What the Constitution says

The ABC is blathering on about the High Court’s decision in respect of the chaplaincy program confirming the separation of the church and state.

No, the real issue is that this spending cannot be squeezed into Section 51 of the Constitution.  It is worth setting out this section to see what other areas of current Commonwealth spending could be struck down.  This is a great day for the federation.

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 51

Legislative powers of the Parliament [see Notes 10 and 11]

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(i)  trade and commerce with other countries, and among the States;

(ii)  taxation; but so as not to discriminate between States or parts of States;

(iii)  bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth;

(iv)  borrowing money on the public credit of the Commonwealth;

(v)  postal, telegraphic, telephonic, and other like services;

(vi)  the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;

(vii)  lighthouses, lightships, beacons and buoys;

(viii)  astronomical and meteorological observations;

(ix)  quarantine;

(x)  fisheries in Australian waters beyond territorial limits;

(xi)  census and statistics;

(xii)  currency, coinage, and legal tender;

(xiii)  banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money;

(xiv)  insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned;

(xv)  weights and measures;

(xvi)  bills of exchange and promissory notes;

(xvii)  bankruptcy and insolvency;

(xviii)  copyrights, patents of inventions and designs, and trade marks;

(xix)  naturalization and aliens;

(xx)  foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;

(xxi)  marriage;

(xxii)  divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;

(xxiii)  invalid and old‑age pensions;

(xxiiiA)  the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;

(xxiv)  the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States;

(xxv)  the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States;

(xxvi)  the people of any race , other than the aboriginal race in any State, for whom it is deemed necessary to make special laws;

(xxvii)  immigration and emigration;

(xxviii)  the influx of criminals;

(xxix)  external affairs;

(xxx)  the relations of the Commonwealth with the islands of the Pacific;

(xxxi)  the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;

(xxxii)  the control of railways with respect to transport for the naval and military purposes of the Commonwealth;

(xxxiii)  the acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State;

(xxxiv)  railway construction and extension in any State with the consent of that State;

(xxxv)  conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State;

(xxxvi)  matters in respect of which this Constitution makes provision until the Parliament otherwise provides;

(xxxvii)  matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law;

(xxxviii)  the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia;

(xxxix)  matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

 

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28 Responses to What the Constitution says

  1. Infidel Tiger

    The ABC is blathering on about the High Court’s decision in respect of the chaplaincy program confirming the separation of the church and state.

    Let’s see how tumescent they are when the NDIS is ruled unconstitutional.

    It really is a great day. Over 400 government programs may have to be axed.

  2. stackja

    So how come we still have the ALP Chaplaincy Program, called the ABC?

  3. Yobbo

    Great news for science and reason. Bad news for god-botherers. Boohoo.

  4. Roger

    Way to miss the point, Yobbo.

  5. Baldrick

    stackja
    #1352390, posted on June 19, 2014 at 11:57 am
    So how come we still have the ALP Chaplaincy Program, called the ABC?

    ‘Cause it fits under section (ix) quarantine; ie: protected species.

  6. .

    Libertarians ought to make more legal challenges to spending, taxes, regulation and the restriction of and curtailment of liberties and rights.

    There is much to be gained from careful, well planned legal challenges to invalid legislation supporting such evils.

  7. Canisdominici

    More ABC hypocrisy. Always accusing consetvatives of importing the US culture wars and doing the same themselves. I guess their thinly veiled anti Christian (especially anti Catholic) prejudices trump all else in this case.

  8. Yobbo

    I don’t think I did miss the point, Roger.

    If you think the high court is now going to strike down all these other spending measures then I have a bridge to sell you. This ruling was made because of the commitment to separation of church and state, not because of judicial opposition to government spending.

    It would be great if this ushered in a new era of constitutional restrictions on the federal government, but that’s just not going to happen, despite Sinclair’s obvious excitement.

  9. Jock

    Would the environmental agencies come under 7? I am doubtful. This refers only to atmospheric measurement. unless it is covered by expenditure necessary to meet international obligations? And that’s a long bow with most of them.

  10. Spider

    Next can we contest the religious education classes that continue to this day in Queensland state schools. There is no place for this in a state system.

    Believers can recieve their religious education at a non government school or neatest church.

  11. Rabz

    What the Constitution says

    Seems it says whatever some mediocre labor appointed legal hack decides it does, as convenience requires.

  12. Does the decision mention s 116? If not, hard to see how it has anything to do with the separation of church and state.

    The good news, of course, for lovers of liberty everywhere is that chaplains will be replaced by social workers.

  13. Tim

    Can’t they just seize the opportunity to axe all the programs and save the money? And blame the High Court?

  14. Gab

    Can’t they just seize the opportunity to axe all the programs and save the money? And blame the High Court?

    Love your optimism however Abbott stated this morning they are looking at ways to circumvent the High Court’s decision.

  15. Shut. It.* Down.

    Fire. Them.* All.

    As you were.

    *Anyone you can think of who fits the bill.

  16. .

    Tim

    What I said at 12.19 ought to be a standard, regular practice.

  17. 2dogs

    I think you could make a good argument that there is religious/cultural bias in the welfare system.

    Any effort to remove it could prove interesting.

  18. vlad

    The Prime Minister’s Literary Awards are clearly illegal.

  19. rickw

    Separation of Church and State:

    The right of The Church to not have its affairs meddled with by The State.

    The true and original context is a one way street.

  20. Tel

    Bad news for god-botherers. Boohoo.

    I believe that’s only the government funded god-botherers. On their own dime they can bother all they like.

  21. Tel

    ‘Cause it fits under section (ix) quarantine; ie: protected species.

    Always comes right down to interpretation, doesn’t it?

  22. Gab

    I believe that’s only the government funded god-botherers. On their own dime they can bother all they like.

    Only the federally funded ones. That’s all the High Court decision was about, that the Federal government cannot fund things which is the realm of each state. The states can still fund school chaplains (they are not allowed to proselytize, in either case).

  23. .

    The right of The Church to not have its affairs meddled with by The State.

    The true and original context is a one way street.

    Forgive my ignorance, can you remember the Jefferson quote:

    Believing with you that religion is a matter which lies solely between man and his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their “legislature” should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

    So who had the original, one way version of this?

  24. dot, Jefferson invented the notion of the ‘separation of church and state’; it is not there in the First Amendment which simply declares that the ““legislature” should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.

  25. .

    Maybe we need to go back to Madison’s Federalist Papers then eh?

    As I understand it, the church also believes it has a limited role in temporal affairs.

  26. I’d certainly like to know what the Federalists said on this matter.

    On the other matter, it certainly does and this is not inconsistent with the First Amendment.

  27. .

    The Federalist Papers leave the issue alone (which isn’t surprising really). Eventually, we go back further than that. Madison, well after the Federalist papers:

    The civil Government, though bereft of everything like an associated hierarchy, possesses the requisite stability, and performs its functions with complete success, whilst the number, the industry, and the morality of the priesthood, and the devotion of the people, have been manifestly increased by the total separation of the church from the State (Letter to Robert Walsh, Mar. 2, 1819).

    Before Locke was Roger Williams. His view was strenuously similar to Jefferson and Madison.

    I found this very interesting:

    http://en.wikipedia.org/wiki/The_Bloody_Tenent_of_Persecution

    This was written in 1644. It outlines a theological basis for the separation.

    I still don’t get this “original, one way version” of the separation of church and state.

  28. Before Locke was Roger Williams.

    The original basis is Romans.

    I still don’t get this “original, one way version” of the separation of church and state.

    Neither do I exactly. It simply may mean that the Church is as entitled to influence the state as an other corporate entity whereas the state has no business influencing the the common purpose of any corporate entity beyond maintaining the peace and order.

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