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Joint Select Committee on the Constitutional Recognition of Local Government - 20/02/2013 - Majority finding of the expert panel

WILLIAMS, Mr Ronald James, Private capacity

C ommittee met at 9:34

CHAIR ( Ms Rowland ): I now open a second public hearing of the Joint Select Committee on Constitutional Recognition of Local Government. At the outset, I would like to thank all participants to the inquiry. I welcome our first witness. Would you care to state the capacity in which you appear?

Mr Williams : I am appearing before the committee to give an opening address and a bit of a description of my case as it stands.

CHAIR: Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a formal proceeding of the parliament and therefore has the same standing as proceedings of the respective houses. I invite you to make a brief opening statement, and then we will be very keen to ask you some questions.

Mr Williams : I am pleased to have been invited to appear as a witness at this most important hearing. Reading through the joint select committee's preliminary report and the many submissions from local councils, some of which are represented here today, one detects a significant undercurrent of urgency to constitutionally formalise existing funding arrangements between the federal government and local government. The same urgency appears to have emerged rather suddenly following the decision handed down by the High Court on 20 June 2012 in the case of Williams v Commonwealth of Australia and others. At 1.10 of the joint select committee preliminary report, it is stated:

The High Court's decision in Williams is only likelyto bolster the confidence of people willing and able to challenge the Commonwealth on Constitutional grounds. It is therefore not a matter of 'if' but of 'when' the presently understood ability of the Commonwealth to fund local government directly is struck down as unconstitutional by the High Court.

At 1.8, the same document states:

The High Court's decisions in Pape and Williams have created have created significant uncertainty about the ability of the Commonwealth Government to respond this way in the future. These decisions have also created uncertainty regarding critical ongoing direct funding programs such as Roads to Recovery, which experts have confirmed would most likely be found unconstitutional.

While efforts to shore up direct funding arrangements between the Commonwealth and local government obviously must continue in a carefully considered manner, I would suggest that worthy programs such as Roads to Recovery are not likely to be challenged by a Vescio, Pape or Williams any time soon. The national school chaplaincy program and the likes of Roads to Recovery should not be used in the same sentence.

What will follow is the anatomy of a High Court challenge. Throughout my case at the High Court web page dedicated to Williams v Commonwealth, my case was described thus:

Plaintiff contends that the payment or disbursement by the Commonwealth of monies from the Consolidated Revenue Fund for the purposes of the National School Chaplaincy Program, and therefore the Darling Heights Funding Agreement, was not supported by an appropriation made by law, as required by s.83 of the Constitution

On receiving my barrister's case opinion in mid-2010 it was plain that my challenge would address the Commonwealth's constitutional right to wantonly waste taxpayer moneys on pork-barrelling, vote baiting and occasionally, in the case of the national school chaplaincy program, what journalist Adele Horin so superbly described in the Sydney Morning Herald on 9 July 2011 as:

… an ill-thought out program that was implemented after a rush of blood to John Howard's head.

Adele was correct—in all recorded history of Australian political stunts and pranks, the national school chaplaincy program was absolutely unprecedented in its audacity and chutzpah. Would you like to ask any questions at this stage?

CHAIR: I am just conscious of the time. How much further do you have to go?

Mr Williams : No, that is fine.

CHAIR: That is great; thank you. I know there will be quite a few questions.

Senator RHIANNON: Mr Williams, you have obviously paid a great deal of attention to the federal laws governing money going to different programs at the state level. Could you expand on the contradictions you found? You made the interesting point that you did not see that the national schools chaplaincy program could be compared with Roads to Recovery in this context. Could you expand on that, too, please?

Mr Williams : For the reasons I outlined, it was an unprecedented program. Nothing vaguely like it had ever been seen before. It was purely political, and it came out of nowhere. It was devised by a man on the Mornington Peninsula, who took the idea to Greg Hunt, who then took it to John Howard and Julie Bishop, and within a matter of weeks, in mid-2006, it was out there, it had been announced. Most of the programs, such as Roads to Recovery and the many other programs—some worthy and some not so worthy—that were brought through under the hasty legislation have been cruising along without even a whiff of a challenge for all these years. That relates to the point I was making about no Vescios or Williamses approaching them. The fact that this outcome actually magnified the fact that these other programs were probably not legitimate under the Constitution probably does not lead to anybody being more likely to challenge them. That is the point I am trying to make.

I come from Toowoomba, so my council is Toowoomba Regional Council. I did not see their name on the list of people submitting, but I would want them to have any direct funding that they are receiving. I note from Professor Anne Twomey's submission to this committee that it represents a fairly small proportion of the overall funding to councils but, nevertheless, a very important one. I think that every step possible should be taken to look at legitimising it. When we were in Canberra in August 2011—it seems so long ago—the buzz all around the court, especially on the final day, when everybody was trying to observe what had occurred, was that something monumentally important was about to be put before the bench. I was approached by a man who said he was from Finance. That was the only indication he gave of who he was. He had been sitting through the case for the three days, and he was breathless in his description of what my case could actually achieve if it was to win. But, strangely enough, there was not much mention made of that in the following eight months, until we received the decision. It drifted away somewhere out in media land and got replaced by conjecture as to why the bench was taking so long to make a decision. I was given many answers, all of them depressing.

Mr COULTON: From what I understand you have had a philosophical issue with the national school chaplaincy program and looked at the reasons that it might not be the correct thing. I can give you another example. This week the government announced a program to salute the 100th anniversary of Gallipoli, in 2015. There is $100,000 to go out to communities in each electorate.

Some of that might be going, say, through local government for a community to put on a function to celebrate the centenary of Anzac or maybe community infrastructure or memorials or something like that. What would stop someone who for some personal belief was opposed to the idea of celebrating things such as the Gallipoli landings from challenging a program such as that? In my part of the world, in the last couple of years I have had three regional programs going directly to local councils, for upgrades of sporting complexes and things like that; do you see that these things could be put at risk by someone who is philosophically opposed to money going to those sorts of things.

Mr Williams : I personally do not. My reasons for challenging the NSCP were purely about the funding of it. I have no objection to chaplains being in religious schools, or whatever, but it was not on ideological grounds; it was purely about this enormous amount of money that was getting churned into something that did not seem to have any tangible purpose. As far as programs such as Anzac Day are concerned, I usually march with my children on Anzac Day wearing my dad's medals, so I personally would not see any problem with it.

Mr COULTON: I am not having a personal go; what I am saying is that it is exactly the same as the school chaplaincy program—the federal government directly funding a local community, maybe through the local government area. Do you see that the legitimacy of that type of funding program is an issue?

Mr Williams : I do not see any issue with it whatsoever. I do not see that it is comparable to the National School Chaplaincy Program; it is about as different to the Roads to Recovery program. I would consider it would be a fairly mean spirited person that could object to something to do with Anzac Day. These are one-off projects that are put up. I cannot speak for the rest of the population of Australia, but I do not see it as being comparable to a challenge against the NSCP, and I personally would not see it as a waste of government money to look after something like that.

Senator BUSHBY: You stated in response to Mr Coulton's questions that you did not challenge the program on grounds of ideology; it was more because you saw an incredible amount of money being spent on something the purpose of which was not really justified. What Mr Coulton was getting at was that other people might think the same thing even about programs like Roads to Recovery—they might say there is an incredible amount of money being spent there and they do not see the benefit, or the Anzac celebrations, with $100,000 per electorate. I would almost feel more comfortable if you were challenging on the basis of ideology, because then at least we would know that you were targeting a program because you did not like it. By taking the approach that you have, you have, whether you chose to or not, put at risk all those other programs that are directly funded by the Commonwealth through to local government. Is the fact that that is the outcome something that you considered when you were looking at challenging the program you did—the potential collateral damage that could occur if you were successful, given that you were using particular legal grounds which have broader application?

Mr Williams : No, not at all. In fact, as I said, it was only when we were in Canberra across those three days that there was a point at which—it could have been on the first day; if not, the beginning of the second—the bench was inquiring as to why what they were reading as the submission differed significantly from what the states' counsel were saying. At that point, in the middle of the court case, the states said they had changed their mind as to what they had submitted and they would want to resubmit after the fact a whole new argument.

My case was evolving on these controversial angles of its far-reaching consequences in Canberra during the three days. It was the first time that we had any idea that it would go so far. As I said, the man from finance came and briefed me on it. In fact, after the states made their change of direction, there was a break in the hearing and as I was walking through the gallery, I think it was the Australian Associated Press court reporter came up to unworthy me and said, 'Can you tell me what just happened?'. I said, 'You are the court reporter. You report these things all the time.' It was a case over those three days that was full of twists and turns that had not been seen for quite some time. For it to have had this outcome that it seemed to have had there was a perception that it affected so many other programs that could possibly be challenged. It only emerged then.

Senator BUSHBY: Are you saying that the lack constitutional head of power that you were using to challenge the program is not something that you actually identified until the last few days?

Mr Williams : The lack of a head of power was the mainstay of our case. That was the only part to do with my case that was mentioned on the High Court challenge website. We believe that is still the case. That is why we intend going back.

Senator BUSHBY: I suspect that your case following the Pape case has certainly uncovered that there probably is a lack of constitutional head of power, but that does have broader consequences. I suspect that we probably would not be sitting here as a committee today in the absence of those two cases having provided the impetus for the need to examine this issue. It is probably not just direct funding of local government. There are obviously other programs that were dealt with in the legislation that went through last year that the government has tried to shore up as a result of the findings. I am not saying that you should not be doing it, but clearly it is a democratic right to challenge, and as it turns out legally or constitutionally you are probably right. But it does have further consequences and I am wondering to the extent to which that was considered.

Mr Williams : As I said the far-reaching consequences are as far as they appear to have gone. It put me in a rather unfortunate position. As I said, the aspects of the far-reaching consequences, as we can now call them, had not been publicised all that much until the day of my decision at which point Nicola Roxon and Peter Garrett had a media conference sometime early in the afternoon. Nicola Roxon's words were, 'They would find a cure for the problem with the chaplaincy program,' and I think some of the other ramifications were outlined then. I was not aware of the media conference.

I had been receiving seamless phone calls to my mobile and I detected a sudden change in the 'vibe', if I may borrow the phrase, of the phone calls I was getting from radio announcers. Even some of the ABC afternoon announcers were banning almost shock-jock canines and virtually shooting the messenger. They said, 'Do you know what you have done?' I said, 'Well, we just had a decision about chaplaincy.' It reached the 7:30 program by the time I got back to Toowoomba. My wife had recorded it and the closing 90 seconds were showing footage of sinkholes in roads that it would appear our car could disappear into. There was a man from somewhere who was saying, 'If the Roads to Recovery funding is jeopardised, people are going to die.' I had only just got home and I thought, 'Do I need to take advice about possible manslaughter charges here?'

I am not being flippant. What I am saying is that in all fairness there was plenty of time. I know that Nicola Roxon did say that the government had been making contingency plans based on what the outcome of my case might be. I was not seeing them in my Google news feeds when I was trying to find out what other things might be talked about. When it escaped on that same day, it was a day of mixed emotions for everybody because of the decision and all of this other stuff and people asking, 'What has this little man from Toowoomba done?'

Senator BUSHBY: Now you mention the patch, and that the then Attorney-General was looking at what the implications might be on their plans. The government did take action and put in place the financial framework legislation act, which is designed to patch it and then fix the problem. As I understand it, that also is designed to try to allow to keep going the particular program that you are objecting to—

Mr Williams : It was primarily done for that reason—

Senator BUSHBY: But it impacts on other programs as well—

Mr Williams : It did, but I think Greg Hunt was calling it the 'save the chaplaincy bill'. He said it was commonly known as that in Hansard. I googled it as that and I could only find him saying it. It was a very hasty legislation that was put through within a week of my decision. It was given overall support, everybody voted for it, and I think its flimsiness is its downfall. George Brandis was most eloquent in the Senate in pointing out the flaws in it. He did vote for it, but he would have. He even quoted an article by Professor Anne Twomey, who, as I said, has offered a submission to your committee. Between George Brandis and the equally eloquent Professor Anne Twomey,it waswhile I was listening to parliament live that I made my decision that we must take this back to the High Court. Not because of all the other programs, not because of the far-reaching consequences, but because of what I would call the obscene haste of this legislation. I think they were looking for a sunset clause in there which may have been a much better outcome. It has probably put everybody in a tricky position, which has probably led everybody here today looking at constitutional reform. I guess you are hoping to get this up for the election which would be the ultimate—

Senator BUSHBY: I guess the key is—

Mr Williams : best-case scenario.

Senator BUSHBY: The key is getting it up at the election, that is more the question rather than getting it up for the election. If a referendum was put and it succeeded, and the government then determined that it would fund the chaplaincy program directly through local government, and everybody thought. 'Okay, that is now legal', is that is something you would still seek to challenge? Having got all the ducks lined up in a row, and a lot of people have objections all the time about government spending on particular programs, but if they are legal, would that settle it for you?

Mr Williams : I do not have a vendetta against the national school chaplaincy program. I am only seeking to question the funding and the constitutional legality of that. If it was deemed to be constitutionally valid and had been subjected to full parliamentary scrutiny I do not see that I would be wasting everybody's time trying to haul it through the courts. That would be the final duck I think!

Senator BUSHBY: Thank you.

CHAIR: Have you actually commenced proceedings or are you intending to commence proceedings?

Mr Williams : The documents are all in order. I expect they will be processed within the next couple of days. We have had them in place for quite a while. I would expect that it is imminent and we could see them processed within a week.

CHAIR: Senator Fawcett, do you have any questions?

Senator FAWCETT: I have heard enough, thanks.

CHAIR: Mr Windsor, I am sorry, we have the bells going on as well. I hope you can hear us. Obviously we have the division bells going in the parliament. Did you have any questions for Mr Williams?

Mr WINDSOR: No, I do not. I must apologise; I have about 15 things happening at once here.

CHAIR: I understand. No problem.

Mr WINDSOR: I will not be able to participate much more than now, but I think he has raised a number of issues that we need to address. But, if I could just very briefly put my threepence worth in—I might be a little bit out of order here—I am still very much supportive of the referendum going ahead at the election, and I would just like that recorded if in fact the committee sit down a little bit later and debate where they believe they should go given today's evidence. I do apologise for the conflict here today in terms of meetings that I was committed to.

CHAIR: No problem. Thank you, Mr Windsor.

Mr WINDSOR: Thanks, Chair.

CHAIR: Can I just ask one more question, please, Mr Williams. I am hearing what you are saying. It sounds like it was quite unexpected to you that there would be these ramifications arising from your case. This might be something that you cannot answer, but I take it the challenge that you are going to be making is going to be a challenge to the Financial Framework Legislation Amendment Act. Is that right—you are going to challenge the remedy?

Mr Williams : It is going to be a challenge to the continued funding of the NSCP, yes, in spite of the legislation—without wanting to give too much away about our statement of claim.

CHAIR: I understand. That is why I prefaced it.

Mr Williams : We will be addressing that, but we will also be addressing the fact that moneys were paid that should not have been paid prior to the decision being made and just after it. Really we are caught by the decision.

CHAIR: I also take from some of what you have said today that you did not expect this to have so many ramifications across local government and other areas outside the chaplaincy program.

Mr Williams : No, it would never have been my intention to see local government denied any government funding that might be legitimately beneficial. It was a bit of a grey area as it turned out.

CHAIR: Of course, it is for the High Court to make its decision on the extent of that legislation and the validity of that remedial legislation. Again you might not be able to answer me, but do you intend to try to quarantine other directly federally funded programs from your argument?

Mr Williams : No, because of my standing—I was going to say that too about other programs that you talk about. You will know better than I that the road to standing in any High Court challenge is a very long one, and my standing was questioned over and over again for this case. I would have nothing approaching standing for anything else beyond the NSCP, and neither would I have any desire to have standing in anything else. As I said, this is not ideological about the government funding things that they are not legitimately able to fund, apart from the National School Chaplaincy Program, which frankly I think is an extreme waste of money. That is my view. That is my only quest. As I said, it is not a vendetta. If it gets cleared up constitutionally and is subjected to parliamentary scrutiny that is what the umpire has said.

CHAIR: There being no other questions from the committee, Mr Williams, thank you for your attendance here today. If you have been asked to provide any additional information, would you please forward it to the secretary. You will be sent a copy of the transcript of your evidence to which you can make corrections of grammar and fact. Thank you very much.

Mr Williams : I trust that today's submissions will result in the best possible outcome regarding the shoring up of funding legitimate arrangements between local government and the Commonwealth. I really hope you get something going.

CHAIR: Thank you.