Attorney-General for Victoria; Ex Rel. Black v. the Commonwealth1
| Author | David C. Bennett |
| DOI | 10.1177/0067205X8101200304 |
| Published date | 01 September 1981 |
| Date | 01 September 1981 |
| Subject Matter | Case Notes |
CASE NOTE
ATTORNEY-GENERAL
FOR
VICTORIA;
EX
REL. BLACK
v.
THE
COMMONWEALTIF
Constitutional law -Law
for
establishing any religion -Grant
of
Financial Assistance to States -Validity
of
Commonwealth legislation
providing financial assistance to non-government schools -Constitution
ss.
96,116
Introduction
In this case the High Court for the first time considered the establish-
ment clause in section 116 of the Constitution.2 The Attorney-General for
Victoria at the relation of twenty-seven persons, together with a number of
persons suing individually,3 sought declarations that a number of Common-
wealth Acts4
-principally,
Acts under which the Commonwealth provided
financial assistance to schools in the States and internal
Territories-were
beyond the powers of the Commonwealth and so invalid. The legislation
was challenged in so far as it resulted in benefits to "religious" non-
government schools (that is, schools conducted by, or on behalf of, or
associated with, religious bodies).
The Facts5
The Commonwealth has provided financial assistance for both govern-
ment and non-government schools in the States and Territories, in general
since 1964 but, in the case of the Australian Capital Territory, since 1956.
In general, under the States Grants Acts challenged in this case the
Commonwealth provided financial assistance for such schools in the States
on various conditions, for example, obliging a State to apply certain
granted sums to capital and recurrent expenses of non-government schools,
1 (1981)
55
A.L.J.R. 155; (1981)
33
A.L.R. 321. High Court of Australia; Barwick
C.J., Gibbs, Stephen, Mason, Murphy, Aickin and Wilson JJ.
2
S.
116 provides: "The Commonwealth shall not make any law for establishing
any religion,
or
for imposing any religious observance,
or
for prohibiting the free
exercise
of
any religion, and no religious test shall be required as a qualification for
any office
or
public trust under the Commonwealth."
3 Only Gibbs and Murphy JJ. discussed the standing
of
the various plaintiffs: (1981)
55
A.L.J.R. 155, 161-162 and 179 respectively. See also
191
per Wilson J., who raised
certain questions
of
standing but left them to be resolved
at
some later time. Gibbs
and Wilson JJ. left open the question
of
whether taxpayers and parents
of
children
at
government schools could have a special interest in the subject matter of the action
such as would give them standing. Murphy J. thought that such persons would have
standing.
4 The Commonwealth Acts challenged included the States Grants (Schools) Acts
passed from 1972 to 1976, the States Grants (Schools Assistance) Acts passed from
1976 to 1979, the Schools Commission Act 1973 (which establishes a Commission,
the functions
of
which include advising the Minister on matters relevant to the
granting
of
financial assistance
to
schools), the general Appropriation Acts so far as
they appropriate moneys
to
be spent
on
non-government schools in the Australian
Capital Territory and the Northern Territory and the Independent Schools (Loans
Guarantee) Act 1969 (which empowers the Treasurer,
on
behalf
of
the Common-
wealth, to guarantee certain loans to independent schools in those Territories).
5 The relevant legislation and facts are set out in the judgments
of
Gibbs and
Wilson JJ.: (1981)
55
A.L.J.R. 155,
161
and 180-186 respectively.
271
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