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The legacy of the Williams case: less pork-barrelling?

Ron Williams won a pyrrhic victory with his success in the High Court over Commonwealth funding of chaplains in state schools. Yes, he won the case — but is unlikely to see the back of chaplains in his children’s schools. The greatest legacy of the case may lie in another channel: a dampening of pork-barrelling, with politicians more likely to be forced to funnel pre-election money through properly legislated and overseen programs.

First, the case in question. Williams won; the current program of funding was held invalid, and importantly he won’t have to pay costs for the case.  But he didn’t win his argument that the arrangements breached a constitutional “separation of church and state”.  The High Court simply held that section 116 of the constitution, which prohibits requiring any religious test as a qualification for an office under the Commonwealth, was not breached because the chaplains did not hold an “office under the Commonwealth”. No great principle of the “separation of church and state” was established or acknowledged.

Instead, Williams won on the ground that the Commonwealth did not have the power to make or implement the funding agreement without legislative authority to do so. The Commonwealth had not enacted legislation to support its chaplaincy funding scheme. Instead, it relied upon its executive power to enter into contracts and used these contracts and guidelines to set up the rules for the scheme and to provide for its funding. The High Court held that this was not enough to support the expenditure of public money.

However, there are other valid means by which the Commonwealth could achieve the same ends. For example, it could make a grant of the money to the Queensland government and impose conditions that determine how the money is used. Queensland apparently has its own scheme for chaplains in schools, so it would probably be quite easy for the Commonwealth to aid in funding that arrangement.

It is unlikely that Williams will see the removal of chaplains in the school his children attend. He won the battle, but not the war.

Williams’ legacy, however, will be greater constraint upon the Commonwealth in the way it spends public resources. For decades, the Commonwealth has taken an extremely robust view of its own powers. Even though the constitution only gives it limited, specified powers, the Commonwealth has got around this in many cases by exercising its financial power to run government programs and make grants, through either legislation or contract. On the legislative front, the Commonwealth took the view that its power to appropriate money was sufficient to support its expenditure of that money on any subject it liked. This was rejected by the High Court in 2009, which held that it needed a separate head of legislative power.

The other way the Commonwealth has funded grants or programs has been to enter into funding contracts with third parties. The Commonwealth, as a polity, has the legal capacities of a person, including the power to enter into contracts. This was the method it used to support the chaplaincy program. In the Williams case, the High Court rejected the constitutional effectiveness of this method too, holding that this form of contractual expenditure of public money needed legislative support. Whether or not the Commonwealth has a legislative head of power to support such payments is doubtful.

There is, of course, a perfectly valid way of making such payments, and that is to pay the money to the states, with conditions attached, so that exactly the same outcomes are achieved. This is the way grants to third parties and other government programs have been handled for many decades. For example, the Commonwealth has given roads funding to local government through tied grants to the states since the 1920s.

It was only during the Whitlam era that the Commonwealth sought to fund local government directly (and initiated a referendum in 1974 to validate its actions — which was defeated). That failed experiment was revived by the Howard government in 2000. In both cases the main reason for bypassing the constitutionally valid method of making tied grants to the states was to achieve greater kudos and political support for the Commonwealth through direct funding that is more publicly associated with the Commonwealth.

So what are the ramifications of the Williams case? Programs that involve the funding of third parties through contracts where there is no legislative backing are vulnerable and would need to be reconsidered. Either the Parliament would need to enact legislation to support them, if it had a head of power to do so, or the funding would have to go through the states.

At biggest risk here would be pre-election pork-barrelling where local Commonwealth MPs hand out grants to community groups in order to gain support for their re-election. The Williams case might have the happy effect of dampening pork-barrelling and forcing community support funding to go through properly legislated and overseen programs.

Other Commonwealth funding, such as roads funding to local government under the “Roads to Recovery” scheme and the funding of private schools, is already supported by Commonwealth legislation. The Williams case would therefore not have a direct effect upon it. Commonwealth funding for private schools occurs through tied grants to the states, so it is constitutionally safe. The only vulnerability of the Roads to Recovery program lies in whether the Commonwealth’s legislation is sufficiently supported by a head of power.

Even if it is not, then the Commonwealth could revert to the tried but true system of tied grants to the states that it previously used for many decades. It may not be able to buy as many votes per pot-hole fixed, but surely the funding of roads is more important than that?

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  • 1
    Warren Joffe
    Posted Thursday, 21 June 2012 at 3:10 pm | Permalink

    It would be interesting to learn from the author or someone with similar authority
    about possible cases where some private individual or corporation may be unjustly dudded because
    another party can plead that the contract or arrangement was ultra vires, citing
    the Williams case. It might be unlikely for the Commonwealth to fail to pay up
    and then rely on ultra vires, but it seems possible that the assignment of some
    supposed claim against the Commonwealth as security could be defeated by
    reason of the original promise being ultra vires.

  • 2
    michael r james
    Posted Thursday, 21 June 2012 at 5:09 pm | Permalink

    It seems the High Court got it wrong on both judgments. On the first, its weasel logic went like thus (according to The Age yesterday):

    But the court found that school chaplains were not Commonwealth employees, but rather were engaged by an external organisation, Scripture Union Queensland , and the Commonwealth did not enter into contractual or other arrangements with the chaplains.

    This probably in the same class of refined logic that allowed the US Supreme Court to pass Citizens United which gave corporations the same rights as humans. So the court has just given permission for almost anything to flaunt the spirit of the law and constitution by using some clever or sneaky proxy.

    Over 2700 schools have received funding and the majority have chaplains provided by Scripture Union Queensland .

    One wonders if the second decision was not created as a diversion. It certainly has worked a treat.

  • 3
    Warren Joffe
    Posted Thursday, 21 June 2012 at 7:36 pm | Permalink

    @ Michael R James

    I would be glad to form a view on your post but it needs some clarification.

    the High Court got it wrong on both judgments” - what are the two judgments?

    Weasel logic” implies something I don’t understand. The snippet from The Age
    reads just like a small part of the standard legal reasoning of a court trying to
    behave with impeccable traditional propriety and getting nowhere near the
    “judicial activism” which, mostly but not only on the right, has aroused such
    anger in recent decades. What’s the problem when you spell it out and, in
    particular, what makes you say “weasel logic” apart from dislike of lawyers
    and their craft? (You are in good populist company, including Jeff Kennett, Pauline Hanson ad not a few on the left).

    sneaky proxy” - what’s that? - being used to flout [you say “flaunt” but I think
    you must mean “flout”] the spirit of the law and constitution?! The judges of
    the US Supreme Court embody some quite different traditions of constitutional
    interpretation from Scalia’s Originalism at one extreme. Our High Court judges
    I am surprised to find you thinking of as combined in some uniform intention to
    subvert the true meaning and intent of our Constitution. Do you actually know anyo
    of them? Do you even know who they are or what their careers have been?

    What possible similarity in the politics or the legal reasoning does this case have
    with the Citizens United case in the US? In short do you have a clue what you
    are talking about?

  • 4
    izatso?
    Posted Sunday, 24 June 2012 at 8:06 am | Permalink

    well, sigh, here is another for you to decypher, Mr Joffe. Contrarian Cant. Don’t look at me, I did not invent it. See what you can do to contraindicate otherwise ?

  • 5
    Warren Joffe
    Posted Sunday, 24 June 2012 at 12:57 pm | Permalink

    @IZATSO?

    I have just seen a couple of your posts on another thread and haven’t found
    there the incentive to try and construe, or “decypher” what could be your
    repeated frolics with the deliberately obscure. So, you will need to elaborate
    this latest contribution if you are seeking response from me.

    Contrarian Cant” I have looked for Google search but found nothing.

    Cant I find defined as 1.Hypocritical and sanctimonious talk, typically of a moral, religious, or political nature. Plus “insincere high-minded talk”

    Contrarian is well enough defined I think by “Opposing or rejecting popular opinion; going against current practice”.

    The trouble is the conjunction isnt wittily pointed, making a point by the conjunction of
    of contrasting or opposing ideas. The two ideas really have nothing to do with
    each other though I suppose you could say that a typical “contrarian” sees
    himself as battling everyday cant. Possibly to the point of being boring. So, now
    that we have discovered the hitherto unnoted “Contrarian Cant” perhaps we can
    suggest that it refers the circumstance of someone so reliably straining at all times
    to pick on the commonplace, including commonplace ignorance and nonsense-by-
    obscurity, that the effect is boring. But that’s not terribly important if the
    contrarian’s laborious performance of his self-imposed duty actually gets it
    right!

  • 6
    izatso?
    Posted Sunday, 24 June 2012 at 2:45 pm | Permalink

    yup you fit the bill, this is what I mean, you got it in twelve paras where most only need oneI am absolutely sure that I’m not important. you keep fillin’ the gaps to convince yourself otherhowsomever?

  • 7
    izatso?
    Posted Sunday, 24 June 2012 at 2:46 pm | Permalink

    bugger this format also

  • 8
    izatso?
    Posted Sunday, 24 June 2012 at 2:57 pm | Permalink

    look what I’m sayin is you are one of watsons effin wordsmithsand if you are as good as you seem to think you are you should be out there countering the formation of bad legislation ? but your not are you. you are just here filling gaps an’ pontificatin no end. do y’self an me a favour, cut the crap.

  • 9
    izatso?
    Posted Sunday, 24 June 2012 at 2:59 pm | Permalink

    O, you’re….. tzzzzz

  • 10
    Warren Joffe
    Posted Sunday, 24 June 2012 at 4:30 pm | Permalink

    Professor Twomey: any chance of an answer to my quesion posed as the first
    comment?

    IZATSO? I think you must be one of those of whom it is warned “Don’t feed
    the trolls?”!

    Somehow I got lured into actually responding on Contrarian Cant. One up to you
    it seems as you apparently were aiming your quill at me.

    As a matter of fact I do quite a lot of work, using my “wordsmith” and and analytical skills
    such as they are to counter bad legislation (and promote better legislation).

  • 11
    izatso?
    Posted Monday, 25 June 2012 at 8:13 pm | Permalink

    no crap. good for you, Warren

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