Tuesday, August 9, 2011

Also in the High Court this week

In Monday's post about what was happening this week in the High Court of Australia, I omitted the hearing this week of Williams v Commonwealth of Australia in which the plaintiff, the father of four children enrolled in a Queensland public school, is challenging the Commonwealth's National Schools Chaplaincy Program, introduced by the Howard government in 2006 and extended for four years by the Gillard Government in 2010.
In 2007 the Commonwealth entered into a funding agreement with the fourth defendant, the Scripture Union of Queensland, for the provision of funding under the NSCP with respect to the school attended by the plaintiff's children. Neither the plaintiff, nor any of his children, has participated in any program or chaplaincy service at the school provided pursuant to the NSCP. There is also no obligation for them to have done so. 
The plaintiff seeks to prevent the Commonwealth from spending taxpayers' money on the NCSP, arguing that it contravenes section 116 of the Constitution, which states:
"The Commonwealth shall not make 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" 
The questions to be addressed by the Court include:
  • whether the plaintiff has standing to challenge the making of the funding agreement, the drawing of  moneys from consolidated revenue for the purpose of making payments under the funding agreement, or the making of payments by the Commonwealth in accordance with the funding agreement.
  • If the plaintiff does have standing, is the funding agreement invalid by reason that it exceeds the executive power of the Commonwealth under section 61 of the Constitution, or because it is prohibited by section 116 of the Constitution.

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