After such a positive day in the High Court yesterday, I was a little apprehensive as we walked over the Commonwealth Bridge towards the court this morning. I had a recollection of my university days where I’d hear an argument in favour of a particular proposition and find myself nodding sagely in agreement, only to be presented, later, with an opposing argument which I inevitably found equally convincing.
The arguments presented yesterday by Williams’ counsel and the solicitors-general of the six states were, predominantly, in Williams’ favour. Of course we found them persuasive. But what if the defence was able to deliver some knock-out punch? What if there was some aspect of the case nobody had considered that served our opposition’s purpose? What if they had a better argument than us? Perhaps we would emerge from Day Two with a tad less elation than yesterday.
In a marathon effort that really has to be admired, the solicitor-general for the Commonwealth, Justin Gleeson SC, took the entire day to defend the government’s position – and had still not finished when we adjourned this afternoon!
It would have been a hard slog even if the Justices were nodding enthusiastically in agreement at every word he uttered. Sadly, for Gleeson, that wasn’t the case.
Gleeson began by insisting that the National School Chaplaincy program considered by the court in Williams’ first case was significantly different from that which exists now. Since then, he explained, there had been a public consultation process which had established the ‘need’ for school chaplains in order to support the social and emotional development of students.
It seemed to me that the NSCP really hadn’t changed very much. And, I wondered whether public opinion was really a valid way of assessing the mental health needs of students or the most appropriate way of discerning how those (purported) needs should be met. But, I could see where Gleeson was going with this.
The Commonwealth is arguing that the NSCP is valid (with or without S 32b – the remedy invoked to side-step the decision in Williams 1) because it comes under a Constitutional head of power – Section 51 xxiii A – which says that the Commonwealth can expend money in relation to supplying ‘benefits to students’. If they can prove that, then funding for the NSCP would be valid.
In Williams (1) it was decided that notwithstanding that chaplaincy might confer some kind of intangible spiritual ‘benefit’ it was not a benefit which accorded with ‘benefits’ as understood in the Constitutional sense. Gleeson was trying to establish that the NSCP must be providing a ‘benefit to students’ because it fills an ‘identified need.’
I wondered whether it was advisable to flog a dead horse while simultaneously clutching at straws. It didn’t take long until an answer was supplied from the bench.
“What are we looking at?” grumbled Justice Hayne. “Constitutional fact?”
“Yes,” replied Gleeson.
“What’s the Constitutional fact, Mr Solicitor?” said Haynes, an eyebrow raised nearly as high as the ceiling of the court.
Later, Justice Kiefel chimed in that presenting the ‘Have Your Say’ survey as evidence that the NSCP represented a ‘benefit to students’ wasn’t a contention she found persuasive. And, the day had only just begun.
‘The need,” said Gleeson – in a tone reminiscent of Denis Denuto invoking “the vibe” – is identified in the Melbourne Declaration (a 2008 document, made by all Australian Education Ministers, setting out the Educational Goals for Young Australians).
One of the goals articulated in the Melbourne Declaration is that students should have “a sense of self-worth, self-awareness and personal identity that enables them to manage their emotional, mental, spiritual and physical wellbeing.”
Laudable, perhaps – even if one questions the inclusion of ‘spiritual’. But, there is no evidence that evangelical Christian chaplains provide the best means of delivering these outcomes. None. And that particular solution is certainly is not articulated in the Melbourne Declaration.
Gleeson had barely stumbled over the first hurdle of the bench’s monumental indifference to his opening argument before he courageously galloped towards the High Court equivalent of Beecher’s Brook.
The decision made by the High Court in Williams (1), he told the bench, “was wrong – and fundamentally wrong”.
At that, there was an audible collective intake of breath in the court and Justice Haynes’ face was a picture I’ll take home and treasure.
It would be presumptuous to assume I could tell what the High Court justices were thinking, but my sense was that they just weren’t buying what Gleeson was selling.
But, the day was still young ….
Gleeson soldiered on, complaining that all of the states which had stuck it so gleefully to the Commonwealth on ‘Day One’ had actually agreed to the National School Chaplaincy Program and indicated they were quite happy for the Commonwealth to administer it. It seemed to me Gleeson might as well be making the argument out in the forecourt. It certainly didn’t seem to be gaining him any traction on the bench.
Gleeson asked the Court to recognise that there are a number of scenarios under which the Commonwealth might validly expend money where there is no head of power per se. Take, for instance, the National Immunisation Scheme and the National Health Scheme ….
“Really?” I asked myself, “He’s equating Immunisation with Chaplaincy?”
“Good luck with that one!” I thought.
But the analogies became even more bizarre.
Gleeson asked the Court to imagine that a passenger plane had crashed in the territorial waters of one of the states, necessitating a major search for the wreckage. Should that search be undertaken by the state in which the plane had crashed, he asked, or could the Federal government authorise expenditure on a search without the need to recall Parliament to pass appropriate legislation?
Surely, the search for a plane was a matter of ‘national benefit’ in the same sense that school chaplaincy was for the ‘national benefit’. Why is one kind of expenditure for the national benefit acceptable but not the other?
“Ummm, where do I start to enumerate the differences,” I thought.
But then, I’m not a constitutional lawyer. What do I know?
It seems I wasn’t too far off the mark, though. Justice Crennan interjected to observe that emergency situations are different.
Unwisely, perhaps, Gleeson returned to an earlier point – if, perhaps a little more hesitantly than his first foray into the jaws of judicial death.
The point is, he said, that the decision in Williams is just ….. [very long pause] …. wrong.
You could have cut the air with a knife.
Next, Gleeson set out to disabuse the Court of the argument that Section 32b of the Financial Management Act was part of a conspiracy to undermine representative democracy. His argument was that approving a program through appropriations – rather than a specific Bill – in no way undermined the principle of responsible and representative government.
When the Senate receives an appropriations bill, Gleeson explained, it has the ability to scrutinise any and every program under that Act and ask for pages to be deleted and presented as a separate bill or as a special standing appropriation.
It is true, he said, that the Senate can’t reject an ordinary bill but they can request amendments.
Under sections 53 and 54 of the Constitution, the Senate has full power to move items from under the heading of ‘Ordinary Annual Services’ to a separate bill.
The degree to which appropriations bills are scrutinised remains in the hands of the House of Representatives and the Senate.
This, Gleeson insisted, meets the concerns expressed in Williams (1) and expressed again, in Williams (2), in the arguments from the plaintiff and the states about responsible and representative government.
(What Gleeson may be true, in theory, perhaps, but one wonders how much scrutiny those line items get in practice.)
In the case of the NSCP, for example, said Gleeson, the Senate knows exactly what it’s being asked to approve. They know the name of the program, its purpose, and the Education ‘outcomes’ it is intended to meet.
Since its introduction in 2006, the Senate has been content to approve the NSCP as part of the ordinary annual services of government.
Further, said Gleeson, on the day Section 32b was passed, the Parliament could have repudiated the National School Chaplaincy Program as one of the programs protected under its umbrella, but didn’t.
The tenor of Gleeson’s argument was that, despite the protestations of the states, it’s hard to argue that the Parliament hasn’t effectively ‘approved’ the NSCP.
“So,” said Justice Haynes, “You are saying that appropriation is enough?”
There was a long silence.
“I don’t think that’s so, your honour,” Gleeson replied – having just, as far as I could tell, said exactly that.
“Perhaps you can tell me why it’s wrong,” said Haynes.
I didn’t catch Gleeson’s answer. Perhaps there wasn’t one.
Gleeson insisted that it is wrong to suggest that Section 32b is invalid because it provides the executive with unfettered power to spend. There are limits and boundaries, he said.
But, Justice Crennan interjected, Mr Williams is a taxpayer and doesn’t want taxpayers’ funds to fund that program [the NSCP]. Do you argue that the Executive had the power to authorise it?”
It had, said Gleeson, a ‘bounded’ power to authorise it.
“Your argument is perfectly symmetrical,” grumbled Haynes, “because it is circular!”
Haynes rejected the argument that the Executive has the power to spend because it can limit that power.
Gleeson ploughed on, enumerating the ways in which the Executive’s power was bounded, but the ‘restrictions’ seemed to me to be impossibly broad.
Haynes continued to insist that the argument was circular.
Gleeson did not seem to be having a happy day in court.
I thought Gleeson was probably silently fantasising about a holiday in the Bahamas or a good stiff dram of very expensive whisky.
Gleeson proceeded, then, to entertain us with seven precedents in which the Court has looked at issues similar to those raised in Williams (1) and taken a different approach.
Seven cases – in detail. It took a Very. Long. Time.
Remember slide nights with your Uncle Jack and Aunty Jean? It was a bit like that.
The decision in Williams (1), Gleeson concluded at length, sits opposite to the tradition of the Court.
Justice Bell, however, made the observation that had occurred to me during the interminable procession of precedents. All of the cases utilised by the solicitor-general preceded the decision in Pape and it was Pape which informed the decision in Williams. It was not until Pape that the Court ruled that appropriation was not sufficient to authorise expenditure. That seems to invalidate the argument about the precedents.
By now, Gleeson was beginning to remind me of the Black Knight in Monty Python and the Holy Grail who, despite losing every limb in turn, doggedly refused to give up the fight. In a flight of what I can only describe as a legalese-induced hysteria, I imagined him turning to face us punters in the cheap seats to insist, “It’s only a flesh wound!”
Sensing, perhaps, that his arguments about the validity of the NSCP were not cutting through, Gleeson decided to try to save Section 32b. Even if the NSCP was not considered valid for funding under the Constitution, he insisted, there was no reason to invoke a ‘prophylactic rule’. Programs should be analysed on a case by case basis, he said.
I found the idea that Williams was responsible for the application of a ‘prophylactic’ against government expenditure unreasonably amusing and reverted to fourteen-year-old-me. It is possible that I was moved to jot down a few tabloid newspaper headlines and doodle some appropriate illustrations.
Gleeson moved on, then, to explain why the fact that the states could, reasonably, administer a chaplaincy program themselves was no bar against the involvement of the Federal government. Gleeson rejected the idea that the Commonwealth had no business meddling in issues that were within the purview of the states. That rule, he said, should only be applied in matters where an activity of the Commonwealth threatens the competence of state institutions. The NSCP does not do that.
The analogy the solicitor-general drew was rather unfortunate. It might be argued, he said, that scientific research is an activity that could take place in any of the states, under the jurisdiction of state governments. However, he reasoned, that does not invalidate the CSIRO as a Commonwealth-administered program.
The irony of comparing the National School Chaplaincy Program to a program for scientific research didn’t escape us. Predictably, it didn’t escape the bench, either.
Justice Keane reminded Mr Gleeson that the CSIRO was set up during war time and that its research,(then, at least), would have involved matters of national defence. This was the justification for a national science program.
Gleeson deflected the blow by insisting that, while the administration of school chaplaincy programs may be within the competency of the states, a national program was quite different in respect to its extent, uniformity and ambition.
I wondered quietly why a program of such astonishing ambition didn’t seem to have any defined outcomes, no tangible benefits, nor any process by which the performance of chaplains might be measured. But, I kept my own counsel.
Around this time, Justice Hayne presented a hypothetical situation to the Commonwealth’s solicitor-general. Hayne reminded Mr Gleeson that, in Victoria, there is a long tradition, indeed, a mantra, that education should be ‘free, compulsory and secular’.
Ron and I looked at each other and nearly high-fived at the mention of the magic ‘s’ word!
The Education Act of Victoria, said Justice Hayne, says that government schools will promote a secular education. Expressed there is an overarching idea about how the state of Victoria wishes to organise its state provided schools.
Suppose, said Hayne, that Victoria decided that its commitment to secular education necessitated its rejection of the Commonwealth’s offer of a Federally funded National School Chaplaincy Program. Would the non-participation of Victoria invalidate the program because, by definition, it would no longer be a ‘national’ scheme?
Would Federal funding still be valid under the rationale that the NSCP was a ‘national’ program?
Gleeson believed that it could.
Hayne looked doubtful.
There was more technical discussion before Gleeson ventured once more into the breach to inform Justice Crennan that she had ‘over-reached’ in her decision in Williams (1).
Contrary to Crennan’s view, the Senate, said Gleeson, has powers under Sections 53 and 54 of the Constitution that are not weakened by approving programs through appropriations.
Crennan’s response suggested that boat had sailed in the wake of Pape.
But Gleeson was unmoved. There are grounds, he insisted, to reconsider the decision in Williams (1).
I expect we will know more tomorrow, but my gut feeling, given the Very. Dark. Looks. emanating from Justices Hayne and French, is that Williams has more chance of winning a Grammy award for his hip-hop stylings than Gleeson has of getting the court to reconsider Williams (1).
“You’re putting that the Executive has unfettered power to contract and spend,” insisted Crennan.
“No!” said Gleeson, reiterating that the two Houses have control of the process through appropriations.
But, Crennan pointed out, it is not the same as having a debate in Parliament over a policy.
Justice Kiefel asked Mr Gleeson if he did not regard the reasoning in Williams as being informed by Pape.
“Is anything in Williams contrary to the reasoning as expressed in Pape?” she asked.
It seems that, post-Pape, the Justices were not going to be moved by an argument based on the presumption that appropriation, alone, provides sufficient authority for expenditure. The Court had ruled otherwise in Pape and arguing against that notion seemed, as Sir Humphrey Appleby might have said, “Courageous.”
The Justices seemed, to me at least, to be dubious about the extent of power Section 32 B confers upon the Executive.
The Act, Justice French observed, seems to be for ‘things on which money may be spent’.
That covers quite a lot, really.
Should the Court consider the whole question of the validity of Section 32B or should it confine itself only to the validity of funding for the National School Chaplaincy Program?
Predictably, perhaps, the Commonwealth favours the latter approach.
There was some more argie-bargie between Hayne and Gleeson before the court adjourned. As the second day’s hearing moved towards its end, Gleeson belaboured a point about a case with which Haynes was obviously intimately familiar.
A nearly-but-not-quite defeated Gleeson observed, “Your honour’s shaking his head!”
Hayne, leaning as far back as his chair would go, splayed his fingers over his right eye.
Kiefel took issue with Gleeson’s insistence that the NSCP offered a benefit to students within the Constitutional definition of ‘benefit’.
“Who perceives the need?” she asked. “Who is to determine what is the need in a human want situation?”
Kiefel questioned whether chaplaincy provided a benefit that was uniquely a benefit ‘to students’. Surely it would be ‘of benefit’ to anyone of any class? And did the intangible welfare needs of students fall within the conception of a Constitutional head of power?
Neither can it be said, said Kiefel, that students ‘as a class’ require chaplaincy services. Surely the benefits fall only to particular students?
If it would be acceptable for the Federal government to supply funds for additional tutoring, ventured Gleeson, why not also meet a need for additional counselling.
Hugh Wilson gasped.
If I had a dog, the dog would have gasped too.
In general (with some limited exceptions in some states, but not Queensland to which the Williams’ case principally pertains) chaplains are not permitted to counsel students – although, of course, we know they do. It is an activity labelled as ‘dangerous’ by the Australian Psychology Society and I was shocked (shocked I tell you!) to hear Gleeson suggest in the High Court that the purpose of chaplains was to counsel students.
Gleeson continued to press his point insisting, with a faint air of desperation, “I’m going to put this until I’m howled down.”
“Why not chaplains?” he repeated, insisting that students’ welfare needs were more important than the material needs of children.
Maybe so, but what research, what expert educationalists, what mental health professionals have recommended that the best means of meeting students’ welfare needs is through the provision of school chaplains? It was a question neither asked nor answered.
Justice Keane seemed to understand that ‘chaplaincy’ provides a service which falls well outside the ordinary services of a state school.
Would the provision of Section 51 xxiiiA of the Constitution support the Commonwealth funding courses of study outside the school curriculum, asked Keane?
“Good question,” said a rapidly flagging Gleeson, observing with some relief, that it was 4.15pm and time for the Court to adjourn!
But, when pressed, he answered, “No.”
It was a valiant day’s effort but the beaming smile on Bret Walker’s face at the end of the day suggested it had been a rather good day for Williams and perhaps less so for the Commonwealth.
Let us see what tomorrow will bring ….