After two High Court decisions, the fight against federal funding for religious-only school chaplains is set to end with a test case on state anti-discrimination law. By Mike Seccombe.
The final challenge to religious chaplains
Juliette Armstrong loves her job, providing counsel and pastoral care to schoolkids. She also thinks it socially important.
“Really, it’s a joy,” she says. “I’ve been in two of my schools since 2016, so I’ve had the real joy of being able to see kids grow. People I was working with in Year 2 are now in Year 5.
“If a child is struggling, I can hang out with them in the morning, hang out in the classroom or at lunchtime. I run social skill programs, lunchtime clubs, game clubs for kids who are having a hard time connecting with others on the playground.”
Now she has a high school as well. There’s a big need for support there, too.
“Kids tell me things they won’t tell their teachers. And it can be really difficult to tell their parents some things, too. That’s why I’m there.”
Armstrong loves her job, but she nearly didn’t get to do it. The problem was not with her professional qualifications: She holds a bachelor of education degree, and a postgraduate diploma in counselling. After gaining the second qualification, she spent 10 months unemployed. The problem was with her religious qualifications, or lack of them.
Under the ever-increasing influence of its religious right wing, the federal government has granted a virtual monopoly to religious organisations for its school chaplaincy program.
The program – on which hundreds of millions of dollars in taxpayers’ money has been spent to date, with a further $247 million committed over four years in last week’s budget – was specifically designed to push religious pastoral carers into Australian schools and to exclude those holding secular values.
There are a few exceptions, and Armstrong is one. She is about to become the plaintiff in a case that will test the legality of the government’s religiously discriminatory policy.
Some legal experts and a long list of humanist, rationalist, atheist and other secular groups have long thought the chaplaincy program, at least when applied in state schools, is in breach of both state and federal anti-discrimination laws. Church schools are different because religious organisations are exempt from such laws.
Now Armstrong’s example provides the test case they have been waiting to run.
She sounds a little apprehensive as she agrees to let The Saturday Paper use her name and tell her story for the first time – as well she might, given the forces she is taking on.
“I’m not particularly politically motivated,” she says. “I just get up every day and try to do the very best I can by the kids and parents and teachers that cross my path.
“This is not about me, it’s about bigger issues.”
Specifically, it’s about religious freedom, including the right not to subscribe to religion, something the Christian right and the federal government are working assiduously to undermine through the school chaplaincy program.
The policy traces back to John Howard’s government. The National School Chaplaincy Program was set up in October 2006, at a time when Howard was escalating his culture wars in an effort to bolster his fading popularity. Only a few months earlier he had rammed through changes to the Marriage Act to outlaw same-sex unions.
Initial funding was $90 million, to be provided in lumps of $20,000 a year to participating schools, straight from the federal government.
“It came out of nowhere,” recalls Ron Williams, president of the Humanist Society of Queensland.
Williams says it was “Pythonesque” in its contradictory requirements that only the religiously affiliated could be chaplains, but once employed, they were supposed not to proselytise or preach.
But of course they would use the opportunity to push their faith onto children, Williams says.
“These are evangelical Christian missionary organisations, essentially. It was never anything else than John Howard offering our children at the altar of the Australian Christian Lobby.”
After Labor won government it kept the program, but then education minister Peter Garrett imposed more stringent training requirements and gave schools the option of hiring “secular student wellbeing officers” instead of religious people. But with the election of the Abbott government, the secular option was scrapped.
Along the way, Williams has been involved in two High Court cases. In 2012, the court ruled the chaplaincy program illegal because the federal government was paying for the chaplains without having passed authorising legislation. Legislation was subsequently passed, but in 2014 another court decision put an end to the direct funding of school chaplains by the federal government. The federal government now sends the money to the states, which in turn deal with the religious organisations and the schools. But the money only goes to the states on the basis that they comply with the feds’ requirement that solely religious chaplains are hired.
Despite the opposition they have encountered from secular civil society, the Coalition is as committed as ever to religious chaplaincy.
In early March, the Fairfax newspapers reported on a major lobbying effort by religious conservatives within the government to not only expand the program but to “make it a permanent indexed commitment”.
A group of more than 30 Coalition members, led by Brisbane MP Luke Howarth, a “youth leader” of the Bracken Ridge Baptist Church, according to his parliamentary biography, signed a petition calling for an increase to $25,000 in annual funding per school. Our evangelical treasurer, Scott Morrison, did not provide all they wanted in the budget, but did find almost $250 million, and promised the program would be permanently funded.
But a fortuitous conjunction of events has now led to the legal challenge. The vital link in the chain is Armstrong’s long job search. Having found herself unable to get work through the big religious providers of chaplaincy services, because all their advertisements required that applicants be committed Christians, she eventually found a smaller operator, onPsych, which mostly provides psychological services in Australia but does a sideline providing non-religious chaplaincy.
“We got involved when the Gillard government changed the program to allow secular workers to be involved,” says onPsych managing director Martin Grigg. “I think we had around 25 places.”
Then the Abbott government reinstated the requirement that chaplains be religiously affiliated. The High Court decision, making states responsible for allocating funds, further complicated matters.
“Suddenly,” says Grigg, “we had seven versions of a camel in the various states.”
Thanks to a chance encounter with a progressive Uniting Church minister, he found a way around the secular ban. The definition of the word chaplain in the guidelines says workers must be “ordained, endorsed or approved” by a religious denomination. His Uniting Church contact was happy to endorse non-religious chaplains, provided they were otherwise qualified for the work. And so Armstrong was able to work in her three Victorian schools.
The other key connection was between Meredith Doig, president of the Rationalist Society of Australia, and Associate Professor Luke Beck, a Monash University expert in constitutional law, specialising in issues of religious freedom and the relationship between church and state.
Doig saw a comment piece Beck had written for The Sydney Morning Herald in early March this year – prompted by reports of the push by those right-wing Coalition members for greater funding – in which he set out his reasons for believing that the requirement that chaplains have religious affiliation breached anti-discrimination laws.
Beck’s piece finished with the prediction that “someone will eventually go to court and the school chaplains program will probably be ruled illegal for the third, and hopefully final, time”.
Doig went to see him. They discussed a number of legal options before deciding the best one was to take a case to the Victorian Civil and Administrative Tribunal.
“Luke was very confident that if we found a suitable plaintiff, then a case could be made that both the Victorian Department of Education and the religious bodies that are licensed by the Victorian government to supply and train chaplains are acting unlawfully,” she says.
“To have standing, we needed someone who was deleteriously affected by the current state of affairs. We needed a person who could truly sign an affidavit saying they had been put off by the religious requirement contained in job advertisements placed by the Christian organisations, licensed by the Victorian department to recruit for government schools.
“We needed someone who was otherwise perfectly qualified to do the work of chaplain.”
Armstrong, she says, “fits the bill perfectly”.
Says Beck: “Although the word ‘chaplains’ sounds religious, what chaplains do is not supposed to be religious. They’re meant to provide pastoral care. The program guidelines expressly prohibit chaplains from preaching or proselytising.
“Yet they require that to be eligible a person has to be religious. Atheists are prohibited and individual schools get to pick which religion they will have.”
That is defensible in the case of religious schools, he argues, but not in public schools. They cannot legally discriminate in hiring a teacher or a cleaner or anyone else based on faith or the lack thereof.
“In every state there are anti-discrimination laws that say you cannot refuse to hire someone because of their race or gender or religion,” Beck says. “Yet the federal government’s religious requirement is built into the funding for the states, which then gets built into the contract that the school enters into with the labour hire firm.”
And the job ads, online and elsewhere, placed by those church-affiliated recruiters, “say you must be of a religion”.
“We won’t be suing the federal government directly,” he says. “We will be suing the organisations committing the religious discrimination by directly advertising the job. And we also will be suing the state education department for facilitating and encouraging that discrimination.
“You can’t pay someone to break the law, which is what the Victorian government is now doing. And they can’t say, ‘Well, the federal government is paying us to break the law.’ ”
Should they win their VCAT case, Beck says, they will seek orders preventing those religious providers from ever placing ads that breach anti-discrimination laws, and ordering the Victorian government “to never again authorise someone to breach the law”.
The hope is that such a result would force the Victorian government to open up school chaplaincy jobs to anyone with relevant professional qualifications, which would in turn mean they contravened the requirements of the federal funding.
Beck suggests the Victorian case could establish a precedent for similar actions in all states and maybe force the federal government to make its program non-discriminatory.
That would not, however, prevent religious organisations from using the vast funds available under the chaplaincy program to put their people into schools. Even during the years when Labor opened up the scheme to non-religious counsellors, most still came from a religious background. The legal challenge would not allay fears of sly proselytisation either.
Critics of the chaplaincy program see legal action as their best bet, but are not putting all their eggs in that basket. Back in March, a dozen secular organisations jointly wrote to the Australian Human Rights Commission (AHRC), seeking that it investigate the program as an interference in the right of religious freedom.
In reply, AHRC president Rosalind Croucher declined to undertake an investigation “at this time”.
She referred them to the commission’s submission to Philip Ruddock’s review into religious freedom in Australia.
The AHRC submission recommended the government set up an independent watchdog to collect and analyse data on religious discrimination and “restrictions in the ability of a person to educate their children in a manner consistent with their religious belief”.
Those secular groups feel they have been fobbed off, but perhaps not for long: the Ruddock review was due to be handed to government yesterday.
Who knows what its recommendations will be. The committee reportedly was blitzed with more than 16,000 submissions, including one from John Howard, whose dark political genius gave the nation both the discriminatory marriage laws and compulsory religion in-school chaplains.
Howard’s submission advocated that the federal government should cut all funding for any school that won’t let parents pull their children out of sex- or gender-related classes.
That says it all about the reactionary right: trenchantly opposed to compulsion, except when it suits their religious agenda. •
This article was first published in the print edition of The Saturday Paper on May 19, 2018 as "The final challenge to religious chaplains".
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