It’s on! Williams to return to the High Court on Chaplaincy Issue

Ron Williams at the High Court of Australia

Ron Williams and his solicitor, Claude Bilinsky, announced today that Williams will challenge the legislation recently enacted to ‘work around’ the High Court’s decision in Williams vs the Commonwealth and Others, otherwise known as the ‘chaplaincy challenge’.

I don’t think most people realise the seriousness of the action taken by our parliamentary representatives in their haste to throw yet more tax payers’ money at the likes of Scripture Union and Access Ministries.

This issue has now become much bigger than school chaplaincy. The government has enacted legislation which undermines the very basis of parliamentary democracy and public accountability.

Anne Twomey, professor of constitutional law at the University of Sydney says the parliament has committed an act of hara-kiri in passing the highly controversial Financial Framework Legislation Amendment Bill (No.3) 2012.

The bill, Twomey explains, was rushed through  in just over three hours and:

“gave full authority to the executive to spend money on whatever it wished without the need for further legislation or parliamentary scrutiny.

It was an abject surrender of its powers of financial scrutiny to the Executive, and all in an effort to save a few school chaplains.”

Also lumped in with the ‘work around’ legislation was this curious provision:

“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 might be to provide political slush funds without the need for parliamentary scrutiny or approval.

According to Twomey:

“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.” [emphasis added]

Law expert, Andrew Lynch, director of the Gilbert + Tobin Centre of Public Law described the government’s action as ‘dubious’.

Like Twomey, Lynch explains that:

“The Government’s rescue bill was … an attempt to preserve the autonomy of the executive by giving it carte-blanche to spend money without the need for further legislation or parliamentary scrutiny …”

The Williams case, said Lynch, was “the most significant denial of Commonwealth power in the history of the court – It has all the potential of a game changer.”

In an article in The Australian, Lynch explains that the government’s ‘work around’ bill encompasses far more than just chaplaincy. In fact, it relates to around 10 per cent of total government expenditure – without legislation!

Lynch notes that, “grave concerns have been expressed about the bill’s validity and effectiveness.”

Even George Brandis, the shadow attorney-general “seized on the deficiencies of the bill’s ‘umbrella form of statutory validation’ and expressed ‘grave concerns’ about the constitutionality of the rescue bill.” But still, the Opposition voted it in!

Meanwhile, Simon Breheny, research fellow with the rule of law project at the Institute of Public Affairs, puts the bill in its historical context.

“It is a basic tenet of parliamentary democracy that the decision to spend public money is made by the parliament.

The English Civil War and the French Revolution were sparked by this fundamental principle: when the executive wants money, it needs the consent of representatives of the governed.

But an obscure bill passed by the Federal Parliament turns this principle on its head.”

Read that again because THIS is what this is all about – the undermining of the very basis of parliamentary democracy and public accountability in this country. That’s a principle that has sparked bloody revolutions – it’s certainly a principle that’s worth fighting for!

According to Breheny:

“The government’s hasty solution is a piece of legislation that completely usurps Parliament’s power to approve public spending. It is radical, unnecessary, excessive and unprecedented.”

He goes on to explain:

The act as a whole may be constitutionally invalid. The High Court has a history of striking down legislation designed by governments to brazenly circumvent its decisions. This is clearly such a case.

But more importantly, the transfer of power from the Parliament to the executive under this act is immensely anti-democratic. It means we will not have a parliamentary debate on the school chaplains program, or any of the other 414 programs listed.

The new mechanism allows for spending relating to any regulations that fall under those programs. But regulations are not subject to parliamentary debate, so government now has the power to fund almost limitless activities of federal regulators without any parliamentary scrutiny.” [emphasis added]

Mounting a High Court Challenge is not cheap.  The meter has already started clicking over as Williams has sought opinions from his solicitor and his barrister. As we saw during the High Court Challenge against federal funding for the National School Chaplaincy Program, Williams has assembled a ‘crack’ legal team that is eminently capable of winning a High Court challenge. But that costs serious money – $300,000 of serious money.

Williams was awarded costs for his first successful challenge against the government, but he will still need to raise a substantial sum to take this matter to the High Court – or again, face financial ruin.  I believe it is up to every Australian who can possibly afford it to make a contribution, however small, to help stop the erosion of democracy in this country by our own parliament!  We, the people, need to say, “No! We demand public accountability. We demand that you respect the decisions of the High Court. We demand that you act like responsible politicians, not petulant children!”

I have already donated $200 towards this next High Court Challenge.  I hope that my readers will consider making a donation as well.  It’s your opportunity to be a part of Australian constitutional history. How much is that worth?

Donations to a solicitor’s trust can be made at the High Court Challenge website:  http://www.highcourtchallenge.com

Chrys Stevenson

On 7 July 2012, Ron Williams announced his intention to re-commence High Court proceedings against the Commonwealth of Australia: The Age, Jane Lee, 7 July 2012

Related articles:

SMH 5 July 2012 Simon Breheny:
Democracy sidelined in panic over chaplains

The Australian 3 July 2012 Andrew Lynch:
School chaplains decision opens can of worms for federal funding

Lawyers Weekly 28 June 2012 Leanne Mezrani:
Academic says chaplaincy rescue bill is flawed

The Conversation 27 June 2012 Anne Twomey:
Bringing down the House? Keeping school chaplains means a surrender to the Executive

Leslie Cannold’s blog 6 July 2012 Max Wallace:

Wrap – the High Court Challenge to federally funded chaplains in Australian Schools

Ron Williams and his ‘support team’ during the High Court Challenge, Canberra, August 2011. (Chrys in blue scarf).

22 thoughts on “It’s on! Williams to return to the High Court on Chaplaincy Issue

  1. Ken Dally says:

    Virtually all parties in Australian politics stand guilty in this latest development, Coalition, Labor & Greens. Don’t now how independents voted. The affront to our system of Government and the people they are supposed to represent is enormous in its breadth and scale.
    You can assure Ron their is more financial support from myself and others coming. Just wish I had the finances of Gina Rinehart.

  2. dandare2050 says:

    All the government should have done is say “ok here is a NSCP chaplaincy bill” and see where that got them. Instead they have tried to legislate to breach the constitution and allow the executive to spend without limit, without debate and without parliamentary consent.

    The Greens lack of outright opposition, and their failure to tackle the NSCP in the first place, has left me reconsidering my membership.

  3. […] And now that you’ve watched that – a call out to further help Ron Williams with his return to challenge the High Court decision on fede…. […]

  4. Jayel says:

    Regardless of the outcome of this next challenge, we are indebted to Ron Williams et al and their persistence in taking on the Commonwealth of Australia on this important matter of principle. Even the effect of just raising awareness of the problems with the chaplaincy program cannot be underestimated. I will be chipping in again and have forwarded on relevant links in the hopes that other concerned people around me will do the same.

    Thanks to you too, Chrys, for keeping us in the loop. Roll on round 2!!

  5. Reblogged this on mophosophical and commented:
    Ron Williams needs $300,000 to cover the cost of the challenge. That would be $75 for each of the 4000 atheists who attended the Global Atheist Convention. So that’s how much I donated. If you dug deep and paid out for the GAC, you should dig just as deep for this! It’s important.

  6. Here are my thoughts on why I think the second case may well succeed (although why it may not be a blanket yes or no answer) http://bit.ly/M6IOF5

  7. Douglas Everingham says:

    Rather than just “Say No to Chaplains” let’s implement Australia’s plledge to UNESCO, Australia’s constitution and possible majorities of most religious and non-religious Australians,e.g.: –
    School, armed services or other counselors including chaplains shall be publicly funded or given educational authority only when professionally trained and supervized as ethical, caring monitors and humane role models for their students and trainees.
    They shall be pledged to tolerate and respect family and cultural principles, and to give everyone concerned enough opportunity to learn the main principles of major religious and non-religious belief systems.
    They shall declare their opposition to intolerant teachings in their community including any social groups to which they belong or show allegiance.

    • It’s a nice ideal, Doug, but the current regime of chaplains is not just Christian but evangelical. The sector has been taken over by fundamentalists on a mission to evangelise ‘unchurched’ children. As for ‘professionally trained’ that’s subjective. The new guidelines require a Certificate IV in Youth Work, but there is no research to establish whether that is sufficient for the work chaplains do in identifying and dealing with ‘at risk’ kids. Of course, chaplains employed prior to the introduction of minimum qualifications are not required to meet that standard and exemptions to the ‘minimum qualification’ requirement are available in all areas of Australia except the major capital cities.

      I have less problem with military chaplains as they deal with adults who are able to give consent. This is not the case with kids.

      The other problem with chaplaincy is, how is it monitored to ensure that chaplains are respecting ‘family and cultural principles’? There is none.

      The NSCP was instituted as a pork-barreling program from the outset. It was designed to buy votes, not help kids. It is based on no research. Its guidelines have been widely criticised as inadequate – not least by the Commonwealth ombudsman and a High Court justice.

      The whole thing is so badly organised, so fatally infiltrated by religious zealots that I’m afraid the only responsible thing to do is, in fact, to ‘say No to chaplains’.

      • Eva Brych says:

        Yes, I think by Doug’s definition the title “chaplain” would no longer apply. It would be a different role, one we could perhaps approve of. Remember John Howard emphasising the word “chaplain” because “everyone knows what is meant by it”, or words to that effect? He knew what would happen. I hope the government rushed this bill thru as a political ploy, knowing that it may well also be challenged and they may lose. The responsibility for the end of chaplaincy in public schools would then not be theirs, would it?

  8. rogerb says:

    It seems the political parties that currently ‘represtent’ us are failing us. If the response to judicial review is to legislate around the constitution, it is high time we vote around these parties and remove their ability to pervert the constitution. Ie, although I support Ron Williams & his challenges, I wonder if the funds would be better spent putting a Secular Party candidate in every lower & upper house seat at the next Federal election?

    • Eva Brych says:

      hear hear

    • dandare2050 says:

      You would need ten times the cost of the trial (if Ron loses, winning includes getting costs awarded) to effectively promote the secular party well enough to get two or three candidates in.

      Ron’s challenge, if won, changes the legal position and puts the dickheads back a few steps.

      • Eva Brych says:

        That’s realistic. Last federal election the Secular Party fielded 30+ candidates and achieved something like 200-400 votes per seat – long way to go. We hope that next time the numbers will increase, maybe reflecting somewhat the pleasing changes we have seen in the Census.

  9. Vance says:

    Compare the resulting bill, with what Nicola Roxon said before it was introduced :

    “I do need to emphasise that because we have been doing contingency planning in this area that we intend to take a conservative approach. We believe that a number of these programs do not necessarily need legislation, but we are going to be cautious in doing that.”

    http://ministers.deewr.gov.au/garrett/transcript-press-conference-williams-high-court-case-legislation

  10. Eva Brych says:

    A thought: I wonder what Access Ministries or Scripture Union-associated chaplains do when teenagers come to them to discuss sexual identity concerns.

    • Jayel says:

      Hi Eva. The following is taken directly from the SU Qld Chaplains’ Code of Conduct dated Feb 2008. Although over 4 years old now, it will give you some idea how chaplains have been directed to respond in relation to homosexuality and the general view of those linked to SU.

      “Scenario 2: Respect for Others – Inappropriate Conduct
      During an RE lesson, a Chaplain is asked a question about God’s view of homosexuals. The Chaplain responds that he believes that “God hate homosexuality” and that “homosexuals are being punished for their sinful lifestyle via the AIDS epidemic”. this is vilification and the Chaplain should avoid these comments in all circumstances. A more appropriate comment would be, “Christian have a range of views on homosexuality. I believe God loves all people, including those living homosexual lifestyles. I don’t believe this is God’s intended way for us to get the most out of life and our relationships. I also don’t believe that God views homosexuality as more or less sinful than any other behaviour that falls short of God’s best for us.”

      There’s so much wrong with this it is hard to know where to start…

      As an aside, it even has a section titled, ‘Evangelistic Appeals – Appropriate Conduct’, which basically tells chaplains how to get an outside Christian group (rock band, etc.) to come and perform at a school, talk about their own personal beliefs to the kids during the performance and “…explain that he believes there is a need to respond to the message he’s presented. He encourages students to speak with the Chaplain if they wish to do so, or if they have any further questions.”

      What? Proselytize? Us? Neveeeeeeer…

      • Eva Brych says:

        Thank you Jayel. A worrying implication of this is that 4 years ago at least, every head who allowed a Scripture Union chaplain in didn’t read the guidelines, or agreed with them.

      • dandare2050 says:

        Of course, since there is no oversight of chaplain behaviour there is no way of knowing if those guidlines are just for public display and internally its “Scare the fuck out of te gays and get them to convert”.

  11. Teo Xuan Lang says:

    I would support this, as I believe very deeply that the executive should be accountable to the parliament on all matters of spending. However, I am somewhat disturbed by the vehment anti-Christian sentiment displayed by some of the supporters on this page.

    I personally have no issue with the school Chaplaincy program – if a school community votes for it (ie majority decision) then let them have it, be it Christian, Muslim, Jewish, Aethist or any other faith (yes, Atheism is a faith – a belief about the fundamental nature of the universe like all the rest).

    What I do have an issue with is people trying to re-define that was meant by ‘secular’ and what freedom of religion to mean an absence of religion. Secular had a precise meaning at the time our constitution was written – it meant neutral in the Catholic v the rest debate. Freedom of religion was freedom of, not from.

    Hence my reluctance to support a cause that is attempting remove religion from public life. It has its place, and that includes in public schools if the school so chooses. If you don’t want any exposure to religion, set up an atheist school or homeschool.

    I’ll think about donating, but in the interim i’m not sure I agree with the motives, even if the legal ideal being pursued is good.

    • First, you don’t have to disagree with chaplaincy to support this second high court challenge. It’s about accountability.

      Second, the ‘whole school community’ doesn’t vote to have a chaplain. A religious chaplain can be installed in a school with as few votes at the executive of the P&C plus one ordinary member. We know that evangelical churches are urging their members to ‘stack’ P&C’s and we have heard from more than one parent who has tried to argue either against chaplaincy or for a secular welfare worker and has found the P&C is full of evangelical Christians who won’t have a bar of it. There is absolutely no sense of chaplaincy being voted in by the majority of parents. That’s simply not what happens.

      Moreover, through my own research, I discovered that chaplains are being put into schools under ‘secular sounding’ names (e.g. welfare support worker) in order to fool parents into thinking they have a secular welfare worker, not a chaplain. When I asked one of the chaplaincy providers whether this was done to appease parents who may not want a religious chaplain in the school, he said, “Absolutely”.

      The most recent census showed that only 61 per cent of Australians identify as Christian, yet well over 90 per cent of chaplains in the school system are Christian. How is that equitable?

  12. […] But, instead of accepting the authority of the High Court, Gillard’s government rushed through bodgy legislation to allow its continued funding and keep the Christian right happy. It was a cynical, dishonest move […]

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