Jun 19, 2014

Labor could have headed chaplains off at the pass

The High Court's declared the federal government's funding of chaplaincy programs in state schools unconstitutional. It's another sign the constitution needs serious reform.

Stephen Mayne — Journalist and Founder

Stephen Mayne

Journalist and Founder

This morning, a bunch of judges in Canberra created more red tape for the Abbott government by declaring it unconstitutional for the federal government to provide funding for chaplains in schools run by state governments. As The Australian correctly reports, this has thrown into doubt another 400 federal government programs. This could have been fixed by the Rudd-Gillard government when it embarked upon a referendum to legalise direct payments to local councils for popular federal programs pioneered by the Howard government, such as Roads to Recovery. Alas, the Gillard government opted for the most minimal constitutional change possible, with the insertion of just 17 more words in our outdated 16,000-word governing document. In the face of a furious campaign from the likes of conservative commentator Tim Wilson, Howard-era defence minister Peter Reith and a few recalcitrant Coalition senators including Nick Minchin, then-prime minister Kevin Rudd then ditched the idea altogether when he decided to bring forward the 2013 federal election by one week to September 7. Wilson, now on the federal payroll, described this as his most important victory of 2013. This Canberra-funded public servant supposedly wants to limit the size of government, but all he is doing is maximising the size and power of state government and creating unnecessary red tape. Rather than giving a grant to his local surf club in Bondi, Wentworth MP Malcolm Turnbull would have to negotiate a tied grant so that the money is first channelled through the NSW state government in Macquarie Street. Talk about bureaucracy gone mad. The minimalist Rudd proposal, crafted by Anthony Albanese, would have headed off any future challenge to Roads to Recovery -- but the school chaplains program would still have been in trouble. The states do most of the heavy lifting in Australia across schools, hospitals, policing, the courts, public transport, insurance schemes (i.e. workers' compensation), ports and biggest of all, infrastructure development in our capital cities. Besides an almighty taxing power that funds huge amounts of welfare redistribution, the feds don't do much at all and find themselves constantly arm wrestling with the states over how they distribute their surplus revenues through state budgets. Even the likes of the Australian Securities and Investments Commission and the Australian Competition and Consumer Commission are dependent on state support because these federal regulators could be unscrambled if recalcitrant states withdrew their support and took the powers back. The one area that has appreciably gone the other way is industrial relations after then-prime minister John Howard used the corporations power to undermine the states to get WorkChoices through a High Court challenge. However, this overreach ultimately backfired on the conservatives because it helped get Labor back in power and then, with the help of the Greens, industrial relations laws regressed further the other way despite what conservative state governments might have wanted to do. As a local government councillor frustrated by our lack of access to direct Canberra funding, I’m delighted that the High Court has backed Toowoomba man Ron Williams, who wants a separation of church and state. These successful constitutional challenges merely reflect the original compromises of Federation way back in 1901. Australia today has arguably the biggest and most powerful second level of government in the world. It’s a complete anachronism. It’s now game on for constitutional reform in Australia. Prime Minister Tony Abbott should be bold on the question of indigenous recognition and equally bold on Commonwealth funding with a simple amendment that declares Canberra can allocate funds to any person, institution or project within Australia’s sovereign borders. The bottom line here is that federal Parliament should be able to make laws and give money to whomever it damn well pleases. The states certainly can within their own boundaries. The constitution hasn't prevented Abbott from stopping the boats. Why should it be able to stop the funds in such a sweeping and dramatic fashion?

Free Trial

You've hit members-only content.

Sign up for a FREE 21-day trial to keep reading and get the best of Crikey straight to your inbox

By starting a free trial, you agree to accept Crikey’s terms and conditions


Leave a comment

19 thoughts on “Labor could have headed chaplains off at the pass

  1. Limited News

    Chaplains are unconstitional as they are not a “benefit to students”. Same presumably goes for private school funding?

  2. MarilynJS

    The real constitutional changes needed is the race powers section of 51. It’s a disgrace that the white Australia policy is still in the constitution and it allows the government to make criminal laws to deal with civilians.

  3. Mike Smith

    I’ll bite: How is private school funding not a benefit to students? Let’s have a voucher system for educational funding instead.

  4. Mark Richardson

    The Federal government should not be able to create pork-barrel programs to special interests groups like the Christian lobby.
    If they want to throw our (the nations) money away they should at least be made to suffer the inconvenience of getting parliamentary agreement for it.
    The “work around” that they came up with was to allow them to funnel money to programs without getting Parliamentary approval – was an extremely dangerous idea.
    This High Court Decision is an excellent result – because it confirms that Parliament is supreme.

    I now wait in dread of whatever terrible thing the government do next to allow the use of Public money for sectarian purposes.

    There should be constitutional reform and one would be to make section 116 actually mean freedom of and from religion in Australia which explicitly forbids government endorsement or promotion of one religion over another.
    (which is what many Australians still erroneously believe 116 guarantees.)

  5. AR

    Whitlam was so far ahead that the rest of the government behemoth hasn’t caught up.
    Among his many crowning achievements – university access, tariff cuts, Medibank, quit Vietnam, etc etc – the was the Australian Assistance Plan in 1974 – direct grants from Fed to community group, nothing in-between.
    Anyone remember playgroups, adventurous playgrounds, community relations?
    The greatest success is of course Reverse Garbage Truck, establish via the AAP in 1975, which wrested the Addison Riad Community Centre from the Army’s cluthes in 1977 and refused further grants from the Frazer government as, not just tainted but unnecessary.
    Still going strong almost 40 years later – surely the only parthenogenic community scheme to thrive, not survive.

  6. Scott

    Don’t get too excited. This is just a states rights issue. The states have primacy over education…so the Feds have to either fund via the states, or through “supposed” loopholes. They went loophole with the Chaplins and the courts found it wasn’t a loophole after all.

    The court found that the provision of money directly to schools (rather than through the states as most Fed Assistance to schools occurs) was a breach of Section 51 (XXiiA) which allows money to be given to people based on the statement

    “the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;

    The question was whether payments to schools for Chaplin services are defined as a “Benefit to students”…the High Court found that it wasn’t…based on the previous case in 2012, the majority of judges found that the definition of a benefit was

    “the payment of money for and on behalf of another to obtain the provision to that other of material aid in satisfaction of a human want”

    So payment to a school to provide those services is not a “benefit to students”, rather is a benefit to the schools.

    Bit of a technicality, but that’s law for you. I think what will happen is an agreement with the states to increase the funding going to schools, but with a cavet to pass on this money only if a Chaplincy program is asked for.

  7. David Penington

    Stephen, I disagree. I think the High Court’s decision shows the Federal government should stop breaking the boundaries set by the constitution. It has been doing this again and again, sometimes directly and sometimes by bullying the states. It needs to stop, or else state parliaments be abolished.
    Limited News, I’d agree – Federal government private school funding is unconstitutional. Primary and secondary education is a state responsibility.
    Health is also a state responsibility, and Federal politicians need to stop grandstanding on it.

  8. Venise Alstergren

    It is not only unconstitutional for governments to fund ‘religious’ education, it is squandering the limited amount of time students need for school work.

    Nick Minchin is but one member of the brace of troglodyte fundamentalist Catholics inhabiting the government benches, the ones, no doubt, who want to destroy the Great Barrier Reef and Tasmania’s wilderness/forests.

  9. Gavin Moodie

    I am bemused by comparative political scientist Mayne’s claim that ‘Australia today has arguably the biggest and most powerful second level of government in the world’. An obvious counter example is Canada, where the provinces fund and control their education, health, police and other services without involvement of the federal government. As a consequence, for example, there is no federal department of education. I think even minerals are under the province’s jurisdiction.

  10. Julius Sky

    Why not fund secular counselling services? Why does Abbott want to poison our children’s minds with ‘religious spiritual guidance’? If private schools want to have chaplains then good for them, they can pay for them out of their own pocket.
    Do we forget the pedophilia of the Christian churches? Why is Abbott redirecting money away from the inquiry into child sexual abuse? What is this man’s agenda? The liberal agenda is little government and equality. But he seems to be less liberal and more Christian conservative to me. Similarly Brandis was quoted recently as saying ‘the government has no role in equality’ yet that is a core liberal principle. Who elected these religious conservative nut bags that don’t believe in science?

Share this article with a friend

Just fill out the fields below and we'll send your friend a link to this article along with a message from you.

Your details

Your friend's details