Christine Milne (Tasmania, Australian Greens) Share this | Hansard source

I rise today to comment on the Financial Framework Legislation Amendment Bill (No. 3) 2012, which is being brought to the parliament for in response to the High Court decision in the case of Williams v Commonwealth of Australia. That case was brought in relation to the national school chaplaincy program which has been operating in Australia. The Greens have had considerable concerns about that chaplaincy program for a good length of time, particularly in relation to the need to make sure that people who are offering counselling and welfare support to students in our schools are appropriately qualified.

Having been a teacher before I came into the parliament, I am deeply concerned that people who have no tertiary qualifications are currently allowed into schools to provide advice on welfare and other matters to young people. Nobody could claim to understand the complexity of life as a teenager—now or previously—and certainly that was my experience as a high-school teacher. But the one thing I think is critical is that people in schools who get the confidence of young people and sit down and talk to them about the matters of concern to them, particularly about issues in relation to welfare—they used to be known as guidance officers or psychologists and so on—need to be professionally qualified. The chaplaincy program does not provide for that. I understand that the government has reorganised some of that program and made the qualification at least a certificate IV. Until the government did that, it was a matter of people having just some qualification in hours. Even so, tertiary qualifications are appropriate. If tertiary qualifications are required for people teaching in our schools, they should most certainly be required when it comes to giving young people the kind of support that is so necessary in the areas of guidance, welfare and the like.

That is why I will move a motion at the end of the second reading debate which says that the Senate considers that the National School Chaplaincy and Student Welfare Program should be replaced with a program offering genuine counselling and other assistance to students by professionals with appropriate tertiary qualifications. I think that is critical, and I hope that the coalition will support that second reading amendment. The government have indicated that they are not going to support it, but I invite the coalition to think about it because it is critical that we have people with appropriate tertiary qualifications speaking with young people in our schools.

In spite of what has been said about the changes to the program, I was very concerned when I saw that $13 million of the $16 million to be paid in relation to the school chaplaincy program at the end of the financial year, at the end of this month, was going to four evangelical churches. That reinforces to me that we are not seeing money spent on supporting people with tertiary qualifications in our schools and offering the kind of advice that young people so badly need. I want to make it very clear: the Greens have said from the start that we certainly want to see the $220 million the Commonwealth is providing to support students in our schools given to our schools and spent; but we want to see it spent on supporting appropriately qualified people in our schools. That leads me to the issue of why we are dealing with this legislation today. It was as a result of the Williams case in which the High Court held that the Commonwealth government could not rely on executive power alone. This article I am holding is by Professor Anne Twomey. I noticed Senator Brandis was quoting from her piece today and I will as well. She says that in that case:

… the High Court held that the Commonwealth Government could not rely on executive power alone to support the funding of the chaplaincy program. Not even an Appropriation Act was enough to support it. There needed to be validly enacted legislation to support such expenditure. The Court stressed a number of points. First, this was public money that was being spent (not the private money of the Government) and that it therefore had to be subject to parliamentary scrutiny. Secondly, there is a need for parliamentary engagement in the formulation, amendment and termination of programs for the spending of money and there will be a ‘deficit in the system of representative government’ if these programs remain solely within the Executive’s domain. Thirdly, the Court pointed to ‘federal considerations’ and the fact that the public school system in a State ‘is the responsibility of that State’.

So I want to go to the particular focus here on the '"deficit in the system of representative government" if these programs remain solely within the Executive's domain'. This is something the Greens feel very strongly about and, when the High Court case decision came down this week, it went to the point that I made and that was so strongly evident to me—that is, the High Court was saying it is time to rebalance the power of the parliament vis-a-vis the executive.

For way too long executives have taken it upon themselves to not have parliamentary scrutiny for a number of programs and public expenditure. Rather, they have done it in this way through various programs. That is clearly one of the issues we have always had with majority governments vis-a-vis parliaments where there are shared powers. When you have a majority government, the executive can use the parliament as a rubber stamp, whereas when you have minority governments or shared power arrangements then the parliament has to actually deal with the issues and the executive cannot just do what it likes—as it can when it has a majority power, especially if it ends up with a majority in both houses. But, in particular, if you do not have a majority then you do have to come back to the parliament more frequently for validation of legislation or validation of programs.

In her article, Professor Twomey goes on to ask how the Commonwealth parliament has responded to the High Court's very clear indication. As Senator Brandis noted a moment ago, her ultimate conclusion was that this legislation rejects the fundamental proposition that the balance needs to be restored between the power of the parliament vis-a-vis the power of the executive. She notes that the Financial Framework Legislation Amendment Bill (No 3) 2012:

… gives legislative authority to the Executive to make, vary or administer any arrangement by which public money is paid out by the Commonwealth and the grant of financial assistance to any person whatsoever. The only constraint is that the arrangement or grant must be either specified in financial management regulations, or be included in a ‘class of arrangements or grants’ or a program mentioned in the regulations. The draft regulations show that these categories of approved grants and programs are extremely wide, including expenditure for ‘Foreign Affairs and Trade Operations’, ‘Payments to International Organisations’, ‘Public Information Services’, ‘Regulatory Policy’, ‘Diversity and Social Cohesion’, ‘Domestic Policy’ and ‘Regional Development’.

Clearly that is why she concludes that the Commonwealth is not really listening to the High Court. It is not really listening to the fundamental issue that there is real concern in the High Court about the democratic deficit; that is, the role of parliamentary scrutiny of federal considerations, being those of the Commonwealth in relation to the states.

Professor Twomey goes on to say that, contrary to the view that was being put by some of the speakers in the debate in the House of Representatives yesterday—their view being that this bill was just about validating existing programs—it goes much further than that. She says:

It gives the Executive carte-blanche to enter into such programs in the future without any parliamentary scrutiny at all as long as the program or grant comes under one of the existing broad descriptions in the regulations, or with only the need to amend the regulations (by executive action), if a new category needs to be inserted. Never has such enormous power been surrendered by the Parliament to the Executive in one hit …

That is her reflection on what happened in the House of Representatives yesterday. I will repeat it because I think it is quite shocking at one level:

Never has such enormous power been surrendered by the Parliament to the Executive in one hit …

So, in the view of the Greens, what needed to be done in response to the High Court decision was, first of all, to validate existing programs, because clearly there are legacy issues with programs that are already in place—and we would want to see the money for those programs expended in the way that was envisaged.

However, there also needs to be a rebalancing of the powers of parliament versus those of the executive and there needs to be some process to enable that to happen. The problem that we as a parliament have now is that there is so little time before the parliament rises for the winter break. We have to make sure that we validate the legacy programs but at the same time deal with, and enable the debate that has to be had about, the rebalancing of this relationship. That is why the Greens do not only have a second reading amendment—the one I foreshadowed dealing with the issue of appropriate qualifications for the chaplaincy program—but are also proposing an amendment which my colleague Senator Wright will discuss a little later. The amendment would give the Commonwealth six months to identify any other programs where there are legacy issues and which might need to be caught up in validation. The amendment would also require that, as of 1 January next year, any new program would have to legislated—that is, it would have to come through the parliament for parliamentary scrutiny. That would enable the debate to be had over the next months as to what the threshold should be—how you would determine what needs to have legislative power, coverage, approval or scrutiny of the parliament and what could be done by a disallowable instrument in a regulation. That is one of most important things we have to get out of this; otherwise it will be true that the Commonwealth has used the short time line we have to rush through the parliament not only the validation of the legacy matters but the giving up of the powers of the parliament to the executive.

The High Court has done a great favour to the parliament by giving us the opportunity to take back for the parliament some of the powers that clearly the Constitution deemed appropriate to the parliament. We ought not to be giving up the opportunity to take those powers back when we have the chance to discuss this in an appropriate manner, to take advice and get some of the legal academics, the constitutional lawyers and others around the country sitting down to work out how we might rebalance things.

One of the concerns I have also is—and I completely understand why the government has to validate the existing programs and I totally understand that that has to happen—that, in rushing to do this, the question will remain whether in fact this is the most effective way to deal with something like the chaplaincy program alone. Professor Twomey says:

Where is the head of legislative power to support this Bill? Many of the programs listed in the draft regulations will fall under a head of legislative power, and it is conceivable (although contestable) that this Bill, once enacted, is enough to support them. But others will not be supported by a head of power and will remain invalid regardless of such a law.

She goes on to say:

… this Bill merely provides a fig-leaf for the Commonwealth’s legislative incompetence.

I think that is harsh in the context of needing to deal with this in the time frame that we have, but, nevertheless, it makes the point that when you rush to respond to a High Court decision with the implications that this has, you need to deal with both matters: you need to deal with the immediate matter of validating existing programs, but you also need to deal with the big picture, which is the opportunity that the parliament has to take back some of the power that it rightly has under the Constitution—power that over time has been taken by the executive.

The Greens take this very seriously, and that is why we are moving amendments which will do exactly that. Our amendments will do three things. By passing this legislation, we will validate the existing programs. Through our second reading amendment, for which I ask the support of the Senate, we will get tertiary qualified people in our schools to give the appropriate level of counselling and support to students. Thirdly, through our substantive committee stage amendment, we will give effect to what the High Court wanted—to ensure that as of 1 January next year any new program must be legislated for. That would buy us the time we need to take the opportunity, and I have heard the coalition say that they also think this is important, to have the debate we need to have about how to effectively take on what the High Court has said. We in this parliament appreciate this opportunity that the High Court has given us and we want to restore the powers to the parliament. We take to heart the High Court's concern about the current democratic deficit.

The Greens absolutely want to see this debate go to not just the immediacy but the long-term implications of addressing that democratic deficit. From our point of view, we have gone some way to doing that with a parliament that is a shared power arrangement. For the first time in a very long time, matters have had to come before the parliament that executives would have just brushed away in the past. Our amendments go further than that in making sure that public money that is being spent has appropriate parliamentary scrutiny.

The community would be reassured by that because they worry about how much is done behind the scenes—how much pork barrelling goes on and the like. Parliamentary scrutiny enhances our democracy just as shared power parliaments enhance our democratic representation and give effect to the wishes of the constituency more appropriately—because it means everybody's voice is heard and everybody's voice can be brought to bear in bringing appropriate changes to legislation.

I am supporting the Finance Framework Legislation Amendment Bill (No. 3) 2012 and I invite the Senate to support our second reading amendment in relation to chaplains and to support our substantive amendment which goes to the heart of restoring parliamentary power vis-a-vis the executive.