High Court strikes down school chaplains

The High Court has again struck down the National School Chaplaincy and Student Welfare Program as unconstitutional. In a 2012 decision, it was thrown out because the executive was acting without legislation to authorise the program. The government responded by passing amendments to the Financial Management and Accountability Act 1997 (Cth) to give itself broad power to spend money on any program approved by a minister. In today’s new judgment, Williams v Commonwealth (No 2), the High Court said any such program would still need to fall under a head of Commonwealth power—and school chaplains don’t. The High Court’s interpretation of the phrase “benefits to students” was the crux of the case: “Providing money to pay persons to provide [chaplaincy] services at a school is not to provide benefits which are directed to the consequences of being a student. It is not a provision of benefits to students within the meaning of s 51(xxiiiA).” It also ruled that a law authorising a payment to a corporation was not a law with respect to corporations, so section 51(xx) did not apply either. As a result, the program did not fall under a head of power and the spending was invalid. The real significance of the case, though, is the precedent it establishes for future challenges to government programs. Because the High Court approached the case narrowly and only made a decision about the chaplaincy scheme, over 400 Commonwealth programs authorised under the FMA Act will continue until they are specifically challenged.