New High Court Challenge over Constitutionality of Government Spending
Monday 12 May 2014 @ 2.09 p.m.
This week, the High Court of Australia will hear the second constitutional challenge by Mr Ronald Williams, this time regarding the legislative solution to his previous challenge in Williams v Commonwealth [2012] HCA 23.
The Previous Challenge
As previously reported by TimeBase, Mr Ronald Williams challenged the government chaplaincy scheme on two grounds: that it violated religious freedom protections in the constitution, and exceeded Commonwealth funding powers.
The High Court unanimously dismissed the part of Mr Williams' challenge based on s 116 of the Constitution and the violation of religious freedom. However, the High Court held by majority that a funding agreement between the Commonwealth of Australia and Scripture Union Queensland for the provision of chaplaincy services at a State school in Queensland was invalid due to a breach of the executive powers relating to funding contained in the Commonwealth Constitution.
Government Reaction
After the Williams decision, the Commonwealth Government responded by adding a provision to their financial management legislation that authorised the government to enter into funding arrangements and make grants that are listed in the regulations.
The initial list of arrangements and grants totalled more than 400 and was inserted into the regulations by the federal parliament. However, the government has made subsequent amendments and additions to the regulations. Regulations are delegated legislative instruments made by the government and only subject to parliamentary oversight after the fact, not parliamentary approval.
The Current High Court Challenge
The second Williams challenge now gives the High Court the opportunity to review the government’s response to its initial decision.
As shadow attorney-general, George Brandis raised serious questions about its constitutionality during its passage through parliament. The Coalition, in opposition, nonetheless supported it.
While the challenge itself is to a relatively small federally funded program for the provision of chaplains (and more recently student welfare workers) in schools, it has brought the whole Commonwealth spending program back into the High Court’s sights.
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