Chaplains in Schools: The Constitutional Showdown Continues

In this blog post Dr Gabrielle Appleby and Mr Adam Webster explain the constitutional defiance that has characterised the federal government’s pursuit of the National School Chaplaincy Program even where its foundations have appeared highly dubious from a constitutional standpoint (leaving to one side the policy behind the program). This constitutional defiance looks set to continue in the wake of the High Court’s second decision on the program (Williams v Commonwealth (No 2)).

Williams v Commonwealth (No 1)
The first school chaplaincy decision was handed down in 2012 (Williams v Commonwealth (No 1)). It found that payments made to school chaplaincy providers under the program were invalid because there was no statutory authorisation for the scheme. The first decision was somewhat surprising – previously it had been assumed that the federal government could make grants of money without statutory authority, at least in so far as these grants fell within the boundaries of federal power set out in the Constitution. The finding had implications for hundreds of other federal funding schemes that also lacked statutory authorisation.  In an earlier post, Dr Appleby explained the Court’s reasoning in further detail.

In response to the decision, the Gillard Government introduced amendments to the Financial Management and Accountability Act 1997, inserting a new section – s 32B. In short, s 32B allowed the Commonwealth to make, vary or administer grants or arrangements specified in the Financial Management and Accountability Regulations 1997. Over 400 programs were initially listed in the regulations, including the National School Chaplaincy program.

The remedial legislation: constitutionally dubious
In contrast to the first decision, the High Court’s second national school chaplaincy decision is entirely unsurprising. The High Court found the remedial legislation did not authorise the expenditures on the National School Chaplaincy Program as the program fell outside federal legislative power.

The Commonwealth Government must have been expecting the outcome. Indeed, the current Attorney-General, Senator George Brandis SC (now QC)  expressed serious concerns about the validity of the remedial legislation when it was introduced. The federal government assured the parliament it had received advice on the constitutionality of the legislation, but didn’t release it. When the legislation was debated in the Senate, then shadow Attorney Senator Brandis explained:

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, although in respect of many such grants or payments it may be. The whole point of the Williams case was to decide that the executive cannot spend public money without legislative authority and parliamentary scrutiny. It seems to me that it is hardly sufficient to meet the tests which the majority set out in their reasons for judgment as necessary to constitute a valid expenditure merely to specify a schedule of grants payments and simply declare them to be valid. The approach adopted is particularly inept given that the programs are to be specified merely by regulation. It was the fact that the chaplaincy program was established only by executive order which resulted in its invalidity. It seems to me that there is an element of circularity in the Commonwealth’s legal reasoning.

Despite that concern, Senator Brandis – along with his coalition colleagues – voted in support of the legislation.

This raises an important question: what should a member of parliament do where the constitutionality of proposed legislation is open to question?

The Parliament’s Obligation to the Constituion
In a recent article in the Melbourne University Law Review, we examined the obligation that parliament has in constitutional interpretation. It is well established in Australia that the judiciary is the supreme and final interpreter of the Constitution – that is, if and when the judiciary provides an interpretation of the Constitution, that trumps the interpretations of the other branches, and indeed of the people. However, the other branches have a greater obligation to the Constitution than simply to comply with the rulings of the judiciary. Government power would be open to abuse and arbitrary exercise if government officials and parliamentarians did not have an independent obligation to interpret the Constitution and exercise their power within its bounds. For example, many actions taken by government and laws passed by Parliament may never be challenged in the courts. This highlights the need for government and parliament to consider themselves bound by the Constitution, in addition to their obligations to comply with the rulings and interpretations of the courts.

In our article therefore we argued that ‘best practice’ for parliamentarians required them to consider the constitutionality of any proposed legislation that comes before the parliament. Where a parliamentarian believed that the proposed legislation is clearly outside the scope of Parliament’s power, they should not vote in favour of the legislation. Doing so would be inconsistent with the parliamentarian’s oath to act ‘according to law’.

There are many sources of advice and assistance available to parliamentarians in this exercise. In the case of the legislation in question in the second school chaplaincy case, the Parliamentary Library had provided a Bills Digest on the proposed legislation, which warned of the potential constitutional problems with the legislation. Despite those potential problems being identified, the Government had declined to provide any further information on the legal opinion supporting the constitutional validity of the legislation.

The passing of the legislation was time sensitive and in the end the opposition decided to give the government the benefit of the doubt. However, as we noted in our article:

If a subsequent constitutional challenge to the legislation in successful, [slowing down the passing of the Bill and exploring alternative remedies] may also prove to have been the quicker way to addressing the issues.

The Government’s reaction: constitutionally insufficient
The Attorney-General has responded to the second school chaplaincy decision in a way that demonstrates the constitutional showdown between the Commonwealth and the High Court is far from over. The Attorney has indicated that the government accepts it must now seek an alternative method of funding for the National School Chaplaincy Program if it is to continue. This is likely to be through a grant to the States – this type of funding is expressly allowed by the Constitution. However, he has denied that there is any further implications for other programs authorised by the remedial legislation.

In Question Time, he explained:

The Court did not deal with any other Commonwealth programs. It did not consider the broader question of whether Division 3B of the Financial Management and Accountability Act was a valid law.  It merely decided that insofar as that Act purported to validate the School Chaplaincy Program, it was ineffective because the School Chaplaincy Program was not supported by any constitutional head of power.  The Court did not decide that any other Commonwealth program was invalid.  I noticed a statement by the Shadow Minister for Finance, Mr Bourke, issued a short while ago in which he suggests a range of Commonwealth programs are put at risk as a result of the Court’s decision this morning.  That statement by Mr Bourke is erroneous and ignorant.

By this reasoning, it would appear that Senator Brandis now considers his own earlier position on the program ‘erroneous and ignorant’, and this description could be extended to the position taken by a number of constitutional commentators since the decision has been handed down.

It may be that the Commonwealth government has decided to ignore the constitutional implications of High Court’s decision on other programs on the basis that they are unlikely to be challenged. It is only in exceptional circumstances that a person with an interest in expenditures challenges the constitutionality of those expenditures because they are more than happy to take the money, or see it spent on a cause they support. However, we would argue that by simply relying on the fact that there are unlikely to be a large number of challenges to the other programs put into doubt by the second school chaplaincy decision, the government and the Parliament are failing to comply with the boundaries of the Constitution, as have now been articulated by the High Court. This type of conduct is a serious threat to constitutional government, and should be of concern for the precedent it sets.

A copy of the article by Dr Appleby and Mr Webster published in volume 37 of the Melbourne University Law Review entitled ‘Parliament’s Role in Constitutional Interpretation’ is available here.

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