At the High Court
I’m in Canberra with Ron Williams and Hugh Wilson (National Director of the Australian Secular Lobby) for Ron’s second High Court Challenge against the National School Chaplaincy Program.
See my background article on the case here, on Independent Australia.
After a late night blogging about a particularly poor report on the case on ABC’s Lateline program, I surprised how happily I sprang out of bed at 7am yesterday morning. Adrenaline is a wonderful thing.
I wasn’t early enough to beat the indomitable Ron Williams though – he was already up, still in his pyjamas and tapping away on his computer by the time I emerged.
Coincidentally, all three of us are on a health kick, so we decided to walk to the court, a half-hour stroll along Lake Burley Griffin and over the Commonwealth bridge. Canberra in autumn is beautiful – crisp and clear and cold, but not bone chillingly so.
In the forecourt of the High Court building Ron was immediately cornered by media. As he was interviewed by AAP (see article at The Guardian), Peter James, CEO of Scripture Union Queensland, looked on.
University studies support Chaplaincy?
When it was time for James’ interview, we were a bit bemused to hear him insist that two university studies had confirmed that “students, teachers and psychologists all valued the program”. Hmmmm!
The first, ‘The Effectiveness of Chaplaincy’ by Dr Philip Hughes of Edith Cowan University and Prof. Margaret Sims of the University of New England was the subject of close investigation by Greens MP and academic, John Kaye. The Greens challenged the validity of the report which has never gained currency with anyone but the vested interests it serves.
Dr Kaye (who has a Masters in Engineering Science from the University of Melbourne. and a PhD from the University of California, Berkeley), was scathing in his criticism of the sloppy research method employed in this report.
But further – and this is something Peter James really should mention – the report failed to disclose that Hughes, the lead author, was employed four days a week by the Christian Research Association, a group established and administered by the very same churches that provide many of the chaplains.
The methodological flaws, the failure of the report to justify its own conclusions, and Dr Hughes’ failure to disclose his conflict of interest combine to make this particular ‘university study’ highly questionable as ‘evidence’ for the value of school chaplaincy.
The second study was harder to locate but Peter James, we think, may be referring to a PhD thesis (by definition, NOT a university ‘study’) by David John Pohlman – now a …. wait for it … chaplain with Scripture Union Queensland.
The only other ‘study’ I can find is referred to in SUQ’s ‘special case’ document, submitted to the High Court. It refers to a ‘pilot’ project, a ‘paper-based survey’ conducted during the annual SU Qld chaplains’ conference in August 2013, but I can find no reference to the participation of any university.
By any measure, these are hardly ‘independent’ studies on which any kind of government policy could be, or should be, based.
Of course, as I explained in yesterday’s blog post, the fact (or otherwise) that the chaplaincy program is ‘popular’ has absolutely nothing to do with the Williams case and will have no influence whatsoever in the decision of the High Court. Peter James is a solicitor so he is obviously well aware that what he is feeding the media is irrelevant to the case before the court; it’s all part of the winning the propaganda war.
Pollies dodge a bullet
Bilinsky reminded me that prior to Williams’ first hearing the statute books recorded the expenditure of money from Consolidated Revenue without appropriate approval as a jailable offence for the responsible government ministers. Strangely, after Williams’ first hearing (but before the decision was handed down) , that particular law was quietly removed from the books. Amazing, the power of the parliament, eh? Why did the media never pick up on that nifty little duck and weave?
The case begins
And then, it was into the High Court for the first day of the hearing in the matter of Williams v the Commonwealth and Others. I sat with Ron, Hugh, our friend Dr Nelson Lau (our unofficial photographer), and local supporter, Emeritus Professor Dr Robert Gregson from the Australian National University. Before us sat nearly 40 solicitors and barristers – representatives of the plaintiff (Williams), the defendants (the Commonwealth of Australia, the Minister for Education and Scripture Union Queensland) and the six intervening states (Queensland, NSW, Victoria, South Australia, Tasmania and Western Australia).
I nudged Ron.
“This is all your fault!” I said.
“I know!” he smiled, “You couldn’t write a script as bizarre as this! Perhaps I should just stand up and plead guilty now.”
Ron’s barrister, Bret Walker SC was the first to address the bench. Only six (rather than the usual seven) justices are hearing this case; Justice Gageler having recused himself because he was involved as solicitor-general for the Commonwealth in Williams’ first case.
The problem with Section 32b
Walker (unlike the media and SUQ) zoned in on the crux of the Williams (2) with pinpoint accuracy.
The proceedings, he said, are to test the validity of a ‘repair act’, now Section 32b of the The Financial Management and Accountability Act 1997. This section was introduced in the wake of and as a response to the decision in Williams’ first case. The premise of S 32b, said Walker, is based upon a perceived lack of power; the power to expend money without supporting legislation. It’s purpose is to provide Parliament’s assent to delegate legislative authority to the Executive. Its affect is to authorise expenditure ‘in blank’; effectively providing the government with a blank cheque to spend on anything it likes without the authorisation of the Parliament.
In a complaint that would be echoed throughout the day by the various states’ representatives, Walker pointed to the exceptionally vague and general terms in which S 32b is framed. Questions are raised by this legislation, said Walker, but no answers supplied; where specification is needed, there is silence.
32b provides no fine detail about the grants or programs authorised under its umbrella. All that is included is the name of the program and a short comment on its ‘purpose’.
Later in the day, the vagueness of the programs funded was pointed out by one of the solicitor’s general:
The “Tasmanian Forest Industry Adjustment”, the “Australian Animal Welfare Strategy” – the titles provide no specificity about the programs at all. There is no detail by which the appropriateness of the expenditure can be judged, and yet, S32b authorises expenditure based on no more detail than is provided by a vague title and a general statement of ‘purpose’.
The terminology used in the amendment, Williams’ barrister suggested, is so imprecise as to be meaningless. Its breadth is ‘legislatively uncontrolled’. Indeed, S32b is a remarkable proposition in its generality. Read literally, it says that if the Commonwealth doesn’t have the power to act …. the Commonwealth has the power (by virtue of this legislation).
For Walker, it seems inconceivable that a statute providing the Commonwealth with almost unlimited power to spend money without the proper scrutiny and assent of the House of Representatives and the Senate could be considered ‘valid’. It is beyond legislative competence to enact a law providing the legal power to spend ‘in blank’.
The legislation, he explained, delegates almost unlimited power to the government to spend money, without the approval of parliament, on almost anything.
The programs listed in the schedule, are ‘utterly unlimited in their scope of subject matter’.
It is, said Walker, an act of supererogation on the part of the Commonwealth Parliament – a statute that goes far too far. Section 32b, he said, travels too far beyond the law-making function. In Walker’s opinion, S 32b does not meet the threshhold of a law at all as (in practical, legal terms) it cannot do what it purports to do – i.e. provide the government with unlimited power to spend.
So vague, so general is this ‘punitively, excessively broad statement’ said Walker, it simply cannot be valid.
The solicitor-general for WA agreed, noting that the greater the extent of power authorised by an Act, the less likely it is to be a valid delegation; and S32b grants almost unlimited power to the executive to spend money without the authorisation of the Parliament!
The only way 32b might become valid is for it to be ‘read down’; that is, interpreted by the court in some narrow sense that would limit its power. But, said Walker, despite using language which ‘cannot on its face be taken literally’, neither can it be read down for “Where does one read it down to?”
The argument seemed to be that the only way this legislation can work is for it to be read literally, but reading it literally makes it antithetical to the ruling in Williams’ first case.
It is, said Walker, an ‘extraordinary pseudo-law’ which ‘fails in its entirety.
Recognising the obstacle posed by the High Court’s ruling in Williams (1), the Commonwealth has argued that it should be ‘revisited’. There were issues in that case, the Commonwealth complains, that were not properly interrogated by the justices. It’s an argument that didn’t seem to fly with the Justices and the feeling in the court was that it’s highly likely the decisions made in Williams (1) will stand.
Walker was scathing in his response to the Commonwealth’s implied criticism of the decision in Williams (1). It must be the proposition, he said, that the case was decided wrongly because the reasons advanced by the justices were wrong. It constitutes, he said, a thorough-going criticism of the court which is without foundation. It is not ‘ordinary’ he said to ask for a case heard in the High Court to be re-opened. There is no reason to say that what stands in law should be reversed. To say otherwise threatens the integrity of the court and the stability of its decisions.
As the day moved on, each of the states’ solicitors-general, with the exception of Queensland, agreed (broadly) with Walker’s views on S 32b.
Five of the six states agreed that the legislation could not be ‘read down’.
The solicitor-general for Victoria noted that the Commonwealth seemed to imply that S32b would be ‘read down’ by means of ‘regulations’ imposed upon it. But, he said, there is no head of power, no ‘foothold’ to limit what the executive is capable of doing under S 32b and no criterion by which it can be read down.
Queensland, however, argued that the legislation may be valid, even though funding for discrete programs specified within its schedule (the laundry list of ‘allowable’ programs) may not be.
NSW complained that S 32b was ineffective in meeting Constitutional requirements, not to mention the requirements confirmed in the Williams (1) ruling. The solicitor-general for NSW also noted that 32b authorises a minister to delegate his or her authority to sign off on expenditure to a public servant ‘well below’ the status of a person responsible to the government. It allows millions – even billions – of taxpayers’ money to be spent, without parliamentary authority, at the stroke of a bureaucrat’s pen.
In the opinion of NSW, S32b ‘fails as a law in respect to any identifiable head of power’.
NSW insisted that, in line with the court’s decision in Williams (1), parliamentary scrutiny is required for expenditure and the Parliament cannot abrogate that responsibility.
In Williams (1) it was made clear that an ‘appropriation’ – the Parliament’s assent to a request to ‘set aside’ funds for a specific purpose – does not (as previously supposed) provide sufficient authority to actually spend money. For that to occur, legislation must be enacted after parliamentary scrutiny of a Bill pertaining to the specific program or grant on which money is proposed to be spent. S 32b completely circumvents both the need for legislation and for detailed parliamentary scrutiny of the subjects of expenditure. S 32b provides blanket approval based on no more than a title and a brief, vague, generalised descriptor of its ‘purpose’.
Further, the government has supposed that, with the benefit of S 32b, it no longer needs a ‘head of power’ to expend money. If the Constitution does not provide it with the authority to spend money for a particular purpose, 32 b does. In this sense, 32 b acts outside of the Constitution in a way that cannot possibly be validated by the High Court whose role is to protect the authority of that document.
It was also pointed out by the solicitor-general for Tasmania that, if S 32b is valid, then it leaves no purpose for S96 of the Constitution which enables the Commonwealth to make grants to States. There is no need to make a grant to a State if the Commonwealth is authorised to spend the money itself. The separation of powers inherent in a Federation are completely undermined and, again, S32b seems to undermine the Constitution.
The submission of the Commonwealth, said the solicitor-general for Tasmania, seeks to diminish the concept of Federation endorsed by the founders of our Federation.
Power to spend
Yet, at least in respect to the National School Chaplaincy Program, the Commonwealth insists that it does have Constitutional authority with reference to sections 51(xx) and section 51(xxiiiA) of the Constitution with respect to trading corporations and the provision of benefits to students; this, despite the High Court having ruled otherwise in Williams (1).
The question raised by Walker is, that if the Commonwealth already has legislative power to spend, what is the purpose of S32b? And if it does not have the power to spend and S32b provides it, then 32b’s purpose must be to override the Constitution.
Walker insisted that the National School Chaplaincy Program does not meet the criteria of providing ‘benefits to students’ as intended in the Constitution. For example, he pointed out, to be eligible under this head of power, the ‘benefit’ has to be endowed on a voluntary basis. While the guidelines for the NSCP did, once, stipulate that students’ engagement with the program was ‘voluntary’, that word has since ‘disappeared’ from the amended description.
Further, to be considered ‘a benefit to students’, the ‘benefit’ has to be uniquely applicable and relevant specifically to someone’s ‘character as a student’ – e.g. the provision of a lap top computer. In the case of school chaplaincy, the guidelines themselves stipulate that the ‘benefit’ serves the ‘school community’, not students exclusively, and the ‘benefit’ supplied is not anything material or tangible – e.g. money or a piece of equipment. The purported benefit, said Walker, is ‘obscure’.
The Commonwealth also claims Constitutional authority under the provision which allows it to make contracts with ‘trading corporations’. Scripture Union Queensland, the recipient of millions of dollars of taxpayers’ money, is not, however, a ‘trading corporation’. The requirements to meet the definition of a ‘trading corporation’, said Walker are ‘completely absent’. It is, he said a ‘hopeless proposition’ that spending for the NSCP is authorised in this way. Indeed, one of the solicitors-general ventured that even if SUQ was deemed to be a trading corporation, this would not be sufficient to validate the expenditure on the NSCP.
At the end of the first day’s hearing, we were delighted to see Ron’s barrister emerge from the court with a beaming smile on his face. Ron had been asked, earlier, in an interview if he thought he would win. He replied, cautiously, that one could never tell with these things but that he was ‘optimistic’.
Optimism was certainly the mood following the first day of Wiliams (2).
Section 32b appeared to have been left in tatters on the courtroom floor and there seemed to be no support for the contention that the ruling in Williams 1 (that expenditure requires approval through the passage of a Bill) should be overturned.
Today, we shall hear arguments from the Commonwealth …