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
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
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: