Reflections on Williams II

The High Court’s recent decision in the second Williams case is widely seen as a defeat for the Commonwealth.  The Court invalidated, for the second time, the federal government’s school chaplaincy program.  As many predicted at the time it was passed (just days after the first Williams decision was handed down), Parliament’s 2012 emergency legislation, the Financial Framework Legislation Amendment Act (FFLAA), was not enough to save the program.

In perhaps the most important respect, however, the Commonwealth won as it lost.  The High Court focused with laser-beam like precision on the chaplaincy aspect of the legislation and did not invalidate any other aspect of the FFLAA.  That means the 400+ other programs supported by it remain valid unless and until an individual plaintiff with standing challenges, one at a time, the constitutionality of the programs.  The Commonwealth would likely succeed on defending many of those programs given the High Court’s relatively liberal interpretation of the heads of legislative power in the Constitution; and even those programs that probably are not constitutional will not actually be struck down due to the lack of a challenge.  If one looks at the Commonwealth’s actions from a cynical perspective, the always-dubious emergency legislation bought two more years of chaplaincy and the potential for the vast majority of its other programs to remain in operation even if theoretically unconstitutional.

The simple truth is that the “loser pays” system in Australia makes it extremely rare for individuals to bring constitutional claims: the risk of owing tens or hundreds of thousands of dollars in legal fees is often too much for anyone besides unions, corporations, and wealthy individuals to take.  Citizen-activists like Ronald Williams (and, earlier, Bryan Pape) are thus the exception.  They should be applauded for their courage and willingness to further a vision of what the Constitution demands, even if we may disagree with them on the legal or political merits of their challenges.  In an ideal world, the High Court would make it easier for citizen-activists to bring constitutional claims by relaxing strict rules of standing and Parliament would encourage these attempts to enforce the rule of law by legislating, as the U.S. does in civil rights claims, that a non-vexatious plaintiff will never pay the government’s legal costs.

What will happen to chaplaincy itself?  As the High Court has stated that there is no plausible head of power to support it, no future federal legislation can directly fund it.  The possibility often floated is for the Commonwealth to use the Section 96 grants power to channel money to the states on the condition that they use that money for chaplaincy.  At first glance this seems like an easy workaround, but in truth it may create major complications and changes to how the chaplaincy program functions.  States would gain the power to negotiate over the terms, and it would be State administrative bureaucracies overseeing the spending.  Some states traditionally hostile to chaplaincy, like New South Wales, might refuse the money altogether.  Others might insist, despite the current federal government’s wishes, that the money be available for both religious and secular chaplains.  Perhaps one of the most intriguing possibilities is that state agencies could bypass the evangelical chaplaincy service providers that have gained an effective monopoly in states like Queensland.  If this occurs, the proportion of chaplains who are Christian (currently 99.5%) could become closer to that of the Australian population (61%); a clear win for religious diversity and pluralism in Australia.

The long-term effects of the Williams pair of cases remain to be seen.  Although it is clear that most forms of executive spending require independent legislative support, the precise scope of this general rule remains unclear and the government is sure to test it through a variety of clever schemes.  The disparity in reasoning in Williams I itself is problematic in understanding the boundaries imposed on executive spending: for example, much was made in that case on the role of the Senate and deliberative democracy, but all of that discussion  vanished completely in Williams II.  To my mind, the only safe bet is that the Williams cases will linger over Commonwealth spending like a dark and cryptic shadow for years to come.