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Tuesday, 26 June 2012
Page: 8079


Mr TUDGE (Aston) (20:19): 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 Schools 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 to those by which 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.