Pollies in a spin over chaplaincy challenge

"Political language," said George Orwell, "… is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind." Perhaps that's why I was nearly knocked off my feet by the recent bluster emanating from Queensland Labor pollies on the High Court Challenge to the constitutional legality of federal funding to the National School Chaplaincy Programme (NSCP).

There's been some re-shuffling in the Bligh ministry this month (one of my less tactful friends was moved to mutter, "Same shit, same flies"), but in early February, when Cameron Dick was attorney-general and Geoff Wilson, education minister, they rolled out their soapboxes to reaffirm the state government's commitment to school chaplaincy in the wake of a constitutional challenge to the NSCP by Toowoomba parent, Ron Williams.

On 7 February, in a joint media statement, Messrs Wilson and Dick explained that Williams v Commonwealth of Australia and Others challenges 'the constitutional validity of Queensland's school chaplaincy services'. Four days later, Wilson's electorate website stated unequivocally that Williams' writ asserts 'it is illegal for chaplains to work in our schools and a breach of the constitution.' But, blow me down, neither Dick's nor Wilson's statements are true. As both politicians are highly experienced lawyers, it beggars belief that, suddenly, they're simultaneously incapable of accurately explaining a simple writ to the Queensland public. So, what's going on? .

But, it gets even curiouser. In response to the case being accepted for a hearing in the High Court in May, Dick and Wilson announced the government's intention to exercise its right to intervene. The joint ministerial media statement implies that the government's submission will ask the High Court Justices to factor in the following when making their judgment:

"Chaplains are only ever adopted into schools after the principal has consulted with the school's P&C and the school community."

 "These non-discriminatory programmes show respect for everyone, regardless of one's faith, and provide a valuable service that students really appreciate."

 ".. school chaplains provide a vital and valuable service within [Queensland] schools."

It all sounds very nice, except these arguments have nothing whatsoever to do with Williams' case. No, really! Nearly everything in the statement about the government's planned 'intervention' is either wrong or completely irrelevant to the matter to be heard in the High Court. And yet, after reading the explanations and protestations of the attorney-general and the minister for education, those in favour of school chaplaincy could be forgiven for thinking that:

• If successful, the High Court Challenge will rule chaplaincy in Queensland schools unconstitutional (thereby making it illegal for chaplains to work in state schools),
• the Queensland government is taking action to prevent this happening and,
• the decision of the High Court justices will be influenced by the Queensland's government's confidence in the value of the programme and the democratic nature of chaplaincy appointments.

The fact is, not one of these assumptions is true. Worse, highly experienced politicians with impressive legal credentials, like Dick and Wilson, almost certainly know that.

Ron Williams' High Court challenge relates only to the matter of federal government funding for the NSCP. It says nothing about state funding or about the legality of chaplains working in state schools. In simple terms, Williams' writ asserts that the appropriation of funds from the education budget for a non-educational purpose is unconstitutional. Ironically, this method of funding was almost certainly chosen to circumvent the constitution. What should have been sought is parliamentary approval for legislation to allow the NSCP to be funded as a discrete item. Why was this never done? Snap! Because legislating in respect of religion is also unconstitutional. It speaks to the strength of our constitution that this political sleight of hand has now sent the Commonwealth government directly to the High Court (do not pass go, do not collect $200!).

Williams' writ also claims that the requirement for chaplains to have a religious affiliation unconstitutionally imposes a religious test on public office. Someone with no knowledge of the Queensland constitution may be forgiven for thinking this aspect of the case might prevent state funding for chaplains. But, as Messrs Dick and Wilson well know, the Queensland constitution has no such restriction, and Williams' case poses no impediment to the Queensland government providing funding for chaplains out of the state's coffers.

The matters raised in Williams' writ are technical matters of constitutional law. The case has nothing whatsoever to do with how much kids love their chappies, how much chaplains contribute to the school community, or whether (cross our hearts and hope to die) the blatantly evangelistic policies of chaplaincy providers are abandoned at the school gate. The central question raised by Williams is simply whether the method of funding the NSCP is constitutional; either it is, or it isn't. That's for the High Court to decide.

The High Court does not indulge in popularity contests. Whether chaplaincy is good, bad or indifferent will have no bearing on the case. If the justices do their job (and we can only assume they will) they will not be swayed by anything other than the facts of the case. Their function is simply to defend the constitution. As Williams' case hinges on the technical issue of funding, no amount of posturing and politicking from the Queensland government is going to make a blind bit of difference to the outcome. It's all 'smoke and mirrors'. The only thing that will be achieved is that the Queensland government will create the illusion that it's doing something.