The Scripture Union of Queensland, which along with the Commonwealth was a defendant in the legal challenge to the constitutional validity of National School Chaplaincy Program, reacted with equanimity to yesterday's High Court decision upholding the challenge. So too did the Australian Christian Lobby, one of the prime lobbyists of the program. This was no doubt because the court dismissed the argument that the program violated section 116 of the constitution requiring a separation of church and state, specifically that ''no religious test shall be required as a qualification for any office or public trust under the Commonwealth''. The court found instead that school chaplains engaged by the scripture union ''did not enter into any contractual or other arrangement with the Commonwealth''.

The view of the lobby and the scripture union (which provided chaplains to Queensland schools) is that since the program's religious aspect is not in doubt, the ruling ''does not keep chaplains from supporting school communities''. The government will find a bureaucratic solution. But it may not be that simple. The High Court has, in effect, ruled that without legislation authorising an agreement between the Commonwealth and scripture union, the executive had no constitutional authority to enter into a funding agreement, or to make payments under that agreement.

The irony of this ruling is that the Howard government, which instituted the chaplaincy program in 2006-07, avoided passing enabling legislation because it feared problems with the constitutional prohibition on religious tests for holders of Commonwealth office or public trust. To that end, the program's qualifications and rules stressed its secular nature: chaplains were not to proselytise but to act like counsellors for students of any religious background. But there is little doubt the Coalition had an ulterior motive in implementing the program: winning the electoral support of evangelical Christians. Labor retained, and later extended, the program for the same reasons.

Having committed to the chaplaincy program, Labor must find another funding model. But the implications of this ruling extend beyond a funding patch-up job. Constitutional law expert Professor George Williams says it could embolden people to challenge other direct spending by the Commonwealth, such as for infrastructure at local government level. This prospect would not gladden Labor or the Coalition. But others may welcome it as a brake on the executive's ability to act unilaterally in the outlay of public monies for dubious purposes.

Student rights

Suspending students from school for bad behaviour is not the mechanical, legalistic procedure that it was even two decades ago. More emphasis on K-12 education and individual welfare has ensured that principals nowadays are much less likely to resort to suspension. This is not necessarily a retrograde step, despite what disciplinarians might assert, as evidence suggests the practice is frequently counterproductive. Students who have been suspended are twice as likely to be excluded again in the next 12 months, and repeated suspensions can disrupt an individual's learning. Nonetheless, there are instances of bad behaviour, such as the physical assault on another student, where school authorities have no recourse other than to suspend the guilty party. Few would argue that in cases like this, the safety of students takes priority over an individual's right to education.

What constitutes an adequate suspension period, however, is more problematic. In February, a year 11 student at the Melba Copland secondary school was suspended for a month after stabbing another child with a chisel, and the case referred to police. Four months later, however, and despite the urging of the courts that he be returned to school, the student remains at home, apparently because Melba Copland does not want him back and because no other school in the area is willing to accept him. Not unnaturally, the boy's parents argue he is being held back in his learning, and that his motivation to finish his schooling is slipping.

No case involving a troubled or troublesome student is ever the same, and authorities are right to exercise caution, while of course ensuring that they continue to be tutored or provided home-study material. Keeping a student in limbo for three months, however, is verging on excessive. For the sake of this student and his parents, the Department of Education and Training needs to provide some clarity and certainty on this case.