Wednesday, 21 May 2014

School Chaplaincy, the High Court and the Constitution

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The pachyderm in the Parliament: what National School Chaplaincy reveals about government spending

An ardent secularist, Ron Williams is unequivocal about his motive for challenging the Federal government’s right to fund the National School Chaplaincy Program.

“We’re not religious, and I don’t want my kids exposed to religious mumbo-jumbo,” says the Toowoomba father-of-six.

“You can bring Santa to school. You can bring the Tooth Fairy, for all I care”, he told The Australian in 2008. “What you cannot do is tell the children that any of this is true.”

In August 2012 and, again, in May this year, Williams took on the Commonwealth government in the High Court of Australia, arguing that they have no constitutional authority to fund school chaplaincy.

The National School Chaplaincy Program is objectionable on many levels. It is an assault on our secular state school system. It is not like religious instruction. In practical terms, it’s impossible to opt your child out of contact with the chaplain; the chaplain is ubiquitous within the school. The government’s contractual arrangements with large, parachurch chaplaincy providers like Scripture Union, entrenches an institutional bias towards the placement of Christian chaplains from fundamentalist denominations. Worse, chaplaincy places mental health amateurs with a religious agenda into schools as a cheap alternative to university trained guidance counsellors and social workers. All of these issues are of vital concern to Williams and his supporters. But none of them are arguable in court.

Regardless of Williams’ personal feelings about the intrusion of religion into public schools, a successful legal case against chaplaincy cannot be mounted on that basis. The High Court ruling in the Defence of Government Schools case (1981) determined that Section 116 of the Constitution does not provide a separation of church and state. Rightly or wrongly, there is no legal prohibition against the Federal government funding faith-based programs or against the employment of religious evangelists in state schools.

From the beginning, Williams’ legal team advised that his case could not be argued successfully on religious grounds. (The contention that chaplaincy imposes a religious test for an office ‘under the Commonwealth’, was included as a subsidiary argument in Williams’ first case, but with little expectation it would succeed). However, Williams’ barrister, Bret Walker SC, identified an irregularity in the way chaplaincy has been funded under successive governments. The identification of a possible breach of Constitutional law, together with Williams’ status as the parent of children whose school employs a chaplain, provided him with the standing to take his case to the High Court.

At first, the financial aspect seemed like a means to an end. But Williams soon came to understand that the method in which school chaplaincy is funded raises vitally important questions about the health of Australia’s Federation, the balance of power between the Commonwealth and the states, the integrity of our representative system of government, and the accountability and transparency of government spending.

In a revelation comparable to the poem The Blind Men and the Elephant, Williams realised that, while he had grabbed on to something called ‘National School Chaplaincy’ it was only the limb of a much bigger beast. If he wanted to bring down chaplaincy, he was going to have to take on the whole parliamentary pachyderm.

Williams’ financial argument against chaplaincy depends largely upon an earlier ruling in the case of Pape v the Commissioner of Taxation (2009). In Pape, the High Court held that Commonwealth expenditure can only be authorised by legislation (within the parameters imposed by the Constitution) or under the Commonwealth's executive powers.

The High Court ruled that appropriation (setting aside budgetary expenses to be paid from the Commonwealth Revenue Fund) is a prerequisite for government spending, but not sufficient to authorise disbursement. That requires legislation; the passage of a bill which describes and passes into statute, all the details and documentation supporting a particular government initiative.

Following Pape, Williams contends that funding for the National School Chaplaincy Program is invalid because it has never been the subject of a bill. Expenditure on this massively expensive program – nearly three-quarters of a billion dollars either spent or committed since 2006 – has merely been appropriated by successive governments as part of the Federal education budget.

In practical terms, it would be difficult for the Parliament to pass a Chaplaincy bill because, the program does not fit within the limited parameters the Constitution imposes upon Commonwealth spending. In both High Court challenges, Williams has been supported in this contention by the attorneys-general of all six states. There is broad agreement that the Federal government’s determination to pay millions of dollars directly to chaplaincy providers cannot be justified under any Commonwealth ‘head of power’.

Recently, Williams’ barrister noted that the legal arguments surrounding the case of Williams v the Commonwealth and Others have been invoked ‘at the Bar table’ since Federation. Williams is a chapter in a long-running, on-going power struggle between the Commonwealth and the states.

What explains the Commonwealth’s dogged determination to fund the National School Chaplaincy Program directly, when it could, legally, provide grants for the states to administer their own chaplaincy programs?

“In brutal terms,” explains constitutional expert, Professor Anne Twomey:

“it is in the Commonwealth's political interests for the States to be starved of funds so that they are regarded as 'failing', and for the federal system itself to be regarded as failing because of the squabbling, blame-shifting and cost-shifting that results from inadequate funding and blurred responsibilities. This is the excuse for greater centralisation and the accumulation of increased Commonwealth power as well as an opportunity for the Commonwealth to charge in and save the day to win political points.”

In June, 2012, after deliberating for an agonising 10 months, the High Court upheld Williams’ contention that Commonwealth funding for the National School Chaplaincy Program is unconstitutional. Williams won the case in a convincing 6:1 decision and was awarded costs. As expected, the Justices refused to consider the subsidiary claim in respect to Section 116 (the ‘religious’ clause).

It should have been a resounding victory for Williams. But, within days of the decision, the Gillard government introduced ‘emergency legislation’ to circumvent the High Court’s ruling. With $16.4 million outstanding to chaplaincy providers, the Financial Framework Legislation Amendment Act No. 3 (2012) was rushed through Parliament with unseemly haste and received bipartisan support.

In a breathtaking abrogation of their collective duty to uphold the principles of representative democracy, the Parliament effectively ceded to the Executive (the cabinet, led by the Prime Minister) the right to spend as much as it likes on anything it likes without the need for parliamentary scrutiny. It was an unprecedented delegation of authority to pork-barrel.

Constitutional experts roundly criticised the new legislation. Twomey accused the Parliament of “an abject surrender of its powers of financial scrutiny to the Executive”.

The rationalisation for the new financial legislation (enshrined in the Financial Management and Accountability Act 1997 as Section 32B) was that the decision in Williams (1) potentially threatened funding for more than 400 other Commonwealth government programs which had also been detoured past the legislative route. Much was made of important programs like Roads to Recovery and Helping Children with Autism which (allegedly) may lose funding. But, very little was said of the many other programs so vaguely and broadly described it is impossible to tell what they’re for, who they serve, or how much thought has gone into them.

Similarly scant attention was given to provisions within the newly-minted Section 32B for the Executive, without legislation or Parliamentary approval:

“To provide funds to support the provision of entitlements to the current Prime Minister, and to former Prime Ministers once they have left Parliament, the Australian Political Exchange Council and related activities, and political party secretariat training.”

“Another description,” said Anne Twomey, “might be political slush funds.”

Speaking against the amendment in the Senate, the current attorney-general, George Brandis, endorsed Twomey’s view that the legislation was almost certainly unconstitutional and, that if it was ever tested in the High Court, the Commonwealth would receive ‘another clobbering’.

But, Brandis voted for it anyway.

The Greens flapped and squawked – but voted for it anyway.

There is good reason why the High Court and constitutional experts insist that government spending should hinge upon the successful passage of a bill. As Twomey explained earlier this year:

“If the High Court forces governments to legislate these programs, it will make Commonwealth spending more efficient, better targeted and subject to more scrutiny.”

On 6 May, this year, Williams returned to the High Court to contest the validity of the financial legislation instituted by (then) treasurer, Nicola Roxon, as ‘a cure’ for the ruling in Williams v the Commonwealth and Others. Williams’ barrister, argued forcefully that Section 32B of the Financial Management and Accountability Act 1997 fails as legislation because it is virtually unconstrained by limitations and, in itself, connects to no head of Commonwealth legislative power. Essentially, Section 32B is an empty vessel; it relies on the programs listed within its schedule to provide the constitutional authority to spend. But, the High Court has already ruled that the National School Chaplaincy Program has no such authority. Whether or not the High Court considers Section 32B valid, it cannot authorise spending on a program which sits outside the remit of Commonwealth powers.

Commentary from constitutional experts suggests that Williams has a better than average chance at succeeding in his second challenge to the National School Chaplaincy Program. It seems unlikely the Court will venture so far as to rule on the validity of the financial legislation. Rather, it is expected that the Justices will deem it sufficient to restate their findings in Williams first case; that money cannot be disbursed for a program the Commonwealth has no Constitutional authority to fund.

The difficulty for the Commonwealth is this: the intangible offerings of a faith-based program which prohibits counselling and proscribes proselytising cannot be defined as a ‘benefit’ to students as understood in constitutional law (Constitution, Section 51 xxiiia).

Similarly, the Commonwealth’s appeal to the Executive’s ‘corporations power’ (Section 51 xx) gained little traction when it was wheeled out for a second spin around the court-room in Williams (2).

In Williams (2), particularly, the Commonwealth argued that the Appropriations Act confers almost limitless power on the Executive to spend (without the need for legislation) on any matter they deem to fall under the rubric “for the purposes of the Commonwealth”. But, if the Justices accept that argument, it means overruling their own decisions in both Pape and Williams (1).

In short, as Williams’ barrister pointed out, the arguments from the defence dealt with issues which have already been ‘quelled’.

On 9 May 2014, the High Court bench retired to consider its decision in Williams (2). Four days later, Federal treasurer, Joe Hockey delivered an ‘austerity budget’ which cut $80 billion from hospitals and education funding for the states. Yet, within a budget which enjoined already battling Australians to ‘share the load’, an unprecedented $243.8 million was committed to fund school chaplaincy for another four years.

If you are not concerned, as Ron Williams is, about chaplaincy’s threat to our secular public education system – if you are not outraged that children’s welfare and safety has been compromised to suit ideological and political aims – you should understand that the National School Chaplaincy Program is a symbol of the Commonwealth government’s disdain for financial transparency and accountability, the Constitution, the High Court, the Federation instituted by our founders, and the tenets of representative government. When we’re talking about chaplaincy, that’s the elephant in the room.

Chrys Stevenson

Chrys Stevenson is a writer, blogger and social activist from Queensland’s Sunshine Coast. She was a contributor to the Australian Book of Atheism (2010) and her work is widely published online. Chrys blogs at Gladly, the Cross-Eyed Bear

Follow her on twitter @Chrys_Stevenson.

Chrys has a first class honours degree in cultural studies.