Breda, Vito (2018) Over the secular ridge of human wants: the constitutional legitimacy of secular-state funding of chaplaincy programmes in Australia. In: Religious liberty and the law: theistic and non-theistic perspectives. Applied Legal Philosophy Series. Taylor & Francis (Routledge), Oxon UK, pp. 159-174. ISBN 9781138244474
Abstract
In the Williams n.2 case the HCA argued that a human want in areas of benefits to students must be a monetary benefit given to a specified group of individuals. ‘And in the case of benefits to students, the relief would be material aid provided against the human wants which the student has by reason of being a student’ (Williams n.2, 46). Even within the restricted realm of public-sponsored education, the possibility that a court would be able to qualify the basis of utilitarianism appears difficult to accept. For instance, if we were to consider the differences between parental leave policies in Sweden and Australia, and we assumed that parliaments in both countries had the prerogative to set up legislative policies that have the effect of helping new parents, it would be reasonable to assume that jurisdictional institutions are not entitled to decide on what new parents want. However, in Williams n.2, the HCA accepted Mr Williams’s claim and affirmed a lack of legislative competence in respect of the Commonwealth for policies that do not provide a pecuniary benefit to students.
This conclusion is not underpinned by a sound understanding of utilitarianism. For instance, it would be equivalent to the court saying that parliament could not pass legislation that would give unpaid parental leave to parents if their child were in hospital. Indeed, the hospital staff would provide for the care of the child and perhaps the parents’ desire to stay with their children might not be materially or psychological beneficial to the child. It might also be the case that giving the parents the opportunity to spend time with their child in hospital would directly hinder the interests of the community. One or both parents might already be providing critical services within the community; they might be, for instance, police officers or firefighters. However, it is a prerogative of the political arena to evaluate those human desires and to set up policies that might accommodate those desires.
Similarly, setting up policies that accommodate the demand for religious support for children in public education is a manifestation of power allocated to a parliament. More precisely, it is a manifestation of the prerogative to balance economic efficiency with the promotion of a common good by caring for a chosen group of individuals (e.g. parents and carers). This evaluative process cannot be extracted, as the HCA appears to have done, from a selective reasoning of its jurisprudence, without overstepping the role of democratic institutions.
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