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.

Of course, it's all very well to bluster about how valuable and important a programme is when you're not paying for it – particularly when your support earns some much-needed political points in conservative Christian electorates. (I couldn't help but notice Kerry Shine in Toowoomba North and Michael Choi in Redlands have both been vocal in their support). But, what if Williams wins and the state government is asked to fill the breach? Dick and Cameron, Shine and Choi are so passionately in favour of school chaplaincy, surely they'll simply revert to the state funding model to ensure chaplaincy's continuation in Queensland? Or perhaps it's more 'strategic' to huff and puff about how the government is doing everything it can to defend the NSCP, but imply that a win for Williams will make chaplaincy in Queensland 'unconstitutional' and 'illegal'.

"Shucks, you know we'd love to pick up the slack and keep the programme going – and you know how hard we fought to keep the funding. But, we have to abide by the constitution. Our hands are tied here!"

If this is the plan, it's a win-win situation. The state government neatly shifts the blame to Williams for bringing an end to school chaplaincy in Queensland, placates the religious right with harrumphs of feigned outrage and happily divests itself of a programme that is deeply unpopular with many non-religious and non-Christian voters. As a bonus, the dosh saved on chaplaincy can be used for more productive pork-barreling prior to the next election. Christian vote? Check. Williams demonized? Check. Treasury coffers protected? Check. Religious monkey off political back? Check!

Both Wilson and Dick surely know that Williams' case will do nothing to stop chaplaincy in Queensland – provided the Queensland government picks up the financial slack. Curiously, Scripture Union's Tim Mander understands the limited implications of Williams' case, explaining that:

"… the case says nothing about chaplains' access in schools. It concerns only whether the Commonwealth may fund school chaplaincy under the terms of the current NSCP Guideline."

It's a strange old world when a former football referee seems to understand Williams' writ better than the attorney-general and the education minister.

I'm not sure why Wilson and Dick seem to find the whole thing so confusing. It's quite simple really. If the Queensland government is as passionate about school chaplaincy as they suggest, a win for Williams will do nothing to stop the Bligh government from filling the financial breach. The Queensland government provided funding for school chaplaincy before the NSCP and it can do so again. There may be many of us who regret this, but, even more regrettable are politicians who play 'loose with the truth'. Given Dick's and Wilson's outspoken support for school chaplaincy, I'm expecting an imminent announcement that the Queensland government will guarantee funding for chaplains - unless, of course, it turns out their passionate commitment to school chaplaincy is conditional on someone else paying for it.

Let's be clear here, Cameron Dick's claim that Williams is contesting 'the constitutional validity of Queensland's school chaplaincy services' is just plain wrong. Williams challenges the Commonwealth funding of chaplaincy services, not chaplaincy itself. It's an important distinction and, as a lawyer with a masters degree from Cambridge, it's inconceivable that Dick doesn't understand that.

Even more off-beam is Geoff Wilson's assessment that a win for Williams will make it 'illegal for chaplains to work in our schools'. That's just political hyperbole. It will do no such thing. Wilson is a highly experienced lawyer. If that is really his interpretation of Williams' writ, I'd respectfully suggest he books himself in for a cognition test or makes an urgent trip to the optometrist – perhaps both. But I don't think either is necessary. I think that Wilson, like Dick, is perfectly capable of interpreting Williams' writ correctly – he just doesn't choose to.

It would be easy to attribute Dick's and Wilson's misinterpretation of the Williams' case to stupidity or incompetence, and if either of them wishes to claim those as excuses, I'll happily believe them. But it simply doesn't make sense. To borrow a thought from Lady Bracknell: For one lawyer to misinterpret a writ may be regarded as carelessness; for two to make the same mistake seems like collusion. The only thing that makes sense isthat our Queensland pollies are indulging in a disingenuous game of political spin.