The High Court has allowed an appeal against the decision of the Full Federal Court in FTZK. FTZK is an asylum seeker who was accused of involvement in a kidnapping-murder while he was in China, an accusation he claims was motivated by his religious practices. Continue reading
Sometimes High Court judgments excite a lot of interest not only from lawyers, but from the general public. Williams v Commonwealth  HCA 23 (‘Williams [No 2]’) is one such decision.
The immediate response from the Prime Minister was that the government would try to continue its support of chaplaincy in State schools despite the High Court’s decision. In a comment which was later roundly criticised by many, Coalition backbencher Andrew Laming said that an out-of-touch “alliance of Greens, gays and atheists” had mounted a campaign against chaplaincy culminating in the result of the latest case.
Some saw the case as a ‘Trojan Horse’ for a resurgence of States’ Rights activism, whereas others argued that it was a victory for LGBTIQ youth. Some were concerned about what was going to happen with regard to the funding for chaplains which had already been paid over.
The IPA opined that Williams [No 2] was a win for parliamentary democracy because it reiterated that decisions over how public money should be spent should be made by parliament, not the executive, and that the separation of powers was upheld. With respect, this is overstating the result of Williams [No 2]. Williams [No1] decided that the Commonwealth executive had no power to enter into the funding agreements for chaplaincy with Scripture Union Queensland. The High Court did not decide Williams [No 2] on the basis of parliamentary sovereignty, and as Professor Cheryl Saunders notes, the case ‘does not add a great deal of substance to the conclusions about the ambit of the executive power of the Commonwealth reached in Williams [No 1].’ The judgment did not mention separation of powers. It decided the case on the narrower ground of whether there was any particular head of power which supported the funding in the specific instance of chaplains (it was found that there was no head of power which did support it). As Professor Simon Evans explains here, it hinged around whether there was a ‘benefit to students’. Williams [No 2] simply represents a tightening of our understanding of the legislative heads of power.
Other media commentators were interested in what other programs could be affected by the ruling. Indeed, a perusal of the programs which are covered by Schedule 1AA of the Financial Management and Accountability Regulations 1997 (Cth) makes for interesting reading.