High Court Challenge Day 3 – ‘Terrible Consequences’

The final day of Ron Williams’ High Court Challenge began with the Solicitor-General for the Commonwealth waxing lyrical on the contentious subject of ‘benefits to students’. Here is a subject which deserves an article of its own – and I plan to write that sometime in the next couple of weeks.

Solicitor-General for the Commonwealth

Almost immediately the staccato-voiced Solicitor-General seemed to get the bench off-side.  In contrast to Williams and the States, the Commonwealth argued the term ‘benefits to students’ should be interpreted with ‘all the generality that that admits.’ In other words, broadly.

One limb of the Commonwealth’s arguments is that the Commonwealth has authority to fund the National School Chaplaincy Program because the Constitution allows them to supply ‘benefits to students’.  In contrast, Williams argues that the phrase ‘benefits to students’ should be narrowly defined as something providing a direct material or financial benefit to a student.  Further, that any such ‘benefit’  should be directly linked to the act of being a student.  Just so, as one of the Justices suggested, a program which dealt with bullying at school might be categorised as a ‘benefit to students’ but a program which offers ‘pastoral care’ may [arguably] offer a benefit to children but not necessarily  students, specifically.

“The only question,” said the Solicitor-General, “is whether services supplied by Scripture Union Queensland are designed to meet the needs and wants of the students at [Ron’s children’s school] Darling Heights State School.”

There was a muted chortling in the court-room when, following a short discussion on the Solicitor-General’s definition of ‘benefits to students’ one of the Justices grumbled, “This is somewhat garbled.”

Maria may have sneezed at that point, but then again it could have been a muffled guffaw.

What followed was a ‘try hard’ argument as the Solicitor-General attempted to convince the bench that providing chaplaincy to parents, students and staff was effective in improving students’ academic performance.  No evidence was offered for this contention, yet the Solicitor General insisted that chaplaincy, ‘impacts on how students are achieving academically’ and that chaplaincy involves ‘complex social welfare issues effecting academic achievement’.

The Solicitor-General said there was no doubt about chaplaincy providing a benefit to students – but again provided no evidence.  Indeed, he explained that the application for chaplaincy specifically required that schools complete a form matching chaplaincy activities with the particular needs of their school community.  I haven’t had a chance to look at an application form for chaplaincy as yet, but I’m informed this statement is ‘factually incorrect’.

Chaplaincy, said the Solicitor-General, provides for ‘ongoing mentoring or evaluation by those with the capacity to make appropriate judgments about student well-being.’

I have to admit that I was itching to ask how he would define and measure ‘spiritual well-being’ and what evidence he could offer for the contention that spiritual well-being had some connection with academic achievement.  Sadly, the High Court does not allow for interjections from bolshie members of the public.

This argument about ‘benefits to students’ was, perhaps, the closest the hearing came to debating whether chaplains actually offered any ‘tangible’ benefits to students.

One of the Justices made the point that the ‘benefits’ discussed by the Solicitor-General could equally be provided by a secular pastoral care worker.  He added that, in terms of Constitutional Law it didn’t really matter that the ‘benefits’ offered might be indistinguishable from those offered by a secular person.

The Solicitor-General agreed, in part, saying, “It does not matter Constitutionally, but part of the need is such as a secular service may not be enough to meet the students’ needs.”

The Justice nodded but insisted that, for the purpose of this Constitutional discussion, it didn’t matter whether the program had a religious dimension or not. The Solicitor-General conceded that it did not.

There was another titter of amusement in the court when it was suggested there may not be a distinction between a chaplain and a part-time member of staff offering assistance to students struggling with math.

“Are you talking about special needs students?” asked the Solicitor-General.

“I’m not sure that those who need help with maths qualify as having ‘special needs’,” retorted the Justice, wryly.

Next, the Solicitor-General moved on to discuss what had become something of a meme in the courtroom – ‘the common assumption’.  This referred to the assumption that, generally speaking, the Commonwealth can validly make payments in any area provided they fall within an area on which the government is permitted to legislate. In other words, while they don’t have to pass an act through parliament in order to pay for every item, it has to be something on which they could, theoretically, legislate.

Yesterday’s arguments by the states seem to have thrown that ‘common assumption’ into serious contention.  In short, the contention now seems to be that the government can’t short-cut the process as they did with the NSCP by  passing a new initiative through the parliament as an appropriation [agreement by the parliament for expenditure on a budgeted item] rather than an as an act.

The Justices seemed to recognise that this was an area which needs further exploration.

“You keep saying ‘assumed before yesterday’” grumbled one Justice tetchily. “It was assumed, but not necessarily explored.”

Suitably upbraided, the Solicitor-General moved on to the Commonwealth’s ‘scope of power’. This, it appears, was substantially expanded as a result of recent cases brought before the High Court.  I may be wrong, but I picked up on an underlying sentiment that the Justices wouldn’t mind reeling the government’s power back a bit.

The argument continued that the Commonwealth was perfectly within its rights to enter into a contract with Scripture Union Queensland because SUQ is a ‘trading corporation’.  The Commonwealth rejects the contention of Williams and the states that SUQ does not fit the definition of a trading corporation and that, as a consequence, the contract signed between the two parties is constitutionally invalid.

“The point,” said the Solicitor-General, “is that Scripture Union Queensland engages in trading activities. Its primary purpose does not have to be trade.”

This, he said was a ‘settled doctrine’ and there was no need to ‘tinker with it’.  Judging by arguments made previously, Williams and the states beg to differ.

At some points the arguments wandered far afield.  What are the rights of government? In what fields does it have the power to act? To declare war? To enter into treaties? To use force?  Where are the checks and balances? All of this seemed very far from school chaplaincy but suggests that the Justices see this issue as being far, far wider than the chaplaincy issue alone – despite the Solicitor-General’s desperate efforts to contain it.

Repeatedly, over two days, the Justices quizzed the Solicitor-General on his view of the limits and restraints upon the Commonwealth’s power.  Was he arguing that the Commonwealth could pretty well spend anything they liked?

The Solicitor-General was at pains to put their fears to rest.  He made great effort to enumerate the many ways in which Commonwealth spending is constrained.  In fact, somewhat contritely, he even admitted that yesterday he may have made a ‘provocative’ statement about the government having no limits. Today, he conceded that those areas in which the government was constrained may have been ‘insufficiently highlighted’ in his argument.  To me, it seemed he had come in yesterday saying, “We’re the government, we can do anything we like,” and then, realizing he’d got the bench off-side, returned today effectively saying, “Maybe I came on a bit strong.”

One of the more interesting ‘sideline’ discussions focused on whether the executive could only do what it is expressly permitted to do by the Constitution (or other statutes), or whether it can do anything it likes, providing it isn’t expressly prohibited.

Towards the end of his presentation, the Solicitor-General expressed some surprise that a ‘benign’ program like the National School Chaplaincy Program could caused such consternation among the states. He argued that, in no way, did the program interfere with states’ rights.

I imagine that someone who holds that esteemed position would not stoop to wonder “WTF?” but that was ‘the vibe’ I got from the Solicitor-General who certainly, at times, must have felt under attack.

Scripture Union Queensland

The barrister for Scripture Union was the next to speak.  He went straight for Ron’s jugular in attacking his standing [right] to bring most of the matters in his submission before the court. Like the Solicitor-General for the Commonwealth, Scripture Union attempted to minimise the potential damage of Ron’s argument by stating (as I understand it) that the only relief that Ron could reasonably seek was the discontinuation of chaplaincy services (in their present form) to his particular school.  Any claims about the NSCP generally or agreements already fulfilled should, in the opinion of Scripture Union, be dismissed.

The barrister for SUQ proceeded to try to ‘put the wind up’ the Justices by warning about the collateral damage that might be caused by a wider ruling in favour of Williams.

“Grants of this nature [NSCP] are made for a huge range of enterprises that would likewise fail in Williams’ and the States’ arguments,” he cautioned.

SUQ tried to downplay the relationship between chaplains and the Commonwealth, noting that, in Queensland, Commonwealth funding essentially only expands the program already been put in place by the State government.  The NSCP presented no competition to the State government or infringement of States’ rights.  In fact, he argued that the NSCP ‘dovetails’ entirely into the state program. A perfectly cromulent match.

Neatly trying to dodge the argument that chaplains paid with federal funds are ‘officers under the Commonwealth’ (and therefore must not be submitted to a religious test), SUQ argued that, “The Commonwealth does not employ chaplains. It pays money to another entity to achieve that outcome.’

SUQ’s barrister rejected the view that an appropriation could not be viewed as ‘legislation’.  In his view, the NSCP was approved by the Parliament and the Senate by virtue of being included in a Parliamentary Budget Statement attached to an appropriation bill.  It was true, he said, that the Senate does not have the power to amend appropriations, but, he insisted, “The Senate is not powerless. It cannot amend, but it can return or pass … to say there is no parliamentary approval does not describe the process at all.”

There followed some discussion about the cozy relationship between the Queensland government and SUQ. (Possibly a relationship that has cooled somewhat since Queensland, yesterday, backflipped on its support for SUQ and joined the other states to substantially support Williams.)

Remarking on the closeness of this relationship, one of the Justices said, “I understand the Queensland Minister has to be invited to any launch or promotional activity regarding chaplaincy.”

“Possibly … before Queensland changed its stance, your honour,”  the disgruntled barrister replied tersely.

Curiously, SUQ argued that no religious test is required for employment as a chaplain under Queensland procedures.  This is strange because I know for a fact that anyone employed by Scripture Union is required to state their acceptance of the Nicene Creed or some similar statement of Christian belief.  This appeared simply as a statement of bald fact, with no evidence given to support it.

SUQ’s barrister continued by praising the organisation’s commitment to meeting the ‘special needs’ of children.  Chaplaincy, he said, was an important way of deaing with children’s problems.  Again, no evidence was offered for the efficacy of this approach.

It was ‘inescapable’ he said, that the primary purpose of chaplains was to assist children to help them learn. And yet, I simply cannot recall anywhere in the multitude of literature I have read, any connection being made between chaplains and academic achievement.  Further, SUQ produced nothing by way of evidence.

As to ‘benefits to students’, SUQ complained that Williams’ legal team placed too narrow a meaning upon the phrase.

The barrister for SUQ ended with an emotional appeal.  If Williams was successful, he said, it might also mean the end of an important program which benefited autistic children.

At least one of the Justices was unimpressed.

“It’s not to the point to tell us about the terrible consequences that might occur,” he grumbled.

That concluded SUQ’s presentation.  Following was a short presentation from the Churches Commission and then a reply to the defendants’ arguments from Ron’s barrister, Bret Walker.  But, dear readers, I’m afraid that will have to wait until tomorrow.

Chrys Stevenson

Posts in this High Court Challenge Series (in order):

High Court Challenge: We Arrive in Canberra

High Court Challenge: Last Man Standing?

High Court Challenge – Day 1: The Hearing Begins

High Court Challenge  - Day 2: Scintillating Boredom

High Court Challenge – Day3 (a):  Terrible Consequences

High Court Challenge – Day 3 (b): The ‘Master’ Speaks

If you support Ron Williams’ High Court Challenge, please consider making a donation at the High Court Challenge website. Support for Williams has been overwhelming, but legal fees are still outstanding.  Ron, his wife and their six children should not have to bear the full brunt of the outstanding amount.

19 thoughts on “High Court Challenge Day 3 – ‘Terrible Consequences’

  1. Doug Steley says:

    thanks for the update

    Sounds really positive

    any idea when a decision will be made ?

  2. Braydan says:

    I’m more addicted to these posts than my wife is to Masterchef. Can’t wait for the thrilling conclusion!

  3. Nelson Lau says:

    Another great dissection and summary of the day’s complex proceedings…thanks Chrys!

  4. Val Lewis says:

    I hope Ron’s barrister brings up several of your observations regarding lack of evidence for a number of bald statements regarding efficacy, etc. Without evidence it becomes hearsay.

  5. Michael J says:

    Keep up the good work. Can’t wait for the next installment

  6. Mikey Bear says:

    Quite the cliff-hanger. Thanks Chrys.

  7. Mikey Bear says:

    [Oops, forgot to click the subscribe to comments button. Please delete this additional comment if you get a chance.]

  8. Jayel says:

    Thank you once again, Chrys. A few things stand out. Mention was made of the needs and _wants_ of the children, but I doubt anyone has ever asked them what they want. And the statement by SUQ’s lawyer that there is no religious test to be a chaplain under Queensland procedures seems to stretch the truth so far it is about to snap! As to the much of the rest of the argument, I can see why they want people to pray for them…

    I’m really looking forward to reading about Bret Walker’s reply to the defendants’ arguments.

  9. A decision on the High Court Challenge will probably take at least three months, so we’re thinking maybe late this year, early next year – but there really is no way of knowing.

  10. Ken Wood says:

    Thanks again Chrys.

  11. Jim McDonald says:

    That’s a pretty fatuous argument from SUQ that the only relief that Ron could reasonably seek was the discontinuation of chaplaincy services in his children’s school. I’m surprised that it didn’t prompt a response from the bench that Ron Williams is challenging the constitutional legality of the FUNDING for the WHOLE program and that he should limit his remarks to the case before the court. And from where I sit, the funding of SUQ & Access is indefensible. Ron’s barrister has put the Government and these bodies on the very pointy ends of of a cleft stick. Of course another avenue of approach to these programs that undermine the secular state and promote sectarianism is that the lock-out of secular persons from any program that is PUBLICLY funded on the basis of religion breaches anti-discrimination laws. The SUQ and Access have [dishonestly] tried to paint NSCP as being non-proselytising [we should point out that surreptitious proselytisation through programs with kid-friendly "like, wow" names is what it is, and what chaplaincy by definition is about: religious ministry]. If the SUQ & Access were able to sustain such a case [the laughable assertion that NSCP is not about religious ministry] then they might fall short against claims of discrimination based on a person’s belief, which [except in some recently determined limited cases] is unlawful, no matter where the money comes from. I bet the religious right is waving its arms about in prayer about Ron’s case and I feel pretty sure that the traditional churches will secretly be praying for the program to be thrown out … provided it doesn’t have any effect on public funding on private schools.

  12. John says:

    FRENCH CJ: We are of the view that we will not need to hear from the respondents on section 116.

    From reading the discussion at the AFA forum the reasoning for not hearing responses to the arguments put forth by the Plaintiff ref Section 116. The High Court has already decided NSCP does not breech Section 116.

    http://www.atheistfoundation.org.au/forums/showthread.php?t=8701&page=10

    It is a shame but it will interesting see what happens regardless.

  13. Jayel says:

    If the court determines that SUQ is in fact a trading company, I wonder if that means it would then be subject to the usual anti-discrimination legislation, or can they weasel their way out of that because they are a religious organisation?

    Also, if the court has already decided the NSCP doesn’t breech Section 116, I would be interested to know how they reached that conclusion.

  14. Jim McDonald says:

    The Court has made no decisions about anything let alone whether or not there has been a breach of section 116.

    What Judge French said looking at its context is that the Bench did not need to hear any more submissions on section 116. Not hearing argument on a matter does not constitute a decision. In any case the Commonwealth [for it was in response to the federal Attorney-General foreshadowing that a submission would be made on s116] has said it will make a written submission on the argument about s116. For those who would like to read the transcript you can get it at http://www.hcourt.gov.au/cases/case-s307/2010

    • Jim McDonald says:

      There are also all the other written submissions on the case at that website http://www.hcourt.gov.au/cases/case-s307/2010

    • Jayel says:

      Thanks for clarifying that Jim.

    • John says:

      The question is why has the court decided to not hear the oral rebuttal from the defendants.

      FRENCH CJ: We are of the view that we will not need to hear from the respondents on section 116.

      Is the reasoning for not hearing the defendants because the argument for the Section 116 breech has been voided before the defendants could reply? I must have missed something previously.

      I do not know the process but hopefully today’s proceedings answer my questions. Otherwise we will have to wait until the court publishes the final decision.

      • Jim McDonald says:

        Hi John, I’m not looking at the transcript, but there was a lot of Walker’s submission of Ron William’s case that dealt with sec 116 and there was some exchange between the barrister and Judge French that flowed from that but did not go to interpretation of the heads of powers of the Constitution that allow the Federal Parliament to draw up certain laws. There was in the Tasmanian submission [the strongest State with support for Ron Williams] some discussion of various powers. Note: I am not a lawyer, let alone one of that rare breed, a constitutional lawyer, but I would think that there is no special significance in the Bench not hearing further submissions on 116. I suspect that while it is important, it might not, in the end, be the pivot on which Ron’s case succeeds or fails. The Bench might just have felt that there are a limited number of precedents and Walker had dealt with them? You could look at it another way and take heart from the fact the Bench did not want to hear the Commonwealth’s submission on 116 – the arguments are always going to be technical – because they are also obvious?

  15. I have to admit that I was itching to ask how he would define and measure ‘spiritual well-being’

    I presume it is the opposite of a ‘tangible benefit’…

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