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Tuesday, 26 June 2012
Page: 8053


Mr ANDREWS (Menzies) (18:23): 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.