Chaplaincy challenge exposes Constitutional cracks
A common response to any suggestion that the Constitution needs reform is “if it aint broke, don’t fix it”. But the fact is that the document is broke, and increasingly so.
The latest example concerns the School Chaplain program, started by the Howard government, and retained and extended by the Rudd and Gillard governments. This clearly offended one Queensland parent, who managed to find sufficient support for a High Court appeal against the whole program.
He put two arguments against the Chaplain program funded by the federal government. He claimed it interfered with a principle of separation of church and state. The High Court unanimously rejected this.
But he also argued that the Commonwealth Government did not have the constitutional authority to fund the program in state schools. The High Court agreed.
The problem was that the government had funded the programme simply by a Cabinet decision, under its reading of the “executive power” in the Constitution. The Court ruling means that the government will need to pass specific and special legislation to continue funding the program.
That is not a difficult process. But two of the High Court Justices expressed doubt that even this would accord with the Constitution. So the Chaplain programme will be able to continue with its positive effects, but there could be another challenge to come.
There are wider, and very important implications of the court ruling. The Commonwealth Government funds a raft of programs in the community under this assumed “executive power”. The funding for local government roads, funding for various sports and the arts, even funding for universities, could all be found invalid after the High Court’s ruling on the Chaplain program.
The government has stated that it could resolve this by passing legislation to ratify each component of funding. But that could still be open to appeal to the High Court. There is a safety factor, however. The Court cannot rule on any matter concerning the Constitution unless a specific case is brought before it.
It is unlikely, for example, that local councils would appeal against their road funding. But the chaplaincy case shows that there are people out there who have strange ideas.
In summary, yet another mess within federalism. The reason is simple. The Constitution is the supreme law of the nation. It sets out how federalism should work, and what governments can, and cannot do.
But it was written in the 1890s – over 120 years ago. The economy and the society have been transformed over more than a century. There are issues in 2012 which the Founding Fathers didn’t think of, and could not have imagined.
Further, the Constitution was written by colonial politicians who were determined to protect their economic and political colonial interests in the new states, who deliberately designed a weak national government, and divided up the powers between the states and the Commonwealth in a way that meant the states were protected.
The 2012 problem arises from the fact that Australia is still being governed by 1897 principles and an 1897 Constitution. The wording has hardly changed. The people have said “no” to 36 of the 44 referendums put before them to amend the document.
2012 Australia functioning on the basis of a 1897 document is a bit like flying to the moon using a horse and buggy. Essentially a nonsense.
The Chaplain affair is just one example of just how the federal mess continues. Don’t blame the High Court. It is doing what it is supposed to do – interpreting the written Constitution.
Blame those who resist (and sometimes very vehemently) any and every attempt to drag the Constitution up to the 21st century.
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