Wednesday, June 20, 2012

National Schools Chaplaincy Program invalid - for now

Today the High Court delivered judgment in Williams v Commonwealth, in which the Williams challenged the National School Chaplaincy Program.  In a 6-1 decision, the High Court upheld Williams’ challenge to the NSCP.
The NSCP is administered by the Commonwealth Department of Education, through a series of funding agreements concerning specific schools.  The NSCP Guidelines identify the organisations that are entitled to enter into funding agreements for the purposes of the NSCP.  Participation in the NCSP by schools is voluntary, as is participation by individual students if schools receive funding. 
The “chaplaincy” services governed by the NCSP include “general religious and personal advice to those seeking it, and providing comfort and support to students and staff, such as during times of grief” and “supporting students and staff to create an environment of cooperation and respect, and promoting an understanding of diversity and the range of religious affiliations and their traditions.”  They are provided by person recognised as being appropriately skilled to provide such services by a “religious institution or a state/territory government approved chaplaincy service” and in some circumstances secular pastoral care workers may be employed.
Upon its inception in 2007 the NSCP made available funding of up to $30 million per annum for three years, to be distributed to government and non-government schools in the form of grants of up to $20,000 per annum, for the purpose of either establishing school chaplaincy services, or enhancing existing services.  In 2009 the NSCP was extended by the Commonwealth to provide for an additional $42 million for the 2010 and 2011 school years.
On 9 November 2007 the Commonwealth and Scripture Union Queensland entered into a Funding Agreement for the provision by SUQ of chaplaincy services in accordance with the NSCP Guidelines.
Williams is the father of students at the Darling Heights State School in Queensland, a school that receives chaplaincy services provided by SUQ.  He challenged the validity of the NCSP on the following main grounds (each of which raises a number of subsidiary issues):
  • Does the entry into the Funding Agreement exceed the executive power of the Commonwealth, and in particular does the executive power of the Commonwealth extend to entering into contracts in respect of matters that go beyond the legislative power of the Commonwealth;
  • Do the NCSP Guidelines impose a religious test as a qualification for an office under the Commonwealth, and thereby contravene section 116 of the Constitution?

An initial challenge was made by the Commonwealth to the question of whether or not Williams had sufficient standing to challenge the Funding Agreement, the drawing of money from Consolidated Revenue, or the making of payments pursuant to the Funding Agreement. It was held that Williams did have standing to challenge the Funding Agreement, and the payments made pursuant to that agreement, and that is was unnecessary to answer whether he had standing to challenge the drawing of money from Consolidated Revenue. 
Each of French CJ, Hayne, Crennan and Kiefel JJ, purportedly agreed with the reasons of Gummow and Bell JJ for arriving at these conclusions.  However, Gummow and Bell JJ don’t actually give any reasons for doing so.  They simply assert that as the plaintiff’s position was supported by the State interveners pursuant to their right of intervention, “the questions of standing may be put to one side”.
Although in dissent more generally, Heydon J agreed that Williams had standing to challenge the Funding Agreement, and the payments made pursuant to the agreement.  This was because Williams, as the father of his children, had a “special interest” (if only as a matter of conscience) in the activities within the school of the “chaplain”, who also participated in conventional teaching activities, and which were being paid for pursuant to the Funding Agreement.

Executive power of the Commonwealth
Although the central question in the proceedings occupied a great deal of time in oral and written submissions, and necessitated the consideration of a great deal of prior authority of the Court, analysis of the scope of executive power at the time of Federation, and a large body of academic literature, in the end the holding of the Court is a relatively narrow one on the Executive Power of the Commonwealth conferred by section 61, which reads:  “The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.” 
In its simplest terms, the Court held that section 61 of the Constitution does not confer upon the Commonwealth a power to enter into contracts except to the extent that such contracts are expressly or impliedly authorised by the Constitution, or by legislation. 
As French CJ was at pains to emphasise, and Gummow and Bell JJ also indicated, that conclusion says nothing about the availability of constitutional mechanisms, including conditional grants to the States under section 96 of the Constitution and inter-governmental agreements supported by legislation, which might enable such services to be provided in accordance with the Constitution of the Commonwealth and the Constitutions of the States.  Nor does it say anything about the power of the Commonwealth to enter into contracts and expend moneys in the administration of departments of State pursuant to section 64 of the Constitution, in the exercise of powers defined by reference to such of the prerogatives of the Crown as are properly attributable to the Commonwealth, or in the exercise of inherent authority derived from the character and status of the Commonwealth as the national government. 
What was rejected was the unqualified proposition that, subject to parliamentary appropriation, the executive power of the Commonwealth extends generally to enable it to enter into contracts and undertake expenditure of public moneys relating to any subject matter falling within a head of Commonwealth legislative power.
The judgment of French CJ is notable for its emphasis upon the federal nature of the Constitution.  In several parts of the judgment emphasis was placed upon the adverse consequences for federalism in accepting the broad proposition that the Commonwealth, in common with any other legal person, has the capacity at common law to enter into contracts (the limits to this being only that its capacity to enter into and pay moneys pursuant to those contracts is constrained by the need for an appropriation and by the requirements of political accountability).  Such a general power would be inconsistent with the federal conception that informed the function of the Senate as a necessary organ of Commonwealth legislative power, and would undermine parliamentary control of the executive branch and weaken the role of the Senate.
Gummow and Bell JJ also derived support for their rejection of the Commonwealth’s unqualified proposition, noting that its acceptance would:
undermine the basal assumption of legislative predominance inherited from the United Kingdom and so would distort the relationship between Ch I and Ch II of the Constitution. No doubt the requirement of s 64 of the Constitution that Ministers of State be senators or members of the House of Representatives has the consequence that the Minister whose department administers an executive spending scheme, such as the NSCP, is responsible to account for its administration to the Parliament. This is so whether the responsibility is to the chamber of which the Minister is a member or to the other chamber, in which the Minister is “represented” by another Minister. But there remain considerations of representative as well as of responsible government in cases where an executive spending scheme has no legislative engagement for its creation or operation beyond the appropriation process. And that appropriation process requires that the proposed law not originate in the Senate, and that the proposed law appropriating revenue or moneys “for the ordinary annual services of the Government” not be amended by the Senate.
The necessity of Parliamentary control over the expenditure of public moneys was also a feature of the judgment of Hayne J in rejecting the broad submission that the Executives power to spend money lawfully appropriated was unlimited, that control being exercised not simply by its “power over appropriation” but also by “control over the actual expenditure of the sums appropriated”. 
However, Hayne J did not determine the issue considered by French CJ and Gummow and Bell JJ as determinative.  His Honour was content to determine the case on the basis that the Commonwealth did not have the legislative power under either the trading corporations power - s51(xx), or the student benefits power - s51(xxiiiA) to authorize the entry into the Funding Agreement: “to conclude that the Constitution requires that the Executive never spend money lawfully available for expenditure without legislative authority to do so is to decide a large and complex issue. It is better that it not be decided until it is necessary to do so.
Crennan J also emphasised the importance of parliamentary oversight of expenditure of money by the executive, in terms generally consistent with the joint judgment of Gummow and Bell JJ.
Kiefel J, like Hayne J, declined to resolve the question of whether and in what circumstances legislative or Constitutional authority for the expenditure of moneys was required, and held that the postulated bases of legislative authority advanced by the Commonwealth would not have supported the provision of chaplaincy services by SUQ using money provided by the Commonwealth.

 Scope of the student benefits power – section 51(xxiiiA)
One issue that arose (or potentially arose) in the case was the question of whether or not there was legislative power capable of supporting any Commonwealth legislation purporting to authorise the entry into the Funding Agreement.  It was unnecessary for French CJ or Crennan J to consider that issue.  Nor was it necessary for Gummow and Bell JJ to consider that issue, although their honours expressly left open the possibility that the entry into the Funding Agreement might be authorised by legislation enacted pursuant to section 51(xxiiiA) (“benefits for students”) of the Constitution.  Hayne J and Kiefel J both expressly held that any hypothetical law seeking to authorise the entry into the Funding Agreement would not fall within 51(xxiiiA).  Heydon J held that 51(xxiiiA) would support legislation authorising the provision of chaplaincy services by SUQ using money provided by the Commonwealth.

In reasons with which the Court generally agreed, Gummow and Bell JJ held that section 116 of the Constitution (which states that “no religious test shall be required as a qualification for any office or public trust under the Commonwealth”) had no relevance because, even assuming that the definition of “school chaplain” imposed a “religious test” for that office, the chaplains engaged by SUQ held no office under the Commonwealth. 
Heydon J agreed on the section 116 issue.  In doubting that there was a “religious test” at all his Honour noted that the definition of “school chaplain” read together with the description of the services to be provided:
conveys the impression that, at least at this school, neither the NSCP nor the qualification for “chaplains” had much to do with religion in any specific or sectarian sense. The work described could have been done by persons who met a religious test. It could equally have been done by persons who did not.
Heydon J then colourfully noted:
In ordinary speech a “chaplain” is the priest, clergyman or minister of a chapel; or a clergyman who conducts religious services in the private chapel of an institution or household. Those who are “school chaplains” under the NSCP’s auspices fall outside these definitions. Their duties in schools are unconnected with any chapel. They conduct no religious services. Perhaps those supporting validity committed an error in calling the NSCP a “chaplaincy program” and speaking of “school chaplains”. The language is inaccurate and may have been counterproductive. Some vaguer expression, more pleasing to 21st century ears, like “mentor” or “adviser” or “comforter” or “counsellor” or even “consultant”, might have had an emollient effect. The plaintiff must have found the words “chaplain” and “chaplaincy” useful for his contention that the NSCP was void under s 116.
In any event, they could not properly be described as officers under the Commonwealth.
It cannot appoint, select, approve or dismiss them. It cannot direct them. The services they provide in a particular school are determined by those who run that school. The provision of those services is overseen by school principals.

 The Great Dissenter
Heydon J, in emphatic terms, dissented in relation to the validity of the Funding Agreement. 
His Honour noted that there was, from an early stage, a “Common Assumption” made by the parties to the proceedings that the executive power of the Commonwealth included a power to enter into contracts without statutory authority so long as the Commonwealth had the legislative power to give it statutory authority. According to Heydon J this Common Assumption was present in Williams’ written submissions, repeated in the Outline of Oral Submissions, was accepted as correct by the written submissions of the other parties and interveners, and was described by the State of Queensland as “the orthodox test of the scope of executive power.”
The Common Assumption broke down when Western Australia began its address, and withdrew the acceptance of the Common Assumption from its written submissions, and Williams and most of the interveners followed suit and lined up against the Commonwealth.  As a result of this renversement des alliances, in the colourful words of Matthew Arnold, “the Court was as on a darkling plain, swept with confused alarms of struggle and flight, where ignorant armies clash by night”. 
Heydon J devoted some considerable verbage to the consequences of the Common Assumption and its breakdown. His Honour noted:
The five parties and the seven interveners were represented by exceptionally capable and experienced constitutional lawyers. Those lawyers included seven Solicitors-General and a retired Federal Court judge. Their solemn adherence to the Common Assumption, during the calm and leisured composition of their written submissions, is a significant phenomenon. If Hugh Cairns and Roundell Palmer, arguing opposite sides of a case, agreed on a principle of equity, that was some indication that that principle was sound. Of course, an agreement between parties or interveners on the law does not bind the courts. Adherence to the Common Assumption does not demonstrate or constitute the law. It is not decisive. But it is material. Why did this large group of expert constitutional lawyers initially adhere to the Common Assumption? Because they thought it to be correct. And it was correct.

Having discussed the authorities of the Court, which were said to support the Common Assumption, Heydon J asked whether the Common Assumption was so wrong as a matter of principle as distinct from authority that it should be overruled? To this Heydon J responded with an astonishing spray:
This case is not an appropriate one in which that question should be answered. All parties and interveners initially adhered to the Common Assumption. Its sudden abandonment by the plaintiff and most government interveners during oral argument meant that the submissions attacking and defending the Common Assumption were deployed only at a very late stage of the fray. Inevitably, they betrayed signs of disorganisation. It is true that the plaintiff, South Australia, Tasmania and the Commonwealth were given leave to file additional written submissions after the oral argument closed. But this gave the Commonwealth only the period between when oral argument ended on 11 August 2011, and when the additional submissions were filed on 1 September 2011, to consider the point. On 7 August 2011, urgent and important litigation affecting the Commonwealth had commenced [A reference to M70 v Commonwealth, the “Malaysia Solution” Case]. Interlocutory hearings took place. After 11 August 2011, written argument was filed and preparation for oral argument took place. Oral argument was then heard on 22 and 23 August 2011. That litigation was decided on 31 August 2011. This must have depleted the relevant resources of Commonwealth energy and distracted those who were to tap them. It is important that points of fundamental significance such as the one that this case belatedly raised be pondered by counsel for years – as they often are when appeals come to this Court – or at least for months – as is usual when matters in the original jurisdiction are brought to the Full Court. Above all, they need to be considered calmly. Radical changes in the construction of the Constitution should not be made without better assistance than the unpredicted conspiracy of circumstances permitted counsel to provide in this case.

 It is difficult to know what the future of the NCSP is as a result of this judgment.  There must be some doubt as to whether the Commonwealth could validly legislate to resurrect it.  However, even assuming no legislative power to authorise to authorise the entry into the Funding Agreements, other constitutional mechanisms would seem to be available to enable the program to continue (most obviously, the provisions of tied grants under section 96).
More broadly, there is at least a majority of French CJ, Gummow, Bell and Crennan JJ who are of the view that the executive power of the Commonwealth is constrained not only by it'power to legislate but also by the fact of legislation authorising the entry into contracts pursuant to which it seeks to pay moneys in fulfilment of its programs.  In a practical sense, this ultimately may not amount to very much, as similar ends will be achieved by legislatively providing the express authority to enter into such contracts, or achieving the same results via tied grants to the States.
However, more significantly the High Court has continued in its preparedness to challenge long-held assumptions about Commonwealth expenditure powers, and it can be expected that before too long the scope of various other powers of the Commonwealth to expend moneys (most notably sections 64 and 96 of the Constitution) will come under renewed challenge.


  1. Great summary, much appreciated.

  2. Agreed. I work at AGS and this is so much better!