School chaplains funding struck down by high court

Australia’s high court has upheld a legal challenge against federal government funding arrangements for the national school chaplaincy program, prompting the finance minister to waive $150m in debts that providers would otherwise be forced to repay.

Payments by the federal government to chaplain provider Scripture Union Queensland to deliver chaplaincy services in Queensland schools were unlawful, the court decided on Thursday.

It unanimously decided legislation passed by the federal parliament in 2012 – intended to provide the commonwealth with the authority to make funding agreements and payments after a previous successful legal challenge – was “invalid in its operation with respect to a funding agreement between the commonwealth and Scripture Union Queensland”.

The attorney general, George Brandis, said it followed from the judgment that federal payments to persons under the school chaplaincy program had been invalidly made.

“The effect of the decision is that these program payments totalling over $150m are now debts owing to the commonwealth under the Financial Management and Accountability Act,” Brandis told the Senate.

“However, under that act, the minister for finance has the power to approve a waiver of debt of an amount owing to the commonwealth which totally extinguishes that debt. I’m advised by my friend, Senator [Mathias] Cormann, that he has today agreed to waive the program payments made to date. That decision will provide certainty to funding recipients these debts will not be recovered in consequence of that decision.”

A leading constitutional expert, Professor Anne Twomey, said the rulingleft the federal government with only one option to keep funding chaplaincy services. This would involve giving tied grants to the states and territories, rather than directly to providers such as Scripture Union Queensland.

The prime minister, Tony Abbott, said the government was “carefully studying” the judgment to determine an appropriate response, but he strongly signalled his determination to find a way to ensure the chaplaincy program continued.

The government allocated an extra $245m in last month’s budget to extend the national school chaplaincy program and also decided toremove the option for schools to appoint a non-religious welfare workerunder the scheme.

The judgment is the latest instalment in the long-running battle waged by a Queensland father, Ron Williams, against commonwealth funding arrangements for the national school chaplaincy program. He is opposed to religious chaplains in secular state schools, including the one attended by his children.

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