Michael McCormack (Riverina, National Party) Share this | Hansard source

The Attorney-General has presented the Financial Framework Legislation Amendment Bill (No. 3) 2012 in urgent response to the landmark High Court Williams v The Commonwealth decision last Wednesday. That ruling declared funding for the National School Chaplaincy and Student Welfare Program, something the opposition supports, was not supported by an act of this parliament and therefore beyond the executive power of the Commonwealth. The High Court's decision was based on section 61 of the Constitution. The High Court invalidated only the chaplaincy program. This is at present the only Commonwealth measure affected by this ruling.

The chaplaincy program was implemented in 2007 by the Howard government and was playing a positive and worthwhile role in public and private schools, offering schools up to $20,000 a year to introduce or extend chaplaincy services. The fact that we live in a society in which a country's High Court overturns federal funding of a school chaplaincy program—often the only service of that sort and often offering care, counselling, guidance and support to troubled children—quite frankly beggars belief. I appreciate the need for a legal framework, but it is disappointing. In some instances the chaplaincy program has saved young lives. The kids using the school chaplaincy program can and often do come from broken homes—homes beset by trouble and strife, by alcohol and by abuse. They were and are young people in crisis. It makes you wonder what forces are at work in this country who would not want Commonwealth-funded school chaplains to help children in need in their difficult adolescent years.

The Williams case has sounded loud and long alarm bells. The verdict by those justices who comprised the majority in the matter has huge potential ramifications for other Commonwealth programs which depend upon the exercise of the executive power without the necessary statutory authorisation. A can of worms has been opened. Where does this place so many other federal appropriations for roads or other school initiatives? The list goes on. The solution put forward by the government is to amend the Financial Management and Accountability Act 1997 to enable validation of a large number of Commonwealth grants and programs. In total, 11 types of Commonwealth financial assistance grants and 416 programs relying on Commonwealth assistance are included in the draft regulation supplied to the opposition.

The opposition is not convinced that the overarching statutory validation will be enough to satisfy those legal terms which the High Court decreed in the Williams case. The Williams case was conducted to determine, in essence, that the executive cannot spend money without legislative authority and parliamentary scrutiny. It is hardly sufficient, we feel, for the government to come up with a schedule of appropriations and merely deem them to be valid. The government's approach to a High Court ruling to invalidate a particular program because it was established by executive action rather than legislation is to say that all programs are fine provided they are specified in a regulation. Further, that regulation does not have to be made by a minister but can be delegated to any officer, no matter how junior, of any agency. This seems neither adequate nor appropriate.

The government has not been entirely forthcoming with the opposition in talks about this important issue. Understandably, and sometimes regrettably, the government does not always readily provide its legal advice to the opposition, even on a confidential basis. A case in point of this was the reluctance of the Minister for Sustainability, Environment, Water, Population and Communities to disclose the findings of the Australian Government Solicitor in relation to the Water Act 2007. There had been intense lobbying of the minister after the original Murray-Darling Basin Authority guide was released on 8 October 2010 to see if the AGS could determine that the act would in fact allow for a triple bottom line approach of economic, social and environmental outcomes in any final basin plan. The minister ducked, dodged and weaved and finally produced a 10-page summary, though the AGS advice ran, as I understand to more than 1,000 pages. The water debate continues.

This particular bill ought to be a bipartisan issue because ultimately its consequences will eventually affect both sides of the political divide. In some ways the opposition enters this debate without being privy to all the information which should be on the table to ensure transparency and confidence that what we are doing will benefit whichever government occupies the treasury bench in the future. That said, we will not oppose this bill. Most of the programs laid out in the draft regulation are supported by the coalition, including, of course, the chaplaincy program.

This bill may well fail to satisfy the requirements set out by the High Court in the Williams case. Each of the particular programs contained in the draft regulation will need to be looked at in detail, and it could well be that some of them will need to be on a surer legislative footing than this bill establishes. Because of this, the opposition has an amendment to add a sunset clause of 31 December this year to provide both the government and the opposition with time to consider the matter in more necessary detail in light of the High Court ruling and to return to the parliament in the next sittings more all-inclusive and wide-ranging legislation which meets the constitutional concerns raised by the High Court in relation to particular grants and program payments.

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