News – 20 June 2012

High Court canes national school chaplaincy

The High Court bench today delivered its judgment in the school chaplaincy case, which was heard last year. The Government copped a surprising rap over the knuckles. In Williams versus Commonwealth of Australia (HCA 2012/23) Ronald Williams, Australian Humanist of the Year, challenged the constitutional status of the National School Chaplaincy Program. The merits or otherwise of the Program itself were not at issue.

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.

Access the Williams v Commonwealth of Australia [2012] HCA 23 (20 June 2012) judgment, all 598 paragraphs and 742 references.

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.

Report by Stephen Stuart