• Uses taxpayer funds to promote religion
The National Schools Chaplaincy Program (NSCP) violates the spirit of the Constitution because it is using taxpayer funds and government power specifically to promote religion in schools to school students and staff. The Program funds “chaplains of a faith and denomination” “who are connected to a particular stream of belief”, namely are religious and that this religiosity “adds a dimension to the care that they provide”, that being “pastoral care and spiritual guidance”. In some ways the statements, media releases and guidelines issued by the Government downplay the role of chaplains in promoting religion, stating that they will provide "pastoral care, general religious and personal advice." However, the PM states that chaplains are already "making valuable contributions to the personal, spiritual and emotional well being of many school communities nationally " (Prime Minister's media interviews and press releases Sept 2006). The Program Guidelines state that "there are also clear differences between this Programme and existing services, which include the focus on spiritual and religious advice, support and guidance." The Chaplains employed under the program are not just teaching or counselling about religion, they are required to be religious themselves and this requirement is seen to influence the work they do. The program is not open to the non-religious.
This is contrary to the spirit of section116 of the Constitution where it is stated that “the Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance”. This has been interpreted as a broad provision in its application by the High Court. In Adelaide Company of Jehovah's Witnesses Incorporated v The Commonwealth the Court determined that section 116 was of general application to all Commonwealth laws. As stated by Chief Justice Latham, "[s]ection 116 is a general prohibition applying to all laws, under whatever power those laws may be made. It is an overriding provision. It does not compete with other provisions... All the legislative powers of the Commonwealth are subject to the condition which s 116 imposes".
However, in the later case of Attorney-General (Vict.); Ex Rel. Black v. The Commonwealth (1981) 146 CLR 559 (the Defence of Government Schools [DOGS] case) the High Court, by a margin of 6 to 1, found that s 116 was to be interpreted narrowly such that "establishing any religion" means only that the Commonwealth could not make a particular religion the state religion. As Barwick CJ stated, this "involves the identification of the religion with the civil authority... establishing a religion involves its adoption as an institution of the Commonwealth, part of the Commonwealth 'establishment'". Gibbs J agreed with this sentiment but noted however that "it may be a question of degree whether a law is one for establishing a religion."
Murphy J in this case dissented arguing that the establishment clause should be given broad interpretation, stating that it "should be read widely. To refuse to read the establishment clause with generality because so read it covers some of the ground covered by the other guarantees in s 116 is to interpret s 116 as if it were a clause in a tenancy agreement rather than a great constitutional guarantee of freedom of and from religion". He goes on to criticise the interpretation stating that "there is no warrant for reading 'any religion' as 'any one religion'; yet this is necessary if 'establishing' refers only to the recognition or setting up of one national church or religion. Such a reading trivializes the section. It would allow laws for sponsoring and supporting (financially and otherwise) a number of religions (even in the most discriminatory and preferential way) as long as the laws stopped short of setting up one national church or religion." Unfortunately this is precisely what the Commonwealth is doing with the National Schools Chaplaincy Program. While it is voluntary for schools to take up the program, the Program amounts to the "establishment of religion" in that it is funding and promoting religious activities. The Program creates a precedent of the Federal Government directly funding religion. Even in the DOGS case it was noted by the Justices numerous times that the financial aid was expressly limited to the educational activities of such schools. There was no explicit funding of religious activities as there is in the NSCP.
This precedent of directly funding religious activities may well be used by supporters to argue for broader direct funding of religious activities and organisations by the Government. It will also give the Government a degree of influence and control over religion as it can selectively approve and withdraw funding. It is fundamentally discriminatory against the non-religious and fails to preserve the neutrality in the Federal Government in religious matters, and as such is divisive. Promoting religion is not the job of the Federal Government and we should not be taxed to support religion. To quote again from Murphy in the DOGS case, "section 116 of the Constitution does not assert or deny the value of religion (including religious teaching). It secures its free exercise, but denies that the Commonwealth can support religion in any way what-so-ever. The Commonwealth cannot be concerned with religious teaching - that is entirely private. Section 116 recognises that an essential condition of religious liberty is that religion be unaided by the Commonwealth."
• Requires the executive branch of the Government to examine and judge religious matters
The NSCP violates the spirit of the Constitution because it requires the executive branch of Government to examine both the religious beliefs of chaplains (and more generally religious organisations) and make judgments on whether they are acceptable to the Government. This violates the spirit of s 116 of the Constitution where it states that “no religious test shall be required as a qualification for any office or public trust under the Commonwealth”. The Prime Minister at the time stated that “each individual chaplain will need to be formally approved by the Government because we are going to provide funding”. The Minister for Education is the one who will in practice make the final decision. The John Howard stated that “we're not going to license and support some activity that would not be acceptable to the mainstream of the Australian community.” (Media Interview 22/9/2006)
It is understandable that the Commonwealth would not want to be funding those who promote intolerance and violence or have views contrary to their own. However, it is not the role of the Commonwealth to examine and judge religious beliefs and practices, and then fund people on the basis of such judgments. In the case of religion there is much disagreement over what might be considered "acceptable" or "mainstream". As the High Court has stated in Church of the New Faith v. Commissioner of Pay-Roll Tax (Vict.) 1983 154 CLR 120 : "Religious freedom is a fundamental theme of our society. That freedom has been asserted by men and women throughout history by resisting the attempts of government, through its legislative, executive or judicial branches, to define or impose beliefs or practices of religion. Whenever the legislature prescribes what religion is, or permits or requires the executive or the judiciary to determine what religion is, this poses a threat to religious freedom. Religious discrimination by officials or by courts is unacceptable in a free society." Other commentators have criticised this aspect of the Program including the director of the NSW Catholic Education Commission who stated that it "would be unprecedented, I would suggest." As a Christian commentator remarked, "the integrity of any faith community lies in its authority to call and approve its leaders and teachers. Churches have had to fight long and hard to assert their independence from state power in the West, that is what the arguments about the separation of Church and State have all been about."
The Program Guidelines go on to state that the "Minister’s decisions made about the National School Chaplaincy Programme funding are final. There is no appeal process." It is not stated whether this includes appeals to the Administrative Appeals Tribunal and the courts. However, the Government cannot preclude this Program from normal administrative mechanisms and it may well be possible to challenge its implementation. There is obviously huge scope for disagreement about an applicant's suitability for funding, and the Program would be open to accusations of unfair discrimination. Indeed, the guidelines are deliberately vague on the criteria for judging the suitability of individual chaplains. All these considerations in practical terms make the program extremely difficult to administer. As Michelle Grattan in the Age states, "the administration could be a nightmare. Who is going to run the scripture ruler over the prospective Islamist chaplains?"