Greg Weeks – Comment on Australia: School Chaplains and Commonwealth Funding

Gregory WeeksRon Williams, a father of four from Queensland, brought a case before the High Court in 2012 which argued that the National School Chaplaincy Program (NSCP) was constitutionally invalid, as was the agreement between the Commonwealth and Scripture Union Queensland (SUQ) under which the funds for the NSCP were administered. Mr Williams’ children attend a public school and his concern was in essence that the NSCP violated the separation between church and state. His challenge was reported as Williams v The Commonwealth (2012) 248 CLR 156 (‘Williams (No 1)’).

Before the High Court, his primary argument was that the NSCP was in breach of s 116 of the Constitution, which prohibits the Commonwealth from making:

any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

He failed comprehensively on this ground, since none of the elements of s 116 were made out and, in any case, the chaplains had been hired by SUQ and therefore did not hold an “office … under the Commonwealth” (Williams (No 1) at [109]).

Given the completeness of Mr Williams’ failure on the point of central concern to him, there is some irony to the fact that he won a far-reaching and highly influential victory over the Commonwealth in Williams (No 1). That victory has now been compounded with his success in Williams v Commonwealth of Australia [2014] HCA 23 (‘Williams (No 2)’). This post will explain both decisions, which come down to the point that, while the Commonwealth was entitled to put chaplains into public schools, the funding arrangements by which they did so were invalid.

The decision in Williams (No 2) is the latest in a series of statements from the High Court about the extent of, and limits to, the spending power of the Commonwealth government. In Pape v Commissioner of Taxation (2009) 238 CLR 1, a majority of the High Court held that s 61 of the Constitution, which reposes powers in the Commonwealth executive which go beyond “the prerogative”, allowed the Commonwealth government to legislate for a response to the Global Financial Crisis using the express incidental head of legislative power. Every member of the Court further concluded that no substantive spending power is conferred by ss 81 and 83 of the Constitution, a conclusion that the High Court now says was more important than the Pape Court’s division of opinion as to the coverage of s 61.

Williams (No 1) refined what had been said in Pape about the operation of s 61. The Court rejected the Commonwealth’s claim that it possessed contractual power equivalent to its legislative capacities under s 51 of the Constitution and that it had all the powers of a natural person, thereby rejecting the “Ram doctrine”, which has continued to have its correctness assumed in recent UK cases. The arrangements under which the Commonwealth had entered into contracts for the provision of chaplaincy services and spent money to perform its obligations under those contracts were held to be invalid in Williams (No 1) because they were not supported by the executive power under s 61. A key element in this result was that:

the Commonwealth parties …did not submit that making the funding agreement in issue, or the payments for which it provided, was supported by those aspects of executive power which might be referred to loosely as the Executive’s power to deal with or respond to a national emergency (considered in Pape) or other matters of the kind commonly grouped under the heading ‘nationhood’. (Williams (No 2) at [23])

Importantly for the third matter in this series, both Pape and Williams (No 1) had indicated that expenditures in reliance on the “appropriations power” in s 81 would be invalid. As the majority in Williams (No 2) have summarised the position:

[T]he premises which underpinned the decision [in Williams (No 1)] … were established in Pape.  They are, first, that the appropriation of moneys in accordance with the requirements of ss 81 and 83 of the Constitution does not itself confer a substantive spending power and, second, that the power to spend appropriated moneys must be found elsewhere in the Constitution or in statutes made under it. (Williams (No 2) at [25])

The Commonwealth had responded to Williams (No 1) by rushing through legislation (the Financial Framework Legislation Amendment Act (No 3) 2012 (Cth)) with the support of the opposition and minor parties. The amending legislation aimed to protect schemes which the government believed to be threatened as a result of the High Court’s decision in Williams (No 1) and was clearly intended to allow the government to continue much as it always had, with several sections specifically “reserved” for grants yet to be made. Otherwise, it simply listed grants and schemes, with the intention of making them Williams-proof by placing what were previously executive schemes on a legislative footing, rather than simply making the necessary payments following the passage of an Appropriations Act. In Williams (No 2), the Court left open the question of whether the relevant Appropriation Acts “are to be construed as providing statutory authority to make either the funding agreement or any of the payments in issue in this proceeding” but noted that, if they do, “the same questions about the validity of the relevant provisions (in that operation) are presented as arise in relation to the other statutory provisions said to support the making of the relevant payments and agreement” (Williams (No 2) at [55]).

In Williams (No 2), Mr Williams successfully challenged the validity of the amending legislation, s 32B of the Financial Management and Accountability Act 1997 (Cth), and Part 5AA and Schedule 1AA of the Financial Management and Accountability Regulations 1997 (Cth). The Court held that all that it was required to consider in this case was whether any of the “impugned provisions” is supported by a head of legislative power within s 51 of the Constitution. The Commonwealth and SUQ argued that the impugned provisions were relevantly supported by s 51(xxiiiA) of the Constitution, which empowers the Commonwealth Parliament to legislate with respect to “the provision of … benefits to students”.

The amending legislation had inserted the following “objective” into Sch 1AA of the FMA Regulations:

To assist school communities to support the wellbeing of their students, including by strengthening values, providing pastoral care and enhancing engagement with the broader community

The joint judgment held that the reference to providing “benefits” to students in s 51(xxiiiA) is about more than conferring advantages in a general sense. Without attempting to define comprehensively what is encompassed within the constitutional expression “benefits to students”, the joint judgment observed that it:

cannot be construed piecemeal.  That is, the expression is not to be approached as if it presented separate questions about whether there is a ‘benefit’ and whether that ‘benefit’ is provided to or for ‘students’. (Williams (No 2) at [45])

The joint judgment held that the meaning which had been attached to the word “benefits” in other cases to have considered s 51(xxiiiA) did not apply to the provision of school chaplains, because:

Providing those services does not provide material aid to provide for the human wants of students.  It does not provide material aid in the form of any service rendered or to be rendered to or for any identified or identifiable student.  There is no payment of money by the Commonwealth for or on behalf of any identified or identifiable student.  And the service which is provided is not directed to the consequences of being a student.  There is no more than the payment of an amount (in this case to an intermediary) to be applied in payment of the wages of a person to “support the wellbeing” of a particular group of children:  those who attend an identified school.  And the only description of how the “support” is to be given is that it includes “strengthening values, providing pastoral care and enhancing engagement with the broader community”.  These are desirable ends.  But seeking to achieve them in the course of the school day does not give the payments which are made the quality of being benefits to students. (Williams (No 2) at [47])

This reasoning draws a distinction between providing benefits on the one hand and providing funds to pay persons to provide services on the other. Crennan J agreed with the joint judgment as to the result of the case, but held that it was unnecessary for the Court to “conclude, or to imply, that the services of student welfare workers or student counsellors could not be the subject of a federal government scheme for “the provision of … benefits to students”, within the scope of s 51(xxiiiA)” (Williams (No 2) at [111]). Rather, her Honour held that “s 51(xxiiiA) is a plenary power which should be given a wide and liberal interpretation” and “construed with all the generality which the words used admit” (Williams (No 2) at [106]-[107]).

The Commonwealth courageously – in the sense immortalised by Sir Humphrey Appleby – elected to argue that Williams (No 1) should be reopened (and overturned). Given that five of the judges who decided Williams (No 1) also sat in Williams (No 2), and further given that the High Court has shown a marked distaste for overturning even previous decisions of the Court with which it now disagrees, this approach never looked likely to succeed. The manner in which it was dismissed by the joint judgment came as no surprise. It first noted that Williams (No 1) built directly on Pape (which the Commonwealth did not seek to reopen) and went on to note that, to the extent that Williams (No 1) did not “answer … every question that may be asked about Commonwealth expenditure powers”, it had “decided the issues which were tendered for decision in the case” (Williams (No 2) at [64]). To the extent that the Commonwealth attempted to relitigate Williams (No 1) by stealth, it was equally unsuccessful (Williams (No 2) at [69]).

Williams (No 2) adds to what the High Court had already said about Commonwealth spending powers in Pape and Williams (No 1). However, in a sense, what it adds is a proposition so simple that every undergraduate student of Federal Constitutional Law would consider it trite: the Commonwealth’s legislative provisions were invalid simply because they were unsupported by any Constitutional head of legislative power. At a broader level, Williams (No 2) marks the failure of the Commonwealth’s attempt to prop up a large number of schemes purportedly funded under s 61 prior to Williams (No 1). However, Mr Williams’ dual victories may yet be Pyrrhic. The Commonwealth government may yet seek to fund State-based school chaplaincy programs through financial grants to the States under s 96 of the Constitution, which states that ‘… the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.’

Such a grant would be substantially more difficult to challenge than either of the funding schemes in Williams (No 1) and Williams (No 2). Mr Williams’ war was always about the separation of church and state, rather than about the ways that the Commonwealth may validly spend money. Having won two High Court battles, he may yet lose the war.

  Greg Weeks is a Lecturer in the Faculty of Law, University of New South Wales, a Member of the Gilbert + Tobin Centre of Public Law, and Member of the Andrew and Renata Kaldor Centre for International Refugee Law.  He is the United Kingdom Constitutional Law Blog’s Australia Correspondent.

(Suggested citation: G. Weeks, ‘School Chaplains and Commonwealth Funding’ U.K. Const. L. Blog (19th June 2014) (available at