An interesting part of the High Court’s decision that the Federal Government’s funding of the National Chaplaincy Scheme was invalid was the dismissal of the component which argued that the scheme was invalid on the basis of the constitutional prohibition against the Commonwealth employing people on the basis of a religious test.
I thought that decision a bit odd.
The individual who launched the successful appeal explains why he didn’t believe why that aspect had a strong chance of success.
In doing so I think he does flag the basis of another appeal against the scheme if the government proceed on a legislative basis with their intention to continue to fund the scheme.
I wonder if the Government have learned their ‘Malaysia solution’ lesson and will get their word around for this problem right.
From the news.com.au website.
As well as this argument, Mr Williams also challenged it on the grounds of section 116 of the constitution, which bans religious tests for Commonwealth officers.
The court unanimously dismissed that position.
Mr Williams said he and his lawyers had known from early on that aspect of the case was unlikely to go far because no law had been made to establish the program.
But he believed the question still needed to be raised.
“The separation of church and state matter, that’s what led us to the constitution,” he told AAP.
“I would expect the reason there was no legislation made in the first place to legitimise this funding is because it would have crossed over the line in the (religious test) establishment cause.”
The Federal Government says it is still committed to the chaplaincy program and will work out how to let funding to still flow to schools.
“It is clear that there is a cure for each of these problems whether it’s particular legislation, whether it’s payments through the states,” Attorney-General Nicola Roxon said.
I think we can expect more legal action to come.
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