In one of a string of highly anticipated High Court judgements this year the Canberra-based court ruled by a majority of 6-1 that the National School Chaplaincy Program (NSCP) is unconstitutional because it goes beyond the powers of the commonwealth enshrined in the Constitution. The court reached this decision despite the commonwealth arguing that it was able to provide the funding for the policy under s61 of the Constitution which says that executive power “extends to the execution and maintenance” of the foundation document as well as “the laws of the commonwealth”.
There was no legislation governing the agreement.
On the other hand, the court ruled against the plaintiff based on s116 of the Australian Constitution which deals with religious freedom, saying that the program was not an affront to the freedom to practise, or not practise religion.
The court said that while there was a religious test involved in the hiring of school chaplains, a test not required by the commonwealth to hold a government position, the state was not involved in the direct provision of these services and so that section of the Constitution was not breached by the chaplaincy program.
The High Court ruled that the program, delivered in Queensland by the Scripture Union of Queensland did not constitute holding a commonwealth office under s116 as the state was not a party to contractual agreements with the school chaplains employed under the program.
The first major thing to point out is that it is a potentially very positive decision for the devolution of power from the executive branch of government, the ministry, which made the decision on the National School Chaplaincy Program under former Prime Minister John Howard.
The future of the program as a whole is unsure though it would seem quite likely that legislation could be put through which gives either the commonwealth or the states the power and funding to provide for the continuation of the chaplaincy services, though legal experts have said that it is far from clear that accompanying legislation would properly remedy the constitutionality of the NSCP.
But arguments against the pr0gram as it stands also go well beyond the legal and constitutional aspects as judged today by the High Court of Australia and common sense rather than legal argument should lead to a determination that the idea as it stands does not give students real choice when needing to seek the assistance and counsel of suitably qualified adults.
Changes to alter the NSCP which were put forward by the Labor Government to amend the policy had been inserted to give schools a choice as to whether or not they provided a religious or a non-religious chaplain to offer counselling services to students.
What any good program should do in the counselling area is to provide the parents, not the school with the choice of whether or not their sons or daughters are able to seek the confidence of a chaplain or a counsellor. That is, the programs should give the opportunity to provide both, rather than one or the other at the very least.
An even better option would be to provide students, particularly the older ones with the ability to decide what is best for themselves the opportunity to choose who they seek to get advice from.
The High Court judgement in this way is half good at least as far as power concentration goes but where the court did not judge in favour of choice there should be common sense moves to allow greater choice for the students or their families in all cases with a preference towards offering professional counsel above and beyond that which religion provides.