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Democracy sidelined in panic over chaplains

Date

Simon Breheny

"The bill is a flawed bill" ... shadow attorney-general, Senator George Brandis.

"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.

Twitter @Simon-Breheny

twitter Follow the National Times on Twitter: @NationalTimesAU

55 comments

  • Surely Roxon's legislation, and the Coalition & Greens support for it, is still unconstitutional.

    This is a bizarre situation, especially over such a dubious program.

    Commenter
    Freddie
    Date and time
    July 05, 2012, 7:40AM
    • To be fair, Freddie - Mr Breheny only suggests that it MAY be invalid. His concern is that it gives more power to the executive and takes more power from the legislature. This is a trend that has accelerated over the last two decades.

      It is a trend we could have reversed, or at least caused a hiccough to, had we voted yes in the 1999 Republic referendum, for the executive would no longer have had the power to select a governor-general.

      Commenter
      Ross
      Location
      MALLABULA
      Date and time
      July 05, 2012, 8:22AM
    • Ross, it is also a lot more than 'we should have voted for a republic is 1999' - seriously!

      Does it not concern you that there are now 415 programs the the government can elect to spend public monies on now? The government is giving itself the power to spend our money on whatever they what, without the need to run it through parliament. No wonder the Libs and Greens backed it - they're keeping it for a rainy day.

      Commenter
      Lost
      Date and time
      July 05, 2012, 8:56AM
    • Lost - you are quite correct - there are deep concerns about executive abuse of process..

      My mention of the Republic Referendum was an example of where we the people had the chance to remove power from the executive and give it to the legislature and we elected to leave it with the executive. So in the one chance in decades that we have had to register our thoughts on this trend, we showed that we approved.

      Why should we be surprised if our legislature also follows our lead in these matters?

      Commenter
      Ross
      Location
      MALLABULA
      Date and time
      July 05, 2012, 9:12AM
    • @Ross
      The irony is that the Republic question was lost primarily because electors wanted the direct presidential model.
      Initially an Australian president under that model would have been some kind of celebrity, but soon it would have evolved into the American executive system because s/he would have the authority of the people whereas 'the government' would only have the authority of parliament, and under our present written constitution the executive is the president (Governor-General) with enormous power: 'the government' is merely a convention.
      It's extremely worrying that parliamentary democracy is killing itself without a murmur of disapproval simply because the electorate shows little interest in our system and profound ignorance.
      Thankyou Simon Breheny for calling our attention to this watershed moment.

      Commenter
      Robert
      Location
      Perth
      Date and time
      July 05, 2012, 9:39AM
    • Thanks for your comment Robert.

      I disagree that the electors wanted a directly elected president. It is more true to say that there were enough republicans to have factions - which faction of the republicans was bigger we don't know.

      What is an irony is that those repbulicans who wanted a directly elected president voted NO because they believed that the current system is better than the one proposed, which is of course downright rubbish.

      Commenter
      Ross
      Location
      MALLABULA
      Date and time
      July 05, 2012, 10:03AM
    • @Ross What nobody seems capable of explaining is how we would be reducing the power of the parliament by taking away its right to appoint a titular head of government. And don't bother trying yourself. Remember the Whitlam government appointed John Kerr.

      Breheny's article above raises a real issue of increasing the power of the executive at the expense of the rights of the people. The only way being a republic would be able to change this is if we had a directly elected head of state with full executive power, a la USA.

      Injecting the Republican debate into this conversation is, in my view nothing more than a furphy and distracts us from critical appraisal of what the government is actually doing with this piece of legislation.

      And of course both sides are going to support this legislation. Why would the Opposition, so convinced that it is going to form the next government seek to hinder its own objectives by not having the power to do what this bill seeks to offer it?

      Commenter
      Freddie
      Date and time
      July 05, 2012, 11:15AM
    • Ross

      Don't be so naive. Whilst the High Court does strike down some unconstitutional laws, the overwhelming tendency for over a century has been for the usurpation of powers by the feds and the executive at the expense of the states and the people.

      In the US (a republic), the situation is even more ridiculous. The US constitution explicitly enumerates the powers of the federal government. It is a very small list. Yet it has grown to a point today where the feds can regulate the dimensions of toilet bowls in private homes, how much corn a farmer can grow and now, the feds can mandate by law that an individual must purchase health insurance from a PRIVATE company. Obamacare was written by Big Health and Big Pharma for goodness sakes. This is pure fascism.

      Anyway, my point is that constitutional courts are still agencies of the state and as such cannot be trusted to guard the liberties of the people and to preserve decentralised power structures.

      The only solution is to drastically limit the size and scope of the state, with the final goal being that of a Private Law Society - all relations between people are voluntary and contractual.

      Commenter
      Bentham
      Date and time
      July 05, 2012, 11:25AM
    • Freddie = thanks for your post, but you confuse me.

      My understanding is that Breheny has two objections:
      a. In order to bypass the Constitution that prevents the Commonwealth from funding things outside its power to legislate, the new Bill may fail.
      b. The new Bill authorises the executive to do many things by regulation that should be subject to debate and legislation (scrutiny).

      The ability of the PM to select a GG is an example of the behaviour in b. and our behaviour in the 1999 Referendum endorsed the behaviour in b.

      Had we voted Yes, then the Parliament would have voted (legislated) on the GG, who in a republic would also be our head of state.

      This is one way of taking regulatory power out of the hands of the executive (PM and cabinet) and giving it to the legislature, which represents the people. While it does not go as far as direct election, it is untrue to say that the only way to take that regulatory power away is to move to direct election.

      If I have misunderstood what you say, my apollgies - please respond if my understanding seems to be incorrect.

      Commenter
      Ross
      Location
      MALLABULA
      Date and time
      July 05, 2012, 12:29PM
    • Bentham, I am not naive, and I don't agree with your 'only solution'.

      For the sake of your argument that republics are not the answer, (an argument I never made), consider the situation where we remain a monarchy and the people through Parliament get to elect the governor-general.

      The idea of Private Law does not appeal to me. That does not mean that it is wrong, but I would not like to live in such a community.

      Commenter
      Ross
      Location
      MALLABULA
      Date and time
      July 05, 2012, 12:34PM

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