The High Court's decision in the School Chaplains case: findings and implications

Courts Schools Local government Australia
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From time to time a decision of the High Court is considered to have major implications for federalism in Australia. The list of such cases includes the Engineers case (1920), the Uniform Tax cases (1942 and 1957), the Tasmanian Dam case (1983), the excise duties decision in Ngo Ngo Ha v NSW (1997), and the Work Choices case (2006). In these and other instances, with only minor qualifications, the High Court has found broadly in favour of a "national" as against a "federal" image of the polity created under the Australian Constitution. In Work Choices Callinan J (dissenting) went so far as to describe the landmark Engineers case, which set aside the reserved powers doctrine, as "that monument to the demolition of State power".

Working against this trend is Williams v Commonwealth of Australia. In that case federal considerations played a part in limiting the scope of the Commonwealth government's executive power. The majority views in Williams built on foundations laid in the earlier Pape case, where the relevance of federal considerations for the scope of the executive power of the Commonwealth government was recognised. For example, Hayne and Kiefel JJ said that a broad view of the Commonwealth executive power did not fit easily with the understanding of the Australian constitutional structure "of separate polities, separately organised, continuing to exist as such, in which the central polity is a government of limited and defined powers".

A key difference is that in Pape the impugned Commonwealth law - the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) - was found to be valid, whereas in Williams the High Court found the impugned funding agreement to be invalid (by a majority of 6:1). The funding agreement was between the Commonwealth and Scripture Union Queensland (SUQ) for the provision of chaplaincy services at a State school in Queensland.

This e-brief presents a summary of the Williams case and the background to it, along with an overview of the academic and political responses to the decision.

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