Monthly Archives: August 2013

Chaplaincy Challenge: Williams returns to the High Court

Yesterday (8 August 2013), Ron Williams and his crack legal team (Claude Bilinsky solicitor, Bret Walker SC and Gerald Ng) announced that a Writ of Summons and Statement of Claim had been issued out of the High Court of Australia between Ronald Williams (Plaintiff ) and the Commonwealth of Australia (First Defendant), the Minister for Education (Second Defendant) and Scripture Union Queensland (Third Defendant). The complaint centres upon continued Federal funding for the National School Chaplaincy and Student Welfare Program; funding that was ruled unconstitutional by the full bench of the High Court of Australia in 2012.

In 2011, I accompanied Ron, his legal team and his supporters to the High Court of Australia. Here, it was argued that Federal funding for the National School Chaplaincy and Student Welfare Program was unconstitutional.

In the months leading up to the case, I become its unofficial scribe; a role that evolved from being a close friend of Ron Williams, his colleague, Hugh Wilson and their joint endeavour, the Australian Secular Lobby.

On 3 August, 2011, I wrote a Pre-hearing Summary for ABC’s The Drum; an attempt to dispel some of the many myths and propaganda circulating in respect to the case.

In that article I explained that, despite attempts to dismiss him, Williams and his team were no hapless band of inept malcontents. I pointed out that Williams’ barrister, Bret Walker SC, was (and is):

“… one of Australia’s leading barristers. A former president of the Law Council of Australia and currently the director of the Australian Academy of Law, Walker is no legal lightweight.”

In this second case, as with the first, Walker will be instructed and assisted by Sydney law firm Horowitz and Bilinsky with partner, Claude Bilinsky, taking a close, personal interest in the proceedings.

In the lead-up to the 2011 challenge,  Williams was branded “the man who sued God”. It was assumed his case would centre upon Section 116, the clause in our constitution which deals with the relationship between religion and the state.

It is true, that Section 116 formed a part of the argument presented to the court, but it was never the central argument, nor was it ever assumed by Williams or his team to be the point which would win them the case.

We have stated this repeatedly, but the misconception that Williams ‘lost’ his case because the court would not consider the section of it relating to Section 116 persists.

The strength of the case was always in Williams’ argument that the Commonwealth and its officers (then, Penny Wong and Peter Garrett) had breached the constitution by entering into a contract with Scripture Union Queensland to fund the National School Chaplaincy Program.

Such funding, Williams claimed, was beyond the executive powers of the Federal government.

According to Williams, spending for the National School Chaplaincy Program – huge amounts approaching half a billion dollars – had been ‘hidden’ in the Education Budget and simply  ‘appropriated’ (rubber-stamped) as an ‘on-going expense’ without ever being formally approved by specific legislation.

According to Williams’ team, a proper reading of the Constitution suggests that a Bill should have been drafted, setting out the details of the proposed NSCP program and that Bill should have been scrutinised fully by both houses before funding was approved.

Once we went to Court, however, the case become curiouser and curiouser.

According to the Australian Constitution, state governments are allowed to ‘intervene’ in High Court Cases. In the case of Williams vs The Commonwealth and Others, all six states chose to intervene and, surprisingly (although all support chaplaincy) they largely intervened in favour of Williams’ argument.

The states have a vested interest in reining in the power of the Federal government. Increasingly, over the last twenty years or so, the Federal government has wrested more and more power from the states, gaining ever more control over areas which were once ‘state matters’. Williams provided the states with an opportunity to claw back some power. And, of course, in politics, power and money – particularly the power over the disbursement of taxpayers’ dollars – is everything.

Williams’ case was always strong. But, once the states’ legal teams got together they took the case in a direction which no-one had foreseen. Taking Williams’ position even further, the states, in an argument articulated by Queensland’s (then) solicitor-general, Walter Sofronoff, suggested that a long-standing assumption about Federal funding,  dating back to 1902, erroneously allowed the Federal government more power than the Constitution, technically, permits. Sofronoff argued that the High Court must recognise that error and rule accordingly.

As I wrote in an article for ABC’s Religion and Ethics portal, the “orthodox assumption” was that, as long as something falls within its Constitutional powers, the executive doesn’t have to seek legislative approval in order to spend; sufficient ratification being provided through the process of appropriation.

The states, however, were now suggesting that the power of the executive to act without legislation was far more narrowly confined to matters pertaining directly to the maintenance of the laws of the Commonwealth or the Constitution; this did not extend to funding school chaplaincy or a host of other programs beyond this remit.

I used the analogy of the executive powers of the Commonwealth being “corralled within a Constitutional ‘home paddock’, with the gate to the ‘big paddock’ of spending only able to be unlocked by legislation.

Extending the analogy, I suggested that:

“the lock can no longer be picked by clearing expenditure through appropriation” because “a ruling in Pape v the Commissioner of Taxation (2009) closed the loophole which allowed appropriation to be passed off as a kind of de facto legislation.”

As Justice Gummow stated during the High Court hearing:

“This is one of the structural problems. We do not have legislation. You simply have the executive producing these vast documents with somewhat loose expressions which have never been subject to legislative scrutiny and any attempt at legislative precision.”

It took nearly eleven months for the court to rule in Williams’ favour. I remember holding my hand against my mouth in stunned disbelief as ABC radio announced the court’s finding. We won!

But the victory was shortlived.

As I wrote (again on ABC’s Religion and Ethics portal), (then) attorney-general, Nicola Roxon vowed to find a way to allow the funding to continue.

Then, I thought the most likely strategy would be to provide tied funding to the states, but in retrospect, it now seems the Federal government had a contingency plan in place – a plan which the Australian Christian Lobby appeared to be in on given their nonchalant response to the High Court verdict.

On 26 June last year, the ALP government rushed through legislation aimed at circumventing the Williams’ ruling. Even shadow attorney-general, George Brandis (LNP) admitted it was a ‘bandaid solution’ and doubted it would satisfy what the High Court had stipulated. Nevertheless, even knowing the legislation was dodgy, the LNP supported it as did the Greens, to their eternal shame.

birdIn that act, the entire Australian parliament raised a single finger salute to the full bench of the High Court, then turned and bared their collective arses to the Australian taxpayers.

“We will not be accountable,” they said effectively. “We will not abide by a ruling of the High Court. Fuck the Constitution. Fuck the states.”

Williams and his legal team immediately began plans to defend their position and the High Court Ruling. It has taken until now to bring a new case together and issue the writ, but Williams is now on track to make Australian Constitutional history, twice.

Contrary to his public reputation as an ‘angry atheist’ Ron Williams is a twinkly-eyed delight of a man with a voice filled with energy, humour and humility. He is not a rich man. In many respects, except for his steely commitment to stand up for a secular education for his children, he is your ‘average Joe’. And the ‘average Joe’ needs our help.

Williams vs The Commonwealth and Others: The Sequel must not just be about Williams taking on the government. It is a chance for ‘we the people’ to tell the government that they were wrong in trying to weasle their way out of a High Court ruling. That, in doing so, (whether or not you agree with chaplains in schools), they have set a dangerous precedent which must be brought into check by the High Court.

Williams now has the standing to fight this case but he needs the moral and financial support of the public. He also needs the support of the media to explain his case and its importance to the public. Where are you responsible political journalists????

Please, visit the High Court Challenge website and, whether you can spare $500 or only $5, please consider donating (using the “Donate” button in the right hand side-bar). It’s your chance to become a part of making Australian constitutional history. Where else can you do that for the price of a lunch?

Williams deserves your support. Australians deserve Williams to win his case. And whichever party wins the 7 September election – Australia deserves better.

Chrys Stevenson

Note: Donations made to the Williams legal fund via the High Court Challenge Website are not tax deductible. If you wish to claim a deduction, the Secular Party of Australia notes that donations made to it and marked clearly HCC will be donated on to the Williams campaign.