Today, the high court handed down its decision in Ron Williams' second challenge to the national school chaplaincy program. Unless you’re keen on understanding the nature of the executive power under the Constitution, the decision itself might not be that interesting. What has captured most of the public's attention is the outcome: Williams won.



In the original challenge, back in 2012, Williams struck a half blow against the program, with the high court discovering that the way the federal government entered into funding agreements for the program was beyond the power conferred by section 61 of the Constitution.

The court didn’t find that the government wasn't competent to fund a specifically religious program. In other words: no separation of church and state shenanigans here.

This surprised a lot of people. The chaplaincy program is widely disliked and as far as the general public was concerned, the case was Williams v God In Our Schools. Williams' campaign was funded by donations from Australia's atheist community and has focused almost entirely on the separation of church and state element – the very point which failed at law.

To correct the constitutional anomaly from the first Williams case, the parliament enacted various laws to allow the federal government to legally fund the chaplaincy program. Broadly, it’s this conferral of power upon the executive by the legislature that was rendered invalid by today's decision.

When you take this into account, suddenly the Williams case looks a lot different. Instead of a gang of plucky atheists taking on the chaplains, Ron Williams' hillbilly litigious circus is actually cover for an altogether more sinister cause: states’ rights activism.

Even though state governments were in favour of the chaplaincy program, every single one of the state attorneys-general intervened in the case in support of Williams' second challenge. This should have immediately thrown up an enormous red flag. The states were in no way interested in joining the secular crusade against god botherers in primary schools; they were only interested in protecting the states from Commonwealth interference.

The Queensland attorney-general practically sings the praises of the chaplaincy program in a submission to the court, saying, "The chaplaincy services are designed to offer a benefit, in the widest sense, to students, staff and other members of school communities".

But in that same submission, he "adopts the submissions of the plaintiff [Williams] and the Attorneys-General for New South Wales, Victoria and South Australia" against the federal laws that underwrote the chaplaincy program. The Victorian attorney-general goes further, and takes the gloves right off:

There is no unqualified principle of constitutional interpretation that the Court must always lean to a broader interpretation of Commonwealth power.

The state attorneys-general were happy to support Williams' jaunt to the high court in full knowledge that it could kill off their beloved chaplaincy program, as long as the end result was more freedoms for the states. How opportunistic.

Ever since the first Constitutional Convention in the 1800s, states (then the colonies) feared losing their power to a central, all-encompassing government. The provincialist forces who undermined the drafting of the Constitution gave us a lasting gift: the so-called "blame game" of federalism. We're all familiar with its features: the unrepresentative swill of the Senate, endless Coag meetings, a totally borked healthcare system, and inefficient taxation.

All the lofty rhetoric about the states aside, their positions were (and still are) entirely about protecting their fiefdoms. Back in 1897, Isaac Isaacs spoke out strongly against the establishment of the senate as a protector of states’ interests, noting that in the majority of cases, “there will not be a conflict between States at all; it will be a conflict between two parties”. He was right. When was the last time the senate split along state lines?

Fortunately, the states’ rights cabal has been losing the battle ever since federation. High court decisions, beginning with the Engineers’ Case in 1920, had been slowly eroding the immunities of the states as Commonwealth powers became more broad. Early last year, Peter Beattie, the former premier of Queensland, conceded that the 2006 WorkChoices case had reduced the states to “the hand maiden of the Commonwealth”.

The forces of centralisation had nearly won, and it was only a matter of winding up these vestigial political organs, whose purpose now seems to be filling the pages of tabloid papers with lurid stories of corruption and scandal.

Then, like a gift from God himself, a man who sings songs about whether bees go to heaven appeared. Williams v the Commonwealth 2012 breathed new life into the ignoble cause of states' rights. Here the states’ attorneys-general found a Trojan horse. They could limit the executive power of the Commonwealth and protect the livelihoods of state politicians.

Either the atheist crowd doesn’t know that their cause has been hijacked – in which case, they are naïve. Or they just want to win at all costs – in which case, they are misguided.

The consequences of this decision will no doubt affect more than just the hated chaplaincy program: the executive will be increasingly limited in the scope of its ability to undertake national programs that don't fit neatly into a legislative head of power. As we progress into an age of new challenges and shifting public expectations of the presidential-style prime minister, it's difficult to celebrate a decision that limits us to the imagination of the 19th century lawyers who drafted the Constitution.