Tuesday, 26 June 2012
Financial Framework Legislation Amendment Bill (No. 3) 2012; Second Reading
That this bill be now read a second time.
The Financial Framework Legislation Amendment Bill (No. 3) 2012 responds to the decision handed down by the High Court on 20 June 2012 in the matter of Williams v Commonwealth.
In that case the High Court invalidated the National School Chaplaincy Program.
A majority invalidated payments under the program on the ground that they were not supported by the executive power of the Commonwealth.
Successive governments have proceeded on the basis that no specific legislative authorisation was required for programs over and above the appropriation acts. However, in Williams, a majority of the High Court held that legislative authority is necessary for some spending.
This bill provides the necessary legislative authority.
Spending programs may be at risk despite the fact that money has already been appropriated by the parliament. The bill will ensure that the parliament's intentions in appropriating funding for programs are given effect.
The programs supported by the bill include the National School Chaplaincy and Student Welfare Program. This program is widely supported for its assistance for students. The government is committed to maintaining the funding for the chaplaincy program.
The bill also amends the Financial Management and Accountability Regulations of 1997 to include a new schedule which specifies relevant grants and programs.
This is a prudent approach in the light of the new requirement identified by the High Court, and it is designed to ensure administrative certainty.
But this approach does not involve any departure from the government's continuing commitment to funding a broad range of important community programs.
And it must be recognised that the Williams decision has no implications for Commonwealth agreements and payments which are already authorised by legislation; for example, benefits under the social security legislation and funding for private schools under the Schools Assistance Act 2008.
The decision also has no implications for Commonwealth agreements with and grants to the states, including grants in relation to health, education, transport, roads and the environment.
Agreements and payments for the ordinary services of government are also unaffected by the decision.
No remedial action is necessary in relation to these agreements and payments.
Williams v Commonwealth
The Williams case involved a challenge to the constitutional basis for the Commonwealth's activities and expenditure in relation to the National School Chaplaincy Program.
A majority of the High Court invalidated the making of payments by the Commonwealth under the chaplaincy program on the ground that they were not supported by the executive power of the Commonwealth. In particular, four of the justices did so on the basis that the Commonwealth executive government could not enter into agreements and make payments under the chaplaincy program without legislative authority. Appropriation legislation was not sufficient; nor was section 44(1) of the Financial Management and Accountability Act of 1997.
The government is committed to maintaining funding for community programs, including the National School Chaplaincy Program and its successor program. The National School Chaplaincy Program and its successor program have delivered very valuable services for the benefit of students across Australia.
This program needs to be put on a firm legal basis as a matter of urgency, to enable payments to resume for the benefit of schools and students relying on the program.
Williams also has implications for the validity of Commonwealth spending programs that are not supported by legislation other than an appropriation act, where there may be a constitutional need for legislative support to be provided.
As I have already noted, many Commonwealth spending programs and agreements are already authorised by legislation—this includes most payments to individuals, and the Williams decision has no implications for such programs and agreements.
I have also already noted that the Williams decision has no implications for Commonwealth grants to the states or for agreements and payments for the ordinary services of the government.
Despite this, there remain a significant number of other spending programs and arrangements that are not supported by legislation other than an appropriation act. This bill will provide such legislative authority for those programs and arrangements.
These programs range from helping children with autism through to overseas aid payments. They include a number of payments to veterans that are not part of the social security system. They include a wide range of different programs such as industry development programs, environmental programs, education programs and health programs.
Every person who sits in parliament and wants to be part of a government has strong reason to support this bill which allows governments both now and in the future to fund important work for the Australian community.
Overview of the B ill
Let me provide an overview of the bill. The Financial Framework Legislation Amendment Bill (No. 3) 2012 will amend the Financial Management and Accountability Act 1997 to establish clear legislative authority for the Commonwealth to make payments in relation to particular programs, grants and arrangements. Transitional provisions in the bill protect programs, grants and arrangements in place before the bill commences.
It is critically important that recipients of Commonwealth grants and other payments who act in good faith consistently with the arrangements under which those payments are made should not be left in any doubt about the validity of the payments. The government has been careful to identify grants and programs where a question might be raised about the need for legislative authority.
Schedule 1 to the B ill
Schedule 1 of the bill inserts a new section 32B into the FMA Act to provide the requisite statutory authority for Commonwealth spending, where no other legislative authority exists. It will empower the Commonwealth to make, vary or administer arrangements or grants under which public money is, or may become, payable, if the arrangements or grants or programs are specified in regulations.
The bill thus provides a mechanism for regulations to be made to provide legislative support for both existing programs currently identified which may require legislative support and also for future programs. The bill also makes clear that the power to make arrangements and grants is exercisable subject to compliance with the requirements of the FMA Act. The proposed amendments thus require ministers or officials to stay within the accountability regime established by the FMA Act and instruments made under it.
Schedule 1 also clarifies that the proposed amendments will not, by implication, narrow the executive power of the Commonwealth. The schedule provides that decisions under the proposed amendments to the FMA Act are not decisions to which the Administrative Decisions (Judicial Review) Act 1977 applies. That act has never applied to Commonwealth spending decisions of the kind to which the proposed amendments apply, and it is appropriate that this continues to be the case.
Schedule 2 to the b ill
Schedule 2 to the bill proposes to amend the Financial Management and Accountability Regulations 1997 to specify particular grants or programs, in accordance with the proposed amendments to the FMA Act which I have already outlined. The schedule contains 427 grants and programs, including the National School Chaplaincy and Student Welfare Program.
In keeping with a generally prudent approach, many of the matters prescribed in the schedule have been included out of an abundance of caution.
The bill will ensure these grants and programs have specific legislative authority over and above the appropriation acts. Direct amendment of the regulations by legislation is an efficient means of providing support, with the direct authority of the principal act, for the wide variety of relevant grants and programs provided by governments. This technical approach has been adopted in other circumstances where amendments to details appropriately set out in regulations may be required as a matter of urgency.
This bill is a measured, appropriate and necessary response to the Williams decision.
It will ensure that the government can maintain funding for important community programs, including the National School Chaplaincy and Student Welfare Program.
It has been designed to address the new requirement for specific legislative approval of spending programs identified by the High Court.
Before I commend the bill to the House, might I just put on record my thanks to the many staff and officials in the Attorney-General's Department and the Department of Finance and Deregulation, many of whom worked very long hours, including through the night last night, to ensure that this security can be provided to those who are recipients of grants from the Commonwealth and provide extraordinary benefit within the community. I commend the bill to the House.
Leave granted for second reading debate to continue immediately.
The Financial Framework Legislation Amendment Bill (No. 3) 2012 is presented by the Attorney-General as an urgent response by the government to the High Court's decision in Williams v The Commonwealth, which was handed down last Wednesday. That decision found that funding for the National School Chaplaincy and Student Welfare Program, which the opposition strongly supports, was beyond the executive power of the Commonwealth because it was not supported by an act of parliament and was therefore not a valid exercise of the executive power of the Commonwealth under section 61 of the Constitution.
I should stress that the only Commonwealth program which the High Court's decision invalidated was the chaplaincy program. However, the language and reasoning of those justices who comprised the majority in the Williams decision have potentially far-reaching implications for other Commonwealth programs which rely upon the exercise of executive power without appropriate statutory authorisation.
The solution proposed by the government is to amend the Financial Management and Accountability Act 1997 to provide for the validation of a large number of Commonwealth programs and grants. This is proposed to be done by regulation. In all, some 11 types of Commonwealth financial assistance grants and some 416 programs providing for the payment of Commonwealth moneys is set out in the draft regulation, with which the opposition has only just been supplied. I should say at once that the opposition has grave concerns about the legal validity of this approach which the government has adopted. I should also record that the request by the shadow Attorney-General, Senator Brandis, to be provided on a confidential basis with a copy of the Commonwealth's legal advice was refused by the Attorney-General.
The opposition's concerns relate to the method adopted by the bill, the essence of which is to insert into the Financial Management and Accountability Act a new section, section 32B, which purports to validate any grant or payment of Commonwealth moneys which may be identified by regulation. This is done by providing that, if apart from this subsection the Commonwealth does not have the power to make, vary or administer a grant payment and the grant or payment is specified in regulations, then the Commonwealth has the power to make the grant or payment. Eleven forms of grant and 116 categories of program payments are set out in the draft regulation that—again, I stress—we have just been supplied.
The opposition is far from satisfied that this umbrella form of statutory validation is effective to satisfy the constitutional lacuna which the High Court identified in the Williams case. Nor are we satisfied that the proposed section 32B in its application to each particular grant or program payment is supported by any of the section 51 heads of power, although in respect of many grants or payments it may be.
The whole point of the Williams case was to decide that the executive cannot spend public money without legislative authority and parliamentary scrutiny, and it seems to the opposition hardly sufficient to meet the test which the majority of the justices prescribed for valid expenditure to specify a schedule of grants and payments and merely declare them to be valid.
The approach adopted is particularly inapt, given the programs are to be specified merely by regulation. It was the fact that the chaplaincy program was established only by executive order which resulted in its invalidity. It seems, in short, that there is an element of circularity in the Commonwealth's legal reasoning. To make matters even worse, the power to make regulations, which will bring particular programs within the general validation provisions of the proposed section 32B, may themselves, as a result of the proposed section 32D, be delegated by the minister to an official in any agency, which means in effect any public servant no matter how junior.
The government's response to a High Court decision to invalidate a particular program because it was established by executive action rather than legislation is to say that all programs are validated so long as they are identified in a regulation and that regulation does not even have to be made by a minister but can be delegated to any officer of any agency. This hardly seems to us to be an adequate response. Our preliminary view is that it does not overcome the constitutional problem identified in the Williams case. Nor is the opposition satisfied with the manner in which the government has dealt with us in seeking to address this issue. Although the High Court handed down its decision last Wednesday, the first approach to the opposition by the government was yesterday, some three working days after the judgment, when the Attorney-General invited the shadow Attorney-General to a briefing after question time and outlined in broad terms the approach the government was proposing to take. It was at that meeting that the shadow Attorney-General's request to examine the government's legal advice was refused. We understand and accept that ordinarily the government does not provide its legal advice to the opposition even on a confidential basis, but this should be a bipartisan matter. The very purpose of the briefing was to request bipartisanship, which the opposition is very ready to extend. On other recent occasions when the government has sought bipartisanship from the opposition following a High Court decision striking down important legislation or executive decisions—for instance, the finding that the Australian Military Court was ultra vires in Lane v Morrison in 2009, or in respect of draft offshore processing legislation following the decision in the Malaysia solution case last year—the government either gave the opposition access to its legal advice or actually published it. The opposition fails to understand why a government seeking a bipartisan solution to a problem which has arisen not from a political controversy but from a High Court decision would decide to take a different course in this particular case.
When Senator Brandis met the Attorney yesterday afternoon, the opposition was promised a draft bill by late yesterday evening or early this morning. In the event, an initial draft was received just before 9 am this morning. It was replaced later in the morning by another draft which contained certain important differences. Neither the shadow cabinet nor the opposition's leadership group has had a chance to examine the draft. Prior to the introduction of the bill by the Attorney-General a few minutes ago, the opposition had yet to see a final iteration of this bill. As a result, the opposition is effectively going into this debate blind, having had only a matter of hours to consider the draft legislation and therefore not having had the opportunity to consider each of the more than 400 categories of grants and payments to which it applies and not having had the opportunity of examining the legal advice underpinning the government's approach, which seems to us, on the preliminary view of the shadow Attorney-General, to be, for the reasons I have already mentioned, an inadequate response to the High Court's judicial reasoning.
Notwithstanding all of this, the opposition understands the government's desire to move urgently in order to validate these various grants and program payments. Notwithstanding our serious doubts about the legal efficacy of the government's approach and our disappointment that the government—whether through contempt of the parliament or just sheer incompetence—did not engage the opposition days earlier and give us the opportunity to consider our response with appropriate care, we will not stand in the way of the government's attempts to deal, at least in a preliminary way, with the consequences of the decision. Therefore we will not oppose the bill.
The opposition supports most of the programs set out in the draft regulation, including, of course—very strongly—the chaplaincy program itself. A number of them, however, we do not. In the time available it is simply not possible to seek to excise those programs which we do not support from the legislation. However, I wish to place upon the record that the opposition's preparedness to allow this bill an expedited passage through the parliament should not be taken as support for every single program specified in it.
Furthermore, for reasons I have already mentioned, the opposition doubts that this bill is effective to satisfy the requirements set out by the High Court in the Williams case. Each of the particular programs set out in the draft regulation will need to be examined and, it may be, in many if not all cases provided with a surer legislative basis than this bill creates. For that reason, I foreshadow that we will move an amendment to the bill to insert a sunset clause so that its effect will expire on 31 December this year. That will give the government and the opposition a period of several months to consider the matter more carefully in light of the High Court decision and bring back to the parliament a more carefully considered and comprehensive bill which deals properly with the constitutional issues raised by the High Court in respect of particular grants and program payments.
I might just take a minute to outline the sorts of concerns we have with this legislation. As I have highlighted in my speech, we only just received the final iteration of this bill—literally 15 minutes ago as it was tabled in the parliament by the Attorney. I have mentioned that it deals with 116 different programs, but of course it actually deals with substantially more programs than that, because the payments themselves are essentially headings that sit over an enormous number of programs underneath. I might just point to one in particular: 412.002, 'Payments to International Organisations'. This is not structured into any further subheadings. It just says, broadly, 'payments to international organisations' and then says:
Objective: To advance Australia’s foreign, trade, economic, and security interests through membership and participation in international organisations and their various peacekeeping activities.
How could that possibly be drafted any more broadly than that? This is the problem that we are in. We understand the government's desire to do this, and indeed we support the government's attempts to validate the chaplaincy program in particular but, because of the government's actions—surely there must have been a better way of dealing with the opposition on this matter if they were serious about getting the parliament to deal with it in such an expedited way—and the way they have approached it, it is very difficult for us just to accept at face value what we have been told by the government. That is why we seek to move that sunset clause: so the parliament can deal with it in an expedited manner but then we can have a more comprehensive engagement with the government about how we might deal with these matters in a way that we believe will be more effective.
I am pleased to support the Financial Framework Legislation Amendment Bill (No. 3) 2012 today and the remarks of the Attorney-General. This legislation will allow the good work of thousands of chaplains and student welfare workers working with tens of thousands of students across the country to continue. The Gillard government has acted decisively and quickly to protect the National School Chaplaincy and Student Welfare Program, as well as other vital community programs. We are committed to the ongoing operations of the chaplain and student welfare program, demonstrated in no small way through the investment of some $429 million since 2007. This is a program that enjoys widespread community support. School communities value this successful program and are also committed to it continuing. It assists them to support the spiritual, social and emotional wellbeing of their students. In fact, the last round of applications saw the program oversubscribed to by some 30 per cent. In the past week we have heard from schools, students and parents about their concern that the National School Chaplaincy and Student Welfare Program might not continue. This bill will make sure that the program is maintained.
Following my announcement on 24 May that the program would be rolled out to an additional 1,000 schools, the program will provide chaplaincy and student welfare services to more than 3,500 schools across the country. Services will be provided from Hobart to Broome, including in some of the country's most remote locations. This program provides wellbeing benefits to the independent, Catholic and government school systems. In fact, three-quarters of all schools in the program are public schools. We are committed to ensuring these services can continue and that new services can be put in place.
A national consultation process was undertaken during 2010 to consider options for the future of the program. We sought the views of key stakeholders representing thousands of school communities. In conjunction, then, with the program's expansion, a new set of program guidelines were introduced building on the good work done over the past five years. This provided greater flexibility for the community, with schools being able to choose a chaplain or a student welfare worker. Around 80 per cent of all schools under the program have chosen to engage a chaplain, with 15 per cent choosing a student welfare worker and others still determining their school community's needs.
These guidelines increase the amount of funding for remote schools, recognising the challenges of providing services in these areas. The new guidelines also ensure the chaplains and student welfare workers are better trained, with a new set of minimum qualification requirements being introduced for the first time as well as support for training up existing workers. The minimum qualification will be a Certificate IV in Youth Work, a Certificate IV in Pastoral Care or the equivalent. All existing chaplains who do not meet any new minimum qualification requirements will be required to complete two units on referral, working effectively in mental health as well. We can assist with the cost of the units and we can assist existing unqualified chaplains or secular workers to enrol in and complete the units if required.
These minimum provider standards are very important as they ensure increased national consistency in the implementation of the National School Chaplaincy and Student Welfare Program; greater quality assurance that services provided under the program are delivered appropriately and that adequate controls are in place; and responsiveness to feedback through the consultation process for increased accountability measures. In addition, the complaints procedures will be amended to strengthen the management processes and transparency and to ensure schools are responding quickly to students or parents who are concerned. We are committed to maintaining those minimum standards in the program.
This bill will provide certainty for the National School Chaplaincy and Student Welfare Program to continue to provide services to more schools and to more students. The next tranche of payments owed to providers at the end of the financial year is $16.44 million to 160 providers who employ chaplains and student welfare workers working in about 1,674 schools. We must ensure that these providers can continue to provide these important services to our schools. My department has put in place the necessary arrangements to ensure payments to those organisations providing chaplaincy and student welfare support will recommence within 24 hours of this important legislation receiving royal assent.
I finish by noting the proposed amendment of a sunset clause to this legislation as foreshadowed by the member opposite. The government will not accept a sunset clause to this legislation. I make the simple point that the government would not be in a position to negotiate payments that go past any sunset clause period if an amendment of this kind were to pass the House. We believe that this is the appropriate and necessary way to ensure the certainty that is absolutely a part of the business of this government, and to make sure, as successive governments have proceeded on the basis that there is no specific legislative authorisation required for programs, that it is now required by the decision in Williams, and this legislation deals with that matter specifically. I commend this bill to the House.
I speak on the second reading of the Financial Framework Legislation Amendment Bill (No. 3) 2012 because this is an issue in which I have a great deal of interest. It affects schools in my electorate as well as right across Australia. I point out at the beginning that this is a Howard government program which was initiated successfully into schools. It was then adopted by the incoming Rudd government and, after hearing rumours that it would not be continued—surprise! surprise!—in the last budget it had an injection of cash. We were being lobbied by chaplaincy teachers, if I can call them that, and schools about this program because they feared it was going to be defunded, but I congratulate the government on the fact that it continued its funding.
The reason we are here today speaking on this bill presented by the Attorney-General is as an urgent response by the government to the High Court's decision in Williams v Commonwealth of Australia and Ors  HCATrans 198, which was handed down last Wednesday. We know that, and the decision found that the funding for the National School Chaplaincy and Student Welfare Program—in other words, the chaplaincy program, which this side of the House strongly supports—was beyond the executive power of the Commonwealth because it was not supported by an act of parliament. So this is what we are doing here today: we are providing an act of parliament because there is no valid exercising of the executive powers of the Commonwealth under section 61 of the Constitution. All this is correct. One of the flaws which was pointed out by the shadow minister and the member for Stirling was the fact that we have some reservations about the fact that the Minister for School Education, Early Childhood and Youth seems, in this legislation, to have awarded himself extraordinary regulatory powers to make decisions under this act, which is why I am going to speak further to the bill as it affects schools in my electorate. I have a letter from YouthCARE, which I received today, regarding the legislation for this chaplaincy program. I can either table it or read it in full. Can I table this letter?
I will read it in full at the end of my dissertation. One of the reasons I am here is that this minister having these sorts of executive powers somewhat scares me. I have made representations to this minister for so long about chaplaincy programs in my electorate and I have been thwarted and ignored by him. Whether he gets this message through the House or not—and I have written to him—I want to talk about the Austin Cove Baptist College in my electorate.
This is directly to do with the minister's regulatory powers in this bill. The Austin Cove Baptist College was established in 2011. I wrote to the minister about this school because of the tragic events at the school when it first opened. Lauren Ames passed away following a car accident on the way to Austin Cove school. Another girl, Georgie Spies, aged 13, died tragically in an explosion in Mandurah where her father was having to live in a tent in a caravan park because of extraordinary situations. Georgie, along with her father and her brother, were killed. They were children at the school. The school sought compassionate intervention by the minister to provide them with a chaplain because of the ongoing tragic circumstances that reverberated through the school as a result of these accidents. I went to the funeral of Lauren. It was an event that I could not recommend, because it was so sad. Austin Cove's principal, Orlando dos Santos, has continually asked me to represent him to the minister on this issue. The minister continues to ignore his cries for help on this issue.
The school, having opened just over 12 months ago with 350 students, now has 545 students and it is growing. I have raised this in this House so many times. The first time was Wednesday, 6 July 2011. Minister, I cannot believe you did not show some compassion when I first raised this issue. The school did what it said it would do; it waited for 12 months to apply again. This is what the minister told it to do in some of the correspondence, and he wished it luck. This issue was raised again by me in a statement to the House. As I said, the school is having extreme difficulties providing pastoral care because of some of the tragic events in and around the school after its establishment.
The principal applied for this funding under the National School Chaplaincy Program 2011. Sadly he was rejected due to eligibility prerequisites which required the school to be operational in 2010. Following the rejection, I made several representations to the federal education minister, Peter Garrett, asking for his intervention to ensure that this school receive the funding that it so clearly deserved. I have sent three letters to Minister Garrett: on 16 February 2011, 13 May 2011 and 2 April 2011. I have also raised this issue in the parliament on a number of occasions. I have asked him to exercise his intervention on compassionate grounds, but he has denied this request.
It gets worse. As I said, in the last federal budget this program was extended by $222 million. But is there room for Austin Cove Baptist College in my electorate? No. In the most recent Senate estimates, Senator Mason raised this issue with the Department of Education, Employment and Workplace Relations—no answer. Here is a school tragically hanging out and using teaching time to provide welfare for its students. This cold-hearted minister has denied them any sort of relief. Out of its own teaching budget it has to find money to provide the sorts of chaplaincy and support programs to students in the school.
I found out recently that they have again been denied funding under the Nation School Chaplaincy and Student Welfare program. Why were they denied this funding? After having the application rejected, Mr dos Santos contacted the Department of Education, Employment and Workplace Relations to obtain some feedback. He was told that he had failed to provide a letter from the parent body approving a chaplain. In the school's very extensive application, Mr dos Santos provided no fewer than three letters from parents at the school and said that if this were not sufficient the school was more than willing to provide whatever was necessary to ensure the application was successful. The parent body overwhelmingly approved having a chaplain in school. In fact, Austin Cove Baptist College has provided evidence that in the last year the two part-time chaplains at the school have had 104 requests for appointments. Further, 45 year 8 students provided statements saying that the school chaplains were worthwhile, they needed them and they wanted them to continue. At the moment the school is having to sacrifice teaching hours to provide counselling for students.
This is what this program was designed to do, yet this minister continues to reject this request. I think he is doing this because he is offended by the fact that I have raised this issue in this place so many times and asked him to show some compassion. He has not and he obviously is not going to. As I have said in this place before, he made a handy rock star, but he is a very ordinary member of parliament and he is a very ordinary minister. On this occasion I am appalled at the way that he has continually ignored this cry for help from a school in my electorate. I now go to the letter that the minister would not let me table, so I will now read this letter from Stanley Jeyaraj, the chief executive officer of YouthCARE, dated today:
Thank you for your support of YouthCARE. You will have received a letter from me yesterday indicating the schools identified in your electorate that have nominated YouthCARE as the service provider for the delivery of Chaplaincy services. In Western Australia, 98% of public schools that have been awarded funding under the National School Chaplaincy and Student Welfare Program (NSCSWP) have nominated YouthCARE as their service provider.
As the Government introduces legislation today to ensure the ongoing funding of the NSCSWP we would encourage you to take this as an opportunity to raise concerns we have about the program that are very particular to our state which should also be of concern to you.
You are no doubt aware that the new program imposed a minimum qualification for those employed as school chaplains under the program. While we are generally supportive of the intention of this provision we believe the minimum qualifications imposed by the Commonwealth will create a distinct disadvantage for Western Australian public schools in both the metropolitan and regional areas.
You will be well aware of the difficulties employers are having in securing staff in Western Australia. When this is combined with a very short time frame and limited access to training providers In some places, we are having very real difficulty in recruiting suitable chaplains who also have the minimum qualifications prior to their employment
A further complication exists for us in relation to a number of schools that were not part of the NSCP but have been awarded funding under the NSCSWP. In these schools, YouthCARE has been providing chaplaincy services for a number of years but officers of DEEWR refuse to allow these chaplains to be regarded as existing chaplains under the program, preventing them from taking steps to meet the qualifications requirements post employment This will deny those schools the services of a chaplain they have known and valued for some time because they do not have the minimum qualifications required by the program.
In the face of the department's inflexibility in applying the program guidelines in respect of pre-employment qualifications for chaplains we would like to offer a solution. YouthCARE has a long standing arrangement with the WA Department of Education that takes these matters into account. We have developed the most stringent selection process of all the states in identifying suitable school chaplains and a comprehensive program of post employment training specifically tailored to the demands of the job in WA public schools. The WA Department of Education shares the Commonwealth's concern that chaplains be appropriately qualified, but is satisfied that the steps we have taken meet all these requirements.
We therefore seek your support in pressing home the view that where a state Department of Education has an existing arrangement with a service provider regarding the recruitment, training and development and supervision and management of the chaplains this should take precedence over the Commonwealth's program guidelines. These matters are fundamentally about risk-management and we believe that the requirements of the State more than adequately protect the risk concerns of the HSCSWP program guidelines.
With a 40-year working relationship with the Department of Education in WA we are confident that many of your constituents have very positive experiences of our work in public schools. With your support this much loved and highly valued organisation will be able to continue providing the highest possible quality school chaplaincy services.
Stanley Seyaraj Chief Executive Officer
This program is a very good program, which, as I said, the Howard government initiated. The schools in my electorate are not only using, as some critics would say, chaplains from particular nominations. More particularly, the chaplains are providing welfare and services well beyond being a chaplain.
Willandra Primary School in my electorate recently sought ongoing funding for a social worker. They were told that their funding had been cut for the program they were currently on and they should apply for a chaplain because it would well and truly fit the bill. YouthCARE in my electorate have pointed out that there are schools in my electorate that do have chaplains. They are Armadale Senior High School, Boddington District High School, Cecil Andrews Senior High School, Challis Early Childhood Centre, Challis Primary School, Clifton Hills Primary School, Coodanup Community College, Dudley Park Primary School, Halls Head Primary School, Kelmscott Primary School, Kelmscott Senior High School and Pinjarra Senior High School.
It is fantastic that the chaplains are in these schools but they need to be in so many more. As a former teacher, I know that quite often teachers are increasingly being asked to provide welfare arrangements not only for students but also for the parents. This is where a chaplain comes in, almost as a social worker, providing this service to people in need. I commend this bill because it will see the program's funding continue. I support the amendment because we do not want to see this rushed legislation go through this House without greater scrutiny once we see it in action.
I say again to the minister: I feel appalled by your lack of compassion about the Austin Cove Baptist school in my electorate, which certainly deserves the support of a chaplain given the tragedies that have happened at that school. I dare say that unless the minister finally stops his vindictive behaviour towards this school, I will continue raising this in this House and at every opportunity I can to point out this minister is not capable of doing his job.
The High Court decision in the Williams case is to be welcomed. The key message from the decision is that the executive cannot, as it has done in the past, simply spend funds without parliamentary scrutiny. The degree to which the executive spends funds on programs without appropriate parliamentary scrutiny is demonstrated by the hundreds of programs listed in the regulations tabled along with this bill, the Financial Framework Legislation Amendment Bill (No. 3) 2012.
The Australian Greens welcome the rebalancing between the executive and the parliament brought about by the High Court decision. This is a good decision for democracy. We do understand, though, the need of the government to address the validity of the hundreds of spending programs currently under a cloud and we appreciate the mechanism provided by this bill is an appropriate option. We do, however, have significant concerns if in the future the government continues to use a regulatory mechanism for new programs. While a regulation comes before parliament it is not debated unless subject to a disallowance motion and cannot be amended. The Greens will keep our options open in respect of any future spending programs the government seeks to regulate rather than bring to the parliament through legislation. We are strongly of the view that in the future government programs of the type at issue here should be brought before the parliament as legislation for appropriate parliamentary scrutiny. On the issue of the National School Chaplaincy and Student Welfare program, the Australian Greens have consistently raised concerns about the chaplaincy program since its inception by the Howard government and through its significant expansion under the current government. We do not believe the program is in the best interests of students in our secular public education system. The qualification requirements for the program are wholly inadequate. The court decision offered the government an opportunity to overhaul the chaplaincy program and to ensure the millions of dollars being spent are actually to the benefit of schools and their students.
The Greens maintain that an alternative program that seeks to assist students and is delivered by professionals with appropriate qualifications is the better public policy. Schools and students may need counsellors with appropriate university qualifications. Other schools with large bodies of students who do not speak English as a first language may need assistance from people with relevant language qualifications. The Greens want the funds from the program spent but spent in ways that offer value to our nation's schools and students.
I rise to make some remarks on the Financial Framework Legislation Amendment Bill (No. 3) 2012, which has been brought in in a hurried fashion for reasons explained by the Attorney-General before the House this afternoon. In rising I want to do a number of things. The first is to address the immediate subject matter of the action before the High Court and, in that regard, to make some remarks contrary to what the previous speaker in this debate has made. The second is to indicate my support for the chaplaincy program and the way in which I have seen it operate in my electorate and elsewhere throughout Australia. The third is to reiterate the concerns raised by the shadow minister, the member for Stirling, in relation to this legislation.
The subject matter of the case in the High Court, Williams and the Commonwealth, was of course the chaplaincy program. That is a program which was initiated by the Howard government and has had widespread support throughout Australia. I have that program in my electorate at a number of schools—the Templestowe College, the Doncaster Secondary College and elsewhere—and, having visited the program and spoken to people who have worked as chaplains in those schools and having seen the support in non-private schools from the teachers, staff and students, there is a ringing endorsement of the value of this program.
I say to the previous speaker, from the Greens, the member for Melbourne, that it seems nothing more than a rank ideological objection to this program on their part. If they have seen the operation of the program as I have myself and talked to the people involved—and, more significantly, spoken to staff and students of these high schools—I cannot see how they would continue to maintain their objection to this program except, as I said, for ideological reasons. So it is welcome that the government is continuing to support the program and putting measures in place to ensure that this program continues.
I turn to the legislation itself. This arose because of the decision last week of the High Court of Australia in the case of Williams and the Commonwealth. In that court case the High Court was invited to examine the operation of section 61 of the Australian Constitution. As a consequence of that examination, it by majority came to a decision that the chaplaincy program which was the subject matter of the challenge in the High Court had not been established by legislative fiat but, indeed, had been established by executive action and, therefore, fell foul of section 61 of the Constitution. There had been some indication that the justices of the High Court were already thinking in this regard—namely, in the Pape case they decided on some slightly different grounds. Nonetheless it was an indication that the High Court has taken a view that there should be some limits to the exercise of executive power in this country.
That raises an issue in relation to the hurried response and the manner of it from the government. Surely one would have thought that, following the Pape case and certainly following the case brought by Mr Williams in the High Court, the Commonwealth would have had some contingency plan in place had this result eventuated, as it did. Surely the Commonwealth had advice from its legal advisers that there was a possibility, particularly in light of the previous decision. Surely there was some contingency or advice that there should be some contingency plan in operation. But it seems that that has not been the case. We were told by the Attorney-General or the Minister for School Education, Early Childhood and Youth earlier in this debate that officials—and I accept this—had worked through the night last night and had obviously been working flat-out over the last few days to bring this legislation to the parliament. That is well and good and I accept that people have done a fine job, but the question still arises as to why the government had not looked at contingencies had the High Court decided as it did in this regard.
The second issue I wish to raise is a concern of the coalition about the irony in this legislation. It is quite clear that the High Court has decided, on exercising the powers that it has under the Constitution in order to be the final arbiter of the Constitution of Australia, to put in place some limitations on the exercise of executive power in this country, and yet what is the response that we have? The response is a greater exercise of executive power by the government—so much so that in section 32D these decisions can be made by a minister but section 32D(1) states:
(1) A Minister may, by writing, delegate any or all of his or her powers under this Division to an official in any Agency.
So not only is this a use of executive power by a minister—the very thing which the High Court obviously railed against in their decision—but also the response from the government is to use executive power and, more than that, to delegate executive power to officials in agencies. The concerns that we have are about, firstly, the response—the lack of preparation, it would seem, to this outcome from the High Court—and, secondly, the use of the very powers which the High Court want to curtail on the part of the executive government in order to fix the problem. It raises some concerns.
This brings me to the amendment which has been proposed by the coalition. Given the concerns about this, given that obviously and appropriately this legislation has been put together in a hurried way—and that is no reflection on the officials involved, who have had to do what they have needed to do in a very short period of time—given that this has been brought to the parliament in a short period of time and given that there has not been proper consultation with the coalition and the Independent members of parliament, surely it is appropriate that there be some sunset clause in relation to this particular piece of legislation. The only argument that has been offered up so far as to why there cannot be a sunset clause was a throwaway line by the minister for schools in his contribution earlier to say that they could not negotiate payments beyond the sunset clause if a sunset clause were in place. Well, frankly, that is nonsense. They could put in place payments and those payments would continue to remain legal, lawful and constitutional up until the point of the sunset clause. All we are saying is that, surely, we can have another look at this rather than doing it in a hurried way, rather than doing it in a way when we have only just been provided with a copy of the draft regulations today, and rather than doing it in a way which the government, for whatever reason they have of their own, are not prepared to share their legal advice, even on a confidential basis, with the shadow Attorney-General. Surely in these circumstances and where the government's response is to use executive power as a response to the High Court saying, 'Hang on a moment, there should be a limit on executive power,' it is not too much to ask for a sunset clause to be put in place.
I would say to the Independents and the Greens—and I heard the contribution of the member for Melbourne earlier who was raising some concerns about this—in this regard, surely, if they want to see the parliament operate in a way in which the High Court itself has pointed out the parliament should be operating in relation to these matters, then they would support a sunset clause in relation to this particular piece of legislation now before the parliament. For those reasons I support the amendment, which has been foreshadowed by the member for Stirling, and I believe that the coalition, generally, will be of the view that this is appropriately a hurried response, but for that very reason we ought to have the opportunity to revisit it over the next few months.
I am pleased to make a few brief comments in relation to the remedial legislation that has been introduced to the House by the Attorney-General with the assistance of the minister for school education. As other speakers have observed in the debate, the legislation arises from circumstances surrounding the decision of the High Court of Australia handed down last week in Williams and the Commonwealth. That is the immediate trigger for the legislation. Obviously, the subject matter before the court was the School Chaplaincy Program.
The School Chaplaincy Program was introduced by the then Howard government to provide Commonwealth funding for the assistance of chaplains in public and private schools throughout the country. It is a program which was continued, and I would argue improved, under the Gillard Labor government whereby the guidelines for that program were extended to enable funds to be distributed to assist in the employment of social welfare workers within schools. There has been some debate and consternation about the continuation of the program, but the Gillard Labor government has decided to continue the program and, indeed, bringing this legislation before the House today is evidence of that commitment.
The conclusion of the High Court in Williams and the Commonwealth is that the executive requires some specific constitutional or legislative power for the expenditure of moneys from the consolidated revenue fund. Taken on its own that would seem to be rather an uncontroversial finding and many might argue: why was this government caught off guard and finding itself in a situation to introduce such legislation? The simple answer to that is that successive governments over many, many decades have taken it as read—which turns out to be erroneous—that either the specific constitutional heads of power provided to the executive and/or the power and/or the decisions of this House and the Senate, the decisions of parliament, through the appropriation bills was founded in the executive to expend moneys.
The High Court has turned that on its head in the decision of Williams and the Commonwealth, which puts us in a position where not only are we required to introduce this legislation to protect and continue the School Chaplaincy Program but literally many other hundreds of programs are at risk of falling over if this legislation does not pass through the House and through the other place in great haste. There are consequences of that not occurring. Those consequences are that some doubt will be thrown over the continuation of programs that provide assistance to schools as well as many other areas where the Commonwealth has acquired an interest and a responsibility such as programs which provide funds for environmental and assistance programs, programs which provide funds for roads, and other programs.
It beggars belief that a bill such as this could be opposed by anyone. We certainly hope that we are able to move it from this place and have it in the Senate as soon as possible so that no uncertainty rests over the heads of those particular programs. Of course that does not mean that, without the passage of this legislation, every expenditure of funds which is not supported by a specific act of parliament is in doubt. The tied grants, for example, which are supported by a constitutional head of power expenditure of moneys to particular individuals through contracts or ordinary services in the running of government, still stand on all fours. There are a lot of other programs that are in doubt. A cursory read through the schedule to the amending bill shows that there are well over 60 pages and a number of programs, many hundreds of programs, which require this legislation to guarantee their certainty now and into the future.
We on this side want to see the prompt passage of this bill through the House with voting on the legislation before the end of this session of parliament. With those brief observations, I commend the bill to the House and call on all members to ensure its safe and swift passage.
I also rise to speak on the Financial Framework Legislation Amendment Bill (No. 3) 2012. I do have real concerns, which is why I support the sunset clause that has been proposed by the member for Stirling. I do not necessarily have a lot of confidence that the government has got this particular piece of legislation right and I do not have confidence that there will not be unintended consequences. We have seen this frequently with this government with various pieces of legislation, and certainly one that is being rushed in the way that this one has been, gives me great concern. Some of the powers that are contained in it do bother me.
Even though we have in this particular instance heard that the only Commonwealth program the High Court's decision invalidated was the chaplaincy program, we do know that there are about 11 different types of Commonwealth financial assistance grants and 416 different programs providing for the payment of Commonwealth moneys that we have been provided with as part of the draft regulation that goes with this bill.
I am concerned that we are expected to accept this bill without the shadow Attorney-General being provided a copy of the Commonwealth's legal advice. I find that refusal by the Attorney-General extraordinary. When you are seeking our support to get this particular piece of legislation through, I would have thought that would have been the appropriate course to follow. There are reasons that I have my concerns about the bill and about the process that this government is using.
The other part of this that does give me great concern is the fact that all programs can be identified in the regulation but it does not have to be made by a minister. It can be, but it can be delegated to an officer of any agency. That is a major concern and deserves far greater scrutiny. It can be made by a decision by the minister or can be delegated to any officer of any agency. We should be discussing this in detail—what the implications of that are and how that will work in a practical sense—but we are not being given that opportunity. Will this overcome the Constitutional problems identified in the Williams' case? Given the timeframe here and the fact that the shadow Attorney-General has not had access to that legal advice, we cannot have that level of confidence.
The amendments we have proposed in these circumstances should certainly be accepted by all parties concerned and particularly the government. There are 400 categories of grants and payments to which it applies and we have not really had any opportunity to look at this in detail. We have not had the opportunity to examine the legal advice at all. The government has not engaged the opposition at any time earlier in this and it has not given us any opportunity to consider what response we should be making with any level of care. It has just been passed through to us very quickly. We certainly will not stand in the way of what the government is attempting to do, but I have genuine concerns about this and, as I say, there will be unintended consequences. I have no doubt about that at all, particularly given this government's history.
The government should not take this, and our support of this, as support for every single program that has been specified as part of this. The amendment and the sunset clause are very valid. I think that is reasonable particularly in the circumstances that this bill has come to us and, more particularly, the fact that the shadow Attorney-General has not had access to the legal advice. That is a real concern to me and I am sure to all members on our side of the House. The sunset clause is extremely reasonable in those circumstances. I think the government should be supporting these amendments moved by the member for Stirling.
Equally, I want to get onto the chaplaincy program itself. Part of the reason I am concerned here is that I know the government has not always been supportive of the National School Chaplaincy Program. We know that it was introduced by the former coalition government. I can remember being in what is now the Federation Chamber and hearing some statements being made by Labor members at the time. It was clear to the member for Canning and me at that time that the government in the lead-up to that particular budget was considering getting rid of and not funding the chaplaincy program. I can very well recall the comments from the then member for Fowler who said, '"Praise the Lord and pass the Ritalin" is no substitute for well-resourced and professional intervention where children face a home life often dominated by alcohol and drug abuse, domestic violence and family tragedy.' I knew right then that we had to work hard to make sure that the School Chaplaincy Program was still available because the government was considering not funding it. The amount of pressure that was applied certainly made sure that the government had to change its mind.
Anyone like me who deals in a regional area knows how important school chaplains are. They offer so many different forms of care and support and guidance not only to students but also to the school community in general. Anyone that has direct access, who actually goes to see what these chaplains provide to students and families and even the teachers and support staff within the schools, cannot question the type of support that chaplains provide.
In my particular electorate I have schools like Allanson Primary School and Australind, Parkville, Augusta and Bunbury schools. These demonstrate the level of need and the work that the chaplains do and why it is so important and why I say to this government: do not ever consider cutting this program in the way that you were previously. There are also Bunbury Senior High School, Carey Park primary and high schools, College Row, Maidens Park, Newton Moore High School and the ed support centre, Busselton Primary School, Geographe Primary School, West Busselton, Cornerstone Christian College, Capel Primary School, St Brigid's, Amaroo—the list goes on—Collie, Fairview, Djidi Djidi Aboriginal School, and Manea College. The list is endless. That is how important it is. When I go and talk to families and students they always tell me how important it is.
I know that in 2009 there was a report done on the effectiveness of chaplaincy by Dr Philip Hughes of Edith Cowan University and Professor Margaret Sims of the University of New England. They found that the effectiveness of the chaplaincy could not be questioned and that 30 per cent of the time that a chaplain spent was informal or in care of students in class activities; in other school activities such as breakfast programs; in pastoral care of families and staff; in school events, camps and crises, and with welfare and connecting agencies in the referral of students. I know that many students have many challenges in their lives. Chaplains have to deal with a wide range of issues, often and most frequently with behavioural management and social relationship issues, including anything from anger, peer relationships, loneliness and bullying. I would have to add cyberbullying into that mix. Many of our young people have family relationship issues and they commonly discuss these with a chaplain.
One of the other things chaplains do very well is help develop a sense of self, a sense of purpose and a sense of self-esteem. They also assist in mental health issues. Often they assist with social inclusion. They certainly work to integrate Aboriginal students and immigrant groups into the school communities. I have seen this work first-hand in many of the schools in my electorate. The principals are extremely supportive of the chaplain program. They know how important the work of the chaplains is in building relationship skills.
There are many roles for school chaplains. The welfare that is provided by a school through a chaplain is different to any other form of support in a school. They deal with grief and loss, mental health, school authority issues, alcohol and drug use, physical and emotional abuse and neglect, self-harm and suicide. The chaplains help families. What I really like about the chaplaincy program is that it is not just for the students but for the broader school community and the chaplains work very hard in this sense. One of the chaplains referred to in this report worked on a building bridges program that was a student self-development and discovery program. There are so many ways that chaplains add value in school communities.
I want to touch on the YouthCARE issue that was raised with me as well as with the member for Canning. It is very specific to Western Australia where the new program requires a minimum qualification. YouthCARE is supportive of this. However, in Western Australia there is great difficulty in securing staff, specially with the short time frame and limited access to training providers in some areas. There is real difficulty for YouthCARE in supplying and recruiting the chaplains required by the Commonwealth with the minimum qualifications prior to their employment. YouthCARE has been providing the chaplaincy services over a number of years, but the offices of DEEWR, according to a letter sent to me by YouthCARE, refuse to allow these chaplains to be regarded as existing chaplains under the program even though they have been doing this work previously. I am concerned that this will deny many schools in Western Australia, and even in my electorate, access to the services of a chaplain. I have mentioned how important they are. I would say to the department and to the minister that this really does need looking at in relation to Western Australia.
In this letter YouthCARE has said it has had longstanding arrangements with the Western Australian Department of Education that take all of these matters into account. They have developed the most stringent selection process of all the states in identifying suitable school chaplains and a comprehensive program of post-employment training specifically tailored to the demands of the job in a Western Australian public school. The Western Australian Department of Education does share the concern of the Commonwealth that chaplains are appropriately qualified, but it is satisfied that the steps that YouthCARE has taken will meet all those requirements. So I call on the Commonwealth to look at the situation in Western Australia. We do not need our schools to be without school chaplains. As YouthCARE has said, the Department of Education has an existing arrangement with a service provider regarding the recruitment, training, development, supervision and management of the chaplains. That should take precedence over the government's program guidelines.
YouthCARE has had a 40-year working relationship with the Department of Education in Western Australia. I would say to the minister, the Commonwealth and the department to look at the level of service provided by the chaplains with the support of the department in Western Australia because the last thing we need is for any school in my electorate and throughout Western Australia to not have access to the services that they currently receive, or for new schools to the program, who have demonstrated a real need for the services of the chaplains under this program.
I finish by saying that the broader value to the community of the school chaplain program introduced by the coalition back in 2006-07 should not be underestimated and it has certainly helped many young people, the school community and the broader community. I support the amendments made by the member for Stirling. This piece of legislation has been rushed and the shadow Attorney-General has not had access to the legal advice. It is on that basis that I support the sunset clause.
It gives me great pleasure to support the Financial Framework Legislation Amendment Bill (No. 3) 2012 or what is more widely known as the chaplaincy support and protection bill. I want to deal with this in three phases: firstly, the origins of the National Schools Chaplaincy Program; secondly, the purpose, the meaning and the worth of that program; and, thirdly, some concerns we have about the process of this bill which we will nevertheless not allow to stand in the way of the urgent and immediate solution required following the decision of the High Court, which we respect.
Let me begin with the origins of the National Schools Chaplaincy Program. It was 2006 and I was amazed and surprised when I attended the chaplaincy dinner at the Mornington racecourse, to raise funds on the Mornington Peninsula for chaplaincy in schools, because I had gone expecting maybe 80 or 100 people and there were 300 there. Peter Rawlings was critical to that process, as was Dale Stephenson and many, many others. During the course of the evening we discussed the potential for chaplaincy to reach through the different schools on the Mornington Peninsula and elsewhere. In a somewhat rash commitment, the decision was made to take this idea to Canberra, to the Prime Minister, to build a coalition. It was not difficult to find Andrew Laming, Louise Markus and David Fawcett as willing allies in prosecuting the case for a national schools chaplaincy program. Andrew, Louise and David did a tremendous job in pulling together the material which was at the heart of the proposal we prepared for the Prime Minister. The issue was raised in the party room and the then Prime Minister, John Howard, embraced the idea and invited a discussion with the then minister for education, Julie Bishop. From there, in a short period of time, guidelines were drawn up, funding was arranged and the National Schools Chaplaincy Program was announced. That was a tribute and testimony to the work of every chaplain in every school around the country which had chaplains, and a tribute to all the organising and supporting committees around the country.
Against that background, this chaplaincy program was extended right around the country. It was done in a way which saw that young students who had real difficulties were given a chance to talk with those who were sympathetic, given a chance to focus on people who cared about their concerns. There are many chaplains with whom I have spoken who have been able to relate individual cases of meeting young people, working through difficulties and, in their best judgment, being able—God willing—to forestall and keep away a loss of human life. There is no doubt in my mind that this program has saved many, many lives. It is, by definition, unquantifiable; it is a counterfactual which we will never know. But so many chaplains under so many circumstances have contributed so significantly, ensuring that this program is about giving young people a sympathetic ear on issues which can be beyond the ken of many others. As a consequence, it is a vital part of the architecture of our school system.
Chaplains of course provide general guidance on issues of morality and spirituality, but in their most important role they act as guiders and counsellors where there is a crisis. I know because I have met young people who have spoken to me about their moment of crisis when they did not feel they could turn to family or other teachers—not out of any criticism, but simply because that was the way of things. As a consequence, they turned to their chaplains and they won support. The chaplains are people such as Pastor 'Ziggy', at Rosebud Secondary College, who is legendary on the Mornington Peninsula for his care, his concern, his chaplaincy, his moral leadership and his simple, plain ability to communicate with young people. So those are the reasons this program is outstanding and it should continue and be further extended.
I want to thank the government for their swift action. We support that action, and I think that that is a good thing and a good example of bipartisanship. I am, however, a little surprised that although they did not cause this problem—and I do not think we should ever make that point—they do not appear to have been adequately prepared for what was clearly a foreseeable outcome of the action in the High Court. During the course of its hearings the court left it open as to what the result would be, and it was incumbent upon the government of the day to have prepared a contingency plan. Clearly that had not happened, so not just the chaplaincy program but also numerous other government programs were affected and there was no contingency plan.
On that basis, we have concerns about the mechanism that the government have adopted and we have inadequate information. That is why we have proposed a cooling-off period, as it were, to allow for consideration of the legislation whilst continuing the funding as a matter of urgency. Nevertheless, we give fair and due warning that the government may not have adopted an appropriate or proper mechanism. We hope we are wrong, but we give due warning to the government that they may well have, by failure of preparation, adopted a mechanism which is not optimal.
Having said that, we will not stand in the way of this bill because we support its objectives, we support the chaplaincy program and we support the underlying principle. We believe that this program is outstanding and we will ourselves remain committed to the program for, in my judgment, the next 30 years, 50 years and beyond. I think we have a permanent element in the architecture and landscape of our school system, and for that the parliament should be a little bit proud.
I rise to speak to the Financial Framework Legislation Amendment Bill (No. 3) 2012, which the Attorney-General has presented as an urgent response by the government to the High Court's decision in Williams v Commonwealth that was handed down last week. That decision found that funding for the National School Chaplaincy and Student Welfare program was beyond the executive power of the Commonwealth as it was not supported by legislation and, therefore, was viewed as not a valid exercise of the executive power of the Commonwealth under section 61 of the Constitution.
Can I say at the outset that the coalition strongly supports the chaplaincy program and—as has been mentioned by the member for Flinders—the member for Flinders, the member for Bowman, the then member for Wakefield and I approached the Prime Minister, John Howard, in 2006 on this. This was an initiative and an idea that was supported by the coalition, and we met with the then education minister Julie Bishop. And of course we have seen over the last five or six years the growth in this program.
At the time it was initiated, there was a need—a gap in the ability of schools to respond, particularly to the broader pastoral care needs of school communities—and we have seen over past decades the increasing demand on school communities, on principals, on teachers and on school counsellors to respond to the complex needs that young people, their families and their broader communities face. As has already been mentioned by the member for Flinders, this program has indeed had an impact on young people. It has, in some instances, saved lives. And, while some of the results and the outcomes of the chaplaincy program and the work of the chaplains in school communities are not necessarily quantifiable, it is important that we recognise that today our young people face unique challenges.
Our young people face unique challenges. There is the rise in bullying. We all know that there is a high rate of depression amongst our young people, and there is suicide. Programs like this provide an opportunity for someone who is working within the school community but is slightly separate to come in and provide relationships and networks. I know that much of the work of the school chaplains is very varied and they adapt to the needs of each school community, whether by working with school students to respond to bullying and running programs to combat bullying, or addressing times of grief when families and school communities experience loss. The impact of school chaplains in our school communities cannot be overestimated.
I would like to just note those schools in the electorate of Macquarie that are to receive funding for the 2012-13 financial year. They include a mix of government and non-government schools, high schools and primary schools. They are Blaxland High School, Kuyper Christian School, Mountains Christian College, Windsor High School, Windsor Park Public School, Bligh Park Public School, Blue Mountains Steiner School, Hobartville Public School, Richmond High School, Richmond North Public School, Wentworth Falls Public School and Wycliffe Christian School.
When this program was initiated, while there was a cry by many school communities to have it implemented, there were others who were not quite certain that it would have an impact. But now when I speak to principals and school communities that have had a chaplain for several years, they would see a huge gap in the response to the needs and issues that their school communities face if the funding were to be withdrawn.
To go back to the bill: the government's solution is to amend the Financial Management and Accountability Act 1997 to enable validation of the numerous Commonwealth programs and grants. Of course it is proposed to be done by regulation. There are some 11 types of Commonwealth financial assistance grants and around 416 programs provided by the payment of Commonwealth moneys that are set out in the draft regulation with which the opposition has been supplied.
The coalition is extremely concerned about the legal validity of the government's approach, and I understand that the shadow Attorney-General requested that the Attorney-General provide legal advice of a confidential nature and this was refused. The opposition's concerns relate to the method adopted by the bill, the essence of which is to insert into the act a new section, section 32B, which supposedly will validate any grant or payment of Commonwealth moneys which may be identified by regulation. The opposition is not satisfied that this overarching form of statutory validation will effectively satisfy the constitutional lacuna which the High Court identified in the Williams case. The government's response to the High Court's decision to invalidate a particular program because it was established by executive action rather than legislation is to say that all programs are validated so long as they are identified in a regulation, and that regulation does not even have to be made by a minister; it can be made by an agency. It has been mentioned already in the debate that this response is, we believe, inadequate. The opposition has not been adequately consulted with regard to this bill, given that the chaplaincy program is supported in a bipartisan fashion. It is understood that the government does not ordinarily provide its legal advice to the opposition. However, this requires, in my view, a bipartisan approach. When Senator Brandis met with Ms Roxon yesterday afternoon I understand that the opposition was promised a draft bill by late in the evening. However, this was not forthcoming until this morning, and a further draft was provided later. This, given the time limit and the opportunity for us to examine all the programs that are in the regulations, provides us with some challenges.
The opposition understands the government's desire to move urgently in order to validate these various program payments; however, we seriously doubt the legal efficacy of the government's methodology. Despite the disappointment that the government has failed to consult adequately with the opposition in a timely manner, we will not stand in the way of the issue at hand being addressed by the parliament. We will not oppose the bill.
The coalition supports most of the programs set out in the draft regulation, the chaplaincy program being one. However, it is important to place on the record that the coalition's willingness to allow this bill passage through the parliament does not indicate support for every individual program specified in the bill. Each program set out in the draft regulation needs to be examined carefully. I therefore support the amendment moved by the member for Stirling to introduce a sunset clause. This will allow time for the programs that are in the bill to be examined carefully and in detail.
I conclude by saying that the chaplaincy program in and of itself is a vital program that adds value to our school communities. While I have noted that there are reservations amongst others, we have moved an amendment which I would hope that the government would support. It is my view that, while this bill may not be legally effective, we are supportive of the intent.
I rise to speak on the Financial Framework Legislation Amendment Bill (No. 3) 2012, which has of course been brought to this House because of the decision of the High Court last week in Williams v Commonwealth, which found that the School Chaplaincy and Student Welfare Program was being funded incorrectly, let us say. I am very disappointed with the High Court decision, even though I would not criticise the legal framework on which it was made. But I am more disappointed that the case was ever brought in the first place. I do not know Mr Williams—or it may be Mrs Williams, for all I know—but I am disappointed because I think that Australians generally approve of the program, approve of the Commonwealth being able to fund many programs around Australia directly and believe it is the role of government to do so.
One of the reasons that the community generally supports the school chaplaincy program so strongly—and I note that those who criticise the school chaplaincy program may not be happy that the chaplains come from a religious background—is that, although in the census just delivered to us, 22.3 per cent of Australians profess to have no religion at all and many more class themselves as non-practising Christians, enrolments in our independent and our religious school systems continue to climb. While people may not be actively religious, or may have no religious belief at all, they are looking for that stability that perhaps they look back on their childhood to and realise that that was an Australia we used to have. They are very keen to hang onto some of those tenets underlying the Australian way of life, and they have a very strong belief that they want those tenets to continue in the future. That is why I think the chaplaincy program in particular has been so successful and so well supported.
The program was introduced by the Howard coalition government in 2007, and those of us on this side are very proud of the whole school chaplaincy program and are strong supporters of it. It enables schools to employ part-time school chaplains for the purpose of providing pastoral care and non-denominational spiritual guidance to schools. There are 2,700 schools currently participating in this program and there is a new round that has just been proclaimed in the last few weeks. While there were times on this side of the House we doubted the government's commitment to keep this program going, I congratulate them for doing so—for seeing the value of it and for keeping it going within our schools. I have about 130 schools within my electorate, so I cannot visit them all regularly, but I try to visit as many as I can, and a number run school chaplaincy programs—and, boy, they are keen on them! The parents are keen on them and the kids the chaplains interface with are keen on them as well. I have never had a complaint about a school chaplain plugging a religious philosophy into our children. They are just providing good, caring support, and I congratulate them on the work they do. However, there has just been a round of approvals and it gives me the opportunity while we are speaking on this bill to raise one application I am particularly disappointed with. In 2009 Navigator College, a Lutheran school, opened its doors in Port Lincoln, with 118 students. By 2011 it had increased to 300. This year it has 360 and it is expected that that enrolment will continue to rise. It has been a spectacular success. Navigator College provides another choice, contributing to the diversity in education for students and families of Port Lincoln and surrounding districts and Eyre Peninsula as a whole. The curriculum offers extensive programs to students, giving them the opportunity for spiritual and moral growth, service and social involvement, and individual excellence in a range of learning areas. I was particularly pleased to visit the school because it has a great feel when you walk in and it is obvious they are doing a good job. The parents are voting with their money and making choices by sending their children to the school.
But it has a number of problems like many schools and it would dearly like to access the school chaplaincy program. In the early part of this year the school council made the decision that they would apply and they applied online, as they must. They were extremely disappointed when they found that they were unsuccessful. They made some inquiries with DEEWR as to why their application was unsuccessful. It is here it gets interesting, because it appears that sometimes the bureaucracy fails us. Sometimes public servants do not exactly do what they need to do. I think in this case we have a clear failure.
I am reluctant to name the people involved and I won't—from the Public Service level at least—but I am reminded of an old friend of mine, the Hon. Graham Gunn, who served for 39¾ years in the South Australian parliament, when he told a tale to me of speaking to a public servant down the phone, saying, 'You must remember you are a public servant. That is, a servant of the public; you are not meant to be a public hindrance.' I wonder whether in this case this is what we have met with, because when Navigator College inquired as to why their application was unsuccessful they were told it was because they did not meet the compliance requirement that the school council move the appropriate motion to authorise the principal to apply for the funding.
They made the inquiry and when they got the person involved on the phone, the principal said, 'We sent all that information in. He said, 'Excuse me, I'll have a look,' and he opened up the application electronically and said, 'Well, look, you're right: you did have school council approval.' So obviously that excuse had been manufactured out of thin air. The next excuse was that the appropriate attachments were not on the email. The school must apply online and were told the attachments were not on their application. Yet the school has records to say that the attachments were attached to the application. It appears at this stage Navigator College have missed out, even though they supplied all information on time and do not have a sufficient explanation from the department at this stage.
On Thursday, 31 May I asked Senator Brett Mason to bring this up at Senate estimates. He asked a number of questions and the department took them on notice. We are a month further down the track. I know a month is not always enough time to get a clear answer out of a government department, but I think in this case it should be more than sufficient. It should be quite simple to find out what has failed with this application. If we can find out what has gone wrong with the application I would ask that the minister take an interest in the issue and make sure the application was dealt with as it should have been on the first day. I am looking forward to speaking to the people at Navigator College and hoping they will get better service in the future. I hope this is just a glitch and that it can be overcome, because they, too, want to make use of this excellent program that in fact both sides of parliament support and that has been threatened by this High Court decision.
We do support the government in this case—with this fairly rushed legislation it must be said. A number of my colleagues have raised some of the issues and we have had very little time to look at the legislation. While I am not a lawyer—even though I am sure my mother may well have wished that I were—others far more learned than I have looked at this legislation and have at least raised some issues about where they believe it may have been drafted very hastily. In that mind, the department and the minister should have known well that this case was in the High Court—the rest of Australia did—and made some preparation for the possible outcome.
We hope that the government has got the legislation right. Their track record would suggest that not everything they have done has been 100 per cent right. For instance, the NBN was apparently designed on the back of a coaster in an aeroplane and we have had a few other issues like the East Timor solution that was hastily put together.
Certainly, Mr Deputy Speaker. So I hope that in this case this legislation has been put together in a thorough manner and that we will not have to revisit it in the near future. I understand that my colleague the member for Sturt has moved an amendment to say that it should contain a sunset clause so we can reconsider it at a later stage. Should that amendment be unsuccessful, though, we would be supporting the government because it is very important that this program continue.
The Attorney-General has presented the Financial Framework Legislation Amendment Bill (No. 3) 2012 in urgent response to the landmark High Court Williams v The Commonwealth decision last Wednesday. That ruling declared funding for the National School Chaplaincy and Student Welfare Program, something the opposition supports, was not supported by an act of this parliament and therefore beyond the executive power of the Commonwealth. The High Court's decision was based on section 61 of the Constitution. The High Court invalidated only the chaplaincy program. This is at present the only Commonwealth measure affected by this ruling.
The chaplaincy program was implemented in 2007 by the Howard government and was playing a positive and worthwhile role in public and private schools, offering schools up to $20,000 a year to introduce or extend chaplaincy services. The fact that we live in a society in which a country's High Court overturns federal funding of a school chaplaincy program—often the only service of that sort and often offering care, counselling, guidance and support to troubled children—quite frankly beggars belief. I appreciate the need for a legal framework, but it is disappointing. In some instances the chaplaincy program has saved young lives. The kids using the school chaplaincy program can and often do come from broken homes—homes beset by trouble and strife, by alcohol and by abuse. They were and are young people in crisis. It makes you wonder what forces are at work in this country who would not want Commonwealth-funded school chaplains to help children in need in their difficult adolescent years.
The Williams case has sounded loud and long alarm bells. The verdict by those justices who comprised the majority in the matter has huge potential ramifications for other Commonwealth programs which depend upon the exercise of the executive power without the necessary statutory authorisation. A can of worms has been opened. Where does this place so many other federal appropriations for roads or other school initiatives? The list goes on. The solution put forward by the government is to amend the Financial Management and Accountability Act 1997 to enable validation of a large number of Commonwealth grants and programs. In total, 11 types of Commonwealth financial assistance grants and 416 programs relying on Commonwealth assistance are included in the draft regulation supplied to the opposition.
The opposition is not convinced that the overarching statutory validation will be enough to satisfy those legal terms which the High Court decreed in the Williams case. The Williams case was conducted to determine, in essence, that the executive cannot spend money without legislative authority and parliamentary scrutiny. It is hardly sufficient, we feel, for the government to come up with a schedule of appropriations and merely deem them to be valid. The government's approach to a High Court ruling to invalidate a particular program because it was established by executive action rather than legislation is to say that all programs are fine provided they are specified in a regulation. Further, that regulation does not have to be made by a minister but can be delegated to any officer, no matter how junior, of any agency. This seems neither adequate nor appropriate.
The government has not been entirely forthcoming with the opposition in talks about this important issue. Understandably, and sometimes regrettably, the government does not always readily provide its legal advice to the opposition, even on a confidential basis. A case in point of this was the reluctance of the Minister for Sustainability, Environment, Water, Population and Communities to disclose the findings of the Australian Government Solicitor in relation to the Water Act 2007. There had been intense lobbying of the minister after the original Murray-Darling Basin Authority guide was released on 8 October 2010 to see if the AGS could determine that the act would in fact allow for a triple bottom line approach of economic, social and environmental outcomes in any final basin plan. The minister ducked, dodged and weaved and finally produced a 10-page summary, though the AGS advice ran, as I understand to more than 1,000 pages. The water debate continues.
This particular bill ought to be a bipartisan issue because ultimately its consequences will eventually affect both sides of the political divide. In some ways the opposition enters this debate without being privy to all the information which should be on the table to ensure transparency and confidence that what we are doing will benefit whichever government occupies the treasury bench in the future. That said, we will not oppose this bill. Most of the programs laid out in the draft regulation are supported by the coalition, including, of course, the chaplaincy program.
This bill may well fail to satisfy the requirements set out by the High Court in the Williams case. Each of the particular programs contained in the draft regulation will need to be looked at in detail, and it could well be that some of them will need to be on a surer legislative footing than this bill establishes. Because of this, the opposition has an amendment to add a sunset clause of 31 December this year to provide both the government and the opposition with time to consider the matter in more necessary detail in light of the High Court ruling and to return to the parliament in the next sittings more all-inclusive and wide-ranging legislation which meets the constitutional concerns raised by the High Court in relation to particular grants and program payments.
I rise to speak on the Financial Framework Legislation Amendment Bill (No. 3) 2012, which responds to the decision handed down by the High Court on 20 June 2012 in the Williams case. Of great concern is that the High Court decision invalidated the national school chaplaincy program on the basis that it was not supported by the executive power of the Commonwealth. Successive governments have proceeded on the basis that no specific legislative authorisation was required for programs over and above the appropriation acts. However, in Williams a majority of the High Court held that legislative authority is necessary for some spending. Hopefully this bill provides the necessary legislative authority. I do not pretend that in the short time we have had I have examined the legislation in detail. However, I will accept the Attorney-General's commitment at face value. Spending programs may be at risk despite the fact that money has already been appropriated by the parliament. This bill should ensure that the parliament's intentions on appropriate funding for programs are given effect.
The programs supported by the bill include the National School Chaplaincy and Student Welfare Program. This program, introduced by the Howard government in 2007, is widely supported for its assistance for students. The national school chaplaincy program is such an important part of our school education system, providing vital support in an environment that places ever-increasing pressure on both students and teachers. In the lead-up to the 2010 federal election, Prime Minister Gillard promised that the program would not be secularised, yet recent government announcements regarding the program do exactly that. The truth of the matter is that the chaplaincy program is not a religious program. I have spoken previously in this place about chaplaincy, particularly of the journey of a teacher who transitioned into chaplaincy as she saw the importance of helping students with deeper issues.
The High Court did not find that the chaplaincy program was unconstitutional because of section 116—that is, the separation of church and state. The decision was based on section 61 of the Constitution, which confers executive power on the Commonwealth. The court in its decision declared that the government did not have the power to enter into funding arrangements for chaplaincy. As Chief Justice French said:
The character of the Commonwealth government as a national government does not entitle it, as a general proposition, to enter into any such field of activity by executive action alone.
Thus this legislation is required, and I am very pleased that it will pass with bipartisan support.
Tim Mander, the member for Everton in Queensland, was the former CEO of Scripture Union Queensland, and he has estimated that should funding of the school chaplaincy program be cut up to half of the school chaplains would be lost overnight. There are more than 500 chappies operating in 600 state schools across my home state of Queensland and the initiative is strongly supported by parents, teachers, the community and students alike. As of August this year Mr Mander had already received 30,000 statements in support of the chaplaincy programs. Hearing the stories of students who are currently benefiting and who have benefited from chaplaincy programs in our schools makes it easy to see why chaplaincy contributes so much to society.
Chaplaincy and pastoral care have long been adopted and accepted by schools and the wider community as services that transcend religion. They provide support and lend a listening ear to students in need. We all went through high school and we all know the troubles we faced then, but there are myriad further pressures placed on students today. Furthermore, more and more is being expected of teachers who are already overworked. Chaplains provide an extra service in our schools to help deal with these pressures and have the opportunity to support students with deeper issues.
I take this opportunity to commend one of the chaplains at my local state school who has decided that part of his role will be to make sure the audiovisual equipment always works effectively. I know many members in this chamber will know that is always the first thing that fails whenever anyone is trying to put on a program at a school or local function. This particular chappie has encouraged those students who are perhaps a little marginalised to work with him and help him. Students who were perhaps not as popular as others are now supporting the most popular students—the ones who play in the band and perform in front of their peers—and have become part of the group, therefore embracing everyone into the success of the school project. Once again, there is no religion involved; it is all about inclusiveness and supporting students who may otherwise be marginalised.
Chaplains have a distinct and defined role, and it is so important. They are there to provide comfort and support at a critical time in a child's life. It is far better and more effective to have resources in our schools to try to address youth issues when they are prevalent and to have programs in place to prevent larger and more serious problems from developing. Let us not be short-sighted: remember, the right help at a crucial moment in a child or a teenager's life can prevent a lifetime of problems which can be much more costly to our society.
Furthermore, chaplaincy is not limited to schools; chaplains have long held roles with emergency service organisations, defence forces, hospitals and professional sporting teams. The notion of pastoral care for the development of a young person is highly valued by our community, with schools and university residential colleges in particular proudly promoting this service as a benefit of their institution. It is also highly important to note that the national chaplaincy program is optional for schools, and that federal funding is only $20,000 per school. That is not enough to fund a chaplain. This means that a great deal of support for a chaplain in a school must come from the community, as only approximately two-thirds is covered by the government. This has led to a type of government-community partnership for local chaplains and has provided a great deal of community cohesion around the chaplaincy program. From this, it is easy to see why in 2009 a national survey indicated 98 per cent of responding school principals who had a chaplain on campus said that they wanted their program to continue.
Chaplains provide a vital support service in a time when mental health issues are causing huge concerns around Australia. While suicide contributes to just 1.5 per cent of deaths in Australia it is disproportionately high in our youth. Twenty-four per cent of deaths for males aged 15 to 24 in 2009 were suicide. This statistic is heartbreaking, and it is a worrying sign that we are failing our youth—the future of our nation. School chaplaincy testimonials from students around the country have attributed chappies to helping them beat their demons and grow into the successful, contributing and, most importantly, happy young people that they are today. I have heard their stories and I take this opportunity to put on record my support for chaplaincy services.
It is far better and more effective to have resources in our schools to try to address youth issues when they are prevalent and to have programs in place to prevent larger and more serious problems from developing. Let us not be short-sighted: remember, the right help at a crucial moment in a child or a teenager's life can prevent a lifetime of problems which can be much more costly to our society in the longer term. I support the bill before us today as a way to continue funding not just the chaplaincy program but also the hundreds of other well-deserving different programs that could also be affected by the High Court's decision. I know the member for Forde will shortly speak in support of this as well. However, just as the opposition is giving bipartisan support—basically sight unseen—of this hasty legislation, I do believe the government should return our trust and support the opposition's call for a sunset clause of 31 December this year. By supporting the member for Stirling's amendment, together we can achieve the right outcome.
I am very pleased to rise to speak on the Financial Framework Legislation Amendment Bill (No. 3) 2012. This bill is before us because the Commonwealth has a problem in relation to the constitutional validity of its funding for the chaplaincy program and indeed for a whole range of other programs. In the time available to me I want to make three points about the bill which is before the House. The first is the point that I have just mentioned, that the Commonwealth has a problem following the High Court's decision in Williams v the Commonwealth. Second, I note that the Commonwealth has in the bill before us today a purported solution, but the opposition has significant doubts as to the effectiveness of the solution and whether it will in fact address the constitutional problems which have caused the High Court to find that the existing funding mechanism is invalid. Third, the opposition is prepared to cooperate with the government in seeking to find an urgent solution to this problem, notwithstanding our well-founded doubts as to whether the government's mechanism actually works. But we are also proposing a sunset clause so that this emergency mechanism will be subject to review at the end of the year, which will allow a period within which a more considered approach can be developed and pursued.
I turn firstly to the proposition that the Commonwealth has a problem. The problem is that the Commonwealth has historically used a mechanism to fund a whole range of programs, including the school chaplaincy program, which, according to the High Court's recent decision in Williams v the Commonwealth, is not a valid mechanism. The mechanism that the Commonwealth has used to fund this program and many others is not the traditional mechanism of passing legislation to establish the program and in doing so taking care that in so legislating the parliament is legislating within one of the areas where it has authority granted to it under the Constitution. That is not the mechanism that the Commonwealth has chosen to use to fund the school chaplaincy program or indeed a whole range of other programs. Instead, the mechanism that the Commonwealth has used to fund this particular program and a range of other programs is to rely upon section 61 of the Constitution as it claims authority for the executive government to spend money on a whole range of programs which have not been specifically legislatively authorised by the parliament. Section 61 reads that:
The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
The High Court case and its decision released last week found that, in the absence of express statutory authority, section 61 does not empower the Commonwealth in this specific case to enter into the funding agreement with the Scripture Union of Queensland or to make the payments, the validity of which were challenged in the case by Mr Williams.
Further, a majority of the court held that the Commonwealth's executive power does not include a power automatically to do anything that the Commonwealth parliament could authorise the executive to do. That is to say, it was argued by the Commonwealth in the High Court case that, although there was not specific legislative authorisation for the funding of this program, the way that the Constitution works, so the Commonwealth argued in the High Court, was that if the parliament could validly have legislated to establish a program such as the school chaplaincy program then section 61 gives sufficient power to the executive to fund the program. That is the proposition that the Commonwealth put to the High Court and that is the proposition that the High Court has expressly rejected in the decision handed down last week.
You will see that there are two distinct levels of questions which present themselves here. The first is the question as to whether the chaplaincy program, had it been authorised by specific legislation made by the parliament, would have been constitutionally valid. On this point I am reminded of the mantra drummed into constitutional law students at the University of Sydney by Professor. Pat Lane. Professor Lane drummed into all of our heads the mantra that the Constitution, and particularly section 51 of the Constitution, grants to the Commonwealth enumerated specific powers—in other words, if legislation is to be valid it must be based on one of the specific powers granted in the Constitution. So the first question which presents itself in any analysis is always: is the legislation made by the Commonwealth valid because it is based upon specific powers granted in the Constitution? But in this case we do not even get to that first question, because the Commonwealth has failed at the second level. The Commonwealth, or specifically the executive, has spent the money on this program without ever bothering to get legislative authorisation. There is no act which has been passed which authorises the School Chaplaincy Program or its funding apart from the general annual appropriations bill. It is uncontentious that that bill, of itself, is not sufficient to grant the constitutional authority for this particular program. So the Commonwealth has failed to secure legislative authorisation because there is no act having passed the parliament which specifically authorises and enables the School Chaplaincy Program. The Commonwealth, or particularly the executive, has sought to rely upon section 61 of the Constitution and has argued to the High Court that this gives it power to fund the chaplaincy program because, had the parliament chosen to legislate, it would have been validly exercising its power to do so.
As I indicated, that second question might well be one which is susceptible to careful analysis. It cannot be taken for granted that the answer to that question is that the Commonwealth or the parliament would have had the power. But in any event it is uncontested that the parliament did not so legislate. The executive purports to rely on section 61 and the High Court has held that that is not a valid basis for the payments which the executive branch of the cobbled government is making. Therefore, there is, on the present state of the law, no constitutional validity, no legal authorisation for the money the Commonwealth is presently paying to fund the School Chaplaincy Program. Moreover, the same mechanism has been used in respect of a whole range of other spending programs and the High Court's decision means that all of those programs are also equally suspect.
The second point I wish to come to is that the Commonwealth and the government have put before the House this evening a bill which purports to offer a solution to this program. The essence of the solution is contained in the proposed new section 32B of the Financial Management and Accountability Act. In essence, what that proposed new section says is that if the Commonwealth would not but for the new section 32B have the power to make a payment then the Commonwealth will have the power if it has separately authorised that program by regulation.
The opposition is deeply sceptical that this mechanism actually works to get around the constitutional problem which the High Court has identified with the current funding mechanism. The first reason we are sceptical it will work is for some curious reason the drafting approach has not been to say 'this act authorises the following programs'. Instead, for some curious reason, the drafting approach is to say this act authorises the minister to make regulations and then goes on to say—we are also told—the regulations will authorise a range of programs including the chaplaincy program. That squarely brings into question the very issue upon which the High Court struck down the current approach to funding, which is that it involves the use of executive power. It involves a decision by a minister to make regulations rather than an enactment by the parliament that the programs are authorised.
Secondly, there is, as usual, the question about whether there is specific constitutional authorisation for the parliament to pass section 32B. That comes back to the point I made previously—drummed into constitutional law students at Sydney University—that the parliament has the power to pass legislation which is authorised by one of the enumerated specific powers in the Constitution. If there is no constitutional authorisation for the passing of the legislation then the legislation is not constitutionally valid. There is a separate question as to the validity of proposed section 32B because of its breadth and because what it purports to do is allow, through the making of regulations, the authorisation of expenditure across any area that a minister may choose to make regulations about, which begs the very question: are those programs in turn valid because they fall within the areas that the parliament is authorised to legislate about?
One of the other odd features of this legislation—having only perused it in the last hour—is that what it effectively does is establish a laundry list of all of the programs which the government thinks are constitutionally vulnerable, all of the programs which could now be challenged in light of last week's High Court case. That causes me to at least speculate that what we may well see is a series of challenges mounted to individual programs, because a very strong signal has been given that these individual programs are considered by the government to be constitutionally dubious.
The third point I wish to make is that the opposition intends to cooperate with the government because we recognise the urgency of this issue. A program which we support, the chaplaincy program, is presently without a legally valid basis for funding. So too are a range of other programs we support as well as a whole range of programs we do not support. The reality is that we have not had time to consider in detail this legislation and we have not had time to consider in detail all of the programs which are listed in the bill as being ones that are intended to be the subject of the regulations which the government presently intends to make. We are somewhat surprised at the lack of cooperation we have received from the government and, particularly, the lack of willingness of the government to share with the shadow Attorney-General the government's legal advice, which it has presumably obtained, underpinning the drafting approach it has chosen to take in this bill. We are also quite properly wary of granting executive government a major new expansion of spending powers that would be the effect of this bill, particularly in light of the fact that the High Court has just found that granting the executive carte blanche as to spending in the absence of a specific legislative authority is something that it finds to be unconstitutional. We on this side of the House have had very little time to consider the government's bill and very little time to engage in detailed analysis. We have, as I have indicated, significant reservations about whether the drafting mechanism which is used here is in fact constitutionally valid. Our proposed way forward is to move the amendment which has been foreshadowed by the member for Stirling and which would insert a sunset clause so that the effect of this bill would expire on 31 December this year. This would give both the government and the opposition additional time to consider a long-term and more sustainable solution to this problem. In the interim we are prepared to support the government's approach here, although we do note we have significant reservations as to whether as a matter of law it is actually going to work.
I rise to support the Financial Framework Legislation Amendment Bill (No. 3) 2012. I appreciate the meetings that have taken place over the last week since the Williams case came down. I appreciate several direct meetings with the Attorney-General herself and put on the record my appreciation for that. I also appreciate government allowing access to the acting Solicitor-General to work through several issues in relation to this and to provide clarity on the significance of the Williams case of last week and the range of options for response. In my view, in light of that, of the options available and the width of the potential application of the High Court findings, this is a sensible response in the short term. For that reason I support it. I do not support the amendment proposed for a sunset provision to have effect on 1 January 2012 and I am not exactly clear as to the reasons that assists in any way.
The only other comment I wanted to make was in relation to the Williams case itself. Over the course of the last week I can confirm having heard a lot of mumbling in this place at various levels about that judgment—less shock and more surprise and frustration that existing processes do not seem to have adequately satisfied tests for the Constitution and, by extension, the High Court. In particular there have been a range of conversations of surprise from executive members of this place that the appropriation bills do not satisfy the tests of parliamentary judgment. I will probably add to that mumbling this evening, as I have in various conversations, by putting on the record that I think this is both a considered and an inspired decision by the High Court. I would hope that it adds to the cultural shift in our institutions and marks a return to the importance of this chamber, the parliament and the parliamentary process and a reaffirmation of the states and the foundation blocks upon which this place and the whole concept of the Commonwealth are built.
For the High Court to have found in the way they have is, I hope, a timely reminder and an establishment of a pathway for the future for political parties and for all in this chamber to recognise that you do not just get elected to get control of the Treasury benches and you do not just get elected to get control of the executive; there is an awful lot more in our responsibilities when elected. First and foremost they are to this chamber and to the parliament. So I am one probably at the moment in the minority who think this has been an inspired reminder for all of us in this place that our obligations first and foremost are to the processes of the parliament itself.
In my view the Williams case will now establish two very clear paths for the future for anyone involved in the executive. One is through parliamentary processes and very clearly defining any grant programs through the parliament itself. The second one is by agreement with the states. If there is anything in this ruling, it is at its very heart saying to all of us, 'Respect this chamber, respect this parliament and respect the role of the states in the delivery of programs and services to communities.' If that is the message that we have to deal with when cleaning up, I think it is an inspired and considered decision by the High Court and I hope it is one that all members in this chamber reflect upon in their various roles, whether as backbenchers or executive members of government.
I love going to schools—especially primary schools—where children are eager to talk of hopes, dreams and aspirations. I am always presented with a rich tapestry of ambition, divergence of views and the great Australian sense of humour, though I am also at times confronted with challenges: despair, kids dealing with a whole range of issues, children from unhappy homes, children with challenging behaviour. I have one school in my electorate that is amazing. The programs they are doing are magic stuff, but 25 per cent of their kids are at risk of harm at home and in the community.
My wife was a high school teacher before starting a family. She once said that, out of her 27 or so kids in the classroom, fewer than 10 actually still had a mum and dad at home. Whilst making no comment upon the societal impact of family breakdown, I think it is fair to say in this House that that has an effect on our kids. This was the environment where a number of inspired members of parliament, Mr Hunt, Mr Laming and others, worked with Prime Minister Howard and with Minister Bishop to put in place the chaplain school program. Communities were encouraged to establish local chaplaincy committees to fundraise for the extra days from the initial two days that were provided under Commonwealth funding. It was a fabulous program. It was a crucial service in our schools and I still believe it is a crucial service in our schools. Our schools for the most part loved it.
A few years ago a national survey of the effectiveness of chaplaincy in government schools—not independent schools but government schools—was undertaken by Dr Philip Hughes of Edith Cowan University and Professor Margaret Sims of the University of New England. The research those few years back found that 92 per cent of government school principals felt it was highly important to continue to have chaplains. Seventy-three per cent of students surveyed felt their chaplain was highly important in their school. The majority of staff and parents interviewed were concerned about whether there would be ongoing and continued funding for chaplains. Considering the glowing reports it is not surprising that, in the fortnight leading up to the survey done by Edith Cowan University and the University of New England, 95 per cent of chaplains reported dealing with behaviour management issues, 92.5 per cent reported dealing with bullying and harassment, 92 per cent reported dealing with peer relationships and loneliness, 91 per cent reported dealing with family relationships and 85 per cent reported dealing with students' sense of purpose and sense of self-esteem.
All in all, I think we can say with some certainty that the jury is in, it is a unanimous verdict, chaplains are fundamental to our school community. The vast majority of those involved in the chaplaincy program believe it is of great benefit to our schools. And keep in mind that the research I just read out was from government schools only, not independent schools. It is pleasing to see that the government recognises a fundamental need to maintain chaplains in our schools. I am pleased that they have sought to respond and to respond quickly.
The Financial Framework Legislation Amendment Bill (No. 3) 2012 as presented by the Attorney-General is an urgent response by the government to the High Court's decision in Williams that the Commonwealth handed down last Wednesday. The High Court decision found that funding for the National School Chaplaincy and Student Welfare Program, or the chaplaincy program—which we support—was beyond the executive power of the Commonwealth because it was not supported by an act of parliament, and therefore was not a valid exercise of the executive power of the Commonwealth under section 61 of the Constitution.
The Commonwealth program which the High Court decision invalidated was the chaplaincy program only. No other comment was made on other programs by the court. However, the language and reasoning of their justices, who comprised a majority in the Williams decision, has potentially far-reaching implications for other Commonwealth programs which rely upon the exercise of executive power without appropriate statutory authorisation. The solution provided by the government is to amend the Financial Management and Accountability Act 1997 to provide for the validation of an enormous number of government programs and grants. This is proposed to be done by regulation. In all, 11 types of Commonwealth financial assistance and 416 programs providing for the payment of Commonwealth moneys, as set out in the draft regulation, has been supplied to the opposition.
I join my opposition colleagues in saying that we have quite significant concerns about the legal validity of the approach which the government has adopted. I should also record that the request by the shadow Attorney-General Senator the honourable George Brandis SC to be provided with a copy of the Commonwealth's legal advice on a confidential basis was, unfortunately, refused by the Attorney-General. The opposition's concerns relate to the method adopted by the bill, the essence of which is to insert into the Financial Management and Accountability Act the new section 32B which purports to validate any grant or payment of Commonwealth moneys which may be identified by regulation. The opposition is far from satisfied that the umbrella form of the statutory validation is effective to satisfy the constitutional dilemma which the High Court identified in the Williams case.
The coalition are seeking to work with the government on this. In fact I was the shadow minister at the desk when the motion was put for the second reading and the urgency required to debate the bill today. We come with good faith. It would be nice to have the good faith replicated in providing the advice for Senator Brandis to have a look at.
In terms of where the government is going, I am pleased they are supporting the program. It is a big change from the Kevin 07 campaign when the chaplaincy program did not even rate a mention. It is a big change from the early days when the Australian Education Union Victorian President Mary Blewett was quoted in the Herald Sun on 14 January 2008 as saying:
The overwhelming majority of government schools didn't go near the program.
… … …
Given the multicultural mix in many government schools, to go down the path of the chaplaincy program would have been incredibly divisive.
We have come a long way since those comments by the education union. Probably no-one told her that in Queensland alone 81 per cent of government high schools a few years ago had a chaplain.
The numbers speak for themselves. The support in the parliament speaks for itself. I simply ask the government to work with the coalition to assist the shadow Attorney-General as he seeks to make a reasonable judgment on the issues surrounding the program, and I also urge the government to support the coalition's amendment that will be moved by the member for Stirling shortly.
To follow on from the contribution from the member for Fadden, one of the joys of going around the electorate and visiting our schools is that sometimes in those visits you get the opportunity to meet with some of the school chaplains. Some 31 schools, both primary and secondary, in the electorate of Forde have school chaplaincy in place. As the member for Ryan quite rightly pointed out earlier, the program provides some $20,000 a year in funding to the chaplaincy service. The remainder of the funds are required to be raised by the community, whether it is the P&C or, in the case of the Beenleigh region, a large fundraising dinner is held every year as part of the fundraising drive to raise funds for schools such as Beenleigh State High School, Eagleby State School, Windaroo High, Edens Landing and Eagleby South State School. These are all schools where the chaplaincy service is of enormous benefit not only to students, with the mentoring and support that those chaplains provide, but equally importantly to the staff and to the parents of those schools.
I am pleased to see that the government is taking steps to ensure that the funding for this program can continue, because in my community it is of enormous benefit and I am sure that for many other communities not only in Queensland but also in other states, that is equally the case. Right now in Queensland our 'chappies', as we refer to them, look after the needs of some 330,000 Queensland students and I think that it is fundamentally important that we continue to provide that service.
The Financial Framework Legislation Amendment Bill (No. 3) 2012 has been presented to the House by the Attorney-General as an urgent response to the High Court's Williams decision handed down last Wednesday, and I commend the government for the speed with which they have brought this bill before the House. The decision found that the funding for the National School Chaplaincy and Student Welfare Program—which, as the member for Fadden rightly pointed out, the opposition strongly supports—was beyond the executive power of the Commonwealth. We should stress that it was only the chaplaincy program which was invalidated in this decision. However, the language and reasoning of the justices brings into question a number of other Commonwealth programs. The solution proposed by the government is to amend the Financial Management and Accountability Act 1997 to provide validation for that broader range of programs, some 11 types of Commonwealth financial assistance grants and some other 416 programs that the Commonwealth currently funds.
Our primary concern is the broad umbrella approach that has been applied within this legislative framework, given that the High Court decision was quite narrow in its focus and related specifically to the chaplaincy program. Nor are we satisfied that the proposed section 32B, in its application to each particular grant or program payment, is supported by any of the section 51 heads of power obtained in the Constitution. The whole point of the Williams case was to decide that the executive cannot spend public money without legislative authority and parliamentary scrutiny.
In the interests of not using up too much time in this debate and to have it finalised, the member for Stirling is going to propose an amendment that there be a sunset clause effective 31 December 2012. The purpose of this amendment is to ensure that we all have a period of several months to consider the matters raised in the High Court decision in greater detail and to bring back to parliament a more carefully considered and comprehensive bill which deals properly with the Constitutional issues raised by the High Court in respect of particular grants and government programs.
In conclusion, subject to the reservations we have raised and to the amendment which I have foreshadowed, the opposition will cooperate with the government to expedite the passage of the bill through both chambers, because we recognise the importance of the chaplaincy program not only to the students in our schools but also to the staff and parents in our school communities and the broader community.
I do appreciate the opportunity to speak tonight on the Financial Framework Legislation Amendment Bill (No. 3) 2012. This bill, as we have heard, has come about as a result of the finding by the High Court last week. But we should be in no doubt at all about the value that the chaplaincy program has provided in the years since John Howard initiated it. Certainly within the electorate of Cowan, there has been great value added as well.
Across Cowan there are a number of schools that have benefited from the program and it is certainly the case that the fact the federal program has lacked the appropriate statutory authority required by the Constitution, as found in the decision last week, should be no limit to the continuation of the program and the great work that the chaplains do. At Alinjarra Primary School in Cowan, I acknowledge the long-term efforts of former chaplain Diane Norris. Chaplains are also in Ashdale Primary School, Ballajura Community College, Ballajura Primary School—Larissa is there—Creaney Primary School, Greenwood College, Halidon Primary School, Hawker Park Primary School—Helen is the chaplain there—Illawarra Primary School, Lansdale Primary School, Marangaroo Primary School, Neerabup Primary School, South Ballajura Primary School, Wanneroo Senior High School–with Zoe—Warwick Senior High School, which has Amy Donaldson, and Mandy Morton from Woodvale Senior High School. These are the schools within Cowan that have a chaplain. They do great work, and my office assists in fundraising for the chaplains along with the district councils of YouthCARE.
In Western Australia we have received in the last 24 hours two letters from YouthCARE, the providers of chaplaincy services. They obviously endorse the requirement for the action that the government has brought about with this bill and, as the opposition, we also endorse that action. We realise that despite concerns about some matters within the bill and the way it has been drafted, it is important that tonight, in the case of the House, and tomorrow, in the case of the Senate, we must move through and get these things down and get this bill fixed up to make sure that programs such as the chaplaincy program will survive. There has been mention as well of the amendment that the coalition wants to bring forward on this and that is a sunset clause. I certainly endorse that.
I would also like to raise the second letter that I have received from YouthCARE. YouthCARE have raised concerns about the program which are particular to the state and they have asked me to advance these concerns tonight. They have told me that the new program, the National School Chaplaincy and Student Welfare program—it is not so new now, it has been around for a while—had:
… imposed a minimum qualification for those employed as school chaplains under the program. While we are generally supportive of the intention of this provision we believe that the minimum qualifications imposed by the Commonwealth will create a distinct disadvantage for Western Australian public schools ….
In Western Australia, as we know, it is difficult for employers to secure staff. YouthCARE wrote:
When this is combined with a very short time frame and limited access to training providers in some places, we are having very real difficulty in recruiting suitable chaplains who also have the minimum qualifications prior to their employment.
A further complication exists for us in relation to a number of schools that were not part of the NSCP—
the original program—
but have been awarded funding under the NSCSWP. In these schools, YouthCARE has been providing chaplaincy services for a number of years but officers of DEEWR refuse to allow these chaplains to be regarded as existing chaplains under the program, preventing them from taking steps to meet the qualifications requirements post employment.
The trouble with this is that:
This will deny those schools the services of a chaplain they have known and valued for some time because they do not have the minimum qualifications required by the Program.
In the face of the Department's inflexibility in applying the Program Guidelines in respect of pre-employment qualifications for chaplains we would like to offer a solution. YouthCARE has a long-standing arrangement with the WA Department of Education that takes these matters into account. We have developed the most stringent selection process of all the states in identifying suitable school chaplains and a comprehensive program of post employment training specifically tailored to the demands of the job in WA public schools. The WA Department of Education shares the Commonwealth's concerns that chaplains be appropriately qualified, but is satisfied that the steps we have taken meet all these requirements.
Therefore YouthCARE seeks the support of the Australian parliament:
… in pressing home the view that where a state Department of Education has an existing arrangement with a service provider regarding the recruitment, training & development and supervision and management of the chaplains this should take precedence over the Commonwealth's Program Guidelines. These matters are fundamentally about risk- mismanagement and we believe—
as I do—
that the requirements of the State more than adequately protect the risk-concerns of the NSCWSP Program Guidelines.
I notice that the website of Woodvale Secondary College says their chaplain, Mandy Morton, is studying towards a degree in psychology. She already has counselling and other qualifications. That is a great example of someone working towards the qualifications and providing services as a chaplain. I think there is validity in the argument of YouthCARE that there is a requirement for greater flexibility so that schools can continue to receive the great services that the chaplaincy program provides.
It is not my intention to delay the House any longer with my contribution, but I would like to thank Stanley Jeyaraj, the Chief Executive Officer of YouthCARE. My experiences within the electorate of Cowan with over 50 schools, many of which are involved with YouthCARE and have chaplains, mean that I strongly endorse the work of YouthCARE, the work of the chaplains and I look forward to the passage of this bill so that their funding can be guaranteed for the future.
This Financial Framework Legislation Amendment Bill (No. 3) 2012 before us is presented by the Attorney-General as an urgent response by the government to the decision of the High Court last Wednesday. That decision in the case of Williams and the Commonwealth found that the funding of the National School Chaplaincy Program was beyond the executive power of the Commonwealth and was therefore invalid. I should point out that it was not just the chaplaincy program which was deemed to be invalid but the reasoning implicit in the judgment of High Court judges was that many programs could also be deemed invalid for similar reasons that the National Schools Chaplaincy Program was deemed to be so. Indeed, there are about 416 programs in jeopardy.
We need to respond to this High Court judgment quickly. We needed to do so efficiently. I commend the Attorney-General and the government for acting swiftly over the last week and bringing forward a proposal to try to deal with the High Court decision and make amends to it. I say this particularly because of the importance of the National Schools Chaplaincy Program. This is a program which I have strongly supported for many years. The Howard government introduced the program, in part due to the advocacy of Julie Bishop, Greg Hunt and Andrew Laming and other people within the coalition ranks who saw this as a great opportunity to provide additional pastoral support for schools, support that was identified by many and was seen as desperately needed. I am pleased that the current government also came to the table before the 2010 election and finally committed to the chaplaincy program, such that we now have bipartisan support for it.
There are now chaplains throughout Australia who are funded under this program. The funding provides for about two days of a chaplain's time to work in a particular school. Frequently, however, schools will do their own fundraising so that their school chaplain can be there full time. That is certainly the case in my electorate.
There are 24 schools in my electorate which have school chaplains. I have met many of them. I know all of the school principals and I can tell you that, universally, those school chaplains are incredibly valued and do immensely important work, not just with the individual students but with the entire families of those students. That is the real value of the chaplaincy program, that chaplains can reach beyond an individual student and beyond the school gates and assist the entire family at the same time. The structure of the chaplaincy program with the chaplains embedded in schools is also important because, while the chaplains report to the school principal, they operate reasonably autonomously and independently from the principal. So a student or parent can feel some comfort in approaching a school chaplain and seeking assistance without necessarily going through the formal hierarchical structure of the school, where the school principal obviously has broader responsibilities than just for the particular matters that students might want to see a chaplain about.
The member for Fadden pointed out that a survey, which was done during the review of the chaplaincy program, found that 92 per cent of all government school principals surveyed were immensely pleased with the performance of the National Schools Chaplaincy Program and the role of the chaplains in their schools. It is a terrific program. It is one which we should continue. I am glad it has bipartisan support. This bill is aimed at securing the ongoing support for the chaplaincy program, and that intent, at least, is a very good thing.
My concern with the bill is not about the intent to secure the validity of the chaplaincy program and the many other programs which are outlined in the bill but, rather, about the mechanism used to do so. Our reservation is because the way it has been done is through a catch-all amendment to the Financial Management and Accountability Act—in particular, a proposed new section 32B which, in essence, purports to validate any grant that has previously not been validated. Proposed section 32B says that if 'apart from this subsection, the Commonwealth does not have power to make, vary or administer' a grant or payment and the grant or payment 'is specified in the regulations', then the Commonwealth has the power to make the grant or payment. We have concerns about the constitutional validity for this, in part because the whole reasoning of the court was to decide that the executive could not spend public money without legislative authority. Our concern is that this does not provide a sufficient legislative base to satisfy the court's test, so we have some grave reservations about whether or not this will be effective in addressing the court's decision.
A better approach would have been to provide a clear-cut legislative authority for each of the programs which are in jeopardy—that is, to introduce legislation to provide for the funding of the National Schools Chaplaincy Program and to introduce legislation to provide for all the other programs which are in jeopardy. Clearly, however, that is not practical in the time frame. We understand that, therefore we are going along with this provision hoping that it will be the solution to validating the programs which are in jeopardy. But we are moving an amendment which will provide a sunset clause on the operation of the proposed new section 32B, such that it expires at the end of this year. We believe that will be sufficient time for the government to properly and carefully go through each of the programs which is potentially in jeopardy and provide a proper legislative basis for them, rather than using this one catch-all clause in the legislation in front of us.
In conclusion, we commend the government for acting swiftly in this matter, but we have reservations about the mechanism which is used. We therefore suggest that a sunset clause be embedded in this bill which would give sufficient time for the government to provide the proper legislative bases over the next sixth months.
I want to briefly sum up and thank all the members who have spoken on the Financial Framework Legislation Amendment Bill (No. 3) 2012. I also thank members from both sides of the House and the crossbenches for their patience and understanding that this is a bit of an unusual process to be going through, particularly with the speed that is needed, given the decision was only handed down by the High Court on Wednesday and parliament is set to finish this Thursday for a period of time. We did not want any of the programs, particularly the school chaplains program, to be in jeopardy during that time.
I also thank people for acknowledging the over 400 programs and the importance of various of those programs in people's electorates. It is the reason the government wanted to act quickly to make sure that there cannot be any question of the authority upon which we continue to fund those programs. I can put the member for Aston's mind at rest—I hope I have got my seats right: it is Aston?
That is right, and eastern Melbourne is a long way from my home. To put his mind at rest, we have very clear advice that this regulatory process that is being used will be sufficient to provide legislative cover. There is longstanding recognition that regulations are a form of legislation. I understand from the response given by the opposition that an amendment will be moved. For the benefit of the House, I might just quickly address that so that when it is put we are able to act promptly. The suggestion is that a six-month sunset clause would, in some way, provide the government with time to carefully go through all of the programs again and look at another legislative option into the future. We have clear advice that this would essentially make this legislation meaningless. The advice is that it means that no contract that extends beyond that six-month period would be able to be entered into. So, as to the very program that most members of the House have spoken in such strong support of, which is the chaplains program, we would not be able to enter into agreements for chaplains—normally three-year agreements negotiated during the last six months of the financial year for those starting in the new educational year. That would not be an effective way for us to deliver certainty to the chaplains, the schools and other community organisations where contracts often go for a much longer period than just the six months that have been identified.
I need to indicate, as I have to the opposition spokesperson, that we will not be supporting that amendment. But I do thank the opposition for their support for this broader bill and for your assistance in having the debate today, and, again, for everybody's patience in dealing with this in a prompt time frame. I commend the bill to the House.
Question agreed to.
Bill read a second time.