School Chaplains Challenge Heard at the High Court

By Joshua Crowther | 09 Sep 11

9 September 2011

The constitutional challenge to the Government’s funding of the National School Chaplaincy Program in Williams v Commonwealth and Ors continues as lawyers for the prosecution allege that the Government’s subsidising of chaplains undermines the secularism of Australia’s Constitution.

The challenge to the program was launched by Ron Williams, a Queensland parent who argues that the initiative threatens the secularism of the schools attended by his children.  The Howard Government introduced the policy in 2007, and it has since been continued by the Rudd and Gillard Governments, which directs federal funds towards providing chaplains for state schools on condition that they do not proselytise students.

Mr Walker, SC, representing Mr Williams, based his challenge on the inherent tension between the historical role of chaplains as sources of religious instruction, and the stipulation in the Constitution that Australian law should neither favour nor threaten religious observance.  Focusing on section 116 of the Constitution, which not only emphasises that governments may not legislate on religious adherence but also states that “no religious test shall be required as a qualification for any office…under the commonwealth,” Mr Walker argued that the ‘office’ of school chaplains was unconstitutional.

The plaintiff’s case rests on the argument that federal funding of the NSCP ensures that the chaplains function in essence as ‘officers’ of the Government.  Consequently, the policy of selecting chaplains as Government officers based on their religious convictions or backgrounds, according to the plaintiff, would directly contradict the secularism of section 116.

The Government, through its representative Mr Gageler, SC, responded to the plaintiff’s allegations by emphasising the difference between spirituality and proselytising.  Mr Gageler’s defence began by depicting the program as promoting the “spiritual well-being” of students, rather than spreading religious doctrines, and argued that the program’s role varied between schools according to local needs and priorities.

The Government’s attempted to avoid the potential problems presented by section 116 by underlining the significance of chaplains in the program as pastoral instead of religious figures, and implicitly criticising the plaintiff’s understanding of modern day chaplains as indistinguishable from their historical role in religious proselytising.

The disputes revolve around two different conceptions of “spiritual well-being”. The plaintiff’s case is grounded in the common historical appreciation of chaplains as religious and proselytising figures.  The argument that the NSCP violates section 116 is based on the assertion that “chaplains” cannot be separated from their religious background.

Against this the Government is focusing on circumnavigating section 116 by characterising “spiritual well-being” as referring to pastoral, not religious, needs.  Consequently, according to this interpretation, the NSCP provides communities with federal support for pastoral development, and does not engage in the proselytising that the Constitution guards against.