"The bill is a flawed bill" ... shadow attorney-general, Senator George Brandis. Photo: Jacky Ghossein
It is a basic tenet of parliamentary democracy that the decision to spend public money is made by the parliament.
The English Civil War and the French Revolution were sparked by this fundamental principle: when the executive wants money, it needs the consent of representatives of the governed.
But an obscure bill passed by the Federal Parliament turns this principle on its head.
The Financial Framework Legislation Amendment Bill (No.3) 2012 was introduced by the Attorney-General, Nicola Roxon, in response to the Williams decision of the High Court last month.
The court found the funding for the National School Chaplaincy and Student Welfare Program constitutionally invalid. But the decision had potential implications for Commonwealth funding more generally. There are now serious doubts about any federal funding not specifically enabled by the constitution or legislation.
The High Court's decision should not have come as a surprise. Its foundation was laid in 2009, when the court handed down its decision in the Pape case, and held that the Commonwealth can spend money only in areas where it has legislative or executive power. It beggars belief that contingency plans were not put in place for a range of federal spending programs three years ago.
Since its inception under the Howard government in 2007 the chaplaincy program has been funded in accordance with government guidelines, not legislation. Therefore it should have been clear in 2009 that the program was in danger of being struck down by the High Court.
The government's hasty solution is a piece of legislation that completely usurps Parliament's power to approve public spending. It is radical, unnecessary, excessive and unprecedented.
The act lists 415 programs for which the Commonwealth may elect to spend money at any time. Some of these ''programs'' include ''sport and recreation'', ''domestic policy'', ''payments to international organisations'' and the ominous ''electorate and ministerial support costs and parliamentary entitlements support costs''.
The act as a whole may be constitutionally invalid. The High Court has a history of striking down legislation designed by governments to brazenly circumvent its decisions. This is clearly such a case.
But more importantly, the transfer of power from the Parliament to the executive under this act is immensely anti-democratic. It means we will not have a parliamentary debate on the school chaplains program, or any of the other 414 programs listed.
The new mechanism allows for spending relating to any regulations that fall under those programs. But regulations are not subject to parliamentary debate, so government now has the power to fund almost limitless activities of federal regulators without any parliamentary scrutiny. Section 32B even allows a minister to delegate their powers to make those regulations to junior bureaucrats.
The serious weaknesses of the bill were not lost on some MPs. Despite being given no time to review the legislation, the Coalition suspected something was up and attempted to insert a sunset clause. This would have allowed a lengthier consideration of the act, but their amendment was defeated.
The shadow attorney-general, Senator George Brandis, said ''the bill is a flawed bill that does not overcome the legislative gap or constitutional problem identified in Williams''.
He's right. But it was obviously too much to ask that the Coalition have the courage of its convictions. They supported the bill even after their amendment was defeated.
One after another our elected representatives got up to raise serious concerns with a bill they knew to be flawed. And one after another they voted for its passage.
But the most bizarre player in all of this is the Greens. One can at least understand the positions of the ALP and the Coalition, who both support the school chaplaincy program. But the Greens completely object to the idea of school chaplains, have never supported the program and still passed legislation purportedly designed to save it.
One can only assume they are in favour of executive overreach, no matter the issue.
Simon Breheny is a research fellow with the rule of law project at the Institute of Public Affairs.
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