The House of Representatives rushed through the Framework Legislation Amendment Bill (No 3) 2012 on 26 June to validate billions of dollars worth of payments for 427 grants and programs, including the chaplaincy program.
However, Andrew Lynch (pictured), director of the Gilbert + Tobin Centre of Public Law, isn’t convinced the bill will work.
“The Government is in damage control – it wanted to minimise the impact of the High Court decision by preserving a broad range of schemes all at once, even though the Parliament’s power to support them is highly dubious,” he told Lawyers Weekly.
“The bill assumes the Parliament has the capacity to give legislative approval to the schemes, but it’s clear some don’t have any obvious connection to Commonwealth power, like the chaplaincy scheme.”
He also questioned whether the bill provides the level of parliamentary approval the High Court had in mind when it made its decision.
“It’s not clear the Government’s rescue legislation can overcome these deficiencies,” Lynch said, leaving the programs open to challenge in the High Court.
The Coalition didn’t oppose the bill, which has now passed through the Senate. But it did propose a sunset clause that would mean the law would cease to have effect on 1 January 2013, buying time for Parliament to review and approve each program.
The clause was defeated.
Even though the Government chose to legislate rather than hand funding over to the states under section 96 of the constitution, Lynch believes the Commonwealth will still require the states to implement programs or, at the very least, act as a conduit of those funds.
“The way in which the High Court decision will impact on how federal and state governments work together may take several years to discern,” he said.
The Government’s rescue bill was also an attempt to preserve the autonomy of the executive by giving it carte-blanche to spend money without the need for further legislation or parliamentary scrutiny, according to Lynch.
The High Court debated the scope of the Commonwealth’s executive power when Queensland father Ron Williams challenged the validity of the chaplaincy scheme, which offers schools up to $20,000 a year to introduce or extend chaplaincy services. His argument that the funding breached the separation of church and state failed. But the High Court ruled 6-1 that the program was invalid because it did not fall within the Commonwealth’s executive power outlined in section 61 of the constitution.
Not even an Appropriation Act could save the program, said Lynch, who claimed the decision dispelled a long-held assumption of governments and the constitutional law community regarding the reach of the executive arm.
“For decades the Commonwealth has spent money in areas without caring whether it had legislative power,” he said. “The Williams case clarified [executive power] very sharply and reined it in ... and that was a very uncomfortable result for the Commonwealth.”
Lynch argued that the High Court decision is the most significant denial of Commonwealth power in the history of the court. “It has all the potential of a game changer,” he said.
“The Commonwealth has had a very fortunate streak in High Court since the 1920s and this is the most overtly pro-federalist decision in living memory.”
But the complicated nature of the ruling and its implications makes this a hard message to convey, Lynch added.