''We've only just got this judgment. We'll carefully study the judgment and we'll make an appropriate response after we've made that study.'' Prime Minister Tony Abbott says his government remains committed to the chaplaincy program. Credit:Andrew Meares The challenge to federal funding of the scheme was launched by Ron Williams, who says there is no place in public schools for non-secular programs. The decision could undermine the federal government's recent decision to allocate $245.3 million to continue running the chaplaincy program for another five years. That funding was intended specifically for schools to hire faith-based chaplains rather than social workers.

Under the program, 3700 schools are eligible for up to $72,000 funding to employ chaplains. Queensland father Ron Williams outside the High Court in 2011. Credit:Andrew Meares In a unanimous decision, six judges on the High Court held that the federal government's agreement to fund the Scripture Union of Queensland to provide chaplaincy services to Queensland schools was unlawful. Four of Mr Williams' children attend a Queensland school that receives federal funding for chaplains. Mr Williams said the decision was a huge win for the ''silent majority of parents'' around the country who opposed the chaplaincy program.

''I think we can call this a 6-nil clobbering,'' Mr Williams said. He said that he had been ''gobsmacked'' when the federal government funded the program in the recent budget while ''slashing education and health''. State grants an 'option' to fund chaplains program Sydney University constitutional law professor Anne Twomey said on Wednesday that the federal government would be able to continue the chaplaincy program by providing grants to state governments rather than directly to schools. ''This is the only real option. They can do that and they probably will,'' she said.

National School Chaplaincy Association secretary Peter James said the High Court decision was disappointing but he welcomed Mr Abbott's support for the program. ''Having ruled out the current funding model, we now look to the Commonwealth to put in place an alternative funding solution,'' he said. ''That could well be a system of grants via the states and territories - an alternative which the High Court acknowledged was possible in 2012 and again in the course of this hearing ... [W]ith the government behind the program and, in fact, bipartisan support for the program I'm confident that some form of funding will be put in place.'' Mr James said funding was guaranteed until December but the federal government would probably need to make changes to the program so money could flow next year. The case targets a law that allows funding of a wide range of programs that comprise up to 10 per cent of federal expenditure, including accommodation for asylum seekers offshore, the national counterterrorism committee, ''Gallipoli-related activities'' and ''cybersafety''.

In 2012, Mr Williams won his first High Court battle against the chaplaincy program when six of its seven judges ruled that it exceeded the Commonwealth's executive spending powers under the constitution. The judges also said that the government could not spend money on programs that fall outside these powers without authority from Parliament. This threatened federal funding for not only the chaplaincy program, but potentially hundreds of other programs that the government had similarly agreed to pay for without passing individual laws. About a week later, the then Labor government amended a law to include 427 arrangements, grants and programs it could fund without legislation. In total they amounted to between 5 and 10 per cent of Commonwealth expenditure. This second High Court case challenged the changed law, which the High Court has now held is invalid for the payment of the chaplaincy program.

Court's decision Professor Twomey said the High Court had ''read down'' the law rather than striking it down as totally invalid. Its decision meant that the law only validly funded programs which were attached to a Commonwealth head of power. Professor Twomey said most of the programs funded under the law were likely to be constitutional, because they fell under Commonwealth heads of power, including foreign affairs and defence. But she said there could be a number of programs that did not fall under such powers which were open to similar High Court challenges.

''There will be uncertainty, but for the Commonwealth uncertainty is better than the certainty of losing. High Court challenges are costly, risky and people don't usually object to receiving money. The Commonwealth has inertia on its side,'' she said. Professor Twomey said that if the government was ''being prudent'' they would identify the programs in the law at risk of being unconstitutional, and begin negotiating individual grants with the states. ''But if they want to be particularly arrogant about it . . . they could just say 'unless someone challenges it and it's found by a court to be invalid we'll just keep doing what we're doing'.'' In their decision, the judges said they had not considered or resolved any broader questions of the validity of the law beyond the chaplains program. They said that taken literally, the law – which gives the federal government power to fund an open list of programs – could be interpreted to apply even to ''cases where the Parliament does not have constitutional power to authorise the making, varying or administration of arrangements or grants''.

But the judges said that it ''should be read as providing power'' to grant funds "only where it is within the power of the Parliament to authorise the making, variation or administration of those arrangements or grants. To read the provision in that way is to read it within constitutional power". The Commonwealth and the Scripture Union of Queensland had argued that the payments to chaplains fell under the Parliament's constitutional power to make laws for ''benefits to students''. But the High Court held that the funding agreement ''does not provide material aid to provide for the human wants of students''. The payments involved only wages for chaplains to ''support the well being'' to children who attended certain schools. ''And the only description of how the 'support' is to be given is that it includes 'strengthening values, providing pastoral care and enhancing engagement with the broader community','' Chief Justice Robert French, Justices Kenneth Hayne, Susan Crennan, Susan Kiefel, Virginia Bell and Patrick Keane said.

''These are desirable ends. But seeking to achieve them in the course of the school day does not give the payments which are made the quality of being benefits to students.'' Loading with Benjamin Preiss, Alexandra Smith

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