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Tuesday, 26 June 2012
Page: 8061


Mrs MARKUS (Macquarie) (18:59): 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.

The DEPUTY SPEAKER ( Hon. DGH Adams ): Order! Member for Ryan, you cannot cross between the Speaker and somebody speaking in the parliament.

Mrs Prentice: I apologise, Mr Deputy Speaker.

Mrs MARKUS: 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.