News – 20 June 2014
Yesterday’s decision by the High Court of Australia vindicates the claim by plaintiff Ron Williams, Australian Humanist of the Year 2012, that the Commonwealth did not have proper executive power to fund the National School Chaplaincy and Student Welfare Program (NSCSWP). We salute you, Ron, for bringing off a rare achievement, even greater than your first tilt at the law in 2012.
The law that was challenged (now called the ‘impugned provisions’) was hastily cobbled together by the previous government, following the High Court’s remarkable judgment in the case of Williams v Commonwealth of Australia  HCA 23. Amongst the reasons now 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 Court expressed no views as to whether provision of services of that kind might be worthy of expending public moneys, but 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 says:
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.
Now Ron’s 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, in the context of which the term ‘benefit’ meant material assistance to eligible and identifiable recipients, not to 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 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.
Read the High Court decision in full (28 pages in 12-point font).
Report by Stephen Stuart