High Court win on school chaplaincy funding
Ron Williams is waiting in the lounge at Brisbane airport. He is anxious, but politely spoken, given it’s the eve of one of the most exciting days of his life. In less than 24 hours, the High Court will pass its judgment in an action brought against the Commonwealth. Williams is the plaintiff.
“Things are very hectic,” he says. “It’s very exciting and terrifying, but I’m fairly encouraged. When we went to court the first time it took a long while, but this time it’s happened so quickly. It’s encouraging, there could very well be a reason to squeeze this decision in before the end of the financial year.”
He was right. On Thursday morning, the High Court ruled unlawful the government’s National School Chaplaincy program, a decision that possibly threatens the funding arrangements of countless programs by asserting the limitations of executive power as it relates to the Commonwealth’s authority to spend money.
It’s not the first time Williams has done this. In 2010, he and his counsel challenged the constitutionality of the Commonwealth’s funding arrangements with the Scripture Union Queensland, a provider of school chaplains. In a majority 6–1 ruling, the High Court found that “in the absence of statutory authority, Section 61 of the Commonwealth Constitution does not give the Executive the power to fund matters that are not specifically enabled by the Constitution or legislation”. The decision played havoc with the government. It didn’t just make unlawful the chaplaincy program, but threatened longstanding practices of funding – to local governments, for instance, or infrastructure. The government hastily passed an act, enabling current funding arrangements to lawfully continue.
But Williams wasn’t convinced of the legality of this remedial act. He went back to the High Court. His counsel argued that “these proceedings, so far as we are concerned, remain framed as raising questions about the validity of what might be called a repair Act, that is, the provisions of section 32B of the Financial Management Act which was introduced in the wake of, and clearly as a response to the decision of this Court in the case that I will call, if you will permit me, Williams (No 1).”
Not just a bush lawyer
Ron Williams is a lawyer and father of four from Toowoomba, Queensland. He’s modest and intelligent, speaking in anecdotal tangents for which he self-effacingly apologises. His parents are long passed, but he recalls them passionately. “I had a glorious upbringing,” he tells me. “Postwar Australia was a glorious time to grow up. There was no stigma about going to church or not. We never asked. Parents had been through the Depression and the Second World War; their parents had gone through the First World War. It was a classless society almost, and religion was in the too-hard basket for my parents given everything they went through. My father was posted to New Guinea during the war. They weren’t anti-religious. My dad became a signwriter and he’d provide free work to the churches. They were wonderful people. Battlers, I guess.”
In the successful 2010 case, which was decided in 2012, much was made of his being a humble bush lawyer. His case was cast in an enduring trope – David versus Goliath. The parallels were irresistible and Williams was adopted by the media as an Aussie archetype – a man with a simple sense of injustice who triumphs over state-sponsored idiocy, armed only with tenacity and unvarnished commonsense.
All of which glossed over the intelligence of Williams and the complexity of the case. The legal detail of the judgement was mistaken for a constitutional defence of secularism, for instance. “Fairfax painted me as an Australian Forrest Gump wandering into the High Court asking for my religious freedom. But I knew early what this case was about – it was about funding arrangements. Funnily enough, in law it’s a jailable offence to spend monies without legislative basis. This came to light in 2012 when they decriminalised the law which made it a jailable offence. It’s in Hansard. The reason given was that it had never been used on anyone. Disgraceful thing.”
Certainly Williams was motivated by values of secularism, which he felt were being crimped by the National Schools Chaplaincy program. But it did not form the basis of the legal challenge. That was dismissed early by his counsel. “ ‘But we’ve found something even better,’ they told me,” says Williams.
“I don’t care what people believe, but I want my kids away from evangelism. It doesn’t do any good to pick on people, though. We have to be tolerant. When Jehovah’s Witnesses come to my door, I’m polite. My father always was, too. He’d politely grab a copy of the Watchtower. But I think the Australian Catholic Church is like the Wizard of Oz – one day someone will pull back the curtain and see it’s just a man with a microphone.”
Budget immunity for program
Joe Hockey was relaxed, in a navy suit, giving one of the most important speeches of his political career – his first budget address. Calmly, he described the distasteful but necessary medicine we were about to drink, which had already been promised via strategic leaking. “This budget,” he said confidently, “will help build a more prosperous nation.”
The speech’s theme was uncomplicated and unsurprising: the adults had inherited the consequences of Labor’s profligacy and now punishing cuts would have to be made. Our children’s futures depended upon the government’s stoutness. “Doing nothing is not an option. The days of borrow and spend must come to an end.” The inference was that the government’s virtue was its modest willingness to risk unpopularity.
The speech also used the well-worn prop – “the age of entitlement” – which Hockey has been deploying avidly since 2011. It is a rhetorical conceit and ideological emblem, more a divination of emotion than analysis, and so a great mobiliser of opinion. When people rejoice in or reject Hockey’s sombre pronouncement that the age of entitlement is banished, they are joining political theatre: orthodoxies locked in eternal antagonism.
Aside from this prop, the speech was cannily emptied of explicit ideology, in favour of boilerplate – “we are a great nation and now is our chance to be even better” – and clipped descriptions of the cuts as affecting family assistance, unnamed bureaucratic programs, foreign aid, the dole. But in this context of urgent austerity, in our budget emergency, there was one major expenditure – of almost a quarter billion dollars over five years – omitted from the speech. The National Schools Chaplaincy program.
The program already existed under Labor, having been conceived under Howard’s prime ministership, but was fundamentally altered in this budget.
Firstly, the Coalition increased funding from $222 million to $245 million. Secondly, the government removed Labor’s option for schools to use the fund to appoint secular counsellors. If you want to access the plush kitty, you must employ a chaplain.
For an age of austerity, the program smacked of indulgence. Others had graver concerns. David Zyngier is a former school principal, and now senior lecturer in education at Monash University. He specialises in pedagogy, the teaching of teaching. “Chaplains have no certification for psychological help,” he says. “They’re educated for pastoral care. Now, if a kid goes to a chaplain with a problem, and they say ‘just love Jesus Christ and you’ll be fine’, that’s not going to help them with their homosexuality, or violence in the home.”
Zyngier was also concerned about the risk of proselytising. “All chaplains are missionary because that is what they are trained to do as part of their divinity course – to expect otherwise would be for them to deny their own beliefs and their own church vows. They’re evangelical.”
“Most of the chaplains are appointed by fundamentalist evangelical organisations like Access Ministries and the Outreach and Church Ministries,” Zyngier says, “who are far removed from the mainstream traditions of the Christian church in Australia, while having very strong connections to far-right-wing fundamentalist groups in the USA. In their own words they see their task as creating more disciples of their Lord Jesus because church attendance is going down. Adherence to Christianity declines at every census, and in their own words they see ‘public schools represent the most strategic mission field ... and saturate the schools with God’s message... The church is declining greatly in terms of its biblical influence with a shift toward a more socially driven Gospel, the biblical message of sinners in need of a Saviour seems to be diminished.’”
The program also troubled the Australian Psychological Society, who condemned it as “appalling” and potentially harmful to anguished youth.
The qualifications of school chaplains are varied. A major trainer and provider of school chaplains, Access Ministries, says that chaplains must have either “a bachelor degree in theology ministry, education or counselling/pastoral care, coupled with tertiary qualifications or experience in the other applicable areas”. Student Wellbeing Workers may simply possess a tertiary qualification in Christian studies.
There is no doubt that the guidance or support of chaplains might provide succour for students, but there are points of concern. It’s explicitly Christian, and it’s uncertain how likely a child of another faith would be to seek pastoral support. There are also limitations to spiritual care in addressing deep psychological distress.
The High Court ruling
Ron Williams is excited. In fact, he sounds slightly delirious. The High Court’s decision has been delivered only two hours earlier. He’s in his lawyer’s office in Sydney, where he was crouched over a computer awaiting the decision by email. His phone hasn’t stopped ringing from supporters. “It’s a huge relief. A huge weight off my shoulders. I think sometimes this has been treated as a curiosity by the media, but it’s a very serious matter.”
The High Court’s judgment reads, in part: “[the] legislation enacted by the Commonwealth Parliament which purported to provide legislative authority to make agreements for the outlay of public money, and to make payments under those agreements, is invalid in its operation with respect to a funding agreement between the Commonwealth and Scripture Union Queensland.”
Crucially, it found that “at a school, the services of a chaplain or welfare worker for the objective described in the FMA Regulations is not a provision of ‘benefits to students’ within the meaning of s51(xxiiiA) of the Constitution”, an argument forwarded by the government’s counsel.
This element is especially pleasing to Williams, who tells me: “The fact that it can’t be lawfully regarded as a benefit to students is a cold, hard constitutional judgment. It’s not philosophy. The justices are not interested in religion or not. The chaplaincy program is praised as being for students, families and the community, so you can’t really say it’s of benefit to students if its influence reaches far beyond that. It may be wonderful, but it can’t go in a horse race, because it’s a chicken.”
Ron laughs as he casts his mind back to 2012, and considers how this public crucible has changed him. “To be frank, I was a babe in the woods the first time around and my elation had water thrown on it by shock jocks. They were nasty. They said I’d sabotaged many programs. So the other thing I’ve found important is that they have focused on chaplaincy, so I don’t have the bogeyman of shutting down other programs. Back in 2012 there was a 7.30 story, which my wife taped for me. I got home late and watched it, and it was going fine until at the end of the story there’s this expert on infrastructure or roads or something, and they’re showing stock footage of potholes and this expert says gravely, ‘There will be deaths’, because the Roads to Recovery program is threatened. I thought, Oh no, I’ll be done for involuntary manslaughter. But this time there’s not that red herring.”
The politics of this are not complicated, even if the outcomes might be. The coalition wants chaplains in schools, and it wants to pay for them. Immediately, the finance minister has used his powers to write off the $150 million in unlawful payments already made for these ministries. On hearing the decision, Tony Abbott said: “This is a policy that was invented by the Coalition. It was supported by the Coalition. It was confirmed by the Coalition. So we very much support it and we want it to continue. We’ve only just got this judgment. We’ll carefully study the judgment and we’ll make an appropriate response after we’ve made that study.”
Ron Williams will field more calls, and prepare for a television appearance later. Then, finally, he will head home to Toowoomba, back to his wife and children. He has no idea what happens next.
This article was first published in the print edition of The Saturday Paper on Jun 21, 2014 as "The legal lion and the Christians". Subscribe here.