Just Cases | Season 4 | Episode 3 | Could "billions of dollars" of government spending be unconstitutional?
Outrage over a federal government decision to put religious chaplains in government schools made headlines at the time for being a fight over the separation of church and state. But the real High Court case was about much more - and it has the potential to upend the way the entire federal government functions.
Court cases:
- Williams v Commonwealth of Australia [2012] HCA 23 (20 June 2012) http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2012/23.html
- Williams v Commonwealth of Australia [2014] HCA 23 (19 June 2014) http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2014/23.html
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Transcript | Just Cases | Season 4 | Episode 3 | Could "billions of dollars" of government spending be unconstitutional?
[00:00:00] Speaker: I think it would be a real pity if this program wasn't able to continue. Today's decision is not the end of chaplaincy. Instead, it means a new funding model's needed.
[00:00:12] Speaker 2: We are absolutely confident that we have got a range of options, which will allow us to ensure that the program that was invalidated by this decision, the chaplaincy program will continue.
[00:00:25] James Pattison: Separation of church and state is one of the most fundamental concepts underpinning modern liberal democracies. Australians famously consider themselves fairly secular, so freedom from religion tends to ring just as true as freedom of religion.
[00:00:40] Professor Melissa Castan: The case we are discussing today made headlines at the time for these reasons.
[00:00:44] It was pitted as a fight over the separation of church and state, and a battle against the religious seal of the federal government who were wanting to influence the young minds of Australian high school students.
[00:00:54] James Pattison: But forget what you think you know about the so-called school chaplain's case. Our guest today says the real court case was about far more than just religion.
[00:01:04] He says that the high court's decision has the potential to upend the way the entire federal government functions. Luke Beck is a constitutional law expert at Monash Law and Luke, welcome back to Just Cases. Thank you for having me again.
[00:01:18] Professor Melissa Castan: Luke, we had you on the show at the end of the last season talking about witchcraft, so it's a slight change of tech today, but what today's case.
[00:01:26] Lacks in the supernatural, it probably makes up poor in its potentially devastating consequences, uh, for the spending of money. In theory. How far reaching could the decision in the school chaplain's case be?
[00:01:38] Professor Luke Beck: Uh, so the decision in the school chaplain's case in 2012 is enormously far reaching. It reaches to every single, uh, federal government spending program, uh, that exists.
[00:01:48] So what happened in this case is that the federal government set up a program to put. Religious chaplains into public schools and to make that work, you've obviously gotta pay people to work. Uh, so the federal government entered into contracts, uh, with various provider organizations and to pay and paid those organizations, uh, to hire chaplains and then deploy them out to various.
[00:02:10] Schools. Can we, can we go back? Can we go
[00:02:13] James Pattison: back? Oh, and by the way, I should say that at the end of last season we introduced something that was a bit of a hit with our listeners, which was a warning sound for when things got a little legalistic. Yeah. If ever we need to pull things back a little bit. Uh, I'm gonna hit this button.
[00:02:31] Okay. You just gonna cut
[00:02:32] Professor Melissa Castan: us off right. And go all nerdy on it.
[00:02:34] James Pattison: That's right.
[00:02:35] Professor Melissa Castan: How do you know it was a hit with the listeners? Well, I was just.
[00:02:37] James Pattison: We would, we were actually told on socials that, uh, that people quite liked it. So it's purely just because I get to be an idiot, that's the most important thing. But it, last time that we spoke, we were all in the same room.
[00:02:49] And of course we're doing this remotely under current circumstances. So, um, I think this little, this little sound will become more and more important. Thing is I can't put my hand up and say I'm confused. So let's go back to the beginning of the. The entire school chaplain's program, um, to outsiders who haven't heard of it, it sounds like a bit, bit of an unexpected thing that the federal government would do, uh, to put a chaplain into a government school.
[00:03:17] How did it really come about?
[00:03:19] Professor Luke Beck: So there's various versions of the story about how it came about, but ultimately it, it was kind of, kind of came down to two things. On the one hand, uh, the, the Howard government at the time who was, which was responsible for introducing the program was then was partly trying to curry favor with conservative religious voters.
[00:03:34] This was, you know, sort of a policy that might appeal to that. A particular demographic. And at the same time, the Howard government had long had this view, uh, that public schools in particular were places where that were absent values and absent morals. And so sending off, uh, religious chaplains to public schools would provide student welfare and youth work, social work type services, but also do something about.
[00:03:57] Values and morals and also sort of, you know, curry favor with particular voting demographics
[00:04:03] James Pattison: and the chaplains themselves. Uh, who were these people supposed to be?
[00:04:08] Professor Luke Beck: Uh, so the federal government's rules, uh, said that these chaplains had to be religious or endorsed by religious groups. So the original version of the criteria for appointment, you didn't need any formal qualifications in youth work or social work or anything like that.
[00:04:23] The key qualification, uh, was your religious affiliation. And over time, that has evolved. Uh, now, uh, school chaplains, which still exists, uh, they're required to have, um. TAFE qualifications essentially in youth work, but they're still required to, to have a religious affiliation or endorsement. So if you are an atheist, for example, uh, you cannot work, uh, as a youth worker in a, in a public school under the federal government's.
[00:04:49] Uh, school chaplains program because you don't have a religious, uh, affiliation or endorsement. And in practice, almost all of the school chaplain, uh, organ provider organizations are Christian. And so that means in practice, only Christians are eligible for these jobs in public schools. Uh, so, you know, if you are happen to be, say, a Muslim or a Hindu or, or whatever, and you're qualified in youth work and you want to be a youth worker in a public school, uh, you're not eligible for these jobs.
[00:05:16] So, of
[00:05:16] James Pattison: course alarm bells start immediately about a program like this. Someone who took exception to this, uh, was someone by the name of Williams, Ronald Williams. And so the, the case is named after him. Who exactly was Ronald Williams? In Williams and the Commonwealth?
[00:05:34] Professor Luke Beck: So this Ron Williams character was an atheist, uh, from Queensland, and he had a couple of kids in, uh, an ordinary Queensland public school.
[00:05:43] Uh, and this school, like lots of others, had a school chaplain. And so Mr. Williams took the view that it was improper for government, uh, to put essentially religious functionaries, uh, in public schools, whatever other good they might do in terms of the, the social work. That they performed it, it wasn't right or proper, uh, in separation of church and state terms for government to be putting these types of, uh, roles in public schools.
[00:06:07] So he went off to the high court, uh, to challenge the, the validity of the contracts under which this program operated. And he had two key arguments. Uh, one of his arguments was all about separation of church and state, and the high court basically didn't give that any attention. The second argument, and this is the argument that has a much bigger and far reaching impact, was that the federal government simply did not have power to spend money on things like this.
[00:06:34] Now, this comes back to really first principles, fundamental issues. Um, all government money is not actually government money. It's public money. It belongs to the people. And the federal government, uh, can only spend the people's money if Parliament passes a law, appropriating money for a particular purpose.
[00:06:52] And that's just a big, fancy word that means earmarking money or setting it aside for a particular purpose. And if a law authorizes the actual expenditure of that money, the actual spending of the money. Now the problem for the federal government in the Williams case is that whilst there was an appropriation or an earmarking or a setting aside of money, there was no law authorizing the actual spending of the money and the Fed.
[00:07:17] And in the Williams case in 2012, the high court said, well, there is no law authorizing the spending of this money. So whether the program is a good idea or a bad idea, none of that matters. You're not allowed to spend money. That you haven't got a law authorizing you to spend. So therefore the spending is invalid.
[00:07:40] James Pattison: Okay, so the government loses this case and they get the message loud and clear from the high court that you need two things, and let me run this past you to make sure I've got it right. First, you need the money to be set aside, which is called an appropriation law. And secondly, you need a law to actually spend that money, right?
[00:07:58] So that's a Williams case, part one, or the school chaplain's case, part one. But a couple of years
[00:08:05] Professor Luke Beck: later, there's a sequel. Well, so. What the high court said in 2012 was that you need a law authorizing the spending. So the federal government said to itself, alright, we'll go to Parliament and we'll pass the law authorizing the spending.
[00:08:19] And so they passed a law that authorized all kinds of federal government spending because that rule about you must have a law authorizing the spending. That affects not just the chaplains program, but all other federal governments. Spending program. So the Federal Parliament passed a law that authorized the, essentially said, uh, that the federal government can spend money on basically any program it wants provided it gets listed, uh, in a schedule to the legislation.
[00:08:43] And one of the programs listed in the schedule to the legislation was the school chaplain's program. Now, unsurprisingly, uh, Mr. Williams. Was not happy about that because his fundamental objection was this separation of church and state type argument. So he went back off to the high court and said, the rule is you can only spend money if there is a law authorizing the spending problem.
[00:09:07] This law passed by Parliament is invalid because federal parliament can only pass laws on certain subject matters. And school chaplains and schools even more generally are not on that list of subject matters. And the high court agreed with Mr. Williams, the high court said that federal parliament does not have power to passable authorizing spending for school chaplains.
[00:09:34] Is that because schools come under state powers? Uh, so in a general sense, yes. So Federal Parliament can only pass laws about things on a list of subject matters, and there's, so you can fit some things about schools under some of those subject matters potentially, but things about school chaplains or student welfare or things like that, the high court said simply does not fit under any of those, any of those subject matters on the list of federal parliament's powers.
[00:10:01] So the high court again, and this was 2014, said the school chaplain spending program is invalid.
[00:10:08] Professor Melissa Castan: Um, Luke, can I just ask you that? We still have school chaplains right now, so how is it that the high court set aside that arrangement and said that didn't work, but we still have them?
[00:10:19] Professor Luke Beck: There's another workaround.
[00:10:21] The high court said that you have to have a law. Authorizing the spending of the money in 2012. Then in 2014, the said, but there is no power in federal Parliament to pass such a law. But there is a get around, there's a section of the Constitution, section 92 that allows the federal government to give money to states.
[00:10:42] On terms and conditions.
[00:10:44] Professor Melissa Castan: Yeah. That's, that's the grants power, right?
[00:10:46] Professor Luke Beck: Yeah, that's right. That's, this is the grants power. And this is how, uh, the federal government, uh, runs a lot of its policy programs. This is why we have a federal education department and a federal health department. The federal government doesn't run any schools.
[00:10:58] It doesn't run any hospitals. Uh, but it has enormous bureaucracies around these things. And the reason for that is because the federal government funds these kinds of things indirectly by channeling the money through the states. So this is how the school chaplains program works. Now, all the rules are designed by the federal government, but the money gets channeled.
[00:11:16] Through the state. So the federal government gives money to each of the states and says, here's a pot of money to spend on the school chaplain's program, and it's a condition of this money that you spend it in accordance with the rules that we've set.
[00:11:28] Professor Melissa Castan: Can they put on any conditions that they like?
[00:11:30] Professor Luke Beck: Uh, so there, there are some limits to the conditions that Federal Parliament, uh, can put on these, uh, on these grants to, to states.
[00:11:37] But, uh, in respect of the school chaplains program, no one has gone to court, uh, to challenge any of the conditions, including. No one's going to court, uh, to challenge the, the rule that there must be an affiliation or endorsement with the religious group. Why would you not go to court in a case like this?
[00:11:54] Uh, well, for two reasons. I'm going to court is super expensive and it's super stressful, so, uh, you'd have to, so there are, you know, in principle reasons why somebody might wanna try it on and challenge, uh, the validity of some of these, uh, conditions on the funding. Uh, but that's super, super expensive. Uh.
[00:12:13] You've gotta pay your own lawyers, et cetera. But if you lose, uh, you've gotta pay the government's legal fees as well. So it's to bring a court case about anything, uh, is always a super risky, uh, uh, adventure. And it's not advisable unless you're completely confident or particularly rich. So now how about,
[00:12:32] James Pattison: how about Ron really Williams himself?
[00:12:34] I mean, this was an individual taking on the federal government, what was at stake for him?
[00:12:39] Professor Luke Beck: Uh, uh, bankruptcy was at stake for him. Uh, so if he lost, uh, he quite probably would've been bankrupted. Uh, but he won twice and so the government was ordered to pay his legal fees. So he was essentially all right in that respect, but it was a big gamble.
[00:12:54] Professor Melissa Castan: So look, just take a bit of more of a bird's eye view of this. Does that mean that the federal government has to have enabling legislation every time it goes to spend money on a, on a topic? Or on a, on a, you know, on a program.
[00:13:06] Professor Luke Beck: Yes, exactly. And that is the big takeaway from the Williams cases. Every time the federal government wants to spend money on anything at all, there must be a law authorizing that spending.
[00:13:17] And the only way that law, uh, is valid is if the law is a law with respect to one of the subject matters on the list of federal parliament's. Powers.
[00:13:25] Professor Melissa Castan: Well, I'm shocked. Shocked. I just wanna say because how does the government then spend money on things like sporting facility? Or things like that, that, that wouldn't have, that wouldn't come within the Commonwealth's head of power.
[00:13:40] Professor Luke Beck: Oh, well that's the really good issue. So I, I said after the first Williams case in 2012, they pa, the Federal Parliament passed this general law that said the federal government can spend money on whatever it wants, provided they put the program on the list Now. One of the things on the, on this new list is sports, and whenever the federal government comes up with a, with a new program, it, it either passes a new law or puts that program on the list, but then you have the problem raised in the 2014 Williams case number two.
[00:14:09] The law isn't necessarily valid just because the law is passed. The law has to be a law with respect to one of the subject matters on the list of federal parliament's powers. And so things like spending money on sporting facilities, which has led to the recent sports fraud scandal, uh, spending on all sorts of other kinds of things.
[00:14:28] It's not immediately apparent that there is anything on federal, in the federal parliament's lists of powers that would support this law. So the federal governments, millions and millions of dollars of spending on sporting facilities and literally billions of dollars on all sorts of other federal government spending programs is quite possibly, uh, unconstitutional because despite the fact there's a piece of legislation authorizing the spending, uh, that legislation is quite probably to the extent that it applies to these kinds of things, invalid for the same reason that the legislation in Williams number two was not valid.
[00:15:04] There's simply no head of power in the federal constitution giving parliament power to pass, uh, such a law. You're listening to just
[00:15:13] James Pattison: Cases. Today we're talking to Luke Beck about the school chaplain's case and could the federal government be facing a sort of existential crisis? If you are looking to master your career, make sure you check out the new Master's program from Monash Law.
[00:15:29] If you have a law degree already, you could be graduating with a master of laws within 12 months. If you don't have a law degree, there's also a brand new master's designed for you too. It's called the Master of Legal Studies. Both taught at Monash Law and both with the option to really drill down into a specific area of law and emerge with a comprehensive grounding to help you stand out from the pack.
[00:15:49] Head to monash.edu/law for more info or check out the links in the show notes. So, with such a huge amount of federal government spending under threat, what will happen? Will anyone step forward to actually challenge it? Well, Luke says it's unlikely that anyone would come forward and he thinks that our law needs to change in this regard.
[00:16:12] The
[00:16:13] Professor Luke Beck: big question is who would bother bringing such a case? Because to bring a case, you can't just be somebody who's who, who objects in principle to the federal government spending money invalidly. You have to be directly affected by it in order to have what we call standing or permission to bring the case.
[00:16:30] And really the only people who who would have standing or permission to bring the case, the only people who are really directly affected by these kinds of spending programs. Uh, either people who are actually already getting the money or who are hoping to get the money in the future, and those are not the sorts of people who are gonna go to court and say, it's unlawful for the federal government to give me money.
[00:16:52] Professor Melissa Castan: Are you, are you saying that if I am a disbeliever in sports and I am angered that the Commonwealth is spending. Good taxpayer money on sporting facilities. I don't have standing to go and complain about the use of money spent on sports by slapping the word sports into the schedule at the back of the act.
[00:17:13] Professor Luke Beck: Uh, yeah, that's right, because you are not directly affected. Oh, you object in principle. You might think that that money should be better spent on other things, but that's just your political opinion as an ordinary citizen in common with everybody else, you have to be specially or directly affected.
[00:17:28] James Pattison: So if Melissa was, say the coach of a local footy team that was receiving a grant.
[00:17:33] She would have standing,
[00:17:36] Professor Luke Beck: she would, but if she received the money, she would never actually do it. Who's gonna go bite the hand that feeds them?
[00:17:42] Professor Melissa Castan: Look, I think this case has broader implications for executive power, doesn't it? If you voted into government, the people who vote for you expect you to be able to deliver on your promises.
[00:17:51] So a government needs money to fulfill those promises. Isn't, isn't this arrangement actually consistent with a democratic election process?
[00:18:00] Professor Luke Beck: Uh, well, yes and no. So. Under our system in Australia, under our Constitution, where we have both a federal government and a state government, uh. Uh, uh, the federal government can only pass laws and can only spend money consistently with the powers and responsibility given to it by the Constitution.
[00:18:17] When we hold an election, uh, when we vote for our members of Parliament, uh, we're voting for people to exercise. The powers granted to parliament. Uh, we're not voting for them. Uh. To empower them to do anything they want. We're not giving them permission to, to, to do things that are against the law or that contrave constitutional limitations.
[00:18:36] We are a society governed by the rule of law, and it's vitally important, uh, that governments and parliaments and public officials are comply with the legal limits on the scope of their powers. And one of those really important limits is that the federal government can only. Spend money, uh, if a law is passed by Parliament authorizing them to do so.
[00:18:56] And secondly that the Federal Parliament can only pass laws within its areas of competence. This season where we're basically looking
[00:19:03] James Pattison: at the way our society is organized and whether our institutions are still holding up in 2020. Studies have consistently found that faith in democracy is sort of on the decline worldwide, and Australia is no exception to that.
[00:19:16] Uh, how do you think executive power in this instance is holding up in 2020?
[00:19:22] Professor Luke Beck: So one of the big takeaways from this is that there's this question of accountability for executive action accountability for what the federal government does, including accountability for the way in which the federal government spends money.
[00:19:33] And there are some problems with that. We've seen that the federal government doesn't really want to explain to parliamentary committees. Uh. What it thinks the constitutional basis is for some of its spending programs we've seen in the most recent budget that there's a funding cut or a budget cut, uh, to the auditor general's office.
[00:19:50] And the auditor General is an independent official charge with ensuring that, uh, federal government spending programs are conducted in a, in a proper. In a proper manner and that there's no maladministration or lack of probity. And it was the auditor general's, uh, investigation that, uh, uncovered the recent sports wars, uh, scandal.
[00:20:08] And so now their funding has been cut and their ability to. To, to provide oversight and accountability is now obviously reduced. Uh, and so there are these questions of accountability and that becomes, even that comes into quite sharp focus, uh, at the moment with the COVID-19 pandemic, where the executive government has taken on quite a considerable role in, you know, implementing all sorts of kinds of restrictions and policies and programs in order to protect and maintain.
[00:20:35] Public health and some of those restrictions as we know are quite intrusive. Um, may well be justified, but nevertheless quite intrusive. And whenever federal government, uh, intrudes into people's lives, or indeed whenever the federal government acts, and also it's similar with state governments, uh, there needs to be accountability.
[00:20:53] You know, power without accountability is always problematic. Do we have the systems
[00:20:58] James Pattison: in place to hold them to account?
[00:21:01] Professor Luke Beck: Well, formally, yes, we do have the systems in place to hold our executive governments to account, but there are weaknesses and flaws. So, for example, I was talking earlier about the rules about standing.
[00:21:10] We know that some federal government spending programs are almost certainly invalid, but almost nobody has standing or permission, uh, to bring a case in court, challenging that to hold the government to account. So there is this mechanism through the courts, uh, to hold government, to account, to put an end to invalid governmental action.
[00:21:26] But the rules around standing, which the courts have created. Uh, uh, mean that it's not accessible, uh, to most people or it's not accessible in cases where it might actually really be desperately needed. It's not really acceptable that we all kind of know that things like the sports grants program, uh, are invalid, but there's basically nothing anybody can do about it.
[00:21:46] You know, turning a blind eye, uh, to wrongdoing, even if it's motivated by really good motives, you know? Improving sports facilities is a, is a noble objective, uh, but you have to obey the law and most especially, the government has to obey the law and do things properly. And at the moment, because of the very restrictive standing rules, um, government in effect and in practice gets away with doing things, uh, that are invalid and not correct.
[00:22:13] Professor Melissa Castan: Dr. Luke Beck, thank you very much for joining us on just Cases today.
[00:22:17] Professor Luke Beck: My pleasure. Thanks for having me,
[00:22:24] Professor Melissa Castan: James. I saw that there's a couple of new reviews on the, uh, apple reviews of podcasts. It was so nice to see that.
[00:22:30] James Pattison: Yeah. Yeah. There's some really lovely reviews. Thanks Heap. To our listeners for giving us some big ups on your listening platforms. Uh, we've got a five star rating on Apple Podcasts, which is just awesome, and that helps push us up the charts and gets us in front of more and more people, which means that we can keep recording these shows for you.
[00:22:48] So keep 'em coming.
[00:22:49] Professor Melissa Castan: We are a five star legal podcast.
[00:22:52] James Pattison: We're, we're a top tier legal podcast. If you like just cases, make sure you follow us on Twitter. Uh, our handle is just cases show and we're totally open to any ideas that you have for upcoming episodes as well. Just get in touch with us, my Twitter. See you next time.