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Wednesday, 27 June 2012
Page: 4743


Senator WRIGHT (South Australia) (18:00): I rise to speak on the Financial Framework Legislation Amendment Bill (No. 3) 2012. This legislation has been introduced to respond to the changed political and fiscal landscape brought about by the High Court decision in the case of Williams and the Commonwealth. The Williams case was centred on a challenge to government funding of the National School Chaplaincy and Student Welfare Program, which was held to be invalid under this High Court decision. However, the decision has far broader implications than this, and I will return to a discussion about the school chaplains program in due course.

The Australian Greens believe that this High Court decision is a change for the better. We welcome the Williams decision. It sends a clear message that the executive cannot, as it has done in the past, simply spend funds without adequate parliamentary scrutiny. Increasingly, executive government in Australia has been funding a diverse set of programs according to a set of guidelines rather than enabling the funding through specific legislation. In so doing, the programs relied on the government's executive power under section 61 of the Constitution. It is the scope of this increasingly relied upon power which has been challenged in this decision.

The Australian Greens welcome the opportunity to rebalance the relationship between the executive and the parliament that this decision has provided. It is a decision which asserts the primacy and role of parliament and it is a good decision for democracy. However, we understand that the decision has caused uncertainty about hundreds of spending programs which were established under the previous regime. It is clear that good governance dictates that those programs require certainty and clarity to enable them to continue to operate effectively. Given the large number of programs identified as being potentially affected by this decision, over 400, we understand that the government urgently needed to come up with a practicable and workable solution to validate those programs. We appreciate that 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, as is provided for in this bill. While it is true that a regulation comes before the parliament, it cannot be debated unless it is subject to a disallowance motion. The end result of the debate is solely that the regulation may be allowed or disallowed, and there is no scope for amendment. In that case, there is limited scope for true parliamentary scrutiny, where those in this parliament would have the capacity to bring for consideration suggested amendments that could improve the program of address perceived flaws or unintended consequences. The importance of parliamentary scrutiny as a function of government accountability and responsibility was emphasised in the judgement of Justice Crennan of the High Court, who was one of the majority, who describes the many conventions and practices of parliament which contribute to this scrutiny, and I quote:

Accountability of the Executive arises not only from the requirements under the Constitution affecting the Executive mentioned above, but also from various conventions of Parliament, the established mechanisms of parliamentary debate and question time, and the requirement that members of the Executive provide information to Select Committees of both Houses of Parliament. Leaving aside appropriation legislation, Bills are conventionally introduced to Parliament, and their purposes explained, by the Minister responsible for their initiation in the House of which the Minister is a member, or by a delegate in the House of which the Minister is not a member. They are then the subject of parliamentary scrutiny and debate. The ultimate passage of a Bill into law may involve a number of compromises along the way, reflected in amendments which secure the Bill's final acceptance. Parliament's control over expenditure is effected through the legislative process.

The practical workings of a system of government which is both responsible and democratically representative are not static, and have given rise to a more general and flexible sense of "responsible government" to indicate a government which is responsive to public opinion and answerable to the electorate. The mechanisms and layers of accountability described above permit the ventilation, accommodation, and effective authorisation of political decisions. The notion of a government's mandate to pass laws and to spend money rests both on democratic representative government and on the relationship between Parliament and the Executive, involving, as it does, both scrutiny and responsibility. Whilst the Executive has the power to initiate new policy and to implement such policy when authorised to do so, either by Parliament or otherwise under the Constitution, Parliament has the power to scrutinise and authorise such policy (if it is not otherwise authorised by the Constitution), and the exclusive power to grant supply in respect of it and control expenditure. The principles of accountability of the Executive to Parliament and Parliament's control over supply and expenditure operate inevitably to constrain the Commonwealth's capacities to contract and to spend.

The Greens accept that it is necessary to act swiftly to respond to the uncertainty regarding existing programs this decision has brought about but that it is then prudent to provide for some breathing space to enable time for a considered review of the decision, its implications and appropriate responses. First, it is by no means certain that this bill sufficiently addresses the principles enunciated in the High Court decision and that merely regulating future spending will be sufficient to enable 'parliamentary engagement in the formulation, amendment and termination of programs for the spending of money'. There is certainly some speculation from various legal commentators that it will not prove to be sufficient. The bill in itself has not been subject to proper scrutiny. It has passed through the house in approximately three hours, and it gives the executive broad powers to spend public moneys, with the only check on program spending occurring through the regulation process. Essentially, it sets the lowest possible bar for establishing these programs using subordinate legislation.

I welcome the indication given by Senator Wong earlier on behalf of the Attorney-General that the government will work through implementation issues to establish some guidelines as to which programs may be suitable for establishment by regulation and which would require legislation. But, notwithstanding these assurances that the government does not consider the regulation-making power embodied in this legislation to be unbounded, the concerns of the Australian Greens are not allayed. Clearly there is a need for careful consideration of which programs may require legislation because of their scope, their complexity or their cost, and which may be appropriately established by regulation. There is also a need for some flexibility to enable the executive government to respond speedily—for instance, in matters of urgency such as natural disasters.

It is for that reason that the Australian Greens felt it was prudent to keep our options open in respect of any future spending program that the government seeks to regulate rather than bring to the parliament. We do know, however, that this is an important milestone in the relationship between executive government and the parliament, allowing for more scrutiny of the actions of executive government, and it would be unacceptable and regressive to relinquish it at this stage.

I will be moving amendments in the committee stage. These will enable the government to use regulations to validate the existing programs, including any which have been possibly overlooked in the urgency of this response, up until 31 December 2012, but the Greens amendments will then require legislative authority for any new programs which are to commence on or after 1 January 2013. The effect of these amendments will be to provide the flexibility and urgency needed by the government and ensure the forward funding of already established programs beyond the end of the year but then require that all future programs must be established using the highest point of parliamentary scrutiny—that is, legislation—after 1 January.

The Greens do not support the amendment proposed by the opposition. Our advice is that this sunset clause would potentially prohibit the making of ongoing contractual arrangements that would take effect beyond the end of the year. This would have an adverse effect on existing programs, potentially curtailing their ability to continue their activities and functions beyond the next six months. It could impede the government's ability to enter into further contracts under existing programs and introduce more uncertainty. Despite the assurances of Senator Brandis that this would not be a consequence, this is not the advice we have received and this is not an outcome that the Greens are willing to risk.

Essentially, the amendments proposed by the Greens will provide a six-month breathing space in which all interested parties can consider and seek advice as to the best way forward and what criteria should be applied in determining whether to regulate or legislate in the future. In doing so, we would not be locking in a situation where all such programs may be established on the basis of regulation, the lowest bar for scrutiny, and thus we would not be squandering this opportunity offered by this landmark case to maximise the parliament's ability to scrutinise the executive.

I now turn to 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. I acknowledge the important role played by Mr Ron Williams, the plaintiff in the case, who initiated the High Court challenge as the father of six children in the public school system. He has evidenced great courage, I think, in taking on what has been described as a David-and-Goliath battle in pursuing his principles. The Australian Greens do not believe that the program is in the best interests of students in our secular public education system. The qualification requirements for the program are wholly inadequate. This court decision has offered the government an opportunity to overhaul the chaplaincy program and to ensure that the millions of dollars being spent are actually to the benefit of schools and their students.

There is no doubt that Australian young people are increasingly under pressures which affect their wellbeing and mental health. In surveys they cite many issues which concern them, including bullying, relationships, sexuality and family relationships. Appropriate assistance and support are vital. The Australian Greens maintain that it is better public policy to replace the existing program with an alternative program that seeks to assist students and is delivered by professionals with appropriate qualifications. 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. Essentially, the Australian Greens want the funds from the program spent but spent in ways that offer better value to our nation's schools and students.

To that end, I move the second reading amendment on sheet 7250 circulated by the Australian Greens:

At the end of the motion, add:

   but the Senate considers that the National School Chaplaincy and Student Welfare Program should be replaced with a program offering genuine counselling and other assistance to students by professionals with appropriate tertiary qualifications.