On 19 June 2014, the High Court of Australia delivered its decision in the matter of Williams v Commonwealth of Australia  HCA 23 (Williams (No 2)).
The case concerned a challenge by Mr Ron Williams, a father from Toowoomba, to the constitutionality of the Commonwealth’s funding of religious chaplains in State schools. Unanimously, the High Court upheld Mr Williams’ challenge, invalidating the Commonwealth’s legislation which purported to authorise the chaplaincy funding.
Mr Williams first successfully challenged the Commonwealth’s school chaplaincy program in the earlier High Court decision of Williams v Commonwealth  HCA 23 (20 June 2012) (Williams (No 1)).
Both Williams (No 1) and Williams (No 2) centred on Mr Williams’ challenge to the Commonwealth’s funding of an organisation called Scripture Union Queensland (SUQ). The funding arrangement was such that the Commonwealth provided money to SUQ pursuant to an agreement. SUQ, in turn, used that money to engage individual chaplains to provide chaplaincy services in public schools.
At the time of Williams (No 1), the Commonwealth had entered its funding agreements with entities like SUQ on the basis of its general Executive power to enter contracts, without any specific legislation authorising that funding.
Mr Williams, whose children attended a school receiving SUQ chaplaincy, was motivated to challenge the program because of his philosophical objection to government funding of religious education in public schools.
In Williams (No 1), the High Court did not accept an argument by Mr Williams that the chaplaincy program was invalid under section 116 of the Constitution, which prohibits the Commonwealth from establishing a religious test for any office.
Despite this, in Williams (No 1) the High Court upheld Mr Williams’ challenge on a much broader, and more fundamental, basis. That broader basis was that because the Commonwealth’s funding agreement with SUQ was not authorised by legislation, it was beyond the Commonwealth Government’s power and therefore unconstitutional.
This reasoning had significant ramifications, casting doubt on a wide range of Commonwealth spending programs which did not enjoy specific legislative authority.
Within days of Williams (No 1), the Commonwealth Parliament reacted by passing the Financial Framework Legislation Amendment Act (No 3) 2012 (Cth) (FFLA Act) .
The FFLA Act purported to give the Commonwealth Government a general power to spend money for any purpose specified in regulations, which are made by the Executive rather than by Parliament. Professor Anne Twomey, Professor of Constitutional Law at the University of Sydney, described the FFLA Act as the Parliament’s “act of hara-kiri”, since its effect was to give the Executive the power to “spend money on whatever it wished without the need for further legislation or parliamentary scrutiny”.
Unsurprisingly, the Commonwealth then made regulations purporting to authorise a suite of “arrangements, grants and programs”, including the chaplaincy program.
On its face, this meant that the chaplaincy program no longer fell afoul of the High Court’s reasoning in Williams (No 1), since it was authorised by legislation.
However, undeterred, Mr Williams commenced a new High Court proceeding, challenging the constitutionality of the FFLA Act provisions and the regulations.
The High Court again upheld Mr Williams’ challenge, holding that the relevant provisions of the FFLA Act and regulations were invalid, because they were not supported by any legislative head of power under the Constitution.
The Commonwealth attempted to argue that the provisions were valid exercises of various heads of power, but this was unsuccessful. Most importantly, the High Court did not accept the Commonwealth’s argument that the provisions were valid as laws “incidental” to the Commonwealth’s power to spend and enter contracts. That is, the laws needed to be grounded in another, independent head of legislative power.
Thus, whereas in Williams (No 1) the High Court decided that the chaplaincy program was invalid because it was not authorised by statute, in Williams (No 2) the High Court decided that the statutory provisions purporting to authorise the program (in response to Williams (No 1)) were themselves invalid, because they did not fall within any of the Commonwealth’s legislative powers.
The High Court also refused to allow the Commonwealth to reopen the decision in Williams (No 1). After summarising the Commonwealth’s arguments on this point, French CJ, Hayne, Kiefel, Bell and Keane JJ stated, bluntly, that the Commonwealth’s proposition “reveals no greater content than that the Commonwealth parties wish that the decision in [Williams (No 1)] had been different”.
 Anne Twomey, “Bringing down the House? Keeping school chaplains means a surrender to the Executive”, available here.
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