It was a busy time at the High Court of Australia last week. On Monday, the court extended an injunction staying the removal of asylum-seekers from Christmas Island to Malaysia under the ''Australia-Malaysia Deal''. In the course of a hearing accompanied by high drama, Justice Hayne chided the Commonwealth for the ''unsatisfactory'' and ''half-baked fashion'' with which it approached the proceedings, only filing its affidavit with the court an hour into the two-hour hearing. The same ill preparedness was not demonstrated by the Commonwealth in the hearing of Williams v the Commonwealth commencing the next day before the full bench of the court.
That case involves a legal challenge to the Commonwealth's $222 million National School Chaplaincy Program, under which the government funds school chaplains to provide students of both private and government schools with pastoral care, counselling, ''spiritual guidance'' and oversight of their ''spiritual wellbeing''. The controversial program, criticised extensively in a recent Ombudsman's report, is established by policy guidelines beset by what Justice Gummow termed acerbically on the first day of the hearing as ''somewhat loose expressions which have never been subject to legislative scrutiny and any attempt at legislative precision'' and ''the sort of stuff [that] would never get through parliamentary counsel''.
The arguments before the court this week were foremost concerned with the confines of the Commonwealth's constitutional legislative power with respect to providing ''benefits to students'', and, secondly, limitations upon the executive's power to spend appropriated monies without supporting legislation. Given their invested interest in containing the reach of the Commonwealth's financial tentacles into their governmental purview, each state was represented at the bar table.
The extensive attention given to those matters in the hearing was perhaps dry for audience members in the court's public gallery, on the one hand, from the clergy and the Australian Christian Lobby, and, on the other, clad in T-shirts festooned with the slogan ''Proudly Atheist'' and clutching membership forms for the ''Progressive Atheists' Society''. For the legal coterie, however, there was one significant missed opportunity in the hearing of the case.
The plaintiff, Williams, had challenged the program on the basis that, in requiring ''school chaplains'' to be formally ordained or commissioned by a religious institution or state-approved chaplaincy service, the Commonwealth imposed a ''religious test ... for office or public trust under the Commonwealth.'' To do so would infringe the final limb of the ''freedom of religion'' provision at section 116 of the Australian constitution. On that issue, Williams provided the High Court with its inaugural opportunity to consider the ''no religious test'' provision, and its first opportunity to turn to section 116 since the 1997 Stolen Generations case. It was also, more generally, a chance for the court to explore in depth and reorient its interpretation of the ''freedom of religion'' provision; the freedom's traditional construction being narrow on the rare opportunities it has come before the court.
In those respects, the hearing of Williams was a disappointment. Very briefly, Senior Counsel for Williams made two key arguments for a broad reading of the ''no religious test'' clause that would invalidate the requirements placed upon ''school chaplains'' under the program. The first was that there is no existing case law on the ''no religious test clause'' to support a contrary view. The second was that, as one of the few express constitutional limitations upon the Commonwealth's exercise of power over its individual citizens (or what some prefer to term ''constitutional rights''), it should be given a robust operation. Support for that position can be found in the text of the constitution itself, with the ''no religious test'' clause drafted to catch ''any'' religious test, whether imposed by the Commonwealth by legislation or in practice.
The court either found these arguments extremely compelling, or insufficient to win the point, declining to hear the Commonwealth defendants' oral arguments on the ''no religious test'' issue on the final day of proceedings.
Had the issue been delved into further, the plaintiff's legal team might have found greater support for their argument in the history of the ''no religious test'' clause. Historically, religious tests were used in both Britain and the United States colonies as devices of religious intolerance to exclude those of particular religions from the full rights of political citizenship. For example, United Kingdom Catholics were denied political office until 1828 by the Test Acts, requiring office holders to take oaths against key rites of Catholicism, such as the significance of the sacrament and Mass. The 1890s drafters of Australia's constitution were well aware and derisive of this history. At the Melbourne Constitutional Convention, religious tests were described as ''the greatest engine of tyranny in the world''.
Further, continuing to look to the constitutional conventions, the stated purpose of the ''religious test'' provision was to continue the status quo position in religiously diverse colonial Australia. That is, by ensuring that any (or lack of) religion never be required for the capacity to undertake political office. To quote one of the convention delegates, the ''no religious test'' clause expressed the principle that, ''religion or no religion is not to be a bar in any way to the full rights of citizenship (in Australia), and that everybody is to be free to profess and hold any faith he likes.''
In other words, no person of religion or lack of religion should be regarded as any more competent than any other to take office under the Commonwealth.
One of the Commonwealth's key arguments for the school chaplaincy program in the Williams proceedings was that the particular spiritual counselling provided by chaplains is required to meet complex social welfare needs of students that effect their academic performance. Those chaplains are not required to have any further competence or qualification to counsel than their religious ordination and commission. That is practically problematic. Further, given the constitutional history of the ''no religious test'' provision, and the diversity of religious and nonreligious views in modern Australia, one wonders whether it is wise of the Commonwealth to stray so far from a foundational principle of both our legal and political compact that (to quote former Chief Justice Latham in the Jehovah's Witnesses case), ''religion should, for political purposes, be regarded as irrelevant."
