The
Sydney Morning Herald,
9 March 2018:
Dozens of federal
Liberal MPs have reportedly signed a petition calling for a 25 per cent funding
increase for the controversial National Schools Chaplaincy Program.
Whether the
budget can afford the funding increase or whether the money would be better spent
elsewhere are interesting issues. The bigger legal issue is that the way the
chaplains program operates is illegal…….
The High Court has
struck down the chaplains program as illegal twice already. In 2012, the High
Court ruled the program illegal because the federal government was paying for
the chaplains program without any legislation authorising the spending. To
overcome the High Court decision, federal Parliament quickly passed legislation
to authorise the spending.
The chaplains program
again was struck down again in 2014. Federal Parliament can only pass
legislation dealing with certain subject matters. The High Court ruled that
school chaplains do not fall within any of those.
To get around its own
lack of power to run the chaplains program, the federal government now grants
money to the states for them to run it. Lots of federal government programs
operate this way with the states running programs on behalf of the federal
government using federal money.
Getting a job as a
chaplain requires a person to be recognised as qualified for the role
"through formal ordination, commissioning, recognised religious
qualifications or endorsement by a recognised or accepted religious
institution". In other words, a person has to be religious and endorsed by
a religious group in order to get a job as a chaplain. Atheists need not apply.
Individual schools pick
which religion they want their chaplain to be a member of and then recruit a
person from that religion for the job.
But it makes no
practical sense to require a chaplain to have a particular religion. Chaplains
are strictly prohibited from religious proselytising, although there are
sometimes reports of chaplains breaking the rules. The High Court even
commented that despite the religious sounding job title, the actual work
chaplains do has nothing much to do with religion. Justice Dyson Heydon wrote
that the work of chaplains "could have been done by persons who met a
religious test. It could equally have been done by persons who did not".
In other words, there is
no genuine occupational requirement for a chaplain to be a member of any
particular religion or to be religious at all. The federal government has
simply decided that it wants all chaplains to be religious.
Requiring a chaplain to
be a member of a particular religion is inconsistent with the nature of public
schools……
Requiring a chaplain to
be a member of a particular religion is also illegal. Each state has
anti-discrimination or equal opportunity legislation making it illegal to
discriminate against a person on the ground of religion in employment
decisions. These anti-discrimination rules apply to public schools and their
hiring decisions.
Public schools cannot
advertise a teacher’s job and require that only Hindus are eligible to apply.
Public schools cannot advertise a cleaner’s job and require that only Baptists
are eligible to apply. The reason is because that would be discrimination on
the ground of religion in employment.
It’s exactly the same
with chaplains. Requiring a chaplain to be a member of a particular religion is
religious discrimination and completely illegal for public schools…..
The state
anti-discrimination commissions should do something about public schools
breaching religious discrimination laws. If they don’t, someone will eventually
go to court and the school chaplains program will probably be ruled illegal for
the third, and hopefully final, time.
