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Jun 21, 2012

Chaplains outcome another belated loss for the Howard govt

The High Court's decision yesterday on the Williams schools chaplains case isn't exactly a bombshell, but it will make life for the Commonwealth a little more difficult -- and unnecessarily so.

The High Court’s decision yesterday on the Williams schools chaplains case isn’t exactly a bombshell, but it will make life for the Commonwealth a little more difficult — and unnecessarily so. It also strengthens the case for constitutional recognition of local government.

In short, the court found that by simply assuming it was able under the constitution to fund anything that it could have funded if there was legislation for it, the Commonwealth had erred: there didn’t just need to be a sort of possibility of legislation, but actual legislation. Nor was simply appropriating the money via an appropriation bill sufficient to do the trick.

The result is that any expenditure that lacks authorising legislation, or doesn’t flow via the states, is now problematic under the constitution.

This is the second reversal for the Commonwealth’s spending powers in recent years. The court only narrowly ruled against the effort by the National Party’s Bryan Pape to stop the Rudd government providing economic stimulus during the financial crisis in 2009, in a decision that narrowed the constitutional capacity of the government to spend. It’s a marked contrast to the support the court gave to the Howard government’s spending of money on WorkChoices advertising despite there being no appropriation for it in the budget, in a broad interpretation of the outcomes and outputs framework for Commonwealth appropriations challenged by Nicola Roxon and Greg Combet (then at the ACTU).

The school chaplains program was also a Howard government program, and confirms just how fast and loose that government played with its expenditure. There was another, notorious example that never went before the High Court but that the ANAO later revealed: the Howard government’s internal advertising committee illegally spent tens of millions of taxpayer dollars handing large WorkChoices marketing contracts to Liberal Party mates, in a scandal that the mainstream media have remained strangely uninterested in ever since.

And this is the second big posthumous legal defeat for the Howard government. In 2009, the High Court demolished an entire judicial structure put in place by that government in an effort to curry favour with the military — a seven-zip verdict against the constitutionality of the Australian Military Court, just as predicted by virtually everyone when it was legislated, including some Coalition senators.

Perhaps coincidentally, today Nicola Roxon and Stephen Smith jointly issued a media release announcing the bill to establish the replacement structure for the AMC would be introduced into Parliament. Unsurprisingly, they didn’t skip the bit about “the High Court’s decision in Lane v Morrison, which found the Australian Military Court established by the previous Government to be unconstitutional”.

Labor may be inclined to feel a little gypped by the tides of jurisprudence; the Howard government’s carefree attitude to pork-barrelling was never pulled up short by the High Court during its life; instead, Labor must wear the results. It means it will have to seek legislation for spending more often, meaning more programs will be hostage to the crossbenches and the Senate, or rely on the states, who clip the ticket on any Commonwealth funding they get before actually directing it to the intended recipients.

Much of the attention following the decision has focused on the implications for directing Commonwealth funding to local governments. Local government, such as the Scripture Union Queensland in the Williams case, has no constitutional significance, despite being considered the third level of government. The case for constitutional recognition of local government is therefore strengthened by the outcome of Williams, just as it was strengthened by the Pape case. The Gillard government is committed, via its agreements with the crossbenchers, to a referendum on recognition of local government.

The Coalition, however, appear to be at sixes and sevens — Barnaby Joyce is a strong advocate of it, but some Liberals aren’t; at the moment Coalition support is only “in principle”.

The last time the issue got an airing was in 1988, when John Howard set out to wreck recognition by conjuring a vast conspiracy that would have seen the Hawke government replace Australian states with “socialist republics” such as the Australian Capital Territory. It was absurd stuff, but sufficient to see the defeat of the referendum. No one would suggest Tony Abbott is above a similar stunt.

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58 thoughts on “Chaplains outcome another belated loss for the Howard govt

  1. The Pav

    The failure of Chaplains program and your comment on Howard played fast & loose shodhould be yet another nail in the coffin that conations the myth that the Howard Govt was in any waya capable money manager.

    It also makes laughable that Abbott should presume to have any economic credentials.

    You shouldn’t be surprised that the MSM hasn’t acted on the advertising scandal. Hardly surprisng since they were the main beneficiaries.

    Is this how Howard bought support of News Ltd?

  2. Charles Richardson

    And of course don’t forget Plaintiff M70/2011 v Minister for Immigration and Citizenship, which invalidated offshore processing. So nice of them to wait until Howard was no longer in office.

  3. Bill Hilliger

    Don’t forget Howard had control of the senate during the last stage of his term in office. In a round about way it was to lead to his demise. Wonderful stuff.

  4. Holden Back

    Howard Government booby-traps. There’s a series of articles I’d like to see on Crikey.

  5. David Allen

    I can’t believe how much skin this government is prepared to lose in hanging on to Howard policies.

  6. Michael de Angelos

    Absent in the MSM is any mention of Tony Abbott’s role in these disasters as a senior Minister in the Howard government for all those years.

    And of course Kim Williams CEO of News Ltd scoffs at the claims of anti-Labor bias in his newspapers.

  7. James K

    Does this high court decision muck things up for the commonwealth to fund other programs in schools? Anti-bullying programs? Putting money into more welfare workers in schools? Anti-taking drugs programs? all that?

    it might be a success for those who wanted to have a shot at chaplaincy in schools, but … at what cost really?

  8. Anoise Mike

    And yet the program is so popular in schools because it’s another councillor (usually with little/dubious professional training) the that school gets , in this case for free.

  9. James K

    Anoise: the level of training of chaplains, depends mostly on the state they are in. Here in Victoria, most chaplains are placed by the group called ACCESS and they expect solid training and continue with ongoing professional development for their people. Their chaplains will usually have at least a Bachelors in Counselling or something similar (sometimes a Bachelors in Education instead).

    Some chaplains in Vic are not placed by ACCESS and are just found by the individual schools.

    But ACCESS train their chaplains to be servants to the school community, and to never discriminate between any kids or families, and to professionally input the needs of that community. So they will journey with troubled teens who might be doing things that they (as Christian ministers or lay persons would not usually do) – but they are not to be judgmental or critical, but rather support and assist the person as the person seeks their way forward.

    A survey of all schools across Australia that have chaplains, asked the principals if they were happy with their chaplains: 97% said yes, please let us keep them. I dont know of any other program with that much support at school level across the board.

    Some fundamentalists seem to have got into the Qld lot, though, and hence this court case. It really depends a lot on who is placing the chaplains – of course – even then – the schools make the final decision and they say yes or no to any chaplain offered to them.

    And that is a postive feature of the system: they are only in schools that want them. it is the school’s call in the end, not Mr Howards or any govt’s. There are issues of funding and church and state and all that, that are important issues too. But we can at least be grateful that schools make the decision or not, to have them. No chaplain is imposed on a reluctant school community.

  10. Hamis Hill

    Re the constitutional lack of recognition for local government.
    I smell a rat after reading Prof. Edward Shann’s The Economic History of Australia.
    The original source of revenue for the pre-federation Crown Colonies was the sale of Crown lands.
    These revenue raising powers, which include rezoning powers, have now devolved to the local government level.
    The re-zoning profits, which are huge, now tend to accrue to private interests who have an “interest” to contest and win control of local governments where they they are then free to pursue and win the re-zoning profits which formerly went to the Crown.
    The suppression of Edward Shann’s work, which aimed at raising the knowledge and understanding of ordinary citizens, seems to me to verify the presence of rats.
    If there is, as a result of recent court decisions a successful campaign to constitutionally recognise local government then all profits from rezoning in particular must revert to the people of Australia
    through the Crown.
    As for direct funding to local government by the Feds Whitlam started that game to discountenance the conservative states.
    Conservative states who consistently do nothing to return rezoning profits to the Crown as happened in colonial times. Ian Temby QC found that “A climate conducive to corruption” existedn local government when working as NSW”S first Independent Commissioner Against Corruption.
    Here’s betting that none of the above wiil appear in the campaign to recognise local government
    in the constitution.The mire of corruption is much too deep.

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