Press conference on Williams High Court Case – Canberra
- Minister for School Education
- Minister for Early Childhood and Youth
- Minister for Emergency Management
NICOLA ROXON: Peter and I are here to give you some brief comments on the Williams decision of the High Court that’s been handed down this morning. This is a very important decision. The High Court found six to one that the National School Chaplaincy program was invalid.
The only Government program that was the subject of this challenge was the School Chaplaincy program, and obviously we would like to flag that governments of both persuasions over the past years have relied on a very broad view of the Commonwealth’s suspending powers.
This decision obviously does traverse a lot of territory, and we will be considering very carefully the consequences of the decision. I’m sure any of you who’ve tried to read it in the short time will understand that the judges took around ten months to write this. It will probably take us a little more than two hours to be able to fully assess all of the consequences, but I can assure the media and the public that the Commonwealth has undertaken a range of contingency planning steps since late last year, to ensure that any range of options that the court might find, that we would be able to respond quickly.
We are committed to both the program and the funding for the School Chaplaincy program, and I think Pete will want to make some comments about that. And there are different ways that we will be able to provide for the program and the funding to continue, but it is one of the areas where the judges have a range of different reasons and we want to properly assess it and make sure that our contingency plans will meet the new rules that have been provided by the High Court.
I think Pete might want to make a couple of comments about the program, and then we’re happy to answer your questions.
PETER GARRETT: Yeah, thanks, Attorney. Look, we’re committed to maintaining funding for the Schools, Chaplains and Student Welfare program, and our expectation is that chaplains will remain in schools around the country.
It’s clear that there are a number of issues to be worked through, and we would want to resolve any issues after proper consideration of this court decision, before the next round of payments which are due later this year.
But we do want to continue to support maintaining funding for school chaplains and welfare workers. We’re committed to maintaining that funding for chaplains and student welfare workers. And we’ll take our time and take advice clearly from the Attorney General as we also digest the decision of the court today.
One thing I would say is that we provided additional opportunities for schools to either employ a chaplain or a welfare worker, and so the extension of the chaplains program has meant that we do have student welfare workers who are in schools at this point in time. And I do note that the decision of the court on the question of whether or not chaplains were religious officers and offended the constitution under Section 116, that was not found to be the case by the court.
So on this basis we are certainly committed to maintaining funding for school chaplains and student welfare workers, but we’ll consider carefully the judgement and any issues that arise out of it, and be in a position to resolve any issues before the next round of payments are due.
NICOLA ROXON: Hang on, we’ll just go - one here and then I'll come over.
JOURNALIST: Could this impact on other Federal funding programs in other areas like arts, sports, [inaudible] and universities?
NICOLA ROXON: Well what I do need to make clear is this decision directly went just to one program. It is the only program that has been invalidated by this decision. Of course, the reasoning that we want to assess carefully could have implications for a wide range of Commonwealth programs, and our Government has been very clear that we are committed to the programs that we fund and the way that we fund them.
If, as a number of judges mentioned during their reasoning, different steps need to be taken, either legislation needs to be done, whether we need to pay directly through states, whether we need to find other ways to meet the constitutional requirements, the Government has done a lot of contingency planning. We will be able to now properly digest the decision of the judges and then look at which of the steps we have done contingency planning on will need to be implemented.
But the direct impact is purely for the chaplains program. The indirect impact maybe much more significant because this does go to the reach of executive power and the courts - this is obviously what’s most recent, freshest view, on the range of executive power and what can be done. And we have done a lot of work to be ready for a decision, which it seems from our early reading many of the judges have come to the conclusion for different reasons. So we will need to analyse what is the majority view in terms of the reasoning and any application to other programs.
JOURNALIST: So Minister, do you yet know, and when will you know if you don’t know already, how many specific programs may be captured under the ruling from the High Court that may have a similar funding system? And for anyone working in those programs, what assurances can you give them - given that it’s the funding itself that is deemed to be potentially unconstitutional - that they will get paid tomorrow, next week, you know, that the programs will be…
NICOLA ROXON: I can put people’s minds at rest absolutely with the range of programs that are funded, this decision does not directly invalidate expenditure on any other programs. A wise government would consider the consequences of this decision and make some pre-emptive steps in other areas if we believe when we analyse this decision that that is necessary.
The sheer extent of it I’m not in a position to tell you today, because there are a range of different programs that would be affected by a range of different reasons. And from our early reading there are already different views amongst the majority, and we need to make an assessment which of those are fixed.
However, it is clear that there is a cure for each of these problems that are identified, whether it’s particular legislation, whether it’s payments through the states, whether it’s other sorts of contingency steps that can be taken. And our Government does want to make very clear to the public, who are the beneficiaries of these programs, to those who are working in different programs, that we are committed to the programs that are ones that we currently fund and we will make sure - and as Peter has made very clear for the chaplains - we are committed to it continuing as a program that will be supported.
I’ll come back here.
JOURNALIST: [Inaudible question]
NICOLA ROXON: Look, I don’t think that that is likely. There are a range of different things. It may be in one aspect, and we will be carefully considering this, that it has some consequences for the issues surrounding local Government. And of course you know that we already have on the table a question of whether a referendum would be needed to pursue and clarify that direct payments to local Government are possible.
I think that’s the most immediate question that might come up in terms of a referendum. From our early advice we think that is unlikely to be a step that’s needed for other cures. But I really don’t want us to jump the gun when we haven’t been able to properly absorb exactly where the majority and which reasoning - many of you have seen - I think it’s over two hundred pages, took ten months to write. It will take us more than two hours to be able to properly understand the consequences.
JOURNALIST: Is it your expectation that legislation would be the simplest cure, and going to the program itself, will any chaplain be withdrawn or any counsellor in the school, will this affect their position to the end of the year at all? Or will that remain?
NICOLA ROXON: Do you want to do that bit first and I’ll do…
PETER GARRETT: Yeah, look I should be very clear that any funding that has been received by chaplains or student welfare workers will not be withdrawn. We are committed to maintaining the chaplaincy and student welfare program and we’ll work through these issues in some detail prior to the next round of payments that is due for those who are receiving funding under the program.
NICOLA ROXON: Yeah, sorry, Matthew and then Michelle.
JOURNALIST: Minister Roxon, could I just…
JOURNALIST:…about the legislation?
NICOLA ROXON: Oh, I’ll deal with it both together. Obviously legislation is one method for curing a view that the court says, you know, executive cannot make particular payments without legislation being untaken. However, the reasoning is varied here, and we want to assess it properly. There may be other methods of payment that would also meet the tests and we need to assess that. It will be different for different programs, but obviously there is possibility that a piece of legislation dealing with a whole range of programs might be able to cure this problem. Matthew and then Michelle.
JOURNALIST: My question was I know that the last Friday….
NICOLA ROXON: I was very clear and I will repeat again the basis upon which I made comments on Friday, because they are restricted and there isn’t a full range of issues that I can go through. As the Commonwealth, of course, who is the first respondent in this case, we thought it was appropriate given the range of questions we were getting, and convenient for everyone, to set out what it is that our response is.
The detail and the information that we rely on has not yet been released by the court, and I’m not at liberty to talk about those. A sexual harassment complaint has been made. We’re on the public record as saying that as a Labor government we regard sexual harassment complaints as being serious. That should be investigated and obviously that’s before the court.
However, we in the in this case have submitted that this is not a sexual harassment complaint that’s been brought as part of a normal work place dispute. That in fact it is being brought for other purposes, and we allege that it is both an abusive process and/or vexatious, and the grounds upon which we say that are set out in an affidavit which has not been released yet to the public. Michelle?
JOURNALIST: Ms Roxon you’re saying is this right, maybe you can use general legislation to validate these other payments or maybe you’ll have to go a case by case approach. Is that right? Could be either?
NICOLA ROXON: We haven’t made a decision yet. We need to assess the consequences and obviously we have clearly committed that whatever steps will need to be taken for the chaplaincy program to continue, they will be taken.
It may be that there are a range of options including that payments could be made in a different way in the absence of legislation or that legislation can be pursued for this particular case or for a broader number. Those options are all in front of us and part of the contingency planning that we’ve undertaken.
JOURNALIST: So in this case if you’ve got to go a case by case approach it does open the possibility that you could have trouble that your political opponents could try and pick off a few programs. Will you try to negotiate with the opposition to get a bi-partisan approach on what is a serious constitutional problem?
NICOLA ROXON: Well it goes without saying that we are not expecting any objections from the opposition on this particular matter. This is a Howard government program which we supported in opposition and we continued to support and in fact as Peter has said, have expanded to extend to a wider range of people…
NICOLA ROXON: [inaudible]… and we believe that the opposition like the government has an interest in maintaining the Commonwealth’s reach of power and the historic reliance on the Executive being able to fund certain programs.
But all of us understand that if the High Court makes a decision which sets out another threshold to be met then we are required to meet that threshold and we will work through this decision to be able to understand which steps need to be taken. And we really, you’re already 4 steps ahead of where we are. We haven’t made a decision about trying to negotiate an outcome or whether to legislate until we can properly digest the rest of the contents of this case.
JOURNALIST: Mr Garrett can you just clarify what the immediate impact of this will be on the chaplaincy program? Are you saying there will be no immediate impact, that the chaplains will stay in schools and they’ll continue to be paid for the time being?
PETER GARRETT: Look we’re committed to maintaining funding for the program, for both the chaplains and the student welfare workers. Those chaplains or welfare workers that are already receiving funding won’t have that funding withdrawn. And our commitment to continue the program, we’ll work though the details of how we approach that commitment, and how we deliver that commitment, once we’ve had an opportunity to resolve the issues that arise out of the decision that the Judges have made. Remember that Williams challenged under two heads, one was the executive power head and one was the religious officials head. And it was a challenge against what he perceived the plaintiff in this case, to be the non-secular characteristic of the chaplains program. I think what the court has found, which is what we’ve always said is that this program is delivering support to students and it now can deliver it through both chaplains and student welfare workers.
We are committed to maintaining the program but the manner and form in which we do that, of course will be subject to the ongoing considerations that the Attorney-General’s just referred to.
JOURNALIST:…were you surprised by the decision Attorney-General?
NICOLA ROXON: Can I just flag with you that we’re going to have to go to question time shortly, for the people who haven’t asked a question please do it quickly and we’ll do our best to get to them.
PETER GARRETT: Well there are different payment schedules under place depending on the arrangements that have been reached with providers. So there are a range of different payment schedules in place. But what we will do, is we’ll be communicating clearly and directly to all chaplaincy service providers what our intention is in the general which is what we communicated to you today and then once we’ve resolved and thought through these issues, how it will apply in the particular.
JOURNALIST: You’ve said that some contingency steps have been put into place. Can you tell us what they are?
NICOLA ROXON: Well look, I think any sensible Government would when there is a challenge like this to constitutional power and the reach of executive spending, etcetera, does do that. We went through a range of programs across Government to see if there may be other programs that could be potentially affected by this. We do run programs that don’t have specific legislative basis like this. So, we have a fairly clear view of which programs we now need to assess against our assessment of this decision. We have not yet had the opportunity in the two hours since this has been handed down to do that. But we will shortly be able to.
JOURNALIST: Attorney, have you spoken to your state counterparts yet, and do you intend to, to see where they are going to sit on this issue?
NICOLA ROXON: No I haven’t. I wasn’t intending to. I think this is primarily a decision for the Commonwealth. There will be opportunities if decisions are made that some payments might be made valid by being paid through the states, we would then talk to our colleagues. A number of states intervened in this matter – mostly against the position of the Commonwealth. So, I’m not sure discussions with them would particularly assist with the proceedings at the moment.
JOURNALIST: Are you confident that you’ll be able to get a solution in place, whatever it might be, by the time the next round of funding..?
NICOLA ROXON: We are absolutely confident that we have a range of options, which will allow us to ensure that the program that was invalidated by this decision – the chaplaincy program – will continue. Our Government has made clear that we support the program. Peter has recently announced an expansion of that program. It will continue. What is now required by us is to find the mechanism which will be consistent with the majority view of the High Court to ensure it can continue.
JOURNALIST: Attorney-General, were you surprised by the decision? Has it reshaped your understanding of Commonwealth spending powers?
NICOLA ROXON: I don’t think Commonwealth Attorneys are ever surprised by High Court decisions. I think the High Court is there to, you know, test the boundaries of powers. They often find actions of Commonwealth Governments of all colours to be invalid. Obviously once this action was filed, we quickly took steps to see what other consequences there could be. We argued our case in the court. We were ultimately not able to be persuasive. And now this is just something that we need to proceed with and we’ve taken, as I say, a lot of steps to make sure that we’re well placed to do this and we’re able to act quickly once we have fully assessed the implications of the case.
JOURNALIST: [inaudible]…the programs at risk. What are those programs?
NICOLA ROXON: Well no what I said is that we’ve gone through our whole range of Commonwealth programs to see which ones would potentially be at risk, depending on the actual decision and reasoning of the judges. There is a vast range of options that the court could find and, in fact, from my quick reading, a range of judges have found different reasons along that spectrum. So, we know a range of programs – we are not in a position to tell you that until we can properly assess the majority reasoning of the Court. Thank you.