High Court Challenge

ACCESS ministries is closely following a legal challenge to Chaplaincy which commenced in the High Court in Canberra on Tuesday 9 August 2011. Read the media statement here.

More Information

Scripture Union (SU QLD) has been served a writ naming it as a defendant in a High Court Challenge that is fighting the right of the federal government to fund school chaplaincy.

Ron Williams v. Commonwealth of Australia
A Writ of Summons and Statement of Claim was issued out of the High Court of Australia on Tuesday December 20, 2010. The details relevant to the matter are as follows:

Plaintiff:
Ronald Williams

Defendants:
Commonwealth of Australia
Minister for School Education Childhood and Youth
Minister for Finance and Deregulation
Scripture Union Queensland

Mr Williams is being represented by Bret Walker SC. His case is being funded by the Australian Secular Lobby and members of the public who want school chaplaincy out of state schools.

Process and timing
The Commonwealth and SU QLD will have until 25 February to file their defences to the claims made.
After that the Plaintiff will have two weeks to file a response to the defences (ie until 11 March).
The Commonwealth will then prepare and file, by 23 March, a draft special case for the full High Court to consider and rule on.
The High Court has set aside 9-11 August to hear the case.
The decision of the High Court may not be known until late 2011 or early 2012.

What is the plaintiff’s case?
The Plaintiff’s arguments fall under three broad types:

That there is no federal constitutional power under which the Commonwealth has, or can, make payments for school chaplaincy. The argument is put several ways – that there is no specific federal power, that it is something within the power of the states and that chaplaincy does not involve an issue of national importance requiring national action.
That school chaplains funded under the National School Chaplaincy Program (NSCP) are “officers of the Commonwealth” and that therefore the Commonwealth has imposed a religious test qualification on a Commonwealth officer, in breach of the constitution. Central to this is the requirement of the NSCP Guideline requiring “formal ordination, commissioning, recognised qualification or endorsement by a recognised or accepted religious institution or a state or territory-approved chaplaincy service”.
That the parliamentary acts appropriating funds for chaplaincy are not worded widely enough to cover payments under the chaplaincy policy (ie a deficiency in the wording of the acts).
The Plaintiff is seeking declarations that the funding agreement is void and of no effect, that the appropriation acts did not, and cannot, authorise payments under the NSCP Guidelines and that the administrative authorisation for payments made to SU QLD are of no effect.

The Plaintiff is also seeking injunctions restraining payments to SU QLD under the funding agreement or NSCP Guidelines, restraining the Commonwealth from giving effect to the funding agreement and from entering into further such agreements.

The case relates only to the Darling Heights State School near Toowoomba. However, it may have implications for SU QLD’s other agreements with the Commonwealth and for other school chaplaincy employers.

Importantly, the case says nothing about chaplains’ access in schools. It concerns only whether the Commonwealth may fund school chaplaincy under the terms of the current NSCP Guideline.