The High Court of Australia has declared federal funding of the school chaplains program unconstitutional, largely because it doesn’t meet the legal criteria for authorising such payments. But this lack of legislative support doesn’t mean schemes that benefit students are no longer possible or feasible.
Commonwealth legislation allowing school chaplains funding had been based, in large part, on the authorisation in section 51 (xxiiiA) of the Constitution. That section was added in the 1940s after a successful referendum to add a social security framework to Australian society.
Section 51 (xxiiiA) allows the government to pass laws allowing money to be paid for a whole range of essentially health-related purposes. But it requires that the programs provide “benefits” to a specific individual (identified through, for instance, a Medicare number).
Under section 51 (xxiiiA), funding can be provided for:
maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceuticals, sickness and hospital benefits, medical and dental services, benefits to students and family allowances.
The term “benefits” in this section had been interpreted by the High Court before. One such case was when an association representing doctors sued the Chifley government over the creation of a system for free medicine that became the Pharmaceutical Benefits Scheme (BMA v Cth).
In that case, the judge (Justice McTiernan) held that a “benefit” under section 51 (xxiiiA) must be:
material aid given pursuant to a scheme to provide for human wants … under legislation designed to promote social welfare or security.
In the later Alexandra Private Geriatric Hospital case, the High Court held such “benefits” were not confined to a grant of money or some other commodity, but could encompass the provision of a service or services.
In the latest case, the majority of the judges found funded “benefits” in section 51 required material aid to an identified student. They also held that such aid must relieve the human wants and costs of being a student.
The section didn’t support federal money being given to chaplains for services done at schools about “strengthening values, providing pastoral care and enhancing engagement with the broader community”, they said.
In a separate judgement, Justice Crennan stated the capacity of a federal government to fund “benefits” relates to:
a well-understood concept – the Welfare State – in which the State undertakes responsibility to provide government assistance, ie benefits, to which persons are entitled, even from cradle to grave.
She found “universality and comprehensiveness” were central to such schemes. And prior decisions had confirmed that federal legislation providing sickness and hospital benefits must address the needs of real patients, not merely corporate providers of health services.
It followed, she argued, that a Constitutional school chaplaincy scheme had to provide benefits to identified student recipients, rather than merely providing federal financial resources to service providers (chaplains).
Constructing a Constitutional scheme
Existing chaplaincy programs claim to provide important health-related benefits that seem to directly relate to being a student. One notable example is the organisation SU QLD chaplains, which claims to help students deal with issues ranging from family breakdown and loneliness, to drug abuse, depression and anxiety.
Such services clearly address the material wants and needs of students (thus meeting the basic criteria for ‘benefits to students’), so how can they be federally funded in light of yesterday’s decision?
Students could enrol and get specific ID numbers for all manner of federally funded services. These could include drug and relationship counselling, sports coaching, disability assistance, as well as instruction in relaxation and meditation or other forms of stress and anger management.
It might even be possible for students to thus receive existential or spiritual skills training. This need not be grounded in any specific religious ideology. It could involve values education in sportsmanship or encourage excellence in sporting performance or skills required for community service.
One important difference from the present scheme, however, would be that students are able to chose what type of service they require.
Another could be that providers would be paid only in accordance with the number of students they assisted in formally booked sessions. Indeed, requiring the submission of forms for each counselling or coaching session would increase transparency and student safety as well as financial accountability.
The government may be smarting from the decision against its scheme but it’s not all bad news. The decision could lead to federal funds facilitating a sporting and contemplative revolution in society that seeks to replace the deleterious and relentless drive to consumerism.