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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Thursday, June 21, 2012

School chaplaincy program struck down by High Court ... but there is a big "but"

Yesterday, the High Court of Australia struck down the program by which school chaplains are federally funded.

There's a very big "but", however. As almost everyone was predicting (I was among them, but it was not a bold prediction), the case failed in respect of what passes for a "separation of church and state" clause in the Australian Constitution. The relevant section, section 116, will continue to be interpreted in a way that doesn't prevent very much, short of an attempt by the federal government to create an established church (which I actually think is about the least of our worries).

Thus, this is hardly a great victory for secularism, or church/state separation, or any similar concept.

Rather, the scheme failed because its financing was established in a way that exceeded the powers of the executive government at federal level. It should have been backed with legislation.

Accordingly, the government could rectify things simply by enacting legislation - and this would probably have support from the opposition (which is, in fact, the former government that came up with the scheme in the first place!). As the scheme appears to have many flaws - including the fundamental one of what are chaplains doing in state schools? - we should welcome the fact that there will be an opportunity for public debate before any legislation passes through parliament.

And we can certainly be pleased about another aspect. Since the opponents of the scheme won the case, they'll not have to pay the other side's legal costs, and will get some of their own costs paid by the Commonwealth. Scripture Union, which runs the scheme, has not had a costs order made against it.

Of course. the outcome is pleasing up to a point ... but no, this is not especially a step towards a more secular Australia.


Anonymous said...

The conservative judge Heydon, in dissent, seems to feel the entire secular issue is based on a mistaken interpretation of the phrase "school chaplain".

In ordinary speech a "chaplain" is the priest, clergyman or minister of a chapel; or a clergyman who conducts religious services in the private chapel of an institution or household. Those who are "school chaplains" under the NSCP's auspices fall outside these definitions. Their duties in schools are unconnected with any chapel. They conduct no religious services. Perhaps those supporting validity committed an error in calling the NSCP a "chaplaincy program" and speaking of "school chaplains". The language is inaccurate and may have been counterproductive. Some vaguer expression, more pleasing to 21st century ears, like "mentor" or "adviser" or "comforter" or "counsellor" or even "consultant", might have had an emollient effect.

This view seems disingenuous to me.

Steve Gardner said...

Since the decision wasn't based on any interpretation of s116 of the Constitution, it makes sense to set aside the whole issue of the school chaplaincy program and ask: what does this judgement really mean? And it seems to be me that its real significance is that it is a big victory for the power of the States against that of the Federal Government. Seen in that light, it's hard to welcome.

Russell Blackford said...

It certainly turns on deep questions about the balance between the states and the federal level - and in a way that pushes the balance more toward the states. Whether that's a good or bad thing is open to debate - my own bias has always been to favour the federal level, but I think there's a legitimate argument that decades of decisions favouring the federal level have cumulatively gone too far. I think the effect on the federal/state balance of power is going to be relatively small in any event.

The larger effect here, I think, is to push the balance of power between the federal executive and the federal parliament in the direction of parliament. The executive will be able to less than was generally thought in the absence of clear legislative authority. I'm open to argument, but that's probably a good thing.

Anonymous said...

Thanks for posting this. I was at first elated to see the headlines but - being overseas and not being a lawyer - I was not too sure.

No, it's not much cause for rejoicing. Still, it does block the program and give room for second thoughts.