Ron Williams' High Court challenge — It’s not just about chaplaincy

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As Ron Williams heads back to the High Court today in his second challenge the Federal Government's school chaplaincy programme, Chrys Stevenson says it is more than about chaplains, but rather it concerns the integrity of our system of representative democracy and public accountability with regards to public spending.

IN APRIL 2011, Toowoomba father-of-six, Ron Williams, challenged the Federal Government’s constitutional right to fund the National School Chaplaincy Program (NSCP).

Williams won the case based on his key contention that funding for the program should not have been made without the support of a Bill and the specific assent of both houses of Parliament. Instead, in a method requiring far less parliamentary scrutiny, payments to parachurch chaplaincy providers (approaching $500 million dollars) were approved by successive governments as inclusions to the Education portfolio’s budget statements.

The June 2012 ruling threw into doubt the legality of hundreds of other, similarly funded, Federal programs.

Scrambling to ‘legalise’ a raft of payments falling due to chaplaincy providers at the end of the financial year, the Federal Government rushed through emergency legislation designed to circumvent the High Court’s decision in Williams vs the Commonwealth and Others.

Even as the legislation was passed, policy and Constitutional experts were highly sceptical that the Financial Framework Legislation Amendment Act No. 3 (2012) would stand up to a High Court Challenge. Williams, who already had standing on the matter, seemed the most appropriate person to put the new legislation to a Constitutional test. A writ was filed earlier this year and, this week, from 6-8 May, Williams will challenge the government’s ‘work around’ solution in the High Court.

Williams’ new case brings into question the legality of an Act designed to dodge, not only the High Court, but one of the most basic principles of representative democracy — financial accountability.

Ironically, Attorney-General George Brandis, whose Government is now the defendant in the case, was scathing in his assessment of the Bill when it was read in Parliament last year. Drawing on the words of Anne Twomey, whom he described as "a constitutional scholar of far greater eminence than my poor powers of constitutional scholarship”, Brandis endorsed the Professor’s view on the issue by reading it into Hansard:

“What is most extraordinary above all is the fact that the Commonwealth Government seems so determined not to listen to the High Court … In response to the Williams case it simply enacts a law that attempts to restore what it wrongly believed to be its former powers, without actually listening to or taking to heart the High Court’s concerns about a democratic deficit, the important role of parliamentary scrutiny and the importance of federal considerations. This Bill, in a bald-faced manner, rejects the fundamental propositions put by the High Court in the Williams case. The Commonwealth is clearly asking for another clobbering by the Court.”

In the meantime, on the strength of this new, untested, legislation, the Government has continued to disburse monies in contravention of the Williams ruling.

Yet, even if the court finds that the government’s rather inelegant legislative ‘remedy’ is valid, Williams contends that the Constitution provides no head of power which might permit Federal funding of the National School Chaplaincy Program; even if the new legislation (now Section 32B of the Financial Management and Accountability Act 1997) stands, disbursements to the NSCP would still be invalid according to the parameters imposed upon Commonwealth spending by Sections 51, 52 and 122 of the Constitution.

Williams’ key intent in challenging Federal funding for the National School Chaplaincy Program is to shine a spotlight on an ill-conceived, unresearched, poorly monitored, massively expensive pork-barrel program which has no defined outcomes.

This is a program conceived, not for the benefit of children, but to secure the votes of the Christian right. It is a program which places religious chaplains into Australia’s supposedly ‘secular’ public school system at enormous expense to taxpayers and against the advice of education and mental health experts.

Despite the late edition of ‘secular’ welfare workers to the scheme, its heavy reliance on major organisations like Access Ministries and Scripture Union to supply chaplains to schools, imbues the program with a distinct bias towards the placement of evangelical Protestant fundamentalists.  

If the program was, truly, for the ‘benefit of students’, one might assume it would have widespread support amongst parents, educators and mental health experts.

The reverse is true.

The program has been roundly criticised by teachers’ unions, mental health professionals, and by ACSSO, the peak body representing the country’s many parent and citizen groups. In fact, Williams’ legal costs have been substantially financed by public contributions from outraged parents and grandparents who continue to send him messages of support.

In a video produced to provide a background briefing on his second High Court Challenge, Williams says the program (and subsequent efforts to shore it up) is:

… possibly the most outrageous political stunt ever foisted upon the taxpayers of Australia.”

Increasingly, the NSCP seems to be a white-elephant whose only supporters are the fundamentalist Christians and the politicians who believe, against all evidence, that pandering to this far-right phalanx of morality police will secure the votes of some mythical ‘Christian constituency’.

Win or lose, Williams does not have the power to expel chaplains from public schools. They were there before the National School Chaplaincy Program and will, undoubtedly, persist beyond it — although almost certainly in lesser numbers than the current political beneficence allows.

But the Williams case has evolved into much more than just a dispute over school chaplains. Williams v the Commonwealth and Others raises important issues about representative democracy and financial accountability, the division of responsibilities between the Federal government and the states, respect for the Constitution and the High Court and the need for close parliamentary scrutiny in regards to government spending.

Williams’ original case highlighted the ‘back door’ method by which, shockingly, up to 10 per cent of total Commonwealth expenditure is approved.

Circumventing the need for a detailed Bill and avoiding the clause-by-clause scrutiny by the House of Representatives and Senate that process involves, the parliament has been rubber-stamping expenditure for programs slipped into the line items of Portfolio Budget Statements. Expenditure set out in these statements is approved or rejected in toto, providing no opportunity for parliamentary debate, amendment or rejection of specific expenses within the budgets. It’s proven a nifty means of fast-tracking funding for sometimes worthy but often questionable, pork-barrel schemes that may not bear up to forensic examination by expert committees.

The decision in Williams’ first case clarified that while such appropriations can ‘earmark’ funds for expenditure, they do not negate the need for statutory authority (through the passage of a Bill) to authorise the disbursement of funds for a particular purpose. Further, (generally speaking) that ‘purpose’ must fall under the heads of power granted to the Commonwealth in Sections 51, 55 or 122 of the Australian Constitution.

In Williams (1), the National School Chaplaincy Program was not considered to meet that requirement. This week, Williams will ask the High Court to reiterate that decision.

Over the next few days, much fuss will be made about the many worthy programs Williams has put ‘at risk’ — although it seems Williams may have been eclipsed as the villain-du-jour by Abbott’s cost-slashing Audit Commission.

It is worth noting these programs are no more ‘at risk’ today than they were before Williams first set foot in the High Court. It was always open for someone to challenge the funding for any one of these executive schemes — Williams just happened to choose the National School Chaplaincy Program.

Further, as the government made very clear at the time, the Williams decision only directly affected funding for the NSCP.

The Financial Framework Legislation Amendment Act No. 3 (2012) was enacted to allow the disbursement of $16.4 million outstanding to parachurch chaplaincy providers and as a preventative measure, lest some would-be-Williams decided to test the validity of other pork-barrel programs in the High Court.

As Constitutional expert, Anne Twomey says, following Williams, a jittery government asked public servants to 'bring out their dead' and provide lists of any programs not supported by legislation.

While there has been much wailing and gnashing of teeth over the now, allegedly, precarious future of so many wonderful programs, less attention has been paid to other provisions of Section 32B. These allow the executive, without legislation or parliamentary scrutiny and with no more than the flourish of a bureaucrat’s pen, to approve payment of a range of unspecified financial entitlements to the prime minister, former prime ministers and assorted others. These provisions are best described, says Professor Twomey, as ‘political slush funds’.

Professor Twomey continued:

“One can see why there may be reluctance to have parliamentary scrutiny of that!”

As critics tut-tut about the programs like Roads for Recovery and Helping Autistic Children, Williams has so cavalierly placed in jeopardy (he hasn’t) they will studiously ignore the many unworthy, wasteful programs on the laundry list of 413 currently protected by Section 32B. Further, it’s unlikely they will stop to reflect that, perhaps, even the worthy programs – perhaps even the NSCP – might have provided better value for money had they been subject to the rigorous vetting required to get a Bill approved by both houses of Parliament.

During the course of the Williams hearing this week, commentators may ask whether it is redundant — a waste of time.

On Thursday, 1 May, the Government’s Commission of Audit Select Committee recommended a number of cost-saving budget cuts. Among these is the abolition of the National School Chaplaincy Program.

With or without a decision in Williams (2), it seems the program’s days may be numbered.

The Government is yet to announce whether it will take the Audit Committee’s advice on this matter. But, even if the program is terminated prior to a decision in Williams (2), the importance of Williams’ case now extends far beyond this single issue. The fact that the Abbott government may axe a pork-barrel program initiated by the ALP does not diminish the LNP’s vested interest in delivering on some pork-barrel promises of its own.

In November last year, Anne Twomey told the Samuel Griffith Society that millions of dollars in pork-barrel pledges made prior to the September 2013 election, but after the Williams decision, may have been promised illegally. 

As Christian Kerr reported, Twomey warned that:

“… funding pledged for surf clubs, aquatic centres and sportsgrounds, mostly in marginal electorates, was promised without parliamentary approval, fell outside commonwealth heads of power and was vulnerable to a High Court challenge that is already under way.”

In the commentary on this week’s hearing, it may also be noted that Williams (2) focuses on an Act (now Section 32B of the FMA) which will shortly be redundant.

On 1 July, the Public Governance, Performance and Accountability Act will come into force as the new framework for government spending, replacing the (amended) Financial Management and Accountability Act 1997 (FMA) and the Commonwealth Authorities and Companies Act 1997.

This new act, passed under the Gillard Government, contains no equivalent clause to Section 32B. But, does that mean the powers purportedly endowed by S32B expire on 1 July?

Perhaps not.

Twomey explains that the Public Governance, Performance and Accountability Act is couched in vague terms, leaving it to the Finance Minister to make ‘rules’ about how it is applied.

Says Toomey:

“While the current Bill does not replace s 32B, what it does say about expenditure is still interesting.”

Toomey raises two key concerns about the constitutional validity of the new act:

First, Clause 52 of the new legislation suggests the Commonwealth intends to authorise expenditure through ‘rules’ rather than direct parliamentary authorisation. This is exactly the kind of behaviour the High Court warned against in Williams (1). 

Second, a note appended to clause 52 implies that, in some cases, expenditure might be made even without the benefit of an appropriation.

Whether the anti-democratic implications of the new Act will be discussed in Williams (2) remains to be seen, but it seems likely that a ruling in Williams’ favour will raise questions about the constitutional validity of the new Act.

Williams vs The Commonwealth and Others is not just about school chaplaincy. It is about preserving the integrity of our system of representative democracy and public accountability in regards to government spending. Instead of heeding the High Court’s decision in Williams (1), the Gillard government, with the support of the LNP and the Greens, cynically chose to ‘remedy’ the situation by making government spending even less democratic, transparent and accountable.

Responding to the passage of the Financial Framework Legislation Amendment Act No. 3 last year, Simon Breheny, (research fellow with the rule of law project at the Institute of Public Affairs) labelled the legislation undemocratic, radical, unnecessary, excessive and unprecedented.

The principle that decisions about the expenditure of public money should be made by the parliament is, Breheny reminds us, a 'basic tenet of parliamentary democracy'.  And yet, this bedrock principle of democracy, over which the English Civil War and the French Revolution were fought, was cavalierly turned on its head by the Australian government in 2013 and Australians barely raised an eyebrow.

Whether or not one supports the presence of (predominantly Christian) chaplains in our public schools, surely all Australians should support the principle of transparency and accountability when it comes to the expenditure of millions – or billions – of taxpayers’ dollars.

It is passing strange that the very people who insist that chaplains are necessary to instil ‘values’ into our children seem happy to avert their eyes when a government acting illegally happens to serve their own interests.

What kind of ‘Christian value’ is this?

Under the Abbott Government, it seems likely that school chaplaincy – at least as a Federally funded and administered scheme – is in its death throes. But its demise will not be Williams’ legacy.

Williams’ legacy, if he succeeds in his second challenge, will be in preserving the integrity of the Constitution and the principles of representative democracy. Who, amongst the apologists for the National School Chaplaincy Program, is opposed to that?

Ron Williams is depending on public subscriptions to help him meet his legal costs and that donations can be made at his website You can follow Chrys Stevenson on Twitter @Chrys_Stevenson or read more by her on her blog Gladly, the Cross-Eyed Bear.

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