As with so many of the media writers-commentators and those I shall refer to as SLABs, Solicitors, Attorneys, & Armchair Barristers, this author has skimmed a few ill-informed newspaper articles and concocted a solution of his own.

Having been a modest donator to this man Ron Williams' cause I then engaged him in email contact, read the three days of High Court transcript and am ploughing through 227 pages of the decsion from last week.

The author might be well advised to at least read the High Court transcript to discover what aruguments were actually put, and the order in which they were delivered.

It is indeed a foolhardy SLAB who seeks to play down the skill level and professionalism of Mr. Bret Walker and his junior, Mr. Gerald Ng, who were clearly well aware of Pape and the Consitution when they took on this case.

Those who insist it is just a case of legislating monies for religion, that is, for making a law to fund religion, should consider the s.116, which potentially becomes active and ready for another High Court challenge.

Tied grants? Maybe, but with them go expectations of performance, and there are none of those in the NSCSWP because it is not a program designed to imporve anything beyond votes for weak politicians and the coffers of para church groups.

Besides, why would Gillard want to fund the three major LNP state governments and gain no credit for a scheme that will no longer be allowed to carry any 'national' tag?

The premiers will each mock Gillard for failing, and take all the credit for themselves.

But that is only if they pay no attention to the dangers to their budgets of taking on such a massive undertaking, being responsible for thousands of non-public servants in state schools, who they have no control over.

Read again Isdale, or perhaps, read deeper before scribbling again on OLO.

An excellent summary of Ron's case. Just one small quibble.

The 'religious test' aspect of Ron Williams' submission to the High Court was only ever peripheral to the main argument - an ambit claim. The main focus was *always* on the financial aspect.

Williams *never* intimated otherwise and those who represented him also repeatedly stressed that the key plank of his argument was the appropriation of funds and the government's failure to legislate.

Williams received legal advice that his best chance of success was to challenge the funding arrangement, so *that* is the avenue he pursued - and won. S116 was not the primary basis on which his case was argued. I sat in the court for the three days of the hearing, so I can say that with some authority.

Pre-hearing, we (Williams and his 'team') made every effort to explain this would not be another 'DoGS' (Defence of Government Schools) case. On "The Drum", I wrote:

"Williams's case does not canvass the separation issue. In fact, the DOGS case receives barely a mention in the submissions from the plaintiff, the defendants or the intervening states.

Williams's case focuses exclusively on the propriety of the funding agreement to provide a chaplain to his children's school ..."

In that article, the 'religious test' aspect is clearly presented as an 'add on' to the major issues.

I would not like anyone to think Williams misrepresented the main thrust of his argument. To the contrary, he took great pains to correct misconceptions. I would also not want anyone to think the failure of the 'religious test' argument was some kind of surprise defeat. It would have been nice to win it, but Williams knew it was the weakest aspect of his case and we never really expected it would succeed.

I've spoken to Ron several times since the decision and met with him yesterday. I can confidently say he is absolutely thrilled with the win, he is already developing strategies to continue the campaign for secular public schooling and in no sense is he 'disappointed' that the court rejected the S116 argument

Oh, and another point that most SLABs miss is that the funding does not go to schools, "and instead simply provided a monetary contribution to schools that wished to employ one", which is another problem with people who comment without having bothered to read any of the DEEWR material.

There might not have been such room for an outcry had monies gone directly to schools, to allow them to employ extra staff, you know, social workers or school counsellors, directly instead of deliberately and willfully designing the program to fund parachucrh religious organisations.

From what one reads about how poorly run and organised schools are, even a Commonwealth program to fund a teacher-aide per three teachers, or whatever figure might be worth considering, would have been a win.

But then, of course, had chaplains been employed by schools, they may have fallen foul of s.116 again, although with no state constitution disallowing the creation of a theocracy, maybe they would not?

Good summary from what I have been able to read of the decision. Essentially this decision runs on from the decision in Pape's Case and endeavours to keep the C/W within its patch, from which it has been creeping since or before the Engineer's Case.
The implications are of course that it could reset the balance between the Federal and State Governments - but not by much. The entities that may lose out the most are local governments which receive significant funding from the C/W directly, which they shouldn't do as the C/W does not have local government as a head of legislative power. If this funding in future has to come only by way of $96 grants then the earlier problems associated with the Grants Commission and now the distribution from the GST will compound further. So we are heading towards a bit of a mess in thsee areas - all the more reason (on top of many others) for a review of the Constitution itself - which may come when the Republican issue reaches a 'tipping point'.

One further point in passing. The author gave as an example justifying Executive payments of this nature money for "war". This is an even bigger issue, recalling Hampden's Case and more recently the manner in which John Howard committed Australian forces to Iraq. If the Executive had unfettered power (as sometimes it thinks it has) to spend money without Parliamentary approval we would be in real trouble! That would be the end of Responsible Government.

The funding of Chaplains introduced by Howard is one of a number of efforts to boost Christian religious Instruction in Public Schools.
Religious zealot teachers use opportunities to introduce their own philosophy and parents do request RI sessions from their School Councils, not always successfully.
I have firm views about maintaining secular public schooling and have clearly indicated on enrolment that my children are not to attend RI and instead must spend such sessions in enrichment reading in the Library and not to be punished by undertaking schoolyard tasks picking up rubbish.

The govt looks set to legislate to allow this program, and its govt funding to continue, and the coalition looks ready to assist?
This in spite of the fact of seemingly overwhelming opposition?
As a Christian country, we might specify only Christian Chaplains? And if we did, what's to stop other more fundamental or much more radical religions from also challenging any ruling or govt funded program?
Why not put this matter to a referendum, so whatever the govt might then do, it will have the peoples' expressed will or fair dinkum mandate, which I believe, trumps the high court?
And why not finally settle other contentious matters while we are at it, like say Gay marriage and whether/when we should become a republic? India is a republic that remains within the commonwealth! Ditto Canada! Why can't we?
Personally, I believe a so-called secular state should follow the meaning and intent of the constitution, and therefore, replace school Chaplains with professionally trained Counselers! Preferably ones with enough inherent medical knowledge to at least understand that homosexuality/heterosexuality is decided in the womb, and is not a product of choice or preference! It is said a little knowledge is a dangerous thing, but quite blatant ignorance is far worse and or, does far more harm!
There is a place for religion and or belief reliant religious teaching, and that's, I believe, in church! Ditto, quite blatant pulpit pounding, fire and brimstone bigotry!
Moreover, very young minds ought not be exposed to and form of belief based system or their often "ardent advocates", until they have thoroughly developed competent critical thinking.
Military Chaplains are different inasmuch as, the minds that are exposed to them and their particular or peculiar belief systems, are at least adult?
As a caring and concerned parent, I say, no theocracy here thank you? And, thank the Lord for the High Court!
Rhrosty.

TBC, just because you are a donor to Williams, it does not give you licence to flame one of our authors. Isdale's analysis is in line with the court's findings which do not support the view put by Williams that it rested on separation of church and state. It didn't.

You're free to misrepresent the judgement, but not to abuse the author.

I think it's clear the states don't believe they will 'lose out' from the Williams' decision. After all, it was the states who not only supported Williams' argument on the spending power of the Commonwealth, but extended the argument in the High Court to such a degree that new submissions had to be made after the fact. I discussed this turn around in an article on ABC R&E http://www.abc.net.au/religion/articles/2011/08/29/3304751.htm

It was the states who challenged the 'orthodox' assumption beyond Pape - not Williams. So, I can pretty much guarantee that the reaction of the states will be celebrating the decision, not wringing their hands about any perceived 'loss'.

What remains to be seen is, if having won a nice chunk of power back from the Federal government, the states now fall into the trap of accepting tied grants for chaplaincy. Tied grants, or SPP's, of course are a key area in which the Federal government controls the states. Funding chaplaincy this way means the Federal government takes the credit for its largesse, while the states do all the administrative work and cop the flak when the program fails to meet Commonwealth imposed targets or when something goes horribly wrong as it inevitably will when you mix largely unqualified workers with 'at risk' kids.

Flaming? Whose flaming?

Have you actually read the material Graham?

The author, and rather too much of 'the media', seem to think that the argument was based mainly on some s.116 issue.

It was not.

It was a very minor element of a complex argument that concentrated on the method of funding.

http://www.hcourt.gov.au/cases/case-s307/2010
Catchwords

"Plaintiff contends that the payment or disbursement by the Commonwealth of monies from the Consolidated Revenue Fund for the purposes of the National School Chaplaincy Program, and therefore the Darling Heights Funding Agreement, was not supported by an appropriation made by law, as required by s.83 of the Constitution."

Forgive me if my eyes did not read something like, "Plaintiff contends that s.116 has been thoroughly trashed".

Perhaps the first Directions Hearing gives a clue to the uncontroversial nature of the case?
http://www.austlii.edu.au/au/other/HCATrans/2011/5.html

HIS HONOUR: Are we in the area of proof of constitutional facts?

MR WALKER: The short answer to that has to be yes, though whether that is going to be contentious, we for one, I think, doubt whether that will be so.

At a later Directions Mr. Ng answers for Williams:
http://www.austlii.edu.au/au/other/HCATrans/2011/116.html

HIS HONOUR: Yes. Before you get too deeply into that, can you just give me an understanding of the framework of the arguments which underpin these materials? You say, do you, first that there is no effective appropriation?

(The FIRST argument note)

HIS HONOUR: Yes, all right. So that is the two branches of your argument. Is there a third branch?

MR NG: There is a third branch.

HIS HONOUR: The first branch being appropriation, the second branch being executive power, and the third being?

MR NG: The third being section 116 and in relation to that it is said, your Honour, that the test for who is eligible to be a school chaplain imposes a religious test upon an office or a public trust under the Commonwealth.

See, well down the list was something of an ambit claim relating to one aspect of s.116.

The case was fought and won on the main arguments.

Blue Cross is absolutely right in his assertion on this. I've had many discussions with Williams and, at the hearing, with one of his legal team. Never, at any stage, was S116 a central part of the case and when the High Court made it quite clear it wasn't something they were prepared to consider, there was no wailing and gnashing of teeth from either Williams or his legal representatives. It was a minor loss in the context of the case and treated by all of them as such. I know. I was there!

My hearty congratulations go to Mr Williams for his victory, and for mine no amount of mincing the verdict by politicians and interested parties makes it less momentous.
Whatever surreptitious actions the States now look to take to circumvent what was a constitutional disgrace, the issue of religion being foisted on State school children and funded by tax-payers has entered the public conversation. I predict that new State contrivances for ladling out the lolly won't be so easy to implement as some affronted parties now complacently suggest. Despite assurances to the contrary, chaplains in schools have hitherto been operating almost universally as a blatant and proselytising Christian influence, indeed a fundamentalist influence that is at odd both with the concept of education and the secular ideals prominent Australians love to boast about. And it's not just about a privileged cult in our multicultural schools, the chaplaincy program is effectively an opportunistic grooming-program that takes advantage of innocents in the first instant, who are then passed-on to larger and more intensive church-programs outside the school gate, where they don't have to be so sneaky.
This kind of federally or State funded outrage should be banned on ethical and pedagogical grounds alone, but even if our State leaders decide it's politically-pragmatic to continue the patronage, what about the money? Not only does the money flow straight to SUQ coffers, and that for chaplains who aren't empowered to do anything but proselytise surreptitiously, but it's topped-up by the fund-raising efforts of P&C's!
My kids are supposed to donate a gold coin to the chappy on free-dress days!
The genie's out of the bottle and tax-payers will surely demur when they're imposed upon by the States to keep the gravy flowing.
Speaking merely of QLD, what credibility would Newman have cutting funding to the Humanities while he spills the public purse for sectarian Christian influence in an educational setting?

Ah Squeers, long time no read.

Yes, readers outside of Qld might be unaware of the $1m Newman gifted to Scripture Union the other day, at the same time as cutting such awards as the Premiers Literature Award, and sports boxes (good one on the latter cut Campbell)and sacking 20000 workers because of the lack of finances.

Maybe OLO editors could organise a contribution to this page from DEEWR, outlining in fine detail the research they relied upon to establish what the High Court has recognised as a scam, as well as the later evidence Gillard relied upon to expand it?

That would be interesting reading, it any evidence existed, of course.

When it all boils down chaplains are here to stay. It seems that Mr Williams and his supporters have lost.

I do not wish to comment on the particular case, but I do wish to make a few points relevant to Victoria.

First of all, religious instruction and chaplains are two separate issues, as RI is now delivered by volunteers, not by chaplains.

Secondly, the law in Victoria is that religious instruction must be provided in a public school if the school is approached to provide it. Neither the school principal nor the school council can refuse. Attendance is not compulsory.

Thirdly, Victoria has had school chaplains in public schools since at least the 1950s with not a word of objection. It was a non-issue for 50 years. It became an issue only when the Howard government started funding them.

Chris Curtis

Blue Cross, it is immaterial what the plaintiff pleaded. What is material is what the court decided. You can read that judgement here http://www.austlii.edu.au/au/cases/cth/HCA/2012/23.html and it turns wholly on s 61, the Commonwealth's power to make payments. In effect the court held that the Commonwealth can fund people for religious purposes such as school chaplains, they just have to do it the correct way.

I watched Wilson on the 7.30 report try and spin the result as turning on separation of church and state when it did nothing of the sort.

As I said, you're entitled to try and spin it, but you aren't entitled to abuse an author.

TBC, I'm glad you mentioned Gillard, in light of my comment about political-pragmatism. Where does a socialist-atheist-living-in-sin Prime Minister get off promoting chaplains in State schools and putting the kibosh on the equality of marriage? Tell me that's all about principal!

Francis, err, minor correction: the State lost; Williams won and the chaplains are going the way of the Dodo.

Chris C, we live in a progressive society (so I'm told). We once condoned institutional racism and sexism. Just because it's been going for fifty years doesn't mean it's right. How would you feel about an Islamic enclave in our schools? Of course they'd promise not to proselytise.

Squeers,

Are you sure or is that wishful thinking?

How did the State lose when all it needs is to legislate ( as just announced by the Federal gvt today) or channel the funding through the States.

Francis,
the State is the people and will only legislate with the will of the people. The people's will is compromised; that is to say liberated, at least in the long run.

Squeers,

I expected someone to miss the point of my posting. I did not express an opinion one way or the other on any of the matters I mentioned. I gave some factual information.

Chris C,
Sorry for presuming you were making a point; I didn't realise you were disinterestedly tabulating data/trivia.

Religion has no place in the life of children. They can make up their much more enlightened minds when they reach adulthood.
Religion must be forced back to the confinement of the home.

Come come Graham Young, of course it is not 'immaterial' what the plaintiff pleaded.

He won on what his legal team said he might win on, and not on what all the SLABs want to think his team was running the case on.

Talk about spin! Sounds like a twintub.

As for watching the 7.30 Report, hmm, are you aware of the editing suite? You know, stitching together snippets to show what the ditor thinks is wanted?

Besides, the decision last week did erect a wall of separation between the dollars and the chaplains.

That the entire parliament now is being directed by a small cabal of Christian lobbyists to tear that wall down again is another matter.

As for the future, the decision did contain warnings about going down the legislative route, for fear of a further challenge.

And it did not give a tick of approval as you suggest.

Hda a parent from a faith school with standing sought to challenge, the DOGS decision would have kicked in.

Squeers,

Not sure what your point is in response to my comment. It seems the state is legislating because there are a number of other projects threatened by the High Court decision. The state is legislating otherwise funding for these other projects is jeopardised. Your last sentence is a mystery: "The people's will is compromised; that is to say liberated, at least in the long run".

Squeers,

Given the frequent confusion over what is and is not, I don’t think it is trivia to point out the factual situation in Victoria re chaplains and religious education or re the kick-off point for political anger over chaplains in schools.

Francis,
in the context of what I said the comment you find so puzzling was merely affirming that now that the issue--in my opinion, no less than the placing of Christian missionaries in State schools--is an item of public debate, it's not going to go away. Indeed I suspect the time will come when political parties will no longer be able to cynically support the issue for political kudos. The Labor party's support for Chaplains is as hypocritical as its defence of the "sanctity" of marriage. Like the revolting bipartisan support for tough action on refugees, political support for unqualified zealots placed in the State education system no longer smells like roses.

Chris C,
fair enough, it's useful information. I only meant that from your disinterested perspective it was trivia.

Squeers

You may very well be right but that is not the point I was making. The fact is, at it seems to me, the High Court's decision is not a loss for school chaplaincy because the government is legislating to validate funding. In that case the school chaplaincy is in no worse a situation than a number of other government fund recipients. I have an open mind re school chaplaincy. I do know, from friends (non-religious) that they fully support their school chaplains.

Bob Carr slams chaplain funds

Jenny Dillon Education Editor
The Daily Telegraph
May 02, 2011

BOB Carr has described the Federal Government's funding of school chaplains as "abhorrent".

In a blog on the eve of the next step in a High Court challenge to the funding of the school chaplain program, Mr Carr said he strongly believed in a "wall of separation" between church and state.

"I don't want to see squabbles at P&C meetings about whether a minister, priest, imam or rabbi gets the gig for a school," he said.

"The notion of the state funding religious activity is abhorrent."

Queensland father of six Ron Williams is due to appear in the High Court next week to argue his claim that government funding of chaplains is unconstitutional.

"My view has always been that government funding for school chaplains is wrongheaded and should have been abandoned with the election of the Rudd government," Mr Carr said.

The funding program was introduced by the Howard government in 2001 and Kevin Rudd expanded on the program when he became prime minister in 2007.

Francis,
the chaplaincy program will be in worse shape ideologically, despite legislation, which is intended to head-off other constitutional challenges first, and to protect chaplaincy second, and for cynical, populist reasons, imo.
I congratulate you on your open mind and I like to think I'm open-minded too. I'm certainly an idealist, and all in favour of religious "education", just not indoctrination or institutional orthodoxy (conservatism). Politicians thrive on the stable elements of society they can perennially exploit, but more to the point it's antithetical to any concept of learning that isn't devoted to rote.
I realise chaplaincy has popular support--though that support is comprised mainly of social indifference, the rest being a noisy, happy-clappy minority that specialises in smug narrow-mindedness.
I'm not just a Grinch; I have six kids, four in the system right now, and I have practical experience of what religious influence in school generally amounts to: not just appalling ignorance, but denialism of the basic facts of our biological heritage and imperatives and a sheep-like devotion to the dubious verities of their religious fairy tales.
I suspect many parents support chaplains because they buy the official line that they don't proselytise. They do--opportunistically, though their prime function is grooming.
Our State schools should be places of learning--including about religion and philosophy, but at a critical distance--but not learning to conform.

Shame on you all, who disagree with Chaplains in our state schools. I challenge each one of you to give up your time and income and spend twevle months in a state high school or state primary school earning a pitance of a wage. Chaplains give up their own time above and beyond their call of duty to help those in need. I have seen chaplains drive hours to a hospital on a weekend holding the hand of an underage driver on the brink of death. Chaplains don't force "religion" onto their students. Would you be prepared to spend time with children that come from abused homes, unfeed, unclean and just searching for a place that they feel accepted. Have you heard testimonies from students who have been close to committing suicide but because of the programmes implemented by school chaplains, these students have had their life turned around. Put the "religion" aside and humble yourself to be thankful that their are decent human beings in this world who care enough about other humans to make a difference in society without "bible bashing". Please just go and visit a school with an open mind and spend some time with a chaplain and then make your opinion in this post.

Dear TimTamToo

My heart bleeds.

Chaplains earn $50 an hour (plus in RARA areas) squeezed from our taxes in the current scam.

The employer groups peel off their cut from that, plus the generous handouts that go to them directly from DEEWR.

Then there is the extra dosh that is chiselled from P&Cs, corporate Australia and mug mayors, not forgetting the tithing forms placed in schools, the gold coin donations children are coerced into engaging in, the sausage sizzles and the contribution form the churches, not to mention the free church planting that goes on in many schools.

On top of that, employers who are also 'trainers' earn a quid from the government for taking on trainees, plus the cut from the chaplains who pay to train.

This is a religion industry of no real value beyond those engaged in it, and all tax free too.

Chaplains have to, must get, the minimum wage, which is around $15.50 (plus a bit) per hour worked, plus super and overtime if applicable.

Now, if they do not get that, they should join a union, or go to Fairwork Australia and get a fair deal.

Australia is not a 'haven for martyrs', but it does seem to be a centre for mugs.

Bible bashing is central to the job, the rest is peripheral and allows the Bible bashing.

You can't have it both ways.

If Jesus and being a Prayer Warrior is not the main job, then there is absolutely no need for it to be done by an overtly religious person.

If it is really only about counselling and support, then those skills should be the reason the person is employed, which it is not.

SCAM is the word that springs to mind whenever 'chaplains' is uttered.

Squeers,

Sorry, your first sentence lost me. You speak so authoritatively. I wonder how you can be so definite.

Squeers is as close as you can get to being a god Francis, that's how He knows.

TBC,
thanks for those facts re chaplaincy (and for my deification); it really is indefensible!
...but hopefully not indefeasible, Francis.
However, nothing is certain, except that nothing is certain.

Dear The Blue Cross,
My heart bleeds for you. Seriously. Can you please inform me where you received your information from.
It is quite fustrating when people like yourself make comments that are unfounded and uninformed.
Interestingly you used the word SCAM when it comes to Chaplains. Your obvious dislike for Christians could be most probably understandable. People are not perfect.
Fair call...."If Jesus and being a Prayer Warrior is not the main job, then there is absolutely no need for it to be done by an overtly religious person."
Unfortunately I don't see too many mainstream people raising their hand to do the job or even volunteering their time to spend time in schools to help the less fortunate.
It's not about the money they are being paid (by the way your information about their income is so left field) again I remind you it's about developing relationships.
The Blue Cross, would you like to come along to a Trivia Night to support these so called "religious nuts". I am sure you will have a great night.

No Timtamtoo, I have no desire to mingle with evangelisers of any creed thanks.

Let's get some honesty here though shall we?

DEEWR pays $20k for 400 hours of listening ears in a school per year.

My calculator says '50', that's $50, that's $50 an hour.

Do put some new batteries in your old slide rule.

Check with Fairwork Australia for the minimum wage to be paid to them, about $15 plus any pay rise that might have come through since last year when I asked Fairwork the question.

Are you trying to tell OLO readers that schools do not allow gold coin donation, sausage sizzles, fund raising, plundering the P&C coffers, or distribute tithing forms to students and parents?

Are you saying chaplains do not distribute Bibles, organise religious instruction, say prayers on assembly and work as unqualified teacher aides thereby making it far from a voluntary service for students who suffer them in their class?

I can assure you I have no prejudice against Christian chaplains, no religious chaplains should be in any state schools, from any faith cult at all.

It is you who is calling them 'religious nuts' not me, I must point out. I would never be so rude.

But yes, 'scam' is the phrase I use, but maybe you prefer 'stunt'?

Developing relationships, eh?

What on Earth does that mean?

And what is a 'mainstream person' when they are at home?

When you say 'it's not about the money' you are actually pulling our collective leg, are you not?

Of course it is 'all about the money', just look at the whinge they made about the Williams case.

In fact, it's only about the money.

The 'deserving poor' or 'less fortunate' as you label them, are just gristf'mill, a useful tool to justify the illegal plundering of tax monies for the undeserving churches.

Pyrrhic victory anyone?

Chaplain victory is well earned and deserved.

As a CONSTITUTIONALIST I have my concerns about what is reported about the case. Without having as yet read the judgment, it should be clear that s116 of the constitution actually prohibit speding any monies to religious issues! it is not just about a religious test.
When I comprehensively defeated the Commonwealth, on 19 July 2006, I relied also upon s116 as part of my unchallenged submissions.
Was it not the risk of cost I would be lodging numerous cases in the High Court of Australia against unconstitutional fundings as I have extensively canvassed in my past published books in the INSPECTOR-RIKATI® series on certain constitutional and other legal issues.
It should be understood that any monies spend on religious matters is unconstitutional because of s116! This post doesn't permit me to set it all out but on my blog htttp://www.scribd.com/InspectorRikati you can locate set outs about this also.