Chaplaincy program unconstitutional II

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.

This entry was posted in Uncategorized. Bookmark the permalink.

19 Responses to Chaplaincy program unconstitutional II

  1. Peter Patton

    I haven’t read the decision, but am confused by the reporting on it. What was the issue? Was it that funding chaplains was ultra vires wrt the relevant legislation? In other words, a similar situation to the ‘Malaysian Solution’, which was not unconstitutional, but merely an explicit breach of the Migration Act. If so, this would mean that the government could continue the program by minor legislative changes.

    OR is the program unconstitutional? The HCA said it did not breach s.116. So, if the chaplain program does not violate the state-religion split, which constitutional principles does it breach?

  2. DC

    All we need is a conservative student to challenge this.

  3. Jim Rose

    an interesting constraint on the commonwealth’s spending power. section 96 is a plenary power to attach conditions on grants to the states, so easy to get around.

  4. Peter Patton


    Are you saying that the program relied on legislation pursuant to s.96?

  5. wreckage

    PP, it was basically a technical error. The funding needed legislation to authorise it. However that challenges a lot of other spending, too. The state/religion split in Australia is narrow and explicit, as I understand it.

  6. I think a section 96 tied grant would be the legally safe option for the chaplains. However I don’t think it could save SA-HELP, which given it is costly and inherently linked to the Commonwealth tax system either could not be carried about by the states, or would be refused by the states.

    However I stress that 4 of 7 judges did not express a view on how to define ‘benefits to students’, having already decided the case on other grounds.

  7. ChrisPer

    What no-one commenting on this has noted is the chaplaincy program is NOT anything to do with teaching religion. Its providing volunteer token-payment ‘social workers’ who explicitly contract not to proselytise or teach religion. The conditions are very detailed and there are no ways around it.

  8. Rococo Liberal


    The case was essentially a waste of time. Tne chappy who brought it to the HCT hoped that the programme would be stymied forever, under sec 116 of the Constitution. What the High Court said was that unless the Cth passed legislation, it can’t spend money, unless sec 61 of the Constitution applied., and it didn’t apply in this case.

    of course the government can solve the problem by passing legislation or making a tied grant under sec 96 to the states. SO the busybody idiot who went to the High Court achieved bugger all.

  9. Ken N

    Any lawyers here? My recollection from when I studied this stuff a long time ago that commonwealth spending outside its constitutional powers had to be done by tied grants to the states.
    Which is what the HC says here.
    What changed in between? Who decided the commonwealth could spend outside its powers?

  10. .


    This would all be solved with vouchers. Charter schools could elect yes or no to chaplaincy, and then the monies would be administered by the States ideally to parents – everyone is happy and no separation of church or state is violated.

  11. TerjeP

    I think a voucher system whilst good in principle is something of a Puritan pipe dream. Public funding of (non adult) education in Australia is already quite highly correlated to student numbers irrespective of whether the institution is government run or privately run. As such parental choice is already a major aspect of the system. The most important reform needed is to remove the rule that prevents “for profit” schools from also accessing those funds. This would represent a supply side reform capable of ushering in new innovative providers and start to provide some serious competition.

    As for chaplains in schools who really cares either way.

  12. val majkus

    I’m still trying to work out where is the Constitutional Authority to subsidise solar and wind power from Federal monies
    can anyone tell me that
    It’s not in international treaties so far as I can see

  13. Peter Patton

    A voucher system is still needed, as under the current system far too many parents simply do not have the cash to shell out for private school fees. If the money went straight to the parents, kids from poor families would have a chance to flee their shitty local comprehensive.

    Equally important is giving schools the right to opt out of the state-mandated curriculum!

  14. Pedro

    The decision is not such a big deal. The problem was the lack of legislation to support the program, the Court said that the govt couldn’t do it under the general appropriations power.

    Nothing to see here folks, move along, move along. Darn it.

  15. Michael C.

    Peter Patton: “Equally important is giving schools the right to opt out of the state-mandated curriculum!”
    Yes, and if they make the choice to opt out, they should also opt out of state funding. The state shouldn’t just dish out money with no strings attached. There has to be accountability.

  16. Mike of Marion

    Legal Eagle @ 7.47am,

    Oakeshott (and the other Independents) are all suffering from delusion – they haven’t a clue about Government Executive Power.

Comments are closed.