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No faith in 'anti-terrorism' laws

By Crispin Hull - posted Monday, 31 October 2011

Now would be a good time to put an end to two things inherited from the Howard Government: the likely-to-be ruled-unconstitutional school-chaplains scheme and the human-rights-infringing anti-terrorism laws. Last week the Government announced the next round of funding applications for the school-chaplains program – a bit cheeky seeing that the High Court has reserved judgment in a case challenging its the constitutional validity.

I hope the applicants are wasting their time and the High Court strikes it down. We have huge trouble getting enough money into public education to teach literacy and numeracy, without wasting it on unqualified Bible-bashers and Koran-carriers prosletysing in the schools.

The program was begun by Howard Government in 2006, and at least $300 million has been wasted on this tripe since. The Gillard Government extended the program for four more years, instead of putting the money where it was needed.  


Bad policy aside, the High Court is to rule on whether the scheme is constitutional. There are two broad questions at stake.

First, can the Commonwealth spend money on whatever it likes, or must the spending relate only to the things the Commonwealth has power to legislate over as listed in the Constitution plussome nation-building purposes?

Second, does the scheme offend the constitutional provisions about separating church and state?

That state-religion division is not so sharp as in the US. The critical clause in the Australian Constitution is that “no religious test shall be required as a qualification for any office or public trust under the Commonwealth”.

The Federal guidelines for the National School Chaplaincy Program provide that schools can apply for money to fund chaplaincy services. The chaplain must be a person who is recognised “by the local school, its community and the appropriate governing authority as having the skills and experience to deliver school chaplaincy services to the school and its community through formal ordination, commissioning, recognised qualifications or endorsement by a recognised or accepted religious institution…”

Sounds very much like a religious test to me. Sounds like an office or public trust to me – getting Commonwealth money to do a task funded by the Commonwealth.


The artful Howard Government, however, did it best to weasel out of the constitutional prohibition. For a start, it did not legislate. Instead, it provided for money to come out of the Education Department’s general funding to go to the states and territories which would administer the scheme.

Presumably, it hoped the states andterritories and their schools would carry the cross of the religious task. The cash-strapped schools, of course, would lap up any money for anything in the hope that some might get side-tracked for education.

Nice try, but at the end of the day no atheist can be a part of the Commonwealth-funded school chaplaincy service - so it follows there must be an unconstitutional religious test.

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This article first appeared in The Canberra Times on 29 October 2011.

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About the Author

Crispin Hull is a former editor of The Canberra Times, admitted as a barrister and solicitor in the ACT and author of The High Court 1903-2003 (The Law Book Company). He teaches journalism at the University of Canberra and is chair of Barnardos Australia, the children’s charity. His website is here:

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