The High Court's decision on school chaplains

Ron Williams is, by all appearances, an unassuming man. But on Wednesday last week this father of four from Toowoomba received judgment as the successful plaintiff in a decision of huge political and constitutional significance. Mr Williams took a challenge to the Commonwealth government's National School Chaplaincy Program all the way to the High Court, and won.

How did he win? The answer is: not for the reasons most people thought he might!

At least for a public audience, Mr William's challenge to the program was presented as being based on the separation of church and state. Section 116 of the Constitution provides that no law shall be made "for establishing any religion", and that "no religious test shall be required as a qualification for any office or public trust under the Commonwealth." The key argument on section 116 put by Mr William's lawyers was that the program required religious credentials of those who could benefit from it, and that this amounted to a religious test for an office under the Commonwealth.

The High Court gave short shrift to such arguments. The justices found that, since the Commonwealth did not hire the chaplains themselves, and instead simply provided a monetary contribution to schools that wished to employ one, there was no religious test for an office of the Commonwealth.

While section 116 may have been central in the initial attack plan, the arguments that succeeded in the end were of a very different nature. The reasons for the High Court's decision are invariably more complex – and, unfortunately, more legalistic – than pundits might have hoped. But the basic ground for the ruling is easy enough to understand.

The Williams decision essentially boiled down to what limits there are on the executive's (read: Prime Minister and Cabinet's) power to spend money. This is because the NSCP was never enacted by any piece of legislation! The money for the program was paid under an Appropriation Act (which reads like a government shopping-list), but no substantive law – passed by both Houses of Parliament – implemented the program. The Commonwealth argued that it was entitled to make these payments without legislative backing due to a constitutional power called the 'executive power' (section 61 of the Constitution), but the High Court disagreed.

The fact that the High Court found the program to be unconstitutional in its current form is not an indication of governmental bungle. There has been, for decades, some uncertainty around the Commonwealth's spending power. For instance, until a 2009 case challenging the Rudd government's $900 stimulus payments, it was assumed that the Commonwealth could spend money on anything it wished. The 2009 decision of Pape's case, however, established that spending was limited to areas in which there was legislative or executive power.

Because the NSCP was not, for instance, a matter of national urgency, or a program that could only be carried out by the Commonwealth (since education is the domain of the state governments), the executive power argument failed. Without an Act of Parliament, the NSCP had no other leg to stand on.

The High Court's decision to read the executive's spending power narrowly is, in public policy terms, an issue that goes to the heart of representative democracy. If the executive can spend money on programs of its own accord, that means parliamentary debate can, to an extent, be by-passed. That might be necessary when it comes to spending required urgently for a war (or other pressing scenario), but it's perhaps undesirable in most other instances.

So, where to from here? The Attorney General, Nicola Roxon, has already affirmed the government's support for the program. It's likely that it can be revived under a new funding model. One solution is simply to introduce the program in a new piece of legislation. However, because the Federal Parliament can only create laws on certain topics, there is some uncertainty as to whether this would work without a further High Court challenge.

The only certain way the NSCP can be continued is for the Commonwealth to channel the money through to state governments. Section 96 of the Constitution allows the Commonwealth to make 'tied grants' to the states, ensuring that they achieve a certain purpose or implement a program in return for funding. This would, however, involve the Commonwealth giving up its ability to directly administer the scheme.

It remains to be seen what action the Federal Government will take in response to the High Court's decision. Concerns are already mounting that the case will allow a whole raft of other government programs to be successfully challenged. For now, this is speculation. But what is clear is that the ball has been knocked firmly back into the government's side of the proverbial tennis court.