Over the Secular Ridge of Human Wants : The Constitutional Legitimacy of Secular-State Funding of Chaplaincy Programmes in Australia

This draft of a paper that discusses the jurisdictional accommodation of religious freedom in Australia. In particular, by considering the recent jurisprudence of the High Court of Australia (hereafter the HCA), the paper examines the constitutional legitimacy of government policies that grant financial support to non-denominational pastoral care for students. In the 2014 Williams v The Commonwealth of Australia & Ors (hereafter Williams n.2), the HCA struck down a federal funding scheme that subsidised a chaplaincy programme for public schools. One of the reasons that supported the declaration of the illegitimacy of the federal programme was that religious education could not be considered a ‘human want’. In this essay, I will argue that the HCA’s decision is an incursion into the prerogative of parliament to set up policies which meet a political demand. In the previous volume of this series, I argued that the European Court of Human Rights accepted that signatory states have a margin of discretion in setting up policies that seek to accommodate both parents’ expectations in state educational institutions and the state’s commitment not to indoctrinate children. The Commonwealth is not a signatory of the European Convention on Human Rights (ECHR), , yet the Australian Constitution provides a legal framework which is very similar to the one that is provided by the ECHR. For instance, the federal parliament cannot draft legislation that limits the freedom of faith ex Section 116. Given the similarities and the close temporal proximity of the two cases, it is unfortunate that the HCA has not considered in Williams n.2 the narratives that were explored in Lautsi n.2. In particular, the HCA suggested that federal legislation supporting the financial cost of pastoral care for students should be unconstitutional because such a scheme does not cater for a ‘human want’. I will explain that such a narrative is not convincing. In particular, I will argue that, once the constitution has allocated a legislative power, it is, within the limit of reasonableness, a parliamentary prerogative to design policies aimed at achieving such an aim. In addition, there are strong indications that the HCA misinterpreted its own jurisprudence