This is a court case that will keep giving for a long time. What has happened is that teaching religion in schools is not unconstitutional but the federal funding is – so one report I saw suggested that the States will continue the program.
The news gets better. The Gillard government reintroduced compulsory student unionism but with a twist. To overcome the argument that compulsory unionism imposed a burden on some students, the government provides a loan to pay for the union fee.
SA-HELP is a loan scheme that assists eligible students to pay for all or part of their student services and amenities fee. The student services and amenities fee is a fee that universities and other approved higher education providers (providers) can charge for student services and amenities of a non-academic nature, such as sporting and recreational activities, employment and career advice, child care, financial advice and food services.
Andrew Norton suggests that this predatory lending practice might be unconstitutional.
Three of the seven judges had something to say about what ‘benefits to students’ meant. Justice Kiefel said:
Social services provided to students might take the form of financial assistance, for example payment of fees and living and other allowances, or material assistance, such as the provision of books, computers and other necessary educational equipment, or the provision of services, such as additional tutoring. The term “benefits” in the context of s 51(xxiiiA) does not extend to every service which may be supportive of students at a personal level in the course of their education.
Justice Hayne said something similar:
the notion of benefits is more confined than a generalised reference to provision of advantage. ….The payments that are made under the NSCP [chaplaincy program] are not made to or for students. They are made to provide a service to which students may resort and from which they may derive advantage. But they are not “benefits to students”.
Justice Heydon, however, disagreed. He thought that it was too difficult to distinguish the inherent educational requirements of being a student from the general life circumstances of being a student.
On the account of all three judges, I think that tuition subsidies clearly fall within the definition of ‘benefits to students’. However it is less certain that funding for non-academic student services is constitutional. …
SA-HELP exists to fund fees for “amenities and services not of an academic nature, regardless of whether the person chooses to use any of those amenities and services”. Both elements seem to break the tight educational nexus that Kiefel and Hayne are seeking.
This will be very interesting to watch.