ABBOTT GOVERNMENT COMMITTED TO NATIONAL SCHOOL CHAPLAINS
The Abbott government has reaffirmed its commitment to funding
the National School Chaplains Program notwithstanding the High
Court's ruling that the legislation supporting the funding
agreements was unconstitutional. See link to judgment:
Williams v Commonwealth of Australia  HCA
The High Court decision was made in relation to proceedings
challenging the funding agreement for chaplaincy services between
the Commonwealth Government and the Scripture Union of Queensland
("SUQ"). The proceedings were originally brought in 2010
by Ronald Williams a father of four children attending the
Queensland school which was receiving chaplaincy funding. Mr
Williams challenged the executive power of the Commonwealth to fund
the program under Section 61 of the Constitution. In 2012, the High
Court ruled in favour of Mr Williams prompting the then Gillard
government to enact legislative amendments (Financial Framework
Legislation Amendment Act (No 3) 2012 (Cth) ("FFLA
Act") seeking to provide legislative support for the funding.
The current ruling relates to the fresh proceedings brought by Mr
Williams challenging the FFLA Act, this time as an invalid exercise
of legislative power under the Constitution.
The High Court unanimously decided that the FFLA Act provisions
were not, in their relevant operation, supported by a head of
legislative power under Section 51 of the Constitution. The court
identified that providing the services of a chaplain or welfare
worker for the purposes described in the Financial Management
and Accountability Regulations 1997 (Cth) ("FMA
Regulations") could not constitute a provision of
"benefits to students" within the meaning of Section 51
xxiiiA of the Constitution. The Court observed that although
"benefit" could comprise a service rather than
only a grant of money, the benefit sought to be provided by the
Chaplains Program was not a benefit providing material aid to
provide for human wants of students in the sense established by the
Alexandra Hospital Case.
The Government has promised to review the judgment carefully,
which (according to academic commentators), potentially jeopardises
other Commonwealth funded programs:
Link and to make an appropriate response.
Their Honours noted that importantly, the benefit was not
directed to a consequence of being a student in that while all
students may use this benefit, and perhaps some should, none must
It is expected that the Government will seek to continue the
School Chaplaincy Program by provision of the funding through State
grants under Section 96 of the Constitution to those schools that
welcome this program. We await this action, else we might more
appropriately call this development the "Not so Good
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