Photo of boy wearing 'NO LONGER LOST' jacketChaplaincy Program Secularisation

On 8 August 2010, the Prime Minister and Minister for Education announced an expansion of the National School Chaplaincy Program (NSCP) by $60 million over three years for one thousand new chaplains. The Humanist Society of Victoria considered this proposal a move to placate the church lobby just before an election. It is also signalled a retreat from Prime Minister Hon. Julia Gillard’s secular position in 2008. Admittedly, it also showed her commendable restraint in not imposing her private atheistic beliefs on government policy.

Chaplains in schools become invested in student’s eyes with the full authority of the State, but are only a cheap and nasty substitute for professionally qualified counsellors. Guidelines for chaplains’ conduct are side-stepped when activities supporting group morale lead to private sessions of pastoral care and preaching of the gospel, in flagrant violation of the secular ideal for State education. Humanists are convinced that safe, sensitive counselling calls for secular professionals.

On 7 September 2011, the Australian Government, after consultation with education stakeholders and following public submissions and an ombudsman’s report on the School Chaplaincy Program, announced it would broaden the program by admitting secular welfare workers on a par with religious chaplains. The next day, The Age newspaper reported this New choice for school chaplaincy program in which the NSCP was being extended to permit schools to hire secular counsellors who would not proselytise to children. The Humanist Society of Victoria wrote to the Minister, Hon. Peter Garrett, asking who would administer the program. The Minister’s reply on 15 October was not completely reassuring, with HSV receiving other news that the word ‘secular’ is quietly being dropped and that the existing religion providers (ACCESS ministries, Chaplaincy Australia, GenR8 Ministries, Schools Ministry Group, Scripture Union, etc.) will administer the formerly ‘secular’ program. Despite a news item in The Age, published on 21 November 2011, proclaiming Australian religious education ’19th century’, HSV remained concerned that the Australian Curriculum and Assessment Reporting Authority will be pressured into linking ethics with religion in the proposed national curriculum.

Commencing in 2012, the National School Chaplaincy and Student Welfare Program (NSCSWP) removed the previous religious monopoly on “supporting the spiritual, social and emotional wellbeing of school students” and left the choice firmly with the school. Duties and code of conduct for the two streams remained the same. In the new scheme, all pastoral workers need to have a Certificate IV in youth work, pastoral care, or an equivalent, under the Community Services National Training Package. If a school wishes to drop its chaplain for a secular worker, it will need to document consultation with the school community. The ‘service providers’ will be held to higher standards for monitoring service delivery and increased accountability. The complaint procedure will also be strengthened.

The Humanist Society of Victoria acknowledged these changes as improvements in the public interest, if they are carried out as announced. The shortcomings in the program that remained of concern were, first, the churches retain a favoured, if not privileged, position, offering a monocultural pastor inappropriately to a multicultural school community. In addition, providers were being given even more public money of an undisclosed amount. Second, there was no actual money for a professional psychologist to be a school pastor. Indeed, a welfare worker was not allowed to provide professional services, unless qualified and agreed to by the school community.

Religious Proselytising

On 21 July 2011, The Age newspaper in Melbourne published an article on a Christian group cleared of urging students to convert. For ‘proselytising’, the English language provides synonyms, such as ‘convert’. ‘Convert’ means to ‘evangelise’. The stated ‘mission’ of the chaplains’ employer in Victoria is to “Equip CRE teachers, chaplains and others to teach and nurture students” [source: (now removed)]. Each must judge for themselves whether to “teach and nurture students” constitutes proselytising and whether the chaplains’ employer is committed to proselytising by another name. The employer, ACCESS ministries, is very close to Arrow Leadership and, thereby, is also close to the Lausanne Movement. This movement, which was founded in 1974 by Billy Graham, has the stated objective of world evangelism [source: (now removed)].

Legal Challenges

In 2011, Ronald Williams (Australian Humanist of the Year 2012) challenged the constitutional status of the National School Chaplaincy Program. The merits or otherwise of the program itself were not at issue. On 20 June 2012, the High Court of Australia delivered its judgment in Williams v Commonwealth of Australia [2012] HCA 23.

The bench ruled, six to one, as follows.

The making by the Commonwealth of the relevant payments to Scripture Union Queensland was not prohibited by Section 116 of the Constitution, but neither was it supported by the executive power of the Commonwealth under Section 61 (as the Commonwealth contended).

The Justice disposing of the action should grant the plaintiff [Ronald Williams] such ‘declaratory relief’ as appears appropriate, and the Commonwealth should pay the costs of this special case.

Section 61 of the Constitution declares that the executive power of the Commonwealth “extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth”. The subject of chaplaincy doesn’t appear in the Constitution and the Chaplaincy Program doesn’t depend on specific legislation, so it lies outside Section 61. While the result does not appear particularly to advance the cause of secularism, it could set a precedent constraining other non-statutory activities of government.

Following the Government’s loss in the High Court in 2012, it hastily cobbled together a new law, called ‘impugned provisions’. This law attempted to side-step the High Court’s strike-down by making tied grants to the states to fund the National School Chaplaincy Program (NSCP). The Humanist Society of Victoria wrote to the Prime Minister, Hon. Tony Abbott, expressing our concern over the NSCP. HSV recommended the participation of properly trained non-religious social workers and counsellors to provide the necessary care to school children and its preference for phasing out the program.

Ron Williams returned to the High Court with a fresh challenge on 6 to 8 May 2014. As he explained:

Within the LNP coalition budget announced on 13 May 2014, in spite of overall cuts to education funding, the top school spending outlay was $245 million to finance the National School Chaplaincy Program (NSCP) across five [financial] years to commence in 2015 [and finish in December 2018].

This brings the total amount expended upon, or committed to the NSCP since 2007 to $668,000,000. A finding in my favour by the High Court would disallow this proposed funding via various sections of the Australian Constitution.

The High Court of Australia delivered its verdict in Williams v Commonwealth of Australia [2014] HCA 23 on 19 June 2014. The decision vindicated Williams’ claim that the Commonwealth did not have proper executive power to fund the National School Chaplaincy and Student Welfare Program (NSCSWP).

Among the reasons given by the Bench of six judges, two things are particularly worth noting about our Federal Constitution. One concerns the Commonwealth executive’s power to spend public money and another is the extent to which student welfare is a Commonwealth matter.

First, the NSCSWP had the stated objective:

To assist school communities to support the wellbeing of their students, including by strengthening values, providing pastoral care and enhancing engagement with the broader community.

The High Court expressed no views as to whether provision of services of that kind might be worthy of expending public moneys. It focused on the question of the validity under the Australian Constitution of the ‘impugned provisions’. The Commonwealth defended those provisions with the claim that they supported the NSCSWP objective under section 51(xxiiiA) of the Constitution, which states:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to … The provision of … benefits to students and family allowances.

Williams’ counsel argued that chaplains were of no benefit to students. The Court noted that subsection (xxiiiA) was a post-war addition to our Constitution dealing with social security and in the context of which the term ‘benefit’ meant material assistance to eligible and identifiable recipients. It was not meant to deal with social groups. Mr Justice Crennan explained:

110. The National School Chaplaincy and Student Welfare Program does not institute a scheme for the provision of government assistance by way of the provision of services to, or for, persons who have a personal entitlement to a benefit. Under the scheme, no student is required to be identified by the providers of “Chaplaincy and Student Welfare” as a prescribed recipient or beneficiary entitled to a social security benefit. Payments made to SUQ (or other providers) out of public moneys are not made in respect of government assistance to persons with a personal entitlement to some benefit. Accordingly, the National School Chaplaincy and Student Welfare Program is not a scheme for the provision of “benefits” within the meaning of s 51(xxiiiA).

The other judges went even further, interpreting “benefits” in this case as being restricted to assistance with particular personal needs, otherwise unmet, arising out of the situation of being a student. As such, the chaplaincy objective was just too vague to qualify.

The other point of interest is that Australia is a federal and not a unitary polity. The Commonwealth is not sovereign and its Constitution effects a distribution of powers and functions among the Commonwealth and the States. The Bench confirmed the ruling in Williams (No 1), that while moneys may be lawfully appropriated by Parliament (according to sections 81 and 83), their expenditure by the Commonwealth executive requires specific Constitutional or legislative authority (section 61). Since there was no national chaplaincy Act and no “benefits to students”, the Commonwealth funding of the NSCSWP was beyond its executive power.

Commonwealth funding for the NSCP was due to cease at the close of 2018. However, Fairfax media reported in March 2018 that Liberal MPs had petitioned Federal Education Minister, Simon Birmingham, to extend the NSCP permanently beyond 2018 at an increased cost of $75 million per year. In November 2018, Ron Williams initiated an online petition to cease funding the programme beyond 2018. At last count [21 November 2018], the petition was on the verge of reaching the target of 7,500 signatures.

At the state level, in March 2018, Luke Beck (Associate Professor of Constitutional Law at Monash University) wrote an article for The Sydney Morning Herald challenging the legality of the school chaplaincy program. He argued that the requirement that chaplains can only achieve qualification “through formal ordination, commissioning, recognised religious qualifications or endorsement by a recognised or accepted religious institution” may breach the state of Victoria’s religious anti-discrimination laws.

Subsequently, with the support of Luke Beck and the Rationalist Society of Australia, a case for discrimination was brought to the Victorian Civil and Administrative Tribunal (VCAT). HSV played an important role in identifying a plaintiff for the case. On 25 March 2019, VCAT settled the case and brought to an end the discriminatory policies that shut out non-religious chaplains. As part of the ruling, the Victorian government agreed to change the position descriptions of chaplains to state explicitly that they can be “of any faith or of no faith”. The Guardian reported the good news that this move opens the way for secular or atheist school chaplains. This settlement leaves open the possibility for future legal actions against Christian support agencies, such as ACCESS ministries, should it continue to hire only Christians for what was always intended to be non-religious wellbeing positions.

Humanist Advocacy

The Humanist Society of Victoria has written letters to various members of parliament and solicited donations to help fund the legal challenges to the National School Chaplaincy Program.

HSV has been involved from the very beginning of the push to introduce Christian chaplains in schools. In 2006, HSV wrote to the Minister for Education, Science and Training, objecting to the proposed placement of Christian chaplains in government schools.

In 2011, HSV wrote to the Federal Minister for Education, Peter Garrett, with our concerns about changes to the NSCP.

In 2014, HSV sent letters to the Prime Minister, Hon. Tony Abbott and the Commonwealth Auditor General.  We also expressed concern over the divisive nature of the program to the Victorian Premier, Denis Napthine, the Minister for Education, Hon. Martin Dixon MP, and other Members of Parliament.

In 2018, HSV wrote to the Australian Human Rights Commission, complaining about the discriminatory nature of the NSCP, the Minister for Education and Training, Senator Hon. Simon Birmingham and the Shadow Minister, Hon. Tanya Plibersek, expressing concern over the increased funding for the scheme.

Visit our Submissions portal for more information on the above correspondence with politicians and human rights institutions.

The Humanist Society of Victoria continues to advocate for free and secular education.