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 (that’s Ronnie) such ‘declaratory relief’ as appears appropriate, and the Commonwealth should pay the costs of this special case.

You can read the individual judgments online, 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.

Stephen Stuart

Special religious instruction (SRI) occupies a privileged position in State primary schools and has come in for public criticism on several levels, since 2008, when this Society petitioned for a secular alternative. Some aggrieved parents laid a complaint, that the Department of Education and Early Childhood Development neglected its duty of care for students opted-out from SRI, resulting in instances of humiliation and ostracism. In August 2011, the Department was persuaded to remove some of the regulatory impediments to fair treatment of non-religious children. Nevertheless the damage had been done, and the case of religious discrimination proceeded to the Victorian Civil & Administrative Tribunal.

VCAT, after several postponements, is addressing the case from 1 to 9 March, and Humanists and other secularists as well as parents of young children will be interested to follow it. Might this be our Australian equivalent of McCollum v (USA) Board of Education, 1948, a case brought by a humanist, which struck down religious instruction in State schools throughout the United States? At the very least it will clarify the terms under which SRI will be governed in Victoria.
The hearing starts at 10 am, is open to the public and is billed as ‘Aitken and others vs DEECD’. Everyone interested is encouraged to attend some time during the hearing. Wednesday 7 March has been set as a lay day, and the hearing resumes on Thursday 8 March for the summing up. The court venue is the VCAT offices at 55 King Street, Melbourne – see picture. – SNS