The NSCP was funded by around $165 million last year, having absorbed around $437 million since its inception under the Howard Government. During the recent national election campaign Julia Gillard - channelling Doris Day in 'anything he can do, I can do better' mode - promised to double the money available for the program.
At a time when funding for education is in demand and teachers are underpaid, the rationale for funding religious activity is contestable. In August last year Prime Minister Gillard stated that -
Chaplains and pastoral care workers provide general personal advice, comfort and support to all students and staff. Chaplains can help build the sense of community in the school, support the school ethos and provide additional support for vulnerable children.Critics have unsurprisingly - and, in my opinion, persuasively - responded that the chaplains are not professionally qualified to counsel children, that public funding undermines the separation of church and state and that schools cannot effectively supervise the work of the chaplains. Some critics have highlighted concerns that chaplains are evangelising in the playground. Others have noted concerns regarding practice.
The Northern Territory Ombudsman for example in its 162 page Investigation Report on the Operation of the Chaplaincy Program in Five Northern Territory Schools [PDF] for example expressed strong concern regarding the shape of the national program and its operation in the Territory, noting that "policies and procedures associated with the chaplaincy service" were "inadequate or non-existent" and that there was a need for "nationally consistent" criteria regarding who can be appointed as a chaplain. The Ombudsman recommended a ban on one-on-one pastoral care sessions after finding that chaplains were doing more than offering "a listening ear" to children experiencing domestic violence and abuse.
In one instance a psychologist who later treated a student was of the opinion that the chaplain had provided psychological services without the required qualifications. The most salient point is that nobody knew what services were provided during one-on-one sessions, nor the appropriateness or quality of those services.That concern appears to be reflected in investigation by the Commonwealth Ombudsman.
The current High Court challenge to the constitutionality of the NSCP moves beyond the decision in Attorney-General (Vic); Ex Rel Black v Commonwealth  HCA 2; (1981) 146 CLR 559 (the 'DOGS case') regarding federal funding of church schools. It appears that the plaintiff, Ron Williams, is arguing that -
a) the Commonwealth lacked executive power to enter into the Funding Agreement at his children’s school and as a consequence, that agreement was invalid or void;It is notable that the program has not been authorised by specific legislation, with the chaplains instead being paid out of Education Department funds.
b) The Commonwealth lacked executive power to enter into the agreement for the provision of funding for chaplaincy services at the school;
c) The Commonwealth could and cannot validly authorise the drawing of funds from consolidated revenue for the purposes of the funding agreement and the chaplaincy services;
d) That in the circumstances, any chaplain retained under the funding assistance given by the Commonwealth holds office under the Commonwealth and within the meaning of Section 116 of the Constitution;
e) By requiring school chaplains engaged at the school to comply with the stipulation set out in the NSCP Guidelines, the Commonwealth is imposing a religious test as a qualification for office under the Commonwealth in contravention of Section 116 of the Constitution;
f) That the qualification stipulation in the agreement is void and of no effect.
In the DOGS the plaintiffs opposed state-aid to parochial schools, arguing that such aid was inconsistent with s 116 of the Constitution -
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.The High Court, with a dissent by Justice Lionel Murphy, rejected the claim of inconsistency, declining to interpret the provision literally and narrowly, and hence rejecting claims that funding to religious entities breached a US-style strict separation of church and state.
Narrow interpretation of s 116 was apparent in Kruger v Commonwealth  HCA 27; (1997) 190 CLR 1; (1997) 146 ALR 126 - the 'Stolen Generations Case' - where a majority of the High Court declined to consider forced removal of Indigenous children from their families as a violation of that section, with obiter that although a consequence of removal was to limiting the children’s religious freedom that was not the policy's purpose.
In March 2008 Carmelo Vescio, who has gained some prominence with ambitious litigation, challenged Commonwealth provision of around $22 million for the week-long World Youth Day event held by the Roman Catholic Church in Sydney. (The NSW Government provided upwards of $87 million.) Vescio's initial writ was reportedly refused by Justice Crennan as "confusing, prolix and embarrassing", after Chief Justice Gleeson directed the High Court Registrar to decline to issue the proceedings without the leave of a judge. In June 2008 Justice Kirby in a separate hearing considered that the case was "reasonably arguable", followed by a hearing before Justices Kirby, Gummow and Heydon, with Kirby in dissent over the majority's decision to deny an appeal over Crennan's decision and thus tacitly to deny the writ.
Kirby in 2009 commented that -
It is good to have competing moral principles taught and debated in our schools. It is not good to envisage religious instruction that denies all knowledge about controversies that the students will have to face on leaving the school gates. Like knowledge about the universal rights of women. Like knowledge about the existence of homosexuals and their rights. Like knowledge about the debates concerning in vitro fertilisation and therapeutic cloning of human cells. Like awareness of the conflicting views that exist in our society about abortion. Like knowledge of HIV and the use of condoms to reduce its spread. Like appreciation of the great diversity of Australia which is one of the strengths of our country and not a weakness.Religious schools, along with other faith-based institutions, have successfully sought to place themselves outside anti-discrimination law. In a pluralist and liberal democratic society we should expect Scientologists, Wiccans, Roman Catholics, Hillsong, Presbyterians, the Church of Aryan Nations and other exponents of religious (or pseudo-religious) belief to seek a welcome in state schools. Recognition of religious diversity does not imply or require state funding of religious practitioners in those locations. By extension, it does not require funding of chaplaincy in workplaces - a notion that may strike some readers of this post as far-fetched but is consistent with the stated rationale for chaplaincy in schools.
'Religion as Politics not Law: the Religion Clauses in the Australian Constitution' by Carolyn Evans in 36(3) Religion, State & Society (2008) 283-302 noted that -
The Australian Constitution provides for the protection of religious freedom and prohibits establishment in very similar terms to the United States Constitution. Yet while Australian judges have often stated the importance of religious freedom in a democratic state and have defined religion in a broad, culturally sensitive way, they have taken a narrow approach to the scope of religious freedom and to the meaning of establishment. The end result is that the courts have played very little role in determining the boundaries of acceptable government or legislative behaviour in the regulation of religion. Instead, the key decisions have been left to the political branches of government, which have been given a broad scope of power to engage in all but the most direct and egregious breaches of religious freedom. ... the approach of the High Court in interpreting the religion clauses narrowly, as a constraint on government power rather than a right, has limited the capacity of the Court to participate meaningfully in the key legal questions around religious freedom. While this approach might have been workable in the past, the growing complexity of regulating religion means that the courts need to be able to develop more sophisticated legal approaches to questions of religious freedom.We are unlikely to see those approaches, albeit Brett Walker SC for Walker may pose some challenging questions.
'An Argument for More, Not Less, Religion in Australian Politics' by Marion Maddox in 22(3) Australian Religion Studies Review 345-367 commented that -
Not only has s. 116 proved ineffective at preventing state aid to religion; it also offers only limited protection of individuals' religious freedom (Hogan 1981; Eburn 1995). Under the court's consistently minimalist interpretations, if an individual's right to religious freedom conflicts with the interests of the Commonwealth, the Commonwealth wins. Moreover, despite s. 116 falling in the Constitution’s chapter on the powers of the States, it constrains only Federal government. Referenda in 1944 and 1988 sought unsuccessfully to extend it to the States. Alone among the States, Tasmania’s Constitution Act (1934) protects religious freedom (s. 46) and prohibits the imposition of a religious test (s. 46). South Australia's Supreme Court found in Grace Bible Church v Reedman (1984) that "there is no legal remedy available to any person who believes that his or her right to freedom of religion or belief has been violated by that State’s Parliament or Government". Victoria, Queensland and Western Australia, as well as the Northern Territory and ACT, have laws prohibiting religious discrimination. The New South Wales Anti-Discrimination Act (1977) covers discrimination on the basis of ‘ethno-religious background’ under its prohibition of racial discrimination. Tasmania (Anti-Discrimination Act 1998), Queensland (Anti-Discrimination Amendment Act 2001) and Victoria (Racial and Religious Tolerance Act 2001) prohibit incitement to religious hatred, the Victorian Act becoming the basis of a controversial complaint against Catch the Fire ministries for a 2002 seminar said to have vilified Muslims (Deen 2008).