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Wednesday, 20 June 2012

High Court Decision and the National School Chaplaincy Program

The High Court has named down its judgement on the constitutional validity of the National School Chaplaincy Program (NCSP). For news reports see: the Age and the ABC. The full judgement is available here. Summary here.

The first thing to note is that the High Court was unanimous in rejecting the appeal to Section 116 of the Constitution as grounds for ruling the program to be invalid. The Court by implication upheld the previous lines of interpretation of Section 116. This would seem to close down any possibility of moving towards the United States jurisprudence on this issue.

The Court found the program is unconstitutional because it exceeds the Commonwealth's funding powers. According to the report in the Age ...

One of Australia's leading constitutional lawyers George Williams said the implications of the case were massive and could potentially affect any program directly funded by the federal government.
This would include the local government Roads Recovery program and even direct funding of private schools.
''This sets down very significant limits on the ability of the Commonwealth to spend money,'' Professor Williams said.
''I suspect this decision will embolden people to challenge Commonwealth expenditure in other areas.''
Professor Williams said that, while the Commonwealth could still provide funding, it may have to be through the states, rather than funding programs directly, which had been its preference.
''This may lead the Commonwealth to engage in a major rethink of its budgetary processes - what it spends money on and how it does that,'' he said.
"This is very likely to be the biggest High Court case of the year." Age
I have not yet read the judgement, and may change my mind after I have done so, but I would have thought that an alternative way of providing a basis for expenditure on such activities would be for grants programs in future to be authorised by legislation. This judgement has profound implications for public policy development and implementation that extend way beyond the specific program that was the subject of the High Court appeal. No longer can Government simply make a decision in Cabinet, make an announcement and have the public service prepare program documentation for a quick roll out.

Whether it be a matter of developing a legislative framework, or of negotiation with the states and territories the time frame for the roll out of new grant programs is likely to be substantially extended. This decision is a real "game changer" in the field of public policy and public administration.

As for the chaplaincy program, my guess at this early stage is that both possible routes to further funding have attractions and problems. Transfer of funding to the states and territories, under for example a National Partnership Program would put the program beyond the reach of further constitutional appeal but would open the program to possibilities of cost shifting and reduce Commonwealth control over the structure of the program, plus possible delays while the transfer is negotiated with the states and territories. Legislation to authorise the program could be fast tracked and would be likely to have support from the Opposition.

Watching the decision making on how the Government handles this decision and how quickly it makes changes to grant programs will be interesting to watch. In the meantime the comments by the interested parties on both sides of the chaplaincy case display a degree of naivety as to what the case really establishes. Mr Williams might quickly find that the Chaplaincy program is re-established on a basis that makes it highly likely that it will be entrenched even more firmly than it was. Comments by Jim Wallace from the ACL that the decision is merely a technical one, shows a blithe disregard for the complexities that may result for groups seeking funding under this program in future as a result of this decision.

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