Friday, June 22, 2012

Conservatives should welcome the Australian High Court's decision

The Australian Government thinks that it's good if schools have chaplains. So it’s been contracting with various organisations, funding them to provide chaplains.  

(In Australia, Government schools are the legal responsibility of the State Governments. As they also think that school chaplains are a good idea, this doesn’t create a problem.)  

But Mr Ron Williams wanted his children to have a secular education. He asked the High Court to stop the Australian Government from funding the chaplains at his children’s school.  And, on Wednesday last, the Court did so. 

The High Court is Australia’s top court – our equivalent to the US Supreme Court.) 

Despite immediate appearances to the contrary, I argue that conservatives should welcome this decision. 

The Court looked at two issues.

First, it didn’t accept Mr Williams’ argument that, by funding chaplains, the Government had breached section 116 of the Constitution (dealing with the separation of Church and State).  In fact, the Court’s discussion on this point was brief and dismissive.  
So there’s no intrinsic problem with this program, and the Australian Government has announced that it will seek to continue the funding. It looks as though Mr Williams’ elation is likely to be short-lived.

The Court also decided that that the Australian Government can’t fund programs just because it wants to.  This is a seismic shift from the way that lawyers have previously been reading the Australian Constitution.

In effect, the Court said that the federal Government (the Executive Branch of Government) can only do so if the Australian Parliament (the Legislature) has given its authority by passing a law to authorise the proposal. 

(Actually, it seems the Court might permit the Government to directly approve some kinds of payments in cases involving the internal administration or the status of the Commonwealth as the national government.  The latter concept is rather vague and is likely to lead to more court cases!) 

The result of the decision is that the Government will need to pay more attention to the Parliament.  This means the decision involves a restriction on the power of the Executive. 

At present, the Greens have a significant representation in the Australian Senate.  By enhancing the role of Parliament, the High Court’s decision will also enhance the Greens’ power. 

In the short term, this is not a good outcome for conservatives.  But they should welcome the broader effect of the Court’s decision, because it restricts the power of the Executive Government. 

There’s also an issue about the State Governments.  The Australian Government sometimes asks the Australian Parliament to pass legislation, giving grants to the State Governments for various purposes.  This avoids difficulties in the federal parliament funding the projects outside its constitutional power. (See section 96 of the Constitution.)  

Following the High Court’s decision, the Australian Government will probably increase its use of this process.  If so, this will give more power to the State Governments (which might object or have questions about projects). 

In short, the decision should disappoint people who want a secular Australia and who want a central government with fewer restrictions on its capacity to spend public money. And it should be welcomed by conservatives.

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