ABSTRACT

Constitutional law deals with how law shapes and limits the conduct of politics. In Williams v. The Commonwealth, the federal government tried to allocate resources to a series of schemes aimed at providing pastoral care for students in state schools. The Commonwealth relied exclusively on its executive power to do so, and the HCA considered the policy, quite rightly, as unconstitutional. This chapter argues that utilitarianism might not support the use of fiscal revenues to promote proselytism in an educational establishment, but that is not to say that a pastoral service provided by a company that has a religious affiliation is incompatible with a modern liberal and capitalist society. It reviews the line of authority that underpins Williams n.2 and show that the decision is affected by a manifest error. It will be argued that, if the criteria extracted from the previous qualifications of Section 51 were correctly applied to Williams n.2, the decision should not have favored Mr. Williams.