High Court Challenge knee-jerk Financial Framework Legislation Amendment Bill (No 3) 2012 'smart-alecky, brazen and obnoxious':
2013-05-05 The Age
Anne Twomey The Conversation 27 February 2013:
Turning a deaf ear to the High Court and a blind eye to the Constitution
On 7 July 2012: Ron Williams announced his intention to re-commence High Court proceedings against the Commonwealth of Australia: The Age, Jane Lee, 7 July 2012
Chrys Stevenson 7 July 2012:
It's on! Williams to return to the High Court on chaplaincy issue
SMH 5 July 2012 Simon Breheny:
Democracy sidelined in panic over chaplains
The Australian 3 July 2012 Andrew Lynch:
School chaplains decision opens can of worms for federal funding
Lawyers Weekly 28 June 2012 Leanne Mezrani:
Academic says chaplaincy rescue bill is flawed
The Conversation 27 June 2012 Anne Twomey:
Bringing down the House? Keeping school chaplains means a surrender to the Executive
The Australian 27 June 2012 Nicola Berkovic:
Father flags second chaplaincy challenge
ABC TV 7:30 program story 20 June 2012 6'15"
On 20 June 2012, in handing-down its 6-1 decision in my favour, the High Court of Australia struck down funding agreements between the Commonwealth Department of Education, Employment & Workplace Relations and Scripture Union Queensland on the basis that the payments the Commonwealth made in order to support the Chaplaincy Agreement went beyond the executive power of the Commonwealth.
My case challenged the commonwealth government’s authority to enter into funding agreements and to draw money from consolidated revenue funds in relation to matters that were beyond the powers of the Commonwealth.
The High Court found that in the absence of statutory authority, Section 61 of the Commonwealth Constitution does not give the Commonwealth Executive the power to fund matters that are not specifically enabled by the Constitution or legislation.
The Commonwealth can only spend monies in areas where it has legislative or executive power. The decision had the effect of stopping the government of the day indulging in improper ‘pork barrelling’, or making promises and paying out monies to win votes by spending money on various groups within the community in the hope that such groups would vote for the government of the day. The best description of the effect of the decision was that it would keep the Executive honest and make it accountable in the way it spent public monies.
The government had been spending monies on matters that they were not authorised to spend moneys on.
In response to the High Court’s decision, the Commonwealth Parliament on 28 June 2012 passed and the Governor General assented to the Financial Framework Legislation Act (No 3) 2012.
The new legislation purports to empower the Executive Government to make, vary or administer arrangements under which money is, or may become payable by the Commonwealth.
That is, the Commonwealth Government can now continue, as it did previously, to blithely make payments—thus leaving it open to accusations of reckless, unauthorised pork barrelling.
The new legislation has the effect of:
- Allowing the Executive to continue to approve public spending in a manner that is unacceptable.
- Keeping public spending from the public gaze and scrutiny.
- Affecting states’ rights and bypassing state governments.
- Generally undermining Australian parliamentary democracy and the High Court’s role in our system as well as the position of Parliament itself and the separation of powers doctrine.
The legislation was passed in great haste, universally supported by Labor, Liberals and the Greens.
It is interesting to note that in the second reading speech to the new legislation, Senator George Brandis (Liberal Qld) made the following points:
“Our concern relates to the methods adopted by the bill, the essence of which is to insert into the Financial Management and Accountability Act a new section, Section 32B, which purports to validate any grant or payment of Commonwealth monies which may be identified by regulation.”
Senator Brandis went on to say:
“That is done. If apart from this subsection, the Commonwealth does not have power to make, vary or administer a grant or payment and the grant or payment is specified in regulation then the Commonwealth has the power to make the grant or payment.”
He also said:
“I am far from satisfied that that umbrella form of statutory validation is effective to satisfy the constitutional lacuna which the High Court identified in the Williams case. Nor am I satisfied that the proposed section 32B, in its application to each particular grant or program payment, is supported by any of the section 51 heads of power.”
He further said:
“The whole point of the Williams case was to decide that the executive cannot spend public money without legislative authority and parliamentary scrutiny.” “Where is the head of legislative power to support this Bill?”
Finally Senator Brandis said the following:
“What is most extraordinary above all is the fact that the Commonwealth Government seems so determined not to listen to the High Court. It ignored the High Court’s judgment in the Pape case, merrily going on with funding of bodies and programs without sufficient legislative power. In response to the Williams case it simply enacts a law that attempts to restore what it wrongly believed to be its former powers, without actually listening to or taking to heart the High Court’s concerns about a democratic deficit, the important role of parliamentary scrutiny and the importance of federal considerations. This Bill, in a bald-faced manner, rejects the fundamental propositions put by the High Court in the Williams case. The Commonwealth is clearly asking for another clobbering by the Court.”
The issues raised by the new legislation are matters that are important to every Australian. If the citizens of Australia were fully aware of what has been done, they would most probably consider the Financial Framework Legislation Act (No 3) 2012 to be totally unacceptable.
My second High Court challenge has become, in the words and spirit of Australian Democrats founder the late Don Chipp, a matter of “keeping the bastards honest”.
A chronological record of Williams v. Commonwealth including the 20 June 2012 Judgement