The demise of the ‘faith-only’ school chaplaincy program is a good thing. A religion-only program has no place in our public education system. But progressives should be cautious about celebrating the High Court’s decision in Williams (No.2) as it could be a roadblock to future social progress.

One of the few personal freedoms our constitution provides is against a state religion. Section 116 prevents the Commonwealth from establishing a religious test for public office and from establishing a national religion. It was borne from a desire to protect against Christian sectarianism, but plays an ever-relevant role in our modern multicultural community. The current version of the National School Chaplains program, in my view, strikes against the very heart of that religious freedom.

But sadly the High Court disagreed. In Williams (No.1) the Court found that a school chaplaincy program did not contravene our constitution’s secularist protections. It struck the program down on different grounds altogether. That reasoning remained in Williams No.2.

It is these other grounds – on the extent of the Commonwealth’s spending power – that should make supporters of progressive social reform worried.

It’s easy to see why so many progressives are happy today. In mid-2014, almost one year into the reign of the most ideologically right-wing government Australia has seen, and little more than a month after a Federal Budget that set out to destroy Australia’s social safety net, a controversial program is gone. It’s a victory against a government we would all like to see gone too.

But we should spare a thought for some of the other Commonwealth programs now at risk. The High Court has said, in effect, that Commonwealth spending must be supported by a head of legislative power under the Constitution. A general piece of authorising legislation wasn’t good enough. The ‘fix’ put in to support a raft of Commonwealth spending two years ago was today found wanting. Presumably his means that the Parliament will now need to pass new laws specifically authorising a range of new spending, and do to that the law will need to be supported by a specific constitutional head of power. Most are found in Section 51. There’s a lot that the Commonwealth currently does that is not clearly supported by that list of powers.

Here’s a taste of what could be at risk:

• Environment grants
• Industry assistance
• Funding to local government
• Housing and homelessness support
• Carer’s services
• Financial counselling
• Support for volunteer groups
• Sports infrastructure and program grants

It sounds like the wish list of a right wing think tank.

(The $200 vouchers for marriage counselling are probably safe – the Commonwealth’s marriage power in section 51(xxi) will see to that.)

Many of these programs exist because a Labor Governments created them. Will a Liberal Government protect them, or use this as an opportunity to shut them down?

Beyond putting at risk what we have, this case will also limit what more we can do to expand and improve the social safety net.

The bulk of Australia’s welfare state was created in the post-Depression era, in difficult political circumstances. The popular will for poverty alleviation battled conservative forces that tried to use the High Court to strike down laws that would deliver the bedrock’s of our welfare state.

In 1945 the Chifley Government’s first attempt to create the Pharmaceutical Benefits Scheme was struck down by the High Court as unconstitutional because it was outside the Commonwealth’s spending power. That we have a PBS today is only because Chifley took his plans for a welfare state to the people and our second most important referendum question was put and passed – the social welfare power in section 51 (xxiiiA).

Section 51 (xxiiiA) protects much of our social supports, but not all. The limitations now post-Williams No.2 will require, for example, disability services and the National Disability Insurance Scheme to be regarded as ‘sickness benefits’ or ‘medical … services’ to be Constitutionally supported. This is probably safe, but what about respite for carers? Or funding for advocacy groups? Their future is less certain.

The creep in Commonwealth spending over recent decades has occurred because the community has demanded more services, and the reality of federal financial relations is that only the Commonwealth has the money to provide many of them. The political reality is that the bulk of these advancements have come because Federal Labor Governments were elected to enact them.

If the past is a predictor, then again in the future we can expect forces of reaction to seek to stymie future social progress.

Future expansions of Commonwealth activity – to support jobs, or protect the environment, or better educate our kids – may be at risk from today’s High Court decision. The Court’s reasons give those who oppose progress much more opportunity to strike down future action, and seek to frustrate social change.

Future social progress in Australia may have just become harder, and that is nothing to celebrate.

PHOTO CREDIT: Flickr, Laminator45