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CRU Associate, LUKE BECK, has contributed the following post on the ramifications of the Williams case on school chaplains for the use of military chaplains by the Australian Defence Force:

You have probably heard of security contractors working alongside conventional military personnel in war zones. Well, you may also soon hear of religious contractors working with military personnel.

At the moment, the Australian Defence Force employs chaplains. They are commissioned officers of the Army, the Royal Australian Navy or the Royal Australian Air Force. According to the Defence Jobs website their work includes religious ministry, pastoral care, character training and administration and staff duties.

ADF chaplains are currently on deployment in places like Afghanistan. They obviously have a much tougher job than school chaplains do

There is also an important constitutional difference between ADF chaplains and school chaplains.

In the recent School Chaplains Case, the High Court unanimously found that the National School Chaplaincy Program did not violate section 116 – the religious freedom provision – of the Constitution. It did, however, strike down the program on the basis that it was not supported by any legislation. Parliament immediately sought to overcome this ruling by passing legislation.

If school chaplains are constitutionally okay in terms of s 116 then ADF chaplains must be okay too, right? Well, no.

The ‘religious tests clause’ of section 116 of the Constitution – which was the clause in issue in the School Chaplains Case – states that ‘no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’ The High Court found that the school chaplains did not hold an office under the Commonwealth and therefore the religious tests clause did not apply.

In the School Chaplains Case, it was a case of government outsourcing. The Commonwealth paid its money to chaplaincy provider organisations. Those organisations employed chaplains and deployed them to schools. The Commonwealth had no direct relationship with the chaplains. The High Court said this meant the school chaplains did not hold an office under the Commonwealth.

It is a very different situation with ADF chaplains. They are members of the ADF just like all other military officers. They are appointed and employed directly by the Commonwealth. This would suggest that ADF chaplains hold an office under the Commonwealth.

The key question is whether ADF chaplains are subject to a religious test. In other words, is there some sort of religious selection criteria, entry requirement or condition of employment that must be met in order to become an ADF chaplain?

The answer is yes. The Defence (Personnel) Regulations 2002 set out who may be appointed as a chaplain in the ADF. The regulations say that a person must not be appointed unless ‘the person is a member of a church or faith group approved by the Religious Advisory Committee to the [ADF]’.

The Army is currently looking for chaplains. The Defence Jobs website says that a would-be chaplain in the Army must:

“Be from an endorsed denomination or faith group represented within the current religious diversity of Army personnel. These denominations are currently the Anglican Church, Catholic Church, Uniting Church, Presbyterian Church, Baptist Union of Australia, Lutheran Church of Australia, Churches of Christ, Salvation Army and Council of Australian Jewry.”

In other words, if you don’t belong to any of these religious groups there is no point in applying because you won’t get the job; you are simply not eligible.

ADF chaplains therefore appear to be unconstitutional. Or more specifically, the selection criteria for ADF chaplains are invalid because they impose a religious test for Commonwealth office.

Those criteria appear to be central to the purpose of the ADF having chaplains. The ADF wants to ensure that the religious affiliations of its chaplains mirror the religious affiliations of the ADF personnel to whom they will be providing services. As the Defence Jobs website says:

“The denominational role of the Army chaplain is to provide opportunity for Army personnel to practice their chosen religion by acts of public worship in a manner to which they are accustomed and as conveniently as can be arranged, both in peace and war.”

Simply changing the selection criteria is therefore not necessarily a workable solution to the constitutional problem.

But outsourcing chaplaincy services may well be a workable solution. The Commonwealth can get around the religious tests clause through outsourcing – the High Court said so in the School Chaplains Case.
Whether ADF chaplains get their constitutional marching orders any time soon depends on someone raising the matter in the High Court (or the Commonwealth unilaterally deciding to make changes, which seems a bit unlikely).

Luke Beck