Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Transcript of press conference: Canberra: 25 June 2012: Williams High Court Case Legislation

Download PDFDownload PDF


THE HON NICOLA ROXON MP Attorney-General Minister for Emergency Management

THE HON PETER GARRETT AM MP Minister for School Education Minister for Early Childhood and Youth




PETER GARRETT: Good afternoon everyone and thanks for coming here, and I might begin Attorney by just making some remarks about the school chaplaincy program.

Look the first thing to say is that we’ve been keeping chaplains and student welfare service providers directly up to date with our deliberations and that includes the National Schools Chaplaincy Association and its members represents the biggest chaplaincy providers in each state, as well as a number of other providers.

The fact is that the next tranche of payments owed to providers - and this is an update for you really, since when we last spoke to you - until the end of the financial year is $16.44 million. And that will be owed to some 160 providers who employ chaplains and student welfare workers working in about 1674 schools.

In terms of the largest single payments there they go across to Scripture Union in QLD, some $5.7 million; the Schools Ministries Group in South Australia, some $2.6 million;, Youth Care Western Australia $2.5 (million) and Access Ministries in Victoria, $2.17 (million).

So it’s very important that we see the passage of legislation through the Parliament to make sure that school chaplains and student welfare workers can continue to be supported. That’s the commitment that this Government’s made and we’ll be introducing legislation into the House tomorrow to ensure that that’s the case.

Now I do note that the Opposition Leader has said that the Opposition supports the program and want it to continue. And it would be a real pity if it didn’t continue.

So it’s critical that we see speedy progress of this legislation through the Parliament. We’ll have arrangements in place to make sure that payments can start within 24 hours of legislation receiving assent.

But now’s the time for us to prioritise the support that we want chaplains and student welfare workers to receive through until the end of the financial year, and as a consequence of that the legislation, as we’re now saying today, will be introduced in the Parliament tomorrow.

I might now hand over to the Attorney-General for some remarks.

NICOLA ROXON: Thank you, look following up from that obviously the decision on Wednesday last week had direct consequences for the Chaplains program that Minister Garrett has just mentioned.

What we can announce today is that we will be introducing into Parliament tomorrow legislation that will deal with the Chaplains program and ensure that we are able to make ongoing payments under that program. But as part of that legislation which will be in the form of amendments to the Financial, the FMA Act, we are going to also include a range of other programs where there is no legislative base that currently exists for them.

I do need to emphasise that because we have been doing contingency planning in this area that we intend to take a conservative approach. We believe that a number of these programs do not necessarily need legislation but we are going to be cautious in doing that.

The High Court has been quite clear that programs, even if supported by appropriations need to have a legislative base or they need to fall into some other areas that were excluded by the court, Payments to the States, of course individual payments like Centrelink and others and a range of ordinary matters for government, so administrative payments etcetera.

So you will see tomorrow, and we will release tomorrow of course, when this is tabled, details of the other programs that will be included. They cover a vast range of areas. And I can make absolutely clear that there is nothing in those regulations that are not programs that have already been approved by the Parliament through the Appropriations Act. So there won’t be surprises for people. There are not new programs.

I’d also like to express clearly to people, that given the time constraints, a decision only handed down on Wednesday, the last sitting week now that we are in, that there will undoubtedly be other programs that will be identified that will not be included in this particular piece of legislation and therefore we are also making a regulation making power so that additional programs could be added in the future if they are identified later or indeed if other governments of the future decide to use that as a process to legislate but of course like normal regulations they would be disallowable and we have advice that that is the parliamentary oversight that is required following the Williams decision.

Peter I think has already detailed the urgency of this with respect to the chaplains. We also want to make sure that going into the winter break and a new financial year that if there is any question mark over this range of other programs that that can be consolidated and I do hope, I have briefed today, both the Opposition, the Greens and the Independents to set out our intentions. However, of course, we do understand that they will want to see the legislation in its entirety before a decision can be taken.

But each and every one of us who sits in the Commonwealth Parliament and each and every one of us who either is part of a Government or hopes to be a part of a Government in the future has an interest in passing this legislation and ensuring that Governments are able to continue to do what they have done for many decades and that is make decisions about supporting the community and investing in programs which serve the community and provide great benefit across the country.

We’re happy to answer questions.

JOURNALIST: How many programs will there be?

NICOLA ROXON: It is in the order of hundreds. There are a large number of other programs and they range from, just to give you a flavour of it, from helping children with autism right

through to overseas aid payments. A number of payments to veterans that are not part of the social security system.

We want to make sure that these sorts of payments are able to be continued into the future. We as the Commonwealth have a strong view that we are able to do that. But we want to make sure that we are very cautious in our approach and if extra legislation is required, as the Williams decision seems to make clear that it is, that we take that action promptly and ensure that everything that has been passed through the Appropriations Act, also has this legislation underpinning it.

JOURNALIST: [inaudible]

NICOLA ROXON: Look, there are a range of different programs, there are industry development programs, there are environmental programs, there are education programs, there are health programs. There are when you are talking about several hundred programs, a significant range of programs that are covered.

All of them have already been announced and identified in the Appropriations Act. The Government has, these are not programs that the government has been running as secret programs. There are no such things.

But we believe and have advice that changing the FMA Act, providing details of each of those programs, and the drafting that’s been undertaken is to make sure that’s an appropriate level of description to comply with the High Court ruling that that is sufficient and of course because with the timeframe we cannot with 100% certainty say that every single program will be identified in the legislation that’s tabled tomorrow, so we are also proposing a regulation making power which would enable additional programs to be added in the future and of course if governments make a decision in the future that’s a mechanism they could use.

But I do stress that if there are additional ones from those that we announce and release tomorrow that that will have the full oversight of the Parliament.

JOURNALIST: Do you anticipate any opposition from the Coalition… [inaudible]?

NICOLA ROXON: Well look I would hope that there isn’t opposition from the Liberal Party. As I say I think they should be given the courtesy of being able to see the materials as soon as they’re available.

I haven’t asked Senator Brandis, who I briefed, for their agreement. I set out our intention and the decision the Government has made and we certainly seek their support.

But I do emphasise, everyone who sits in a Commonwealth Parliament and is part of a government or wants to be a part of a government, has an interest in making sure that the Commonwealth’s reach of power and ability to spend on programs that have been supported for many decades can continue and that’s what this legislation will allow.

Marcus here and then Michelle.

JOURNALIST: Are you confident that every program that is authorised is… [inaudible] within a head of power? [inaudible]

NICOLA ROXON: Well that’s not what the High Court said was necessary and I’m sure you’ve read this because I know Marcus you follow that sort of level of detail.

What the court said was that legislation is provided and that executive government doesn’t have an unfettered ability without parliamentary oversight to spend money.

Now some judges said, and by the way particular programs also have to link to a Commonwealth head of power.

No majority said any such thing and what we are doing is providing a legislative base for existing programs, some of which have been running for decades to make sure that we comply with the High Court’s decision on having a legislative approval and that is what we are doing, we are fixing the problem that has been identified by the court. We are not trying to change the status quo in relation to a whole lot of other matters.


JOURNALIST: [Inaudible]… whether this includes any carbon programs and can we get a list of these programs?

NICOLA ROXON: You will certainly be able to have a list of these programs when they are available. We expect that to be very late this evening or early tomorrow morning. I don’t think it’s appropriate for me to try to list for you the several hundred programs that are likely to be identified in that. I’d like our drafters to be able to do their work as best they can under significant time pressure. We will, of course, when this is introduced into Parliament, all of those materials will be available. But there is no reason that we are not happy to provide that to others as soon as we have it.

JOURNALIST: inaudible

NICOLA ROXON: Well there are a range of climate change programs that are part of this. They are identified in the budget. There is no magic to them. They are in the same category as the education programs, the health programs and the veterans’ programs that need in some instances to have a dedicated legislative base. We are taking a conservative approach and are going to include those.

JOURNALIST: inaudible

NICOLA ROXON: Well, I’ve answered the question Michelle. I’m not going to go through a list, or try to go through a list or try to go through a list of several hundred.

JOURNALIST: As Phil was saying, are they compensation payments? Can you price tag on these several hundred programs cost?

NICOLA ROXON: The two different questions. Of course there is legislative change that has been part of the carbon package. Anything that is part of - we remember that - and Peter and I remember it well because we voted on it time and time again on different pieces of our carbon pricing regime. Anything that is under that already has a legislative base.

There are a range of different ones, there are industry assistance programs, there are grants to environmental organisations, and others that may well fall foul of this High Court decision in the absence of the legislation that we are passing.

But I need to stress; the Court has only made a direct finding about Chaplains. That is what is driving our speed at the moment. We think it would be remiss as a Government, having done contingency planning, not to at the same time, identify for the public and the Parliament others that we think might also fit within the High Court’s new definition. They will all be included.

Some of them - before you get too excited about particular areas - questions are being asked about whether or not the funding that we pay for Gallipoli celebrations every year needs to have its own legislative base. Do we need to have a legislative base, as I said, for AusAID programs? The Tasmanian Freight Equalisation Scheme has been one that the media has covered, which no doubt will need to be included. Drought assistance grants… Our presence in Antarctica probably does not have a sufficient legislative base. Infrastructure funding - so for particular projects that don’t go through state governments.

So you can see that there is a large range and breadth in these programs. They do cover a significant amount of Government expenditure. Of course, the largest amounts of expenditure are in individual payments that are authorised as benefits - social security Centrelink payments, direct veterans payments, payments to the states - none of those are at issue as a result of this decision.

The ones that are grants to community organisations, where there isn’t a legislative oversight other than the Appropriate Acts, are the ones that we are focusing on. And because we did a significant amount of contingency planning, we know where a large number of them are. But it would not be right to say that we can be 100% confident to say that every one of those is identified.

JOURNALIST: Last week you said that no school would lose a chaplain … If there is any hitch with this legislation, does that mean that payments might not get to those chaplains?

NICOLA ROXON: Absolutely. If people - If the Opposition votes against this legislation, they will be voting against chaplaincy services. The chaplaincy services are the ones that are time critical. They are the ones this court directly said payment cannot continue under this program without legislative approval. And that is what we are seeking. I think there are 3,500 schools that benefit from this program, and we want that to be able to continue.

I take some heart. I did see that Mr Pyne said - I’m quoting him here - “We will not use the High Court ruling to wipe out Government programs.”

Senator Joyce has criticised the Greens saying that they shouldn’t try - and this is a quote - “to bring down the whole show” by blocking legislation.

So, we take some heart that this is a sign, perhaps unusually, but would be welcome from the Government - from the Opposition and welcomed by the Government if they were prepared to work sensibly on this. It’s something that in the interest of all Commonwealth governments of the future. And we hope they will understand…

JOURNALIST: … aren’t you giving them the Opposition the chance to bust out things they’ve opposed in the past, like the carbon compensation and what’s to stop them trying to amend your legislation so that the chaplaincy program goes through but others don’t?

NICOLA ROXON: Obviously there are a range of different things that can happen in the Parliament. There does seem to be some rule of nature that it usually happens in the last week of Parliament. I’m not sure the High Court had that necessarily in mind when they

handed down the decision on Wednesday. We think that this is sensible solution to a problem that has been presented. The High Court has made clear that the Appropriate Acts are not sufficient to enable the Commonwealth to spend money on certain programs. We have identified those that we think are covered by this and they will be included in the legislation that we are introducing into the Parliament tomorrow.

JOURNALIST: Apart from the school chaplains program, everything is an indirect threat. So, if you don’t get legislation through for everything, they’re still occur as normal… inaudible?

NICOLA ROXON: Certainly that is the Commonwealth’s view. But I do need to stress the importance of taking this action. Each of the Secretaries of our Departments make payments on appropriate authority. We, now, obviously have to deal with the reality of a High Court decision having been made. We have identified a range of programs and we intend to take this remedial action. In some instances, out of an abundance of caution, but I think it would be in everyone’s interest going into a seven or eight week period (of Parliamentary recess) for this range of programs, which is extensive and provides benefits to the community, to be able to be continued to be supported during this period.

JOURNALIST: How much money are we talking about? Is it billions… inaudible.

NICOLA ROXON: Well, it’s a large amount of federal funding. We are talking about… The lion’s share is expenditure that is not in question. It is probably somewhere between five and ten per cent of our expenditure. That is still a large amount of money. But, as I say, the Government is of the view that these payments are important ones that we are able to continue to make.

We do believe, however, that a sensible Government preparing for risks - whether it’s a risk of a future challenge - whether it’s the risks of a particular Secretary not believing that a payment could be made. Whether it’s the risk of a grant recipient being concerned that they may not have ongoing employment - we can provide that certainty by passing this legislation.

We can make sure that hundreds of chaplains across the country continue to provide good work and support to students in our schools. And we can make sure that other programs that, in many instances have run for decades, do not have a hiccup caused by this decision when we have the ability to fix that by passing this legislation through the Parliament this week.

JOURNALIST: Do you have a figure in dollars?


JOURNALIST: Mr Garrett’ when’s the next payment due to chaplaincy organisations and what’s the magnitude of that?

PETER GARRETT: Chaplaincy organisations and student welfare organisations will be expecting some payments to be made by the end of the financial year, so that’s effectively by the close of business on Friday. And those figures that I outlined to you earlier including to Scripture Union, Access Ministries and others show the scale of the payments that we’re likely to make. But the next tranche as I said in my opening remarks is about $16.44 million and that’s to some 160 providers. That’s 1600 schools that would be expecting to receive the payments so that they continue to provide either chaplains or welfare workers.

And I guess just to repeat again what the Attorney said. We do want to make sure that 1600 schools have chaplains in place, or student welfare workers, and we want to make sure that Mr Abbott commits to the promise that he made to ensure that support for chaplains will still be there. So passage of legislation that’s introduced tomorrow through the Parliament this week is essential to enable these community programs to continue to be supported.

There are a range of other chaplaincy providers under different schedules who would expect to get paid subsequent to that. But it’s absolutely essential that we provide the certainty to those chaplaincy services and student welfare providers, because after all they were the ones that were identified in the Williams case and we want to continue our commitment to them.

NICOLA ROXON: Ok last question?

JOURNALIST: [inaudible]

NICOLA ROXON: Well it goes without saying that the constitution sets out how we can legislate, it doesn’t go without saying that it’s my job to tell you for each and every program which head of power its under. Nor has that been required in the past for every piece of legislation.

We are confident and we have taken careful legal advice about a method for changing the FMA Act to enable each of the existing programs that we’ve identified to have a legislative base and for them to be able to be supported and for payments to continue to be made under those programs. That’s why we intend to take this approach and as I’ve said we cannot be 100% confident that every single program will be identified and if there are any extra programs, which we expect in the coming weeks there will be some, that we would be able to use a new regulation making power that’s proposed but of course that would then go through a normal parliamentary process.

Thank you.