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).

Oh dear!

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.

Exactly!

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.

Ron gasped.

Hugh Wilson gasped.

I 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 ….

Chrys Stevenson

At the High Court

I’m in Canberra with Ron Williams and Hugh Wilson (National Director of the Australian Secular Lobby) for Ron’s second High Court Challenge against the National School Chaplaincy Program.

See my background article on the case here, on Independent Australia.

After a late night blogging about a particularly poor report on the case on ABC’s Lateline program, I surprised how happily I sprang out of bed at 7am yesterday morning. Adrenaline is a wonderful thing.

I wasn’t early enough to beat the indomitable Ron Williams though – he was already up, still in his pyjamas and tapping away on his computer by the time I emerged.

Coincidentally, all three of us are on a health kick, so we decided to walk to the court, a half-hour stroll along Lake Burley Griffin and over the Commonwealth bridge. Canberra in autumn is beautiful – crisp and clear and cold, but not bone chillingly so.

In the forecourt of the High Court building Ron was immediately cornered by media. As he was interviewed by AAP (see article at The Guardian), Peter James, CEO of Scripture Union Queensland, looked on.

University studies support Chaplaincy?

When it was time for James’ interview, we were a bit bemused to hear him insist that two university studies had confirmed that  “students, teachers and psychologists all valued the program”.  Hmmmm!

The first, ‘The Effectiveness of Chaplaincy’ by Dr Philip Hughes of Edith Cowan University and Prof. Margaret Sims of the University of New England was the subject of close investigation by Greens MP and academic, John Kaye.  The Greens challenged the validity of the report which has never gained currency with anyone but the vested interests it serves. 

Dr Kaye (who has a Masters in Engineering Science from the University of Melbourne. and a PhD from the University of California, Berkeley), was scathing in his criticism of the sloppy research method employed in this report.

But further – and this is something Peter James really should mention – the report failed to disclose that Hughes, the lead author,  was employed four days a week by the Christian Research Association, a group established and administered by the very same churches that provide many of the chaplains.

The methodological flaws, the failure of the report to justify its own conclusions, and Dr Hughes’ failure to disclose his conflict of interest combine to make this particular ‘university study’ highly questionable as ‘evidence’ for the value of school chaplaincy.

Mr 97% Porkie Goes to Parliament from Secular Public Education Lobby on Vimeo.

The second study was harder to locate but Peter James, we think, may be referring to a PhD thesis (by definition, NOT a university ‘study’)  by David John Pohlman – now a …. wait for it … chaplain with Scripture Union Queensland.

The only other ‘study’ I can find is referred to in SUQ’s ‘special case’ document, submitted to the High Court. It refers to a ‘pilot’ project, a ‘paper-based survey’ conducted during the annual SU Qld chaplains’ conference in August 2013, but I can find no reference to the participation of any university.

By any measure, these are hardly ‘independent’ studies on which any kind of government policy could be, or should be, based.

Of course, as I explained in yesterday’s blog post, the fact (or otherwise) that the chaplaincy program is ‘popular’ has absolutely nothing to do with the Williams case and will have no influence whatsoever in the decision of the High Court.  Peter James is a solicitor so he is obviously well aware that what he is feeding the media is irrelevant to the case before the court; it’s all part of the winning the propaganda war.

Pollies dodge a bullet

Soon after the media interviews, Ron’s solicitors, Claude Bilinsky and Liam Carney emerged from the High Court building for a pre-hearing chat.

Bilinsky reminded me that prior to Williams’ first hearing the statute books recorded the expenditure of money from Consolidated Revenue without appropriate approval as a jailable offence for the responsible government ministers. Strangely, after Williams’ first hearing (but before the decision was handed down) , that particular law was quietly removed from the books. Amazing, the power of the parliament, eh? Why did the media never pick up on that nifty little duck and weave?

The case begins

And then, it was into the High Court for the first day of the hearing in the matter of Williams v the Commonwealth and Others. I sat with Ron, Hugh, our friend Dr Nelson Lau (our unofficial photographer), and local supporter, Emeritus Professor Dr Robert Gregson from the Australian National University. Before us sat nearly 40 solicitors and barristers – representatives of the plaintiff (Williams), the defendants (the Commonwealth of Australia, the Minister for Education and Scripture Union Queensland) and the six intervening states (Queensland, NSW, Victoria, South Australia, Tasmania and Western Australia).

I nudged Ron.

“This is all your fault!” I said.

“I know!” he smiled, “You couldn’t write a script as bizarre as this! Perhaps I should just stand up and plead guilty now.”

Ron’s barrister, Bret Walker SC was the first to address the bench. Only six (rather than the usual seven) justices are hearing this case; Justice Gageler having recused himself because he was involved as solicitor-general for the Commonwealth in Williams’ first case.

The problem with Section 32b

Walker (unlike the media and SUQ) zoned in on the crux of the Williams (2) with pinpoint accuracy.

The proceedings, he said, are to test the validity of a ‘repair act’, now Section 32b of the The Financial Management and Accountability Act 1997. This section was introduced in the wake of and as a response to the decision in Williams’ first case. The premise of S 32b, said Walker,  is based upon a perceived lack of power; the power to expend money without supporting legislation. It’s purpose is to provide Parliament’s assent to delegate legislative authority to the Executive.  Its affect is to authorise expenditure ‘in blank’; effectively providing the government with a blank cheque to spend on anything it likes without the authorisation of the Parliament.

In a complaint that would be echoed throughout the day by the various states’ representatives, Walker pointed to the exceptionally vague and general terms in which S 32b is framed.  Questions are raised by this legislation, said Walker, but no answers supplied; where specification is needed, there is silence.

32b provides no fine detail about the grants or programs authorised under its umbrella. All that is included is the name of the program and a short comment on its ‘purpose’.

Later in the day, the vagueness of the programs funded was pointed out by one of the solicitor’s general:

The “Tasmanian Forest Industry Adjustment”, the “Australian Animal Welfare Strategy” – the titles provide no specificity about the programs at all. There is no detail by which the appropriateness of the expenditure can be judged, and yet, S32b authorises expenditure based on no more detail than is provided by a vague title and a general statement of ‘purpose’.

The terminology used in the amendment, Williams’ barrister suggested, is so imprecise as to be meaningless. Its breadth is ‘legislatively uncontrolled’.  Indeed, S32b is a remarkable proposition in its generality. Read literally, it says that if the Commonwealth doesn’t have the power to act …. the Commonwealth has the power (by virtue of this legislation).

For Walker, it seems inconceivable that a statute providing the Commonwealth with almost unlimited power to spend money without the proper scrutiny and assent of the House of Representatives and the Senate could be considered ‘valid’.  It is beyond legislative competence to enact a law providing the legal power to spend ‘in blank’.

The legislation, he explained, delegates almost unlimited power to the government to spend money, without the approval of parliament, on almost anything.

The programs listed in the schedule, are ‘utterly unlimited in their scope of subject matter’.

It is, said Walker, an act of supererogation on the part of the Commonwealth Parliament – a statute that goes far too far. Section 32b, he said, travels too far beyond the law-making function. In Walker’s opinion, S 32b does not meet the threshhold of a law at all as (in practical, legal terms) it cannot do what it purports to do – i.e.  provide the government with unlimited power to spend.

So vague, so general is this ‘punitively, excessively broad statement’ said Walker, it simply cannot be valid.

The solicitor-general for WA agreed, noting that the greater the extent of power authorised by an Act, the less likely it is to be a valid delegation; and S32b grants almost unlimited power to the executive to spend money without the authorisation of the Parliament!

The only way 32b might become valid is for it to be ‘read down’; that is, interpreted by the court in some narrow sense that would limit its power.  But, said Walker, despite using language which ‘cannot on its face be taken literally’, neither can it be read down for “Where does one read it down to?”

The argument seemed to be that the only way this legislation can work is for it to be read literally, but reading it literally makes it antithetical to the ruling in Williams’ first case.

It is, said Walker, an ‘extraordinary pseudo-law’ which ‘fails in its entirety.

Recognising the obstacle posed by the High Court’s ruling in Williams (1), the Commonwealth has argued that it should be ‘revisited’. There were issues in that case, the Commonwealth complains, that were not properly interrogated by the justices. It’s an argument that didn’t seem to fly with the Justices and the feeling in the court was that it’s highly likely the decisions made in Williams (1) will stand.

Walker was scathing in his response to the Commonwealth’s implied criticism of the decision in Williams (1). It must be the proposition, he said, that the case was decided wrongly because the reasons advanced by the justices were wrong. It constitutes, he said, a thorough-going criticism of the court which is without foundation.  It is not ‘ordinary’ he said to ask for a case heard in the High Court to be re-opened. There is no reason to say that what stands in law should be reversed. To say otherwise threatens the integrity of the court and the stability of its decisions.

As the day moved on, each of the states’ solicitors-general, with the exception of Queensland, agreed (broadly) with Walker’s views on S 32b.

Five of the six states agreed that the legislation could not be ‘read down’.

The solicitor-general for Victoria noted that the Commonwealth seemed to imply that S32b would be ‘read down’ by means of ‘regulations’ imposed upon it. But, he said, there is no head of power, no ‘foothold’ to limit what the executive is capable of doing under S 32b and no criterion by which it can be read down.

Queensland, however, argued that the legislation may be valid, even though funding for discrete programs specified within its schedule (the laundry list of ‘allowable’ programs) may not be.

NSW complained that S 32b was ineffective in meeting Constitutional requirements, not to mention the requirements confirmed in the Williams (1) ruling. The solicitor-general for NSW also noted that 32b authorises a minister to delegate his or her authority to sign off on expenditure to a public servant ‘well below’ the status of a person responsible to the government. It allows millions – even billions – of taxpayers’ money to be spent, without parliamentary authority, at the stroke of a bureaucrat’s pen.

In the opinion of NSW, S32b ‘fails as a law in respect to any identifiable head of power’.

NSW insisted that, in line with the court’s decision in Williams (1), parliamentary scrutiny is required for expenditure and the Parliament cannot abrogate that responsibility.

In Williams (1) it was made clear that an ‘appropriation’ – the Parliament’s assent to a request to ‘set aside’ funds for a specific purpose – does not (as previously supposed) provide sufficient authority to actually spend money. For that to occur, legislation must be enacted after parliamentary scrutiny of a Bill pertaining to the specific program or grant on which money is proposed to be spent.  S 32b completely circumvents both the need for legislation and for detailed parliamentary scrutiny of the subjects of expenditure. S 32b provides blanket approval based on no more than a title and a brief, vague, generalised descriptor of its ‘purpose’.

Further, the government has supposed that, with the benefit of S 32b, it no longer needs a ‘head of power’ to expend money. If the Constitution does not provide it with the authority to spend money for a particular purpose, 32 b does. In this sense, 32 b acts outside of the Constitution in a way that cannot possibly be validated by the High Court whose role is to protect the authority of that document.

It was also pointed out by the solicitor-general for Tasmania that, if S 32b is valid, then it leaves no purpose for S96 of the Constitution which enables the Commonwealth to make grants to States. There is no need to make a grant to a State if the Commonwealth is authorised to spend the money itself. The separation of powers inherent in a Federation are completely undermined and, again, S32b seems to undermine the Constitution.

The submission of the Commonwealth, said the solicitor-general for Tasmania, seeks to diminish the concept of Federation endorsed by the founders of our Federation.

Power to spend

Yet, at least in respect to the National School Chaplaincy Program, the Commonwealth insists that it does have Constitutional authority with reference to sections  51(xx) and section 51(xxiiiA) of the Constitution with respect to trading corporations and the provision of benefits to students; this, despite the High Court having ruled otherwise in Williams (1).

The question raised by Walker is, that if the Commonwealth already has legislative power to spend, what is the purpose of S32b? And if it does not have the power to spend and S32b provides it, then 32b’s purpose must be to override the Constitution.

Walker insisted that the National School Chaplaincy Program does not meet the criteria of providing ‘benefits to students’ as intended in the Constitution. For example, he pointed out, to be eligible under this head of power, the ‘benefit’ has to be endowed on a voluntary basis. While the guidelines for the NSCP did, once, stipulate that students’ engagement with the program was ‘voluntary’, that word has since ‘disappeared’ from the amended description.

Further, to be considered ‘a benefit to students’, the ‘benefit’ has to be uniquely applicable and relevant specifically to someone’s ‘character as a student’ – e.g. the provision of a lap top computer. In the case of school chaplaincy, the guidelines themselves stipulate that the ‘benefit’ serves the ‘school community’, not students exclusively, and the ‘benefit’ supplied is not anything material or tangible – e.g. money or a piece of equipment. The purported benefit, said Walker, is ‘obscure’.

The Commonwealth also claims Constitutional authority under the provision which allows it to make contracts with ‘trading corporations’. Scripture Union Queensland, the recipient of millions of dollars of taxpayers’ money, is not, however, a ‘trading corporation’. The requirements to meet the definition of a ‘trading corporation’, said Walker are ‘completely absent’. It is, he said a ‘hopeless proposition’ that spending for the NSCP is authorised in this way. Indeed, one of the solicitors-general ventured that even if SUQ was deemed to be a trading corporation, this would not be sufficient to validate the expenditure on the NSCP.

Conclusion

At the end of the first day’s hearing, we were delighted to see Ron’s barrister emerge from the court with a beaming smile on his face. Ron had been asked, earlier, in an interview if he thought he would win. He replied, cautiously, that one could never tell with these things but that he was ‘optimistic’.

Optimism was certainly the mood following the first day of Wiliams (2).

Section 32b appeared to have been left in tatters on the courtroom floor and there seemed to be no support for the contention that the ruling in Williams 1 (that expenditure requires approval through the passage of a Bill) should be overturned.

Today, we shall hear arguments from the Commonwealth …

Chrys Stevenson

In a fairly surreal moment, I’m sitting on a sofa next to Ron Williams in a Canberra apartment, watching Ron Williams on ABC’s Lateline.

The interview, focussing on Williams’ second High Court challenge to  Federal funding for the National School Chaplaincy Program, took place earlier in the afternoon in this same apartment, soon after we arrived.

Ron and I, along with Hugh Wilson, National Director  of the Australian Secular Lobby, are ‘housemates’ for the next week. It’s an unofficial ‘team’ and our apartment has quickly become the unofficial HQ for Ron’s many Canberra friends and supporters.

The Lateline story comes up and we watch, with some dismay, as Ron’s novelty song, “Why Don’t Bees Go to Heaven?” plays as an intro.

Really? Really????? Bees?????

Our eyes widen and we look at each other in disbelief.

In the Sydney Morning Herald today, constitutional expert, George Williams, referred to the forthcoming Williams case as “the most anticipated of the year”; a case that could “could rewrite the book on how the Commonwealth and the states spend public money.”

And yet, instead of an interview with Professor Williams  explaining how Ron’s case could rewrite Australian Constitutional history, Lateline wasted valuable airtime playing a fun but totally irrelevant song that has nothing, zero, zilch, nada to do with Williams’ case.

In my own article, published today at Independent Australia, I explain how the Williams case has evolved beyond its initial focus on school chaplaincy to a defence of representative democracy and financial accountability.  It’s an angle that seems to have eluded the producers of Lateline.

Whoever put this story together seems to have thought – mistakenly in my view – that it needed ‘padding’.

God forbid (no pun intended) that Eddie Mabo or Brian Pape had released a music video prior to their forays into the High Court! Would Aunty have thought it appropriate to cut their playful little ditties into stories about their landmark Constitutional cases? Would reports on Mabo have benefited from a peppy little jingle? 

Williams vs the Commonwealth and Others (2) will be played out in the High Court of Australia over the next three days. This is a deadly serious, historic case on a crucially important issue affecting all Australians.  It’s up there in importance with Mabo and Pape.  It deserves a little respect. It didn’t get that respect tonight on Lateline.

The Williams case is not just about chaplaincy. It’s about whether the Federal government should, arbitrarily, be able to sign off on massively expensive programs without jumping through the hoops put in place by the Constitution.

It’s also about the questionable validity of fundamental changes that have been made to the ‘rules’ about government spending; changes which seem to ignore the principle that, in a representative democracy, government expenditure requires parliamentary scrutiny.

Constitutional expert, Anne Twomey, describes the Federal government’s cynical response to the decision in Williams’ first case as “… an abject surrender of its powers of financial scrutiny to the Executive”.

Apparently John Stewart and the producers of Lateline didn’t think that provided enough interest for ABC viewers.

I can just imagine the production meeting:

“Yeah, yeah, selling out representative democracy so that governments can fund pork-barrel programs, circumventing a decision of the High Court, rubber-stamping billions of dollars of government expenditure, spending half a billion taxpayers’ dollars to buy votes from the Christian right … It’s all very well, but where’s the public interest, guys? Where’s the hook?”

“I know! Williams is a singer. What this story really needs is music.”

Seriously, ABC? Seriously?????? Has it really come to this?

And, at issue, isn’t just the use of the silly song, the presentation of an historic constitutional case as a ‘fluff’ piece and the implication that ‘atheism’ is the driving force behind Williams’ attack on chaplains (it isn’t, as Ron would happily have explained to Stewart if Stewart had bothered to ask (but didn’t)).  What really irked us is that the story completely misrepresented what the case is about.

Hugh Wilson and I winced in unison as Peter James of Scripture Union came on to repeat  the now familiar SUQ mantra that chaplains are wonderful people doing great work in our schools. Maybe they are, maybe they aren’t. You wouldn’t expect James to say anything else. But a senior political journalist reporting on a High Court case should have realised (and perhaps found someone to explain to viewers) that the performance of chaplains is absolutely irrelevant to the success or failure of the Williams case.

The great pity is that neither the non-government defendant (Scripture Union) nor John Stewart,  seem to grasp one very simple concept about Williams vs the Commonwealth and Others:

“It’s about the Constitution, stupid!“

This is a case before the High Court of Australia. It’s not about whether chaplains are helpful. It’s not about whether Ron Williams is an atheist, an apiarist, a Buddhist, a new-age crystal-gazing hippie or a jumping Calathumpian. 

The High Court rules, exclusively, on Constitutional issues. The High Court doesn’t care whether chaplains are good, bad or indifferent. It doesn’t care about Williams’ religious beliefs. These things are totally irrelevant to the Williams case.  

What is relevant is that the High Court has already ruled in Williams (1) that  successive Commonwealth governments have been spending taxpayers’ money without appropriate authority and beyond the limits of their constitutional powers.

What is relevant is that in order to continue doing what the High Court said they shouldn’t, the government passed legislation which undermines the Constitutional role of the House of Representatives and the Senate in approving expenditure.

What is disappointing is that in a four minute story, Ron singing a fun, but ultimately meaningless song about bees was inexplicably deemed more important than explaining to the Australian public why this case should matter to them  – regardless of their views on chaplaincy.

After the program, we had quite an animated discussion about the story.

What was the point of cutting in Ron’s “Bees” video?

To add  ‘entertainment value’ to an otherwise dull story?

To diminish Ron’s credibility with the public?

To flesh out a story a journalist mistakenly thought had insufficient substance?

Who knows?

“It’s disappointing,” said Hugh Wilson, “that a high quality program like Lateline with a top-notch political journalist like John Stewart would stoop to cheapening an important story with irrelevant fripperies.”

“The producers have confused an important constitutional issue with a personal point of view and a rorting of the system with a novelty song that predates the High Court Challenge,” Wilson lamented.

I was a little more sanguine. The song was, after all, in the public domain. I  thought it was probably predictable (if both lazy and disappointing) that a journalist or producer would think it was a good idea to use it as ‘leavening’ for a story that could have stood on its own merits if only they’d taken the time to understand it. Ron was his usual calm self, but perhaps a bit puzzled that a journalist of such long experience could so cavalierly undersell the national significance of the case.

Ultimately, we decided, it was of no great import. The poor and arguably irresponsible reporting of the Williams’ case on Lateline will have no bearing on the decision of the High Court. Ultimately, the choices made in presenting the story reflect more poorly upon Lateline’s credibility than Williams’ reputation.

And now,  it’s the wee, small hours of the morning and both Ron and Hugh have, sensibly, retired. They have lost, I expect, not one jot of sleep over a story we had rather hoped would be good, but wasn’t.

And having vented my spleen, I’m heading off too; because what happens tomorrow, in the High Court, amongst professionals who actually understand what this case is about, is what counts – not just for Williams but for every Australian.

It’s about the Constitution, stupid.

Chrys Stevenson

If, unlike Lateline, you understand the significance of this case and appreciate that a suburban Dad with very little money has had the guts to take on the Federal government, not once, but twice, in the High Court, you can donate towards Ron Williams’ legal fees at his website: http://highcourtchallenge.com

Photo courtesy Nelson Lau

This afternoon, Ron Williams, Hugh Wilson (Australian Secular Lobby) and I arrived in Canberra where Ron will, once again (Tuesday 6 May to Thursday 8 May), take on the Federal Government in the High Court over funding for the National School Chaplaincy Program.

I’ll be blogging as often as possible from Canberra and tweeting using the hashtag #HCC2. Please be sure to follow Ron and me on Twitter – @Chrys_Stevenson and @HighCourtNSCP.

This morning, online journal, Independent Australia published my article explaining why this new High Court Challenge has implications far beyond the continuation or abolition of the National School Chaplaincy Program; and why all Australians should wish Williams well, regardless of their views on chaplaincy.

Ron Williams’ High Court challenge – its not just about chaplaincy

Embedded in the article is a short, 15 minute video by Ron featuring his take on the case and the reasons why he decided to continue his fight.

We would be very grateful if you could share the link to the article widely among your networks – perhaps even blog about it if you can.

It’s important to dispel the myths about the case.

Ron is also in urgent need of financial support to meet his legal costs, so the more people who know about the importance of this case, the more chance of him receiving donations at his website:  http://highcourtchallenge.com

We’ll be very grateful for your help in promoting the link to the article.

Donations: High Court Challenge

Chrys Stevenson