Not everyone is a cut out to be a media performer. Being in front of a television camera or radio mike is nerve-wracking. So, when your average ‘Joe (or Jo) Blow’ finds themselves in the media spotlight and ends up babbling incoherently, you have to have some sympathy. It’s not an easy gig.

That’s why companies pay good money for polished professionals to represent them. When the reputation of your business or organisation is at stake, you simply can’t risk hiring amateurs.

So, I was surprised by Jim Wallace’s performance on Seven’s Sunrise with Mel and Kochie this week.  Speaking about same-sex marriage – a topic with which he is very familiar – Jim explained the Australian Christian Lobby’s objections as follows:

Well, ah, Kochie the reality is that ah the Scriptures are very clear about the fact that ah Jesus and ah when people become a Christian it’s an individual and a personal experience but from that point on we try to live more like Jesus would want us to and certainly in the Scriptures it’s very clear ah he wouldn’t have ordained homosexual marriage. Now, the reason, though, is couched in the ah natural and that is ah whether you believe that God created ah nature, or whether you believe that there was nothing at all exploded and then there was everything, the reality is that, ah in this issue that it still takes the involvement of a man and a woman to create a child …

And I find it absolutely amazing that at a time in our history when we’re jumping through hoops to try to make sure  that every tree on the planet ah has its natural environment so that it can flourish that we would be challenging the definition of marriage which creates exactly that environment for a child requiring that it’s between a man and a woman  … the reality is here we’re about holding up an aspirational mode ah in society which government has the right to do to make sure that – to make sure that children can flourish in the same way we are demanding for trees.

Frankly, regardless of your views on same-sex marriage, it was a woeful performance from someone who is paid to do better. Someone has to ask – and it may as well be me – has Jimbo jumped the shark?

If I was one of the shadowy figures pouring money into the Australian Christian Lobby, I’d be having a long hard think about the way the organisation’s been travelling over the last 12 months and asking myself if it’s time for new leadership: “Has Jimbo done what we hired him to do or has he made the organisation a national laughing-stock and damaged the ACL’s reputation beyond repair?”

Inexplicably, I’m not privy to Jim’s job description or performance goals, but I reckon I can make a pretty good guess about why he was hired. But first, I need to tell you a bit about the ACL’s history.

The Australian Christian Lobby (ACL) was founded way back in 1995, only it wasn’t called the ACL then, it was known as the Australian Christian Coalition (ACC).  The name was derived from its American cousin, the scandal-ridden Christian Coalition of America, established by the rabid, right-wing televangelist, Pat Robertson.

At first, it seems, there was little attempt to hide the ACC’s dominionist agenda. In fact, one of the organisation’s early journals was called Mandate – an allusion to the belief “that Christians alone are Biblically mandated to occupy all secular institutions until Christ returns”. That’s right, folks, the long-term goal for these people looks a lot like TOTAL WORLD DOMINATION.

The aims of the ACC could not have been clearer: “to reclaim our society and our government for God and to have the Christian voice heard”.  Did you hear that, non-religious and secular Australians? You’ve got their country and they want it back.

Not surprisingly, the ACC soon found its dominionist theology and fundamentalist lunacy simply wasn’t going to fly in the Australian political landscape. If it wanted to appeal to ‘middle Australia’ it needed a little cosmetic surgery.

Of course, this didn’t mean the ACC planned to abandon its Christian nationalist agenda and ditsy dogma. God forbid! No! It simply meant that a shiny new veneer was added to make it seem … well … somewhat less batshit crazy.

In fairly short order, the name was changed to the Australian Christian Lobby (ACL), former SAS chief Brigadier Jim Wallace was brought in to provide the group with some mainstream credibility and a Christian marketing group, Capacity Builders, was engaged to help the ACL build a shiny new non-threatening image.  The aim was to position the group as “a balanced and compassionate ‘voice for values’: a lobbying force influencing all levels of Government”.  You have to admit, that sounds so much less alarming than reclaiming the government for Jesus.

But, as Barack Obama said, (allegedly in allusion to that poster girl for fatuous fundamentalism, Sarah Palin), “You can put lipstick on a pig – but it’s still a pig.”

And so it was with the ACL.  Behind the glossy website, the highly staged ‘In Focus’ in-house ‘news’ interviews with CEO Wallace and artless attempts to tone down the fundamentalist rhetoric, the ACL remains what it originally set out to be – an organisation intent on gaining ideological control of Australia’s key public institutions.

Of course, despite putting the former head of the SAS in charge, the ACL isn’t plotting a military coup.  Its strategy is far more covert. Following the tried and true approach of American dominionists, the ACL plans to achieve its aims through the quiet infiltration and colonisation of our secular public institutions – and the apathy of the Australian public is crucial in facilitating its advance.

It sounds like a conspiracy theory, doesn’t it? But why else would the ACL set up Compass Australia, an offshoot which identifies and mentors up and coming young evangelicals and facilitates their career paths into positions of influence? We don’t have to develop hypotheses. In a 2007 interview with “Christian Today”, David Yates, the coordinator of Compass naively blurted out the whole sordid plan:

“One of the key things that ACL likes to focus on is areas where it can have a disproportionate impact for the Gospel. So, the area of politics and government, where ACL works in, is one particular field.  If you can get through government and policy makers then it can influence laws and it can have a disproportionate effect within the culture. 

That is why we were thinking about the Compass program, or, alternatively, thinking about 15 to 20 years down the track, who will be in the media, education, politics, law, and history?

These fields, to us, are the strategic areas …” (Emphasis added.)

Further evidence of the ACL’s dominionist agenda is found in the backgrounds of its personnel, the organisations which support the group, the literature they quote and recommend and the conferences they attend – in short, the company they keep.  It takes a bit of detective work, but scratch the surface of the ACL and you find links (direct and indirect, current and historical) to numerous bastions of dominionist theology.

Indeed, if you search hard enough (and I have), you’ll find the ACL is publicly listed as a supporter of the Reclaim 7 Mountains movement.   (Oh, and Jim, don’t bother getting that 7 Mountains link deleted – I’ve got a screen shot.)

(click to enlarge)

It sounds innocuous enough until you read that this movement claims a divine ‘mandate for taking nations’,  advocates breaking down the wall of separation between church and state and provides ‘a template for warfare’.  Indeed, the perky blonde who introduces this video about 7 Mountains breezily confirms its dominionist message. The Lord, she says, is coming back for “an overcoming church … a church that knows how to possess and occupy.”

This kind of talk is all very good for rallying the troops. But, for the ACL to maintain some vestige of public credibility, it must maintain the charade of being non-threatening and moderate. It wouldn’t do for any theocratic aspirations to become common knowledge. (Oh, oops!  Sorry Jim!) That, I imagine, is why old Jimbo Wallace was appointed as front man and CEO – he appeared to be ‘mainstream’, his military record demanded respect and who would suspect someone with his background to be involved in a group whose aim was to impose a ‘disproportionate influence’ on a democratically elected government?

But, given this week’s bumbling media performance, we have to ask, “How well is Jim doing his job?”

In my view, if Jim was brought in to give the ACL a veneer of mainstream respectability, he’s failing badly.  In fact, observing Jim over the last couple of years, I’ve come to the conclusion that Christian dominionism and bald-faced bigotry must be hand-crafted from polystyrene.  No matter how hard he tries, Jim just can’t stop them floating to the surface.

It’s been a hard year for Jim. It began with him endorsing a law (labeled ‘appalling’ by a senior Anglican bishop) which allows religious schools to expel gay students – for no reason other than for being ‘openly gay’.

Next, sexism reared its ugly head as Jim expressed the antediluvian view that women should not be allowed to serve on the front lines of Australia’s defence force.  Why? Because just that morning Mrs Wallace needed Jim to help open the Vegemite jar.  Yes, really.  You can’t make this stuff up!

Then there was the shameful ANZAC Day tweet in which Jim suggested our diggers didn’t fight for Muslims and gay marriage. In less than 140 characters Jim showed he was out of touch with the values and sensibilities of ordinary, decent Australians and destructively inept at using social media.

In Queensland, the ACL was humiliated when their campaign against a safe sex billboard featuring two gay men, backfired.  When 30,000 people took to Facebook demanding a decision to pull the ad be reversed, the advertising company quickly caved. Even the Queensland Premier and state treasurer branded the ACL’s actions homophobic.

Recently, the ACL cynically decided to exploit the Norwegian massacre to advance its agenda to censor violent video games.  As one Christian blogger wrote:

“… you’re trying to capitalise on [this tragedy] for political gain. That’s disgusting. It’s cheap point scoring. It’s tacky. People see right through it. You’re not convincing anybody of anything except the idea that Christians are out-of-touch and only interested in protecting ourselves.”

I don’t know how much the ACL paid Capacity Builders to develop its new image, but I’d venture to say it’s money down the drain for the organisation’s financial backers. The ACL is increasingly isolated and frequently exposed as a propagandist machine for the rabidly religious right. Under Wallace, the organisation lurches from crisis to crisis – outraging the non-religious and embarrassing the crap out of all but the holiest of happy clappers.

And so, returning to Tuesday when Jim fronted up to Seven’s Sunrise program for a little argie-bargie about gay marriage with the intelligent, articulate (and gracefully gay) Dr Kerryn Phelps.  It was a pathetic performance which revealed Jim no longer has what it takes to represent the ACL.

Jim’s arguments against same-sex marriage were weak and easily refuted. Worse, his claim that Jesus would not have approved of same-sex marriage shows either a cavalier disregard for the truth or a pitifully poor grasp of the New Testament. As ex-Christian author, Jake Farr-Wharton explains, “Here’s what Jesus says about homosexuals in the New Testament:  “ _”.”

Once again, the ACL cemented its reputation as a national laughing-stock.

Now, if the powers that be decide Jim’s still their boy and elect to keep him on, well, that’s just dandy. I’m happy to sit back and watch the continuing decline of the ACL under his increasingly inexpert leadership.  But I reckon when Jim comes up for his annual performance review the ACL puppeteers might just think about this week’s Sunrise performance and the events of the past few months and start wondering, “What is it we pay this guy for?”

It might be time to think about an early retirement, Jim.

Chrys Stevenson

Following my series of blogs and Drum article on the High Court Challenge against the National School Chaplaincy Program, I’ve undertaken to write two follow-up articles on the implications of the case.

The first looks at the impact the States’ intervention may have on the way the Commonwealth government operates.

The second (still in progress) looks at the possible implications of the Williams case on the NSCP itself – whether or not Williams wins.

I’m very honoured that both ABC’s The Drum and Religion and Ethics website have agreed to publish the first article, with an option for the second when it’s completed.

“States play ‘cat and mouse’ in High Court Chaplaincy Challenge” went up on the Religion and Ethics website today (and should appear on The Drum later in the week).

The issues tackled in the article are very complex, but I’ve tried hard (oh, you don’t know how hard I tried!) to present them in an accessible and entertaining way. If I’ve achieved my aim, you’ll find it both enjoyable and informative.

Chrys Stevenson

Way back in April my friend, Peter Cartledge from the Sydney Atheists, contacted me about an idea he had for a new (as yet unnamed) atheist journal.  I happily agreed to write an article for it and, at last, Peter’s brilliant idea has become a reality.

Please support the new atheist magazine, Impius (impius is Latin for atheist).  I’m sure you’ll find lots of thought provoking ideas within it – and, surprise surprise, you may find that atheists sometimes disagree.  That’s a good thing.  We don’t need dogma!

My article is called “Accent-chu-ate the Positive”.  Here’s how it starts.  To read the rest, you’ll have to read Impius.  

Accent-chu-ate Positive

When Peter Cartledge asked if I would write something for this first edition of “Impius”, I had three questions: Deadline? Word length? Suggested topic? Peter’s reply to the third question set me back on my heels a little. He said, “Anything positive about atheism.”

Peter’s suggestion made me realise that we tend to get so tied up arguing against religion that we sometimes forget to argue in favour of atheism. I think there’s a good reason for that: none of us wants to fall into the trap of being an ‘evangelical’ atheist. As Nietzsche warned, “He who fights with monsters might take care lest he thereby become a monster.”

With this in mind, our concern ‘at the coalface’ of public debate is, generally, to keep religion from intruding upon our secular freedoms rather than imposing our lack of belief upon theists. We certainly don’t want to become ‘soldiers for atheism’ as our opponents purport to be ‘soldiers for Christ’ – even though we are, too often, vexatiously branded as ‘militant’. I am often moved to explain that our battle is political, not religious; we’re not trying to de-convert believers, we’re just trying to stop their beliefs from colonising our lives and coopting the secular institutions which preserve both freedom of and from religion.

Is it possible to talk about atheism in a positive way without being evangelical? I think so. As Peter reminded me, I began just such a project in “Felons, Ratbags, Commies and Left-Wing Loonies”, the first chapter in Warren Bonett’s The Australian Book of Atheism (Scribe, 2010). In “Felons …” my aim was to make a start at reclaiming atheists’ role in Australian history – “to stake a claim in the nation’s future through reference to the contributions of the past.” It’s a project I’ve continued to work on intermittently, but the diversions of day-to-day tussles with aggressive Christian nationalists too often means I’m involved in fighting against religion rather than fighting for a nation in which the role of the non-religious is fully recognized and respected … [more]

Chrys Stevenson

Well, it’s 6.30am on a Sunday morning and under normal circumstances I’d still be buried deep beneath my doona. But, as the light crept through my window this morning I sensed something of a ‘divine’ calling. I rose from my bed, dressed and ventured out into the cold morning air on a mission. A short pilgrimage to the local garage and I’d found my ‘unholy grail’ – a copy of the Sunshine Coast Daily and, within it, not one, but two stories about local non-believers – former Noosa Shire Councillor, Peter Bycroft and … me.  Many thanks to Peter for writing the media release which resulted in this most excellent publicity.

While I’m most grateful to journalist Owen Jacques and Sunshine Coast Sunday for publishing the articles, sadly they haven’t been made available online.  Also – probably in retribution for my sins – my printer has been ‘smote’ (smitten?) and will not scan. So, hoping I’m not breaking any copyright laws here – or if I am, hoping the Sunshine Coast Daily will grant me an indulgence –  I’m reproducing the text of the articles (and the photo which accompanied them).

Of course, if you’re a Sunshine Coast local, don’t be mean, do the right thing and pop out and buy a copy – and get yourself a cappuccino while you’re at it.

———————
Philosophy | Atheist Convention

One unholy gathering

by  Owen Jacques

Coast atheists set to hit the road for a convention of reason

SUNSHINE Coast’s non-believers are hitting the road.

Early next year, the 2012 Global Atheist Convention will again be held in Melbourne with some of the world’s best-know speakers on the list.

Referred to in jest as the “four horsemen of the anti-apocalypse”, God Delusion author Richard Dawkins, best-selling Sam Harris who wrote The End of Faith, Daniel Dennett and provocateur extraordinaire Christopher Hitchens will headline the event.

Atheists of various persuasions on the Coast are already preparing for their non-holy pilgrimage.

Peter Bycroft of Sunshine Beach refers to himself not as an atheist but a secular humanist.

That is, a non-religious person who has faith in human nature.

He will head south for what he believes is a chance to listen to some of the best speakers in the world.

“It’s an opportunity to hear leading experts talking about rationalism and atheism,” he said.

“There is quite a good mix of ages – you get a grip on the breadth of demography in this new enlightenment.”

“It’s usually well attended from the Sunshine Coast.

“Every postcode but one [on the Coast] is above the state average for non-believers.

“At the northern end [of the Coast] is the highest proportion.

“And non-believers often feel they are in the minority but they are growing into a majority.”

Mr Bycroft said with any large group, you will have the “drum bangers” – those pushing their views on to others, but it was not something he was interested in.

“The idea of these angry atheists, I’m not one of them,” he said.

More than 2000 attended the Rise of Atheism convention in 2010, the first of its kind in the country.

_____________________________

Atheism not about religion but politics

Mapleton woman Chrys Stevenson does not believe in God.

She is part of the Sunshine Coast Atheists group, vocal activist for non-religious rights and co-founder of the national atheist organisation, Reason Australia.

But why do non-believers need a group?

“An atheist is just someone who doesn’t believe in a supernatural deity.” Ms Stevenson said.

“There are many connotations to atheism but I like to embrace and reclaim it.

“We’re good, ethical, moral people.

“Atheism is a belief in human rights, [social] welfare and avoiding religious interference in these areas.”

She said the point of atheist organisations was not about religion, it was about politics.

“It’s not about going against those who believe in God,” she said.

“They take comfort in those beliefs and I would never want to take that away.

“But where it encroaches on the lives [of those] who don’t believe, that’s when I think it’s a problem.”

One of the reasons such a group is needed, she said, is thanks to conservative and powerful lobby groups like the Australian Christian Lobby.

“We are not a Christian nation, never have been,” she said.

“We have always been a multi-cultural, multi-faith nation and these people are trying to rewrite history.

“How they affect policy is beyond me but the only way to fight back is to organise.”

As a group, Ms Stevenson said atheists stood for marriage equality, “Allowing homosexuals to marry affects the sanctity of no-one else’s marriage” and reconsidering tax exemptions against religious organisations.

In the Sunshine Coast Atheists she said it was not simply a meeting of people sitting around chatting about what they do not believe in.

“You find that people who are atheists often have interests in education, science, reading, scepticism and politics,” she said.

“It’s a social group of like-minded people.”

Reproduced from: Sunshine Coast Sunday – Sunday, August 21, 2011, Page 11

Want to add your name to the Sunshine Coast Atheists mailing list?  Email us at sunshinecoastatheists@gmail.com

Way back in 2008, the Australian Human Rights Commission called for submissions on the topic of “Freedom of Religion and Belief in the 21st Century”.  Knowing they would be beseiged by submissions from theists, a group of Australians from Atheist Nexus decided to pool resources and write a submission from the atheist perspective.  With a lot of help from others*, I was the chief researcher and writer for the submission.  The result was the:

Atheist Nexus submission on Freedom of Religion and Belief in the 21st Century

It seems to me that now is a good time to ‘resurrect’ it.  The Australian Christian Lobby is still working hard to demean and limit the freedoms of its fellow Australians.  Hillsong Church has been caught up in another alleged charity scam.  The Australian government continues its unholy alliance with religion through projects like the National School Chaplaincy Program, and, of course, our welfare sector has been largely farmed out to religious organisations which are permitted to discriminate based on religion – on the basis of ‘freedom of religion and belief’.

So, I’m posting the link to the Atheist Nexus submission on Freedom of Religion and Belief in the 21st Century here.  A warning – it’s long, and a tad outdated, but it’s easy to read and, I think, still very relevant.

Readers may be interested to note the approach adopted in the submission.  Instead of quoting from Dawkins, Harris et al, we tried, wherever possible, to support our arguments with quotations from theists and academics.  Our aim was to show that the views expressed in the document are not just those of a rabble of militant atheists.  Instead, they are views held widely throughout the community.

My one regret with the submission is that, at the time, I did not recognize the importance of the new National School Chaplaincy Program, and so it is not mentioned.  That was a major oversight which I am happy to acknowledge.

The submission took three months, full time work, to research and write.  For me, it was worth the effort, because it gave me a solid foundation for the activism I involve myself in today.  But, as a project, was it worthwhile?  Probably not.  I wrote about this on Online Opinion some time ago:  If Freedom of Religion is the Question, Secularism is the Answer.

I’d be interested to hear your thoughts.

Chrys Stevenson

The Atheist Nexus submission was written in consultation with:

Rod Mulholland
E Black (aka The Irreverent Mr Black)
Emeritus Professor Robert Gregson BSc (Eng), BSc, PhD (London), DSc(ANU),
CPsychol, FASSA, FAPsS, FBPsS, FNZPsS, FSS
Sean Broughton-Wright BA, Grad. Dip. Ed. (Mercy Ministries Data)
Dr Kenneth M Cooke MBBS, MBiomedEng, FRANZCR (Statistical Data)

Warren Bonett and Kirsty Bruce are the proprietors of Embiggen Books, a science, philosophy and art book store at 197-203  Little Lonsdale Street, Melbourne – not far from the Wheeler Centre.

Sitting in the High Court of Australia, one could not help but be impressed by the constellation of intellectual power both on and before the bench.  The analogy that came to mind is that the Justices, the barristers and the solicitors-general are the intellectual equivalent of Olympic athletes.  So, it with no thought of disparaging the stellar intellects and talents of the representatives for the defence, that I observe the star performer was undoubtedly,  Ron Williams’ barrister, Bret Walker SC.

Walker’s presentation was authoritative, self-assured, eloquent and accessible. There seemed to be an easy rapport between Walker and the High Court Justices. This is not to suggest any form of favouritism on their part.  I would simply remark that the  tension sometimes evident between the  bench and representatives for the defence, was entirely absent when Walker spoke.  Of course he was questioned and challenged by the Justices, but his calm manner and an underlying gentle humour seemed to put them at ease.

Having witnessed Walker in action on the first day of the hearing, we awaited his reply to the defendants’ arguments with great anticipation. In the course of the three day hearing, it had become evident that the matter before the court had wide and (if the defence was to be believed) potentially devastating consequences for the exercise of power by the incumbent government.

Everyone, including the legal representatives and Justices, seemed astonished at how the case turned, on the second day, to become a matter of such far-reaching historical importance that the chaplaincy issue almost seemed to fade into the background.   No longer did it seem to be the raison d’etre of the case.  Now, it seemed (to me at least), to be simply a tool which might be used to bring a power hungry government to heel.

Walker began his address by speaking briefly to the subject of ‘benefits to students’.  The contention by the defence is that the NSCP fits the description of conferring a ‘benefit’ to students and, therefore, the expenditure is authorised by the Constitution and does not require legislation through an act of parliament.  Walker disposed of Scripture Union’s argument that the word ‘benefits’ should be defined broadly by pointing out their legal reasoning had ‘many steps missing’.  The sense was of a Professor of Law marking a red line through an undergraduate’s assignment.

Walker moved on quickly to attack SUQ’s conention that it is a ‘trading corporation’.  This was important because the Commonwealth and SUQ claimed no legislation was necessary to support expenditure for the National School Chaplaincy program, because the Commonwealth is permitted (without legislation) to enter into contracts with ‘trading corporations’.

Walker conceded that the Constitution does not supply ‘tight definitional parameters’ in this regard,  but, he insisted, “That does not mean that there does not have to be some attempt at definition …”.   To define a ‘trading company’ as one which (like SUQ) happens to trade from time to time – as an activity incidental to its main purpose – was, he insisted, to misinterpret its meaning. It cannot, surely, suffice, said Walker for a corporation to say that from time to time something is done, for example, selling of surplus assets or getting rid of second-hand bibles and say, “Well, that is trade”.

“… That would be, in our submission, fatuous …”.

Next, Walker addressed,”… the critical matter in terms of whether we [i.e. Williams’ case] can succeed or not.”

Walker argued on ‘Day One’ that no valid appropriation had been made for expenditure on the NSCP.  Since then the focus of the court had shifted significantly.  What was now central to the arguments was whether the government had acted properly in failing to pass legislation for the expenditure.

Walker considered (even, perhaps conceded) the possibility that the court may well find that the appropriation was valid and that the NSCP does not constitute a religious test for ‘officers under the Commonwealth’.  (This second contention was given no support by any of the states and, I’m sorry to say, appears – to me at least –  to be ‘dead in the water’.)

Given that the defence may succeed on both these counts, said Walker, “… the question still remains whether the funding agreement under which the Commonwealth provides funds for the chaplaincy at my client’s children’s school is lawful in the sense of being made pursuant to legal authority.”

In other words, by Day Three, the issue of primary concern was that, even if the the NSCP appropriation was valid,  appropriation is not legislation.  Just because something is buried included in a Parliamentary Budget Statement and attached to an appropriation which  passes  successfully through the lower house, this does not mean the expenditure has been ‘approved’.

As I understand it, what was argued at the hearing, and what seemed to be widely accepted by the bench, is that an appropriation  only confirms that money is available from Consolidated Revenue to meet a particular purpose . It should not be construed as providing approval for the expenditure of those funds.

Importantly, where an expenditure falls outside of the category of the ‘nationhood’ powers of the Commonwealth (i.e. matters of national emergency, or matters peculiar to the administration of the Commonwealth) or where it cannot be construed as a routine and ongoing item of expenditure necessary for the administration of the Commonwealth (e.g. the purchase of stationery), it requires legislation (i.e. the passing of a legislative act).  The NSCP does not appear to fit either of the categories which would exclude the necessity for parliamentary approval through legislation.

Any claim that chaplaincy is, of necessity, a national program, said Walker, is  insupportable.  There is no ‘observable incapacity of the States’ to run such a program themselves.

“… how could it be said there is any national aspect to this when the scheme itself bespeaks that it will only be available to such local communities as volunteer to take advantage of it? So there is nothing of the universality that might indicate nationality and there is nothing of the uniformity of approach that might indicate nationality.”

In Walker’s opinion, the failure to pass legislation for expenditure for the NSCP simply cannot be circumvented by claiming it is a matter of ‘national importance’ which the States do not have the capacity to administer.

Throughout the case, the Commonwealth and SUQ, like oracles of doom,  attempted to warn the judges of the ‘terrible consequences’ that would ensue if there was a finding in favour of Mr Williams. Portentious rabbits prophesying all kinds of apocalyptic consequences were frantically pulled out of the defendants’ collective hats.  The suggestion that a win for Williams would deprive thousands of poor autistic children from participating in Commonwealth funded programs, was one of the more cynical arguments.

During the case, there was some amusement caused by the suggestion that a win for Williams would require legislation to enable the purchase of ‘HB pencils’.  The implication was that a precedent would be set, requiring legislation for everything and anything on which the Commonwealth spends money.  This, the defence warned ominously, would ‘hobble the nation’.

But, Walker explained patiently that the ‘nationhood’ powers conferred on the executive by Section 61 of the Constitution ensured the nation would not be ‘hobbled’ by a finding for Williams. In short, the NSCP is not a matter of national importance, nor is it a program that could only be administered by the Commonwealth – the existence of school chaplaincy in Queensland well before Commonwealth funding proves the point.  So, a ruling that programs like the NSCP require legislation would not confer any negative impact upon matters which are legitimately the business of the Commonwealth.

In fact, one of the High Court Justices, himself, pointed out:

 “.. the Crown has a power independent of statute to make such contracts for the public service as are incidental to the ordinary and well-recognized functions of Government”.

Just so, the argument that a finding for Williams would require legislation for stationery supplies, was neatly exposed as specious.

Quietly settling any concerns about the wider ramifications of a finding for Williams, Walker reminded the Justices there were already useful precedents in case law which might provide the bench with guidance in respect to those areas in which executive power exists under section 61, without the need for enabling legislation.  Better definition was clearly needed, but the means to make such definition existed.

The executive, said Walker, was certainly authorised to make contracts on behalf of the Commonwealth as might from time to time be necessary in the course of its administration; but one should not pretend that the National School Chaplaincy Program falls within that category.  Nevertheless, the executive might, legitimately, have investigated whether such a program was worthwhile before spending $450 million of taxpayers’ money on it. This would not have required enabling legislation.

Providing a ‘road map’ of how similar programs might be managed, Walker said that, having tested the need for and potential efficacy of such a program and determined that it was desirable, it might then have entered into agreement with the States to provide funding to a third party as part of the terms.  But this is not what was done in the case of the NSCP.  The suggestion seemed to be that what is at issue is not that such programs might be prohibited (leaving autistic children throughout the nation, bereft!), but only that a somewhat different, and co-operative approach may be required for their implementation.

One of the Justices asked if policy ‘experiments’ could be treated in the same way as ‘inquiries’ into new policies.

“If it was a sufficiently humdrum or mundane experiment that did not really attract the description “policy”,” said Walker, then it might fall into this category. “ … but if it were truly a policy departure, a novel program, then it would not evade the requirement for enabling legislation to call it a pilot, to call it a trial or to call it an experiment.  Insofar as it involves activities by the Commonwealth, including contracting or spending, it would need the enabling legislation.”

By way of explanation, Walker proposed an analogy, “… the replacement lifeboat on the battleship is one thing, the new battleship is another thing altogether” – the one legitimately finding approval in an appropriation, the other requiring an act of Parliament.

“When it comes to the exercise of making a contract along the lines of the NSCP”,  said Walker, it is necessary for the Executive to be authorised by law. This “can no longer be done in this country simply by pointing to a large lump of money in the Appropriation Act and saying it is within an outcome or activity.”

The defence’s attempt to claim legitimacy for the NSCP under the Commonwealth’s power to make grants was also called out as a semantic ruse. “If you call it a grant, you do not make it any better, it is still spending,” said Walker.

“In our submission, it would be the height of cynicism and the evasion of Parliamentary control of the Executive simply to say, “Oh, well, executives give money away, spend money, therefore, all spending of money is something an executive may do without legislation.” That, in our submission, is chop logic of the worst kind.”

The argument, it seemed, kept coming back to the same point.  Expenditure for the NSCP should have been put to the parliament for approval.  No matter which way the defence tried to twist and turn, make semantic arguments, or churn out dire predictions of apocalyptic consequences, Walker masterfully called them out.  It came down to this:  The appropriation of the funds – whether valid or not – was not sufficient to make the NSCP ‘legal’ in a Constitutional sense.

So, said Justice Crennan, seeking clarification, “Is the end point this:  spending on, or making contracts in respect of the activity or enterprise of chaplaincy in schools in Queensland does not fall within the ordinary and well-recognised functions of the Commonwealth Government?”

“It does in this case, yes,” said Walker, “That is where it comes to ground so as to produce a win for us in this case, yes, your Honour.”

With that, Walker concluded his address to the bench.

It may now be three to six months before the High Court hands down its decision.

Chrys Stevenson

Posts in this High Court Challenge Series (in order):

High Court Challenge: We Arrive in Canberra

High Court Challenge: Last Man Standing?

High Court Challenge – Day 1: The Hearing Begins

High Court Challenge  – Day 2: Scintillating Boredom

High Court Challenge – Day3 (a):  Terrible Consequences

High Court Challenge – Day 3 (b): The ‘Master’ Speaks

If you support Ron Williams’ High Court Challenge, please consider making a donation at the High Court Challenge website. Support for Williams has been overwhelming, but legal fees are still outstanding.  Ron, his wife and their six children should not have to bear the full brunt of the outstanding amount.

The final day of Ron Williams’ High Court Challenge began with the Solicitor-General for the Commonwealth waxing lyrical on the contentious subject of ‘benefits to students’. Here is a subject which deserves an article of its own – and I plan to write that sometime in the next couple of weeks.

Solicitor-General for the Commonwealth

Almost immediately the staccato-voiced Solicitor-General seemed to get the bench off-side.  In contrast to Williams and the States, the Commonwealth argued the term ‘benefits to students’ should be interpreted with ‘all the generality that that admits.’ In other words, broadly.

One limb of the Commonwealth’s arguments is that the Commonwealth has authority to fund the National School Chaplaincy Program because the Constitution allows them to supply ‘benefits to students’.  In contrast, Williams argues that the phrase ‘benefits to students’ should be narrowly defined as something providing a direct material or financial benefit to a student.  Further, that any such ‘benefit’  should be directly linked to the act of being a student.  Just so, as one of the Justices suggested, a program which dealt with bullying at school might be categorised as a ‘benefit to students’ but a program which offers ‘pastoral care’ may [arguably] offer a benefit to children but not necessarily  students, specifically.

“The only question,” said the Solicitor-General, “is whether services supplied by Scripture Union Queensland are designed to meet the needs and wants of the students at [Ron’s children’s school] Darling Heights State School.”

There was a muted chortling in the court-room when, following a short discussion on the Solicitor-General’s definition of ‘benefits to students’ one of the Justices grumbled, “This is somewhat garbled.”

Maria may have sneezed at that point, but then again it could have been a muffled guffaw.

What followed was a ‘try hard’ argument as the Solicitor-General attempted to convince the bench that providing chaplaincy to parents, students and staff was effective in improving students’ academic performance.  No evidence was offered for this contention, yet the Solicitor General insisted that chaplaincy, ‘impacts on how students are achieving academically’ and that chaplaincy involves ‘complex social welfare issues effecting academic achievement’.

The Solicitor-General said there was no doubt about chaplaincy providing a benefit to students – but again provided no evidence.  Indeed, he explained that the application for chaplaincy specifically required that schools complete a form matching chaplaincy activities with the particular needs of their school community.  I haven’t had a chance to look at an application form for chaplaincy as yet, but I’m informed this statement is ‘factually incorrect’.

Chaplaincy, said the Solicitor-General, provides for ‘ongoing mentoring or evaluation by those with the capacity to make appropriate judgments about student well-being.’

I have to admit that I was itching to ask how he would define and measure ‘spiritual well-being’ and what evidence he could offer for the contention that spiritual well-being had some connection with academic achievement.  Sadly, the High Court does not allow for interjections from bolshie members of the public.

This argument about ‘benefits to students’ was, perhaps, the closest the hearing came to debating whether chaplains actually offered any ‘tangible’ benefits to students.

One of the Justices made the point that the ‘benefits’ discussed by the Solicitor-General could equally be provided by a secular pastoral care worker.  He added that, in terms of Constitutional Law it didn’t really matter that the ‘benefits’ offered might be indistinguishable from those offered by a secular person.

The Solicitor-General agreed, in part, saying, “It does not matter Constitutionally, but part of the need is such as a secular service may not be enough to meet the students’ needs.”

The Justice nodded but insisted that, for the purpose of this Constitutional discussion, it didn’t matter whether the program had a religious dimension or not. The Solicitor-General conceded that it did not.

There was another titter of amusement in the court when it was suggested there may not be a distinction between a chaplain and a part-time member of staff offering assistance to students struggling with math.

“Are you talking about special needs students?” asked the Solicitor-General.

“I’m not sure that those who need help with maths qualify as having ‘special needs’,” retorted the Justice, wryly.

Next, the Solicitor-General moved on to discuss what had become something of a meme in the courtroom – ‘the common assumption’.  This referred to the assumption that, generally speaking, the Commonwealth can validly make payments in any area provided they fall within an area on which the government is permitted to legislate. In other words, while they don’t have to pass an act through parliament in order to pay for every item, it has to be something on which they could, theoretically, legislate.

Yesterday’s arguments by the states seem to have thrown that ‘common assumption’ into serious contention.  In short, the contention now seems to be that the government can’t short-cut the process as they did with the NSCP by  passing a new initiative through the parliament as an appropriation [agreement by the parliament for expenditure on a budgeted item] rather than an as an act.

The Justices seemed to recognise that this was an area which needs further exploration.

“You keep saying ‘assumed before yesterday’” grumbled one Justice tetchily. “It was assumed, but not necessarily explored.”

Suitably upbraided, the Solicitor-General moved on to the Commonwealth’s ‘scope of power’. This, it appears, was substantially expanded as a result of recent cases brought before the High Court.  I may be wrong, but I picked up on an underlying sentiment that the Justices wouldn’t mind reeling the government’s power back a bit.

The argument continued that the Commonwealth was perfectly within its rights to enter into a contract with Scripture Union Queensland because SUQ is a ‘trading corporation’.  The Commonwealth rejects the contention of Williams and the states that SUQ does not fit the definition of a trading corporation and that, as a consequence, the contract signed between the two parties is constitutionally invalid.

“The point,” said the Solicitor-General, “is that Scripture Union Queensland engages in trading activities. Its primary purpose does not have to be trade.”

This, he said was a ‘settled doctrine’ and there was no need to ‘tinker with it’.  Judging by arguments made previously, Williams and the states beg to differ.

At some points the arguments wandered far afield.  What are the rights of government? In what fields does it have the power to act? To declare war? To enter into treaties? To use force?  Where are the checks and balances? All of this seemed very far from school chaplaincy but suggests that the Justices see this issue as being far, far wider than the chaplaincy issue alone – despite the Solicitor-General’s desperate efforts to contain it.

Repeatedly, over two days, the Justices quizzed the Solicitor-General on his view of the limits and restraints upon the Commonwealth’s power.  Was he arguing that the Commonwealth could pretty well spend anything they liked?

The Solicitor-General was at pains to put their fears to rest.  He made great effort to enumerate the many ways in which Commonwealth spending is constrained.  In fact, somewhat contritely, he even admitted that yesterday he may have made a ‘provocative’ statement about the government having no limits. Today, he conceded that those areas in which the government was constrained may have been ‘insufficiently highlighted’ in his argument.  To me, it seemed he had come in yesterday saying, “We’re the government, we can do anything we like,” and then, realizing he’d got the bench off-side, returned today effectively saying, “Maybe I came on a bit strong.”

One of the more interesting ‘sideline’ discussions focused on whether the executive could only do what it is expressly permitted to do by the Constitution (or other statutes), or whether it can do anything it likes, providing it isn’t expressly prohibited.

Towards the end of his presentation, the Solicitor-General expressed some surprise that a ‘benign’ program like the National School Chaplaincy Program could caused such consternation among the states. He argued that, in no way, did the program interfere with states’ rights.

I imagine that someone who holds that esteemed position would not stoop to wonder “WTF?” but that was ‘the vibe’ I got from the Solicitor-General who certainly, at times, must have felt under attack.

Scripture Union Queensland

The barrister for Scripture Union was the next to speak.  He went straight for Ron’s jugular in attacking his standing [right] to bring most of the matters in his submission before the court. Like the Solicitor-General for the Commonwealth, Scripture Union attempted to minimise the potential damage of Ron’s argument by stating (as I understand it) that the only relief that Ron could reasonably seek was the discontinuation of chaplaincy services (in their present form) to his particular school.  Any claims about the NSCP generally or agreements already fulfilled should, in the opinion of Scripture Union, be dismissed.

The barrister for SUQ proceeded to try to ‘put the wind up’ the Justices by warning about the collateral damage that might be caused by a wider ruling in favour of Williams.

“Grants of this nature [NSCP] are made for a huge range of enterprises that would likewise fail in Williams’ and the States’ arguments,” he cautioned.

SUQ tried to downplay the relationship between chaplains and the Commonwealth, noting that, in Queensland, Commonwealth funding essentially only expands the program already been put in place by the State government.  The NSCP presented no competition to the State government or infringement of States’ rights.  In fact, he argued that the NSCP ‘dovetails’ entirely into the state program. A perfectly cromulent match.

Neatly trying to dodge the argument that chaplains paid with federal funds are ‘officers under the Commonwealth’ (and therefore must not be submitted to a religious test), SUQ argued that, “The Commonwealth does not employ chaplains. It pays money to another entity to achieve that outcome.’

SUQ’s barrister rejected the view that an appropriation could not be viewed as ‘legislation’.  In his view, the NSCP was approved by the Parliament and the Senate by virtue of being included in a Parliamentary Budget Statement attached to an appropriation bill.  It was true, he said, that the Senate does not have the power to amend appropriations, but, he insisted, “The Senate is not powerless. It cannot amend, but it can return or pass … to say there is no parliamentary approval does not describe the process at all.”

There followed some discussion about the cozy relationship between the Queensland government and SUQ. (Possibly a relationship that has cooled somewhat since Queensland, yesterday, backflipped on its support for SUQ and joined the other states to substantially support Williams.)

Remarking on the closeness of this relationship, one of the Justices said, “I understand the Queensland Minister has to be invited to any launch or promotional activity regarding chaplaincy.”

“Possibly … before Queensland changed its stance, your honour,”  the disgruntled barrister replied tersely.

Curiously, SUQ argued that no religious test is required for employment as a chaplain under Queensland procedures.  This is strange because I know for a fact that anyone employed by Scripture Union is required to state their acceptance of the Nicene Creed or some similar statement of Christian belief.  This appeared simply as a statement of bald fact, with no evidence given to support it.

SUQ’s barrister continued by praising the organisation’s commitment to meeting the ‘special needs’ of children.  Chaplaincy, he said, was an important way of deaing with children’s problems.  Again, no evidence was offered for the efficacy of this approach.

It was ‘inescapable’ he said, that the primary purpose of chaplains was to assist children to help them learn. And yet, I simply cannot recall anywhere in the multitude of literature I have read, any connection being made between chaplains and academic achievement.  Further, SUQ produced nothing by way of evidence.

As to ‘benefits to students’, SUQ complained that Williams’ legal team placed too narrow a meaning upon the phrase.

The barrister for SUQ ended with an emotional appeal.  If Williams was successful, he said, it might also mean the end of an important program which benefited autistic children.

At least one of the Justices was unimpressed.

“It’s not to the point to tell us about the terrible consequences that might occur,” he grumbled.

That concluded SUQ’s presentation.  Following was a short presentation from the Churches Commission and then a reply to the defendants’ arguments from Ron’s barrister, Bret Walker.  But, dear readers, I’m afraid that will have to wait until tomorrow.

Chrys Stevenson

Posts in this High Court Challenge Series (in order):

High Court Challenge: We Arrive in Canberra

High Court Challenge: Last Man Standing?

High Court Challenge – Day 1: The Hearing Begins

High Court Challenge  – Day 2: Scintillating Boredom

High Court Challenge – Day3 (a):  Terrible Consequences

High Court Challenge – Day 3 (b): The ‘Master’ Speaks

If you support Ron Williams’ High Court Challenge, please consider making a donation at the High Court Challenge website. Support for Williams has been overwhelming, but legal fees are still outstanding.  Ron, his wife and their six children should not have to bear the full brunt of the outstanding amount.

Dinner with ‘Darryl’

Before I begin an account of the day’s proceedings I so want to bring you all to dinner with us at the Canberra Club.  It’s a great little ‘RSL’ type club – on a smaller scale – where we’ve had dinner for the last two nights.

After the hearing finished today, Maria Proctor (Humanist  Society of Queensland), Dierk Von Behrens (Google him) and I choofed on over to the ANU to talk to the university’s Extraordinary League of Atheists.  What a great group of young people!

Then, courtesy of Dierk – apparently our limousine driver for the duration – we went back to the Canberra Club to watch the 7.30 Report with the rest of Ron’s support team.

Max Wallace was our host for the evening. He’d arranged for us to have access to a TV and comfy chairs and we sat ourselves down in preparation for a report on the High Court Challenge.

What a day we’d had!  It was such a relief to sit down quietly with a drink and just try to absorb the enormity of the maelstrom we were all caught up in.

At 8.30am this morning Maria and I had a frantic phone call from Ron saying, “Can you get to the High Court early? The 7.30 Report will be there and we need you and Maria to do interviews.”  We rang Dierk – our knight in shining armour – and pleaded with him to pick us up early.  Maria got dressed in 10 minutes flat, and we tore over to the High Court to meet up with the film crew.  After a bit of a confab we nominated Meg Wallace to do the piece to camera but she was called away and ultimately, they collared me.  As we sat at the Canberra Club anxiously awaiting the report I was hoping (not praying) I’d ended up on the cutting room floor.  Thankfully, I had!

When the story began there was a huge cheer then silence – except for Ron who just kept up a running commentary.

“Shhhh! “ I hissed at him, “We want to hear Ron Williams!”

We had no idea what ‘spin’ the 7.30 Report would put on the story, but as we watched it our jaws literally dropped to the floor.  There could not have been a better story if we’d produced it ourselves.  The inclusion of Michael Caton’s endorsement of Ron’s action was the icing on the cake.  Who better to support the little guy who took on the High Court than the little guy who took on the High Court in The Castle!  

When the show was over, there were ‘high fives’ all round and more hugging than was strictly decent.

Dinner after the program was a very happy affair with a real sense of achievement and camaraderie – and a lot of really bad jokes about Ron being involved in a Darryl and Goliath battle.

The Hearing – Day 2

So, now, to court.  The day began with a brief presentation from the last remaining state representative.  Then, the Solicitor General for the Commonwealth took the stand.

It’s a strange thing that we never get to see the faces of the barristers or legal representatives. All we see is the back of their heads!  The Solicitor General for the Commonwealth’s presentation was in stark contrast to the flowing eloquence of Ron’s barrister, Bret Walker. While undoubtedly intellectually brilliant, he speaks in a low staccato which is apt to send you into a torpor (particularly after a wine or two at lunch!). On the other hand, it makes note-taking much easier.

The combination of surprising twists and turns in the legal arguments, combined with the Solicitor-General’s somewhat strange delivery, resulted in a day which can best be described as scintillatingly boring.

But, let’s skip over the boring bit and head straight to the ‘scintillating’.  Here is where it begins to get fascinating. I can’t and won’t pretend to understand all the minutiae of what happened today but I’ll try my best to give you some broad brushstrokes.

The Commonwealth’s representative took the stand and immediately we got the sense that he was somewhat discombobulated.  It appears that, yesterday, the states presented significantly different arguments in their oral presentations than those in their written submissions. Importantly, the changes were not against Ron. Rather, the states seem to have taken Ron’s argument as a starting point and run with it in hot pursuit of their own federalist agendas.

Indeed, my sense of the Commonwealth Solicitor-General is that he felt that the earth was shifting beneath him.  His repeated references to what was the ‘common assumption yesterday’ suggested that the states had pulled a ‘swifty’ which significantly changes how the Commonwealth’s power to spend is defined.

Now, I really can’t say exactly how the states’ arguments changed.  What I can say is that it appears , at some stage yesterday, the states threw an enormous spanner in the works.  Suddenly the whole focus of the case seemed to shift.  Queensland, apparently, backflipped on its original position and decided to move more into line with the other states in supporting Ron.  Moreover, the other five states seem to have changed and expanded their arguments.

The issue under discussion is now much broader and more far-reaching than the original submissions suggested. The case seems to be turning into a major contest over the appropriate limits of executive power. In effect, it’s a power struggle between the states and the Commonwealth and, perhaps, even a power struggle between the Commonwealth and the High Court.

As I understand it, what is at issue is the limitations upon Commonwealth spending.  Neither the states nor the court seem to want the Commonwealth to have too much power to spend money. The Solicitor General for the Commonwealth insists that the executive faces many checks and balances upon appropriation and expenditure.  But the Justices on the bench seemed unconvinced. There appeared to be great concern that the Commonwealth is claiming far more power than it should rightly have, and there was a sense that this power needed to be better defined and curtailed. In short, much of the argument centred upon the concern that (despite protestations to the contrary) the Commonwealth effectively claims it has the untrammelled right to spend money on anything it damn well pleases.

At the heart of the issue is whether, absent any other authority to spend, simply listing an item in a Portfolio Budget Statement and asking Parliament to approve an appropriation for that expenditure,  amounts to valid legislative approval.  It seems that this has been the common assumption – until now.

The Commonwealth argues that even absent all other authority (which they claim they had) the fact that the Parliament and the Senate passed the appropriation of funds for the NSCP amounts to ‘legislation’ allowing it.  The states (and Williams) argue otherwise.

This, apparently, is a huge shift in the understanding of how things are done. Moreover, it has massive implications well beyond the National School Chaplaincy Program.  Indeed, I overheard someone say that this may well be the most important case heard in the High Court for 50 years.

I had a chat to a couple of legal eagles today and even they admitted they were challenged by the complexity of the case now before the court. It is interesting to note that the word ‘chaplaincy’ was barely mentioned in the court today.

Let me try to summarise the problem.

Williams claims that the Commonwealth acted beyond its powers in funding the NSCP.  He says that:

a)      Although the NSCP was included in appropriations, it was under a heading reserved for existing programs. As it was a new, not a continuing, program it was incorrectly categorised and, therefore, invalid.

b)      The Commonwealth cannot claim authority to spend by reference to its right to enter into contracts with trading corporations, because Scripture Union Queensland does not meet the criteria for a trading corporation. But, even if SUQ does turn out to be a trading corporation, the contract is invalid because it does not specify that the contractor must meet that criterion.

c)       The Commonwealth cannot claim authority to spend under their right to grant ‘benefits to students’ because the NSCP provides an intangible benefit which is neither material, financial,  restricted to students, or something which is directly relevant to helping students be (or perform as) students.

The states’ new arguments appear to hinge upon and expand item (a).  They take Williams’ contention one step further.  As I understand it, they  claim that, absent any other valid authority granted by the Constitution or by other means, the simple matter of passing an appropriation (authority to spend money) through the Parliament and the Senate does not amount to ‘legislation’ authorising it.  In other words, an approved appropriation alone is not enough to make expenditure ‘legal’.

Whereas Williams’ argument turns upon the NSCP being incorrectly categorised in appropriations, the states seem to push it further by saying, however categorised, appropriation is not legislation.  At least that’s how I understand it.  Of course, the Commonwealth claims otherwise.

Amusingly, while the Solicitor-General for the Commonwealth conceded that the Senate has repeatedly protested the inclusion of new items under the heading ‘ordinary annual services’ of government, they keep passing the appropriations, so they must be valid – mustn’t they?

The emerging contention appears to be that the Commonwealth should have asked Parliament to pass an act authorising the expenditure on the NSCP.  This never happened.  According to the informal legal opinions I sought today, there is good reason why.  If a government asked the Parliament to pass an act to approve funding for the NSCP it would be wide open to the challenge that government was legislating ‘in respect of religion’ in breach of Section 116.  In other words, it’s a legal snafu.

It is true that the government doesn’t have to pass legislation for everything they spend money on.  However, the accepted test of validity seems to be whether expenditure could have been the subject of legislation. The NSCP appears to be an item which could not have been the subject of  legislation (without breaching Section 116 of the Constitution) and which (if Williams is proven correct) fails to meet other criteria which would deem it valid.

The states now appear to be arguing that, if the Commonwealth fails to prove its authority to fund the NSCP on Constitutional or other grounds, it cannot claim authority to fund it on the basis of an appropriation being passed by Parliament.

Aggravating the problem, and adding to the discomfort of the Commonwealth Solicitor-General, is that numerous other programs and expenditures seem to fall into a similar category to the NSCP.  In short, if the NSCP falls, it will effectively act as a domino, toppling a host of other government programs.

Tomorrow, I believe, the Solicitor-General for the Commonwealth will continue his argument. We will then hear from Scripture Union’s barrister and, finally, the intervention of the Church’s commission.  I’m not familiar with High Court procedure, but I assume that Ron’s barrister will have the right to reply to the arguments made by defendants in the preceding two days.

More tomorrow ….

Chrys Stevenson

Posts in this High Court Challenge Series (in order):

High Court Challenge: We Arrive in Canberra

High Court Challenge: Last Man Standing?

High Court Challenge – Day 1: The Hearing Begins

High Court Challenge  – Day 2: Scintillating Boredom

High Court Challenge – Day3 (a):  Terrible Consequences

High Court Challenge – Day 3 (b): The ‘Master’ Speaks

If you support Ron Williams’ High Court Challenge, please consider making a donation at the High Court Challenge website. Support for Williams has been overwhelming, but legal fees are still outstanding.  Ron, his wife and their six children should not have to bear the full brunt of the outstanding amount.

Pre-Hearing – Outside the Court

We (Maria Proctor, President of the Humanist Society of Queensland and I) arrived early at the High Court of Australia for day one of Ron Williams’ hearing.  Ron and Hugh Wilson were already on site together with a film crew documenting Ron’s journey through the legal process. It was great to meet up with Felix Bloomfield from the Australian National University’s ‘League of Extraordinary Atheists’ and, before we knew what was happening, we’d all been roped into commenting ‘on camera’ about our interest in the case.

As we walked into the High Court, TV crews converged on Ron and Tim Mander from Scripture Union Queensland.

Sportsmanlike, Ron made a point of approaching Tim to shake his hand.  A great gesture.

In the High Court

At the court, we handed in our mobile phones (no electronic equipment allowed) and were briefly instructed on court etiquette.  That involves bowing on entering and leaving the court.  The court staff were friendly but efficient and it was clear they took their roles in preserving the dignity of the court very seriously.

I expected a court loaded to the gunnels with Christian supporters, but, although the hearing was well attended by the public, there was no rent-a-crowd evident from either side. I was surprised at how close to the ‘action’ we were able to sit – we were just one row back from the army of black-clad and bewigged legal teams busily shuffling papers and conversing in whispered tones before the imposing High Court bench.  I counted about 30 lawyers and barristers in all.  It really brought home what a huge case this is.

Tim Mander sat right in front of Maria Proctor (Queensland Humanist Society) and me so, cheekily,  we made it a point to say a cheery, “Hello Tim!”  He seemed quite surprised.

The Hearing Begins

As the starting time for the hearing approached,  seven ‘tip staff’, young lawyers who work as associates (assistants) to the High Court Justices filed in and took up their places behind the bench.  The court fell silent as we waited for the judges to arrive.  The sombre faces of the ‘tip staff’ and the respectful silence seemed to signal the gravity of the occasion.  The matters about to be heard were of national importance.

The clerk stood at the front of the court and intoned, “Silence!  All stand!  The High Court of Australia is now in session.  God save the Queen.”  The Justices filed in and we bowed to them before taking our seats.

The session began with introductions from barristers for the plaintiff (Ron), the defendants (the Commonwealth, Peter Garrett, Penny Wong, and Scripture Union Queensland) and the six states’ representatives.  A representative from the Churches Commission sought , and was granted, leave to intervene in the case.

Next, Ron’s barrister, Bret Walker took the stand.  What followed was a tour-de-force two and a half hour presentation on the specifics of Ron’s case. It was truly gob-smackingly brilliant. Barristers of this calibre get paid an enormous amount of money, and Walker showed why. He was knowledgeable, articulate and, amazingly, rarely spoke in ‘legalese’.  I had fully expected to be befuddled by technical arguments – and I was from time to time – but largely, Walker’s presentation was made in terms very accessible to the general public.

Walker’s tone was quiet, but authoritative.  I was enormously impressed that, when he was questioned by the High Court Justices, he didn’t leap in to provide an answer. Indeed, he was often silent for some time while he considered the question and then, would either answer carefully or ask permission to give the matter further consideration and return later with a reply.  There was a real sense that he was weighing up every word for its possible implications on the case – and yet that did not stop the easy flow of his argument.

Walker began by ‘sketching out’ the issues presented in the written submissions.  Later in the afternoon he would ‘flesh out’ this arguments with more technical references to statutes, case law and Constitutional clauses that left me floundering.  I am not a lawyer, and, like most people untrained in the law, there is only so much I can grasp.  What follows is my understanding of the matters discussed, but it comes with the warning that I speak as an ordinary member of the public with the all the limits of legal knowledge that implies.

Williams’ Case

The National School Chaplaincy Program (NSCP), Walker explained, required both the expenditure of money by the Commonwealth and its involvement in a continuing supervisory role.   ‘The story’, he said, began with the No. 3 appropriation of funds for 2006-2007.  At issue, said Walker, is that the appropriation provision in that statute cannot be interpreted to include the NSCP, which was a new program and, therefore, not eligible for inclusion in the ‘ordinary [or ongoing] annual services’ of government.  He was later to explain that as a new program at the time of this statute, it was not eligible for inclusion in a category reserved for existing and ongoing services or programs.

Walker then invoked what I like to think of as the ‘house of cards’ argument.  That is, if the NSCP was not properly approved by parliament in 2006-2007 then all future inclusions of this item in appropriations as an ‘ongoing’ [or previously approved] expense are invalid.

If, said Walker, the court found that Williams’ argument on this matter was correct, that was sufficient for the ‘overall success’ of his argument.  But, if Williams fails to convince the court on this matter, there arises the question of the executive’s [Federal government’s] ‘power to spend’.  The NSCP, Walker argued, is a program that is no different to, say, a literacy or numeracy program. While it may be important, it cannot be said that it is a matter of national emergency calling for a national response.

Neither, said Walker, is this a case of the Commonwealth entering into (as it is legally permitted to do) a contract with a trading corporation.  Firstly, there is nothing in the contract between the Commonwealth and Scripture Union Queensland (SUQ), that sets out any stipulation that the contractor should be a trading corporation and, indeed said Walker, there is an ‘incapacity’ to characterise SUQ as a trading corporation.

Walker moved, next, to the argument that Section 51 (xxiia) of the Constitution allows the Commonwealth to spend money for the purpose of providing ‘benefits to students’.  This was a clause that was added to the Constitution following a referendum. Walker argued that the ‘benefits’ provision must be read ‘narrowly’ and that the definition of ‘benefits to students’ must be rooted in both the section’s history [how it was presented and explained to the public in the referendum] and its Constitutional context.  In this sense, said Walker,  ‘benefits to students’ only authorises expenditure where a benefit is provided to individual students (not students ‘in general’) and which provides, directly or indirectly, a measure of financial relief.  (As an example, Walker cited living away from home allowances paid by the Federal government to eligible university students.)

The Kicker

Now, let’s summarise.  At this point, Walker had presented three key arguments to the court.

1.  That the appropriation of funds for the NSCP was invalid.
2.  That the government lacked executive power to make the expenditure because SUQ is not a trading corporation. Further, even if it is determined that SUQ is a trading corporation, the contract between the Commonwealth and SUQ makes no stipulation to that effect. In other words, Walker was later to argue, if SUQ does turn out to be a trading corporation that is more by accident than design in terms of the NSCP contract.
3. That the government cannot claim authorisation to spend by reference to the ‘benefits to students’ provision in Section 51, because the NSCP does not meet the criteria of a ‘benefit’ when this provision is examined in the context of its historical roots and Constitutional context.

And then came the kicker.  If the High Court rules that Williams’ contentions are incorrect on all three issues above, then his fourth contention that chaplains are ‘officers under the Commonwealth’ has been proven. In this event, Section 116, which forbids a religious test for ‘officers under the Commonwealth’, can be invoked.  If the Commonwealth is providing a ‘benefit to students’ and the reserves the right to impose sanctions if the terms of the contract and guidelines are breached,  then chaplains are only appointed because of an edict or sanction by the Commonwealth and are clearly working under its supervision.  In this sense, they must be defined as ‘officers under the Commonwealth’.

Walker went on to argue that the threshold requirements for the appointment of a secular pastoral worker clearly show that persons with a religious affiliation are favoured under the NSCP guidelines.

It was a coup de grace worthy of a courtroom drama – only this was a real courtroom.

Of course, whether the court accepts Walker’s logic remains to be seen.

Standing

Issues relating to standing were covered next.  Ron’s case, said Walker, was quite different to a parent with children at a public school protesting about funding for a private school.  Ron’s ‘special’ standing hinges on the fact that his complaint relates directly to expenditure for activities at the school his children attend.  Walker dismissed the ‘horse has bolted’ argument that Ron had no right to seek ‘relief’ for expenditure which had already been made and for which no current contract for further expenditure is in place.  There is no suggestion, said Walker, that the annual funding for chaplaincy at Darling Heights State School is a ‘one-off’ or that it is not expected to continue.

After the hearing I had the opportunity to chat with someone who has much more legal knowledge than me. While not purporting to give a legal opinion, they said, conversationally, that the ‘standing’ argument appears to be dissipating.  Whether that is an accurate assessment, I guess, remains to be seen.

Power to Spend

More detailed arguments were then made with regard to the Commonwealth’s ‘power[authority] to spend’ and case law (precedents) which might clarify the areas in which the Federal government may or may not allocate funds. I have no shame in admitting that many of these were beyond my grasp.

Inevitably, the issue of whether the Commonwealth should be funding a program which is not of national importance, and which is well within the competence of the states to administer, was raised.  Another issue – again one quite beyond me – was based on the argument that, while the Commonwealth does not necessarily have to pass legislation in order to enter contracts for expenditure, such expenditure is limited to items for which legislation could be made.  Could the government have passed special legislation for expenditure on the NSCP? There appears to be some doubt but, sadly, I’m unable to elaborate – the ‘legalese’ kicked it around this point, leaving me floundering!

Light Relief

Providing some light relief during Walker’s legal tour-de-force was the often humorous interactions between the barrister and the High Court Justices.  At one point,  Justice Hayne even referred to Sir Humphrey Appleby and the Archbishop of Canterbury!  The Justices frequently questioned Walker and challenged his arguments, but he took it calmly and good humour.  Throughout the hearing, groups of school children drifted in and out of the court.  I had to smile as their arrival was accompanied by the strong aroma of eucalyptus and menthol.  Apparently, primary school children in Canberra are universally anointed with Vicks Vaporub for the duration of winter!

One of the most interesting arguments related to the role of chaplains (to provide spiritual guidance) and the preference for people with a religious affiliation.  There was some amusement when the court mused upon the difficulty of defining ‘spirituality’.  The vagueness of the NSCP guidelines were also the subject of some raised eyebrows from the bench.  Schools, they were told, cannot appoint a secular pastoral worker unless they have failed to find a suitable person with a religious affiliation. There was some speculation as to what would happen if an over-zealous bureaucrat decided to tell a school they just hadn’t tried hard enough!

Lunch

After two and a half hours on his feet, Walker must have been relieved when a lunch break was called.  Ron and his supporters adjourned to a building across the road for lunch.  Here, Max and Meg Wallace and I took the opportunity to have an interesting chat about separation of church and state, and by what method it might best be achieved.

The Hearing Resumes

Back in court, Walker responded to questions that had been asked but not answered. Most of these seemed to relate to case law and precedent.  Reading through my notes, I can understand why ‘off the cuff’ replies were not provided!  Much of the afternoon’s discussion centred upon the limits of executive power and how that power might be defined in a way which does not make the business of government unworkable or inflexible but, equally, does not give the executive the untrammelled right to spend money on anything they see fit.  What was sought, said one of the justices, is some definitive sense of ‘that large middle ground’.

There was also some discussion about how one might distinguish between areas which do and don’t require legislation in order for expenditure to be valid.  Should there have been legislation in respect of the NSCP?  Certainly, says Walker, no such legislation exists.

Semantics

Around this point, Justice Hayne became quite grumpy about Walker’s continued focus on issues pertaining to the ‘contract’ between the Commonwealth and SUQ.

Trying to redirect Walkers’ arguments he interjected, “My focus, is more on the issue of spending money.”

Sadly, Walker’s next exposition related directly to the terms of the contract between the Commonwealth and SUQ.  With a smile in his voice, Walker insisted that he was not trying to be ‘provocative’ and suggested that rather than referring to the ‘terms of contract’ he might, instead, speak of the ‘terms under which the money was spent’.  A nice example of court room semantics, I thought.

Day One Concludes

Walker concluded by expanding on the arguments made during his earlier presentation to the bench.  I expect that these are issues which will arise, again, when the defendants present their arguments so I won’t go into them now except to mention one item that may be of interest to my readers.

There was considerable discussion about the definition of a ‘trading company’, how that term was understood by those who drafted the Constitution, and how, historically, a ‘trading company’ is defined legally in order to distinguish mercantile entities from charitable organisations.  It seemed quite amusing to me that Scripture Union which undoubtedly claims to be a charitable organisation because of its role in ‘advancing religion’ is now placed in the position of having to argue that it is, in fact, not a charity but a trading corporation!  It occurred to me that this might jeopardise SUQ’s tax free status but, sadly, on seeking a legal opinion after the hearing, I was informed that despite the way in which SUQ may be defined in terms of this case, it will have no effect upon its standing as a bona fide charitable institution.

The hearing ended with the representative for Western Australia speaking on the issue of the Commonwealth’s power to spend.  In short,  he presented a strong argument in support of Ron’s contention that the Commonwealth acted contrary to the Constitution in funding the NSCP.  The other states will present their cases tomorrow.

Chrys Stevenson

Posts in this High Court Challenge Series (in order):

High Court Challenge: We Arrive in Canberra

High Court Challenge: Last Man Standing?

High Court Challenge – Day 1: The Hearing Begins

High Court Challenge  – Day 2: Scintillating Boredom

High Court Challenge – Day3 (a):  Terrible Consequences

High Court Challenge – Day 3 (b): The ‘Master’ Speaks

If you support Ron Williams’ High Court Challenge, please consider making a donation at the High Court Challenge website. Support for Williams has been overwhelming, but legal fees are still outstanding.  Ron, his wife and their six children should not have to bear the full brunt of the outstanding amount.