Illegal Ministry

Here is the story.

The last Liberal Government here in Oz (Note to Americans: these are the guys who are a bit less left wing than the current lot, and currently out of power even though they won the popular vote last time around) decided to put missionaries in state-run schools.  They called them “chaplains”, but it was pretty clear what was going on.  The Prime Minister of the day – John Howard – was mildly religious, but he needed the votes of the far-right religious lobby. And so he put in place Federal funding for the programme, to be run by religious organisations.

There was a minor problem: how to sidestep the charge of proselytising in schools, which would be an anathema to the constitution, which intended the Federal government to be secular.  Simple: say that there should not be any proselytising, and then make sure that the people who run it will do just that.  It is an old trick.  Elizabeth I did it all the time (“Now, Mr Walter Raleigh, I have TOLD you not to plunder Spanish ships, steal their gold and bring it all back to me. I have told you this is very NAUGHTY! Oh, Sir Walter, you are awful! Have some money.  And a knighthood”).

Thus for example the Victorian franchisee, Access Ministries, a chaplain of which has said:

So remember it is God’s hand within and across our schools through the commitment of Access Ministries. Access Ministries provides Christian religious education teachers and chaplains to over 2,000 young Victorians in our schools…Now that is not always overt, CRE (Christian religious education) workers are definitely there to present the gospel, to present bible stories. Chaplains – it is not always as overt as that, it is much more covert.

Likewise the Queensland franchisee, Scripture Union Queensland, who say

We are deeply committed to researching, developing and role modelling effective models of Bible engagement for children and young people.

So, many millions of dollars of taxpayers money have been poured into the scheme. There was no legislation save the appropriations of the funds needed.

When the socialists got in last time, they did it by forming alliances with the Greens and others: that is why they are still in power despite losing the popular vote.  And so, just like the Liberals looking for the votes of the religious right, the Labor party needed the votes of the heathen left (Australia is like the US, and unlike the UK, in that, by and large, the religious lobby is on the political right). So they had conflicting views:

  • Scheme bad; because it helps (and funds) the right wing religious groups;
  • Scheme good, because it involves taking money away from people against their will by way of taxes, and spending it for them.

So their compromise was to try to alter the scheme so that, instead of just ramming religious doctrines down the throats of young people, the scheme should be extended to also serve up a load of Green claptrap as well.

Enter a real person, Ron Williams.  He sued the government, and has just got to the High Court, which has just declared that the whole thing is illegal.  A key feature of the judgment is where they analyse the Government’s stance that it is entitled to spend its money on whatever it likes, just like any other person.  “Oh no”, said the High Court, “You are not like any other person, because you haven’t got any of your own money, you just have other people’s money.  And you can only spend it on things that are associated with your constitutional duties” Which, obviously, do not include putting religious dudes in to schools.

The judgment is available to read on Austlii. It includes these passages:

The Commonwealth parties’ ultimate submission

150.        With the support of SUQ, and the qualified support of South Australia, the Commonwealth parties presented their ultimate submission. This was that because the capacities to contract and to spend moneys lawfully available for expenditure do not “involve interference with what would otherwise be the legal rights and duties of others” which exist under the ordinary law, the Executive Government in this respect possesses these capacities in common with other legal persons. The capacity to contract and to spend then was said to take its legal effect from the general law.

151.        A basic difficulty with that proposition is disclosed by the observation by Dixon CJ, Williams, Webb, Fullagar and Kitto JJ in Australian Woollen Mills Pty Ltd v The Commonwealth[252] that:

“the position is not that of a person proposing to expend moneys of his own. It is public moneys that are involved.”

The law of contract has been fashioned primarily to deal with the interests of private parties, not those of the Executive Government. Where public moneys are involved, questions of contractual capacity are to be regarded “through different spectacles”[253]

159.        These submissions by the Commonwealth parties as to the scope of the executive power to contract and to spend should not be accepted…

262.        The submissions directed attention to a hypothesis: that the disputed payments could have been authorised by law. Little attention was given in argument to the precise content of the hypothesised law beyond the Commonwealth parties submitting that account need not, indeed should not, be taken of the terms and conditions set out in the particular funding agreement in deciding whether a valid law authorising the payments could have been enacted. But if the test to be applied is whether the Parliament had power to enact a law providing for the disputed payments it is necessary to identify the content of that hypothetical law with precision…

272.        The hypothetical law under consideration would not in any way hinge on the constitutional conception of trading or financial corporations. It would not be a law authorising or regulating the capacity of constitutional corporations generally or of a particular corporation to make a contract. Unlike the law considered in New South Wales v The Commonwealth (Work Choices Case)[401] it would not be a law authorising or regulating the activities, functions, relationships or business of constitutional corporations generally or any particular constitutional corporation; it would not be a law regulating the conduct of those through whom a constitutional corporation acts nor those whose conduct is capable of affecting its activities, functions, relationships or business[402]. The hypothetical law would be no more than a law authorising or requiring the making of a particular kind of contract in which one contracting party could be, but need not be, a constitutional corporation providing services for reward. The hypothetical law would not be a law supported by s 51(xx)...

574.        The Funding Agreement does not provide benefits to students and is not a contract for the provision of such benefits. It is a contract to provide funds for the provision of chaplaincy services in a school, as part of the education-related program of the school. A hypothetical statute authorising the Funding Agreement could not be supported by s 51(xxiiiA).

The government’s reaction has been to say, “We will find a way to get around the judgment, and continue to spend the money”.  And, of course, it says it has no intention of effecting any recovery for taxpayers of any of the money it has already illegally given to the religious organisations in question.

Now, call me old-fashioned, but I would have thought that the right thing for a government to do, when it is being told by the highest court in the land that it has been acting contrary to the constitution and thus illegally, is to stop. Not to say, “We don’t give a monkey’s”.

And who is to stop them? Hard to say. The opposition has already said that it will sit on its hands on this one. The executive will be happy to spend away like billio. And if Mr Williams or any other real people take further legal action, the government will merrily spend squillions more dollars of taxpayers’ money on legal costs, and then ignore the result yet again.  There are no Lady Thatchers in Australia.

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