section 96 of the Constitution.  I think it is uncontroversial that this will be successful. This has been a major source of expansion of Commonwealth power over the last 4 decades. A number of the High Court justices specifically mentioned that the Williams decision did nothing to overturn this power. But, crucially, they point out that the States have the option of whether to accept the funding in accordance with the conditions. If they are not prepared to accept the conditions, the States can just say "no thank you", leaving the Commonwealth with its money in its coffers.

But the Commonwealth doesn't really want to do that. It doesn't want to depend on the consent of another government for its spending programs (especially with many non-Labor states around the country). It wants to fund these recipients directly. So its legislation still asserts the validity of the direct authorisation method in 1 above. And this is the method that, to me, seems doubtful. 

The question is whether the Commonwealth can only legislate under one of the general headings of its enumerated powers under section 51, or whether, it can legislate to authorise financial assistance in any sphere whatever.  My starting assumption would be the former. It seems to me this is part of what the High Court was rejecting in Williams.  The Commonwealth had argued that as a legal person itself it could make any financial transaction that any other legal person was capable of. The High Court said "no, you need to do it subject to the approval of Parliament". But I don't think they, in effect, said that parliament had unlimited powers of legislation for approval of such expenditure. Surely, the authorisation would be limited also by the existing powers of parliament. I can't see how the legislation addresses this problem. (Most Commonwealth legislation bends over backwards to enumerate all the Constitutional powers it relies on for its validity; this Bill does not).

On this analysis, it would mean that only if the authorised expenditure came within the scope of the enumerated legislative powers would the Bill be successful (unless it is covered by an agreement with a State under section 96). 

So where does this leave chaplains in schools?

It depends. If the school funded is a government school then really (unless there are States in which schools are separate legal entities, which I doubt) these will be grants to the States. A government school in NSW, for example, is part of the Crown in right of the State of NSW. So a grant to a school is a grant to the State. If the State agrees, the Commonwealth can give it the grant subject to conditions under 96. 

The Commonwealth could also use section 96 of the Constitution to give financial assistance to non-government schools employing chaplains, if it does so through the States. That is, the State would get the money subject to an agreement to pass it on to the intended recipient. If it is a 'motherhood' program, for which the State would get political blame if it blocked funding, it is very likely that the program would proceed. It is, after all,  the existing mechanism through which Commonwealth funding to non-government schools is provided.   But if a State disagreed with the program, the funding could be blocked.

The final  mechanism would be for the Commonwealth to fund the recipients directly. This is what they have done until now with the Scripture Union of Queensland who employed the chaplains in the Williams case. The question is whether the Commonwealth has the legislative power to make legislation authorising assistance to employ chaplains in schools. In Williams, The Commonwealth argued it had such power under section 51(xxiiia) of the Constitution:

the provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;

The Commonwealth argued that the chaplaincy program came within the meaning of "benefits to students". Four of the High Court judges found it was unnecessary to decide the point in Williams. Two judges decided  the point against the Commonwealth, citing earlier high court authority for their stance. And Justice Heydon, (now dubbed the "great dissenter" since the departure of Justice Michael Kirby), yes, dissented.  So it appears to me unlikely for the High Court as currently composed to find that the Commonwealth had the legislative power to approve direct expenditure (bypassing the State) for chaplains. 

And I suppose this is why Williams is having another go.