Chaplaincy program unconstitutional

The Australian

THE school chaplaincy program has this morning been declared invalid in a landmark High Court decision which could cast doubt on other areas of Commonwealth funding, including funding for the arts, sport, local government road schemes and even potentially, the environment.

The Age

One of Australia’s leading constitutional lawyers George Williams said the implications of the case were massive and could potentially affect any program directly funded by the Federal Government.
This would include the local government Roads Recovery program and even direct funding of private schools.
”This sets down very significant limits on the ability of the Commonwealth to spend money,” Mr Williams said.

The actual decision is here.

Limiting the power of the Commonwealth is spend money must be a good thing – hopefully this will be part of trend where people challenge the spending decisions make in Canberra. The end game must be transferring decision making power and taxation power to the States.

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97 Responses to Chaplaincy program unconstitutional

  1. Uber

    While I despise the ideology behind the decision, let’s hope it leads to new legal challenges against government largesse.

  2. Matt

    The end game must be transferring decision making power and taxation power to the States

    Why should this be the end game? Surely the end game is to get decision making and taxation power to as local a level as possible.

    For someone in rural NSW, removing power from the Feds and giving it to politicians in Sydney and reliant on Sydney votes doesn’t really make much of a difference.

    The states are historical curiosities that no longer represent any coherent community of interest.

  3. JC

    I wonder what this decision does in terms of the mining tax and getting in the way of State royalties. That’s the big elephant in the room.

  4. Elizabeth (Lizzie) B.

    An endless set of point-counterpointing ideological challenges coming up? And who is to fund making these? A difficult judgement ..

  5. Rabz

    “Public schools aren’t a place for religious missionaries, with or without government funding,”

    However they are a place for ignorant, creepy, semi literate drooling leftist loons to brainwash kiddies in marxist garbage.

    That’s perfectly fine with the so called ‘concerned parent’ who’s so passionate about ‘the separation of church and state’…

  6. Token

    “Public schools aren’t a place for religious missionaries, with or without government funding,”

    Tell that to the Green cultists.

  7. SteveC

    Matt,
    totally agree.
    Objections to canberra based decisions are frequetly from other capital cities. The North West of WA is almost as close to Canberra as Perth. Most Perth residents have no clue what affects life in the North West. The same goes for FNQ.
    However, replacing states would be a massive undertaking. A move towards much stronger local government would be a good start.

  8. twostix

    For someone in rural NSW, removing power from the Feds and giving it to politicians in Sydney and reliant on Sydney votes doesn’t really make much of a difference.

    The states are historical curiosities that no longer represent any coherent community of interest.

    That’s an argument for more states not less.

    Divide NSW in three: NSW keeps the coast, split the Riverina and New England.

    Similar to what was proposed 80 years ago.

  9. twostix

    However, replacing states would be a massive undertaking. A move towards much stronger local government would be a good start.

    I like the way that in response to the states being too large the leftist response is to abolish them and replace them with the biggest most distant government of all.

    Rather than do the logical thing and create more states.

    Good too see that after 100 years leftists still hate the Australian Federation.

  10. Infidel Tiger

    Most Perth residents have no clue what affects life in the North West.

    Dunno about that. The majority of the manpower lives in the Perth metro area – those blokes in the SS utes you and your commie mates hate becaase they’re doing better than you.

    We sure as shit know what’s going on up there more than your skivvy wearing eastern states poofs.

  11. Gab

    those blokes in the SS utes, flying the Australian flag on Australia Day, you and your commie mates hate

    🙂

  12. Cato the Elder

    What’s not to like?

    For the reasons that follow, s 61 does not empower the Commonwealth, in the absence of statutory authority, to contract for or undertake the challenged expenditure on chaplaincy services in the Darling Heights State School. That conclusion depends upon the text, context and purpose of s 61 informed by its drafting history and the federal character of the Constitution. It does not involve any judgment about the merits of public funding of chaplaincy services in schools. It does not involve any conclusion about the availability of constitutional mechanisms, including conditional grants to the States under s 96 of the Constitution and inter-governmental agreements supported by legislation[5], which might enable such services to be provided in accordance with the Constitution of the Commonwealth and the Constitutions of the States. Nor does it involve any question about the power of the Commonwealth to enter into contracts and expend moneys:
    . in the administration of departments of State pursuant to s 64 of the Constitution;

    . in the execution and maintenance of the laws of the Commonwealth;

    . in the exercise of power conferred by or derived from an Act of the Parliament;

    . in the exercise of powers defined by reference to such of the prerogatives of the Crown as are properly attributable to the Commonwealth;

    . in the exercise of inherent authority derived from the character and status of the Commonwealth as the national government.

    What is rejected in these reasons is the unqualified proposition that, subject to parliamentary appropriation, the executive power of the Commonwealth extends generally to enable it to enter into contracts and undertake expenditure of public moneys relating to any subject matter falling within a head of Commonwealth legislative power.

    No idiot-logical objection to Chaplaincy, just an insistence that the Commonwealth Government play by its’ own rules.

    FMD, what’s wrong with that?

    And don’t forget that the Greens must be destroyed.

  13. Yobbo

    What IT said. One of the reasons I moved over here to Thailand is that every single one of my mates was working up North.

  14. SteveC

    twostix, who proposed “to abolish them [the states]and replace them with the biggest most distant government of all.”?

  15. Fred

    Australia Council – you’re next!

  16. twostix

    twostix, who proposed “to abolish them [the states]and replace them with the biggest most distant government of all.”?

    Er you did:

    However, replacing states would be a massive undertaking. A move towards much stronger local government would be a good start.

  17. JC

    twostix, who proposed “to abolish them [the states]and replace them with the biggest most distant government of all.”?

    It’s a trick question, Stix. Best be careful as you’re dealing with a superior mind here.

  18. That extract from Cato the Elder doesn’t seem to make a lot of sense to me.

  19. twostix

    No idiot-logical objection to Chaplaincy, just an insistence that the Commonwealth Government play by its’ own rules.

    FMD, what’s wrong with that?

    And don’t forget that the Greens must be destroyed.

    Am I correct in reading it that if the parliament passes a law allowing it, they can then do it?

    That the unconstitutional part of it, is that the government is pulling the money out of the general fund?

  20. Cato the Elder

    Take it up with Justice French SfB.

  21. Cato the Elder

    twostix

    that’s they way I read it. It’s a long decision by a full 7 Judge bench, so I haven’t read it all; but the decision is not that they can’t spend the money, just that they can’t spend without legislating.

    Of course to legislate they have to fit within that pesky Constitution thingy that limits what they can legislate about. So play by the rules, out in the open, not on some executive power dodge, and you can spend.

  22. Jeremiah

    I thought bar fights at the Pier were the most influential events in the NW?

  23. Sean

    Limiting the power of the Commonwealth is spend money must be a good thing

    amen!

  24. SteveC

    twostix, how is “A move towards much stronger local government ” proposing “replace [states] with the biggest most distant government of all”

  25. Cato the Elder

    Oh and BTW

    To all those who think they can (let alone should) abolish the States: Dream on!

    It’s a federation of sovereign states, not a government with dependencies. The States can only abolish themselves, the Feds can’t do anything about it (and just as well too, IMO)

    The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.

  26. val majkus

    got to agree with Cato

    I think these two paras explain the decision most succintly

    As has already been emphasised, all decisions of this Court to date have, rightly, acknowledged that some limiting notion additional to the requirement of lawful appropriation must be introduced to the description of the executive power in question. That limiting notion has been seen as required, first and foremost, by the fact that the Constitution divides and distributes powers between the Commonwealth and the States. That is, recognition that the Parliament of the Commonwealth is a Parliament of limited legislative power[392] entails that the Executive’s power to spend is limited. An immediate textual foundation for limiting the power to spend has not infrequently been found in s 96. And the conclusion that the Commonwealth’s executive power to expend moneys that have been appropriated is not unlimited is strengthened by recognising the intersection between the executive power and s 51(xxxix).

    The limit on the power to spend must be consistent with the general proposition that it is for the Parliament and not the Executive to control expenditure. And the Parliament can control expenditure only by legislation. Once it is recognised, as it was in Pape, that “appropriation made by law”[393] is “not by its own force the exercise of an executive or legislative power to achieve an objective which requires expenditure”[394], it follows that the Parliament’s control over expenditure can be exercised by not only the mechanisms of appropriation but also more specific legislation. It follows that the relevant “power vested by this Constitution … in the Government of the Commonwealth” in relation to the spending of money, which is the power with which 51(xxxix) intersects, must be understood as limited by reference to the extent of the legislative power of the Parliament.

    those paras come under the heading Bounds to the power to spend? in the joint judgment of GUMMOW AND BELL JJ. at 251 and 252

  27. twostix

    twostix, how is “A move towards much stronger local government ” proposing “replace [states] with the biggest most distant government of all”

    Because like all leftists you’re proposing to abolish the states and keep the councils – councils who will of course be totally subservient to the commonwealth, otherwise they’d be called states now wouldn’t they?

    This ain’t my first rodeo.

  28. Lloydww

    Does this ruling affect funding for health care programs? Monies paid are to providers NOT to or on behalf of patients. Bye bye Medicare…

  29. val majkus

    wonder if this ruling affects all that funding to clean energy schemes
    now that would please me

  30. val majkus

    a reminder on the limits of the Fed Govt’s power (section 51) of the Constitution
    51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

    (i. ) Trade and commerce with other countries, and among the States:

    (ii. ) Taxation; but so as not to discriminate between States or parts of States:

    (iii. ) Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth:

    (iv. ) Borrowing money on the public credit of the Commonwealth:

    (v. ) Postal, telegraphic, telephonic, and other like services:

    (vi. ) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth:

    (vii. ) Lighthouses, lightships, beacons and buoys:

    (viii. ) Astronomical and meteorological observations:

    (ix. ) Quarantine:

    (x. ) Fisheries in Australian waters beyond territorial limits:

    (xi. ) Census and statistics:

    (xii. ) Currency, coinage, and legal tender:

    (xiii. ) Banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money:

    (xiv. ) Insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned:

    (xv. ) Weights and measures:

    (xvi. ) Bills of exchanging and promissory notes:

    (xvii. ) Bankruptcy and insolvency:

    (xviii. ) Copyrights, patents of inventions and designs, and trade marks:

    (xix. ) Naturalisation and aliens:

    (xx. ) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth:

    (xxi. ) Marriage:

    (xxii. ) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants:

    (xxiii. ) Invalid and old-age pensions:

    (xxiiiA. ) The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances:

    (xxiv. ) The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States:

    (xxv. ) The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States:

    (xxvi. ) The people of any race, for whom it is deemed necessary to make special laws:

    (xxvii. ) Immigration and emigration:

    (xxviii. ) The influx of criminals:

    (xxix. ) External Affairs:

    (xxx. ) The relations of the Commonwealth with the islands of the Pacific:

    (xxxi. ) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws:

    (xxxii. ) The control of railways with respect to transport for the naval and military purposes of the Commonwealth:

    (xxxiii. ) The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State:

    (xxxiv. ) Railway construction and extension in any State with the consent of that State:

    (xxxv. ) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State:

    (xxxvi. ) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides:

    (xxxvii. ) Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law:

    (xxxviii. ) The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia:

    (xxxix. ) Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

  31. val majkus

    I do agree with Sinc ‘Limiting the power of the Commonwealth is spend money must be a good thing – hopefully this will be part of trend where people challenge the spending decisions make in Canberra.’

    But I don’t agree with Sinc that ‘The end game must be transferring decision making power and taxation power to the States.’

    The Commonwealth does need money for those items lawfully within its decision making powers

  32. Driftforge

    Be a interesting question as to how the country would be divided up into states now if we had another stab at it.

    How many states? 15?

    How much do you leave to the primary cities?

    I wonder if there is something like this for Australia.

  33. John Comnenus

    Seems like a lot of green funding might be challengeable under this decision.

    Love the list Val. So how does the trade off of GST as punishment for higher royalties work under this

    Taxation; but so as not to discriminate between States or parts of States.

  34. Driftforge

    But I don’t agree with Sinc that ‘The end game must be transferring decision making power and taxation power to the States.’

    The Commonwealth does need money for those items lawfully within its decision making powers

    True, but even under current spending arrangements, the Commonwealth’s collection significantly outweigh its need. A more balanced taxation system where the states acquired their own funding would be preferrable.

    Actually, a system whereby the states at least partly funded the federal government would be even better.

  35. Louis Hissink

    “A move towards much stronger local government would be a good start.”

    Which is another way of saying “Agenda 21”

  36. SteveC

    No twostix, i’m suggesting devolution of power to am more local level, it’s not really a very controversial idea. You are projecting what you think i mean, rather than actually reading it. Are you proposing to abolish the commonwealth instead?

    Who would your “new” states of NSW coast, Riverina and New England be “subservient” to?

  37. val majkus

    John, I don’t know how the trade off of GST as punishment for higher royalties works under this

    GST I think comes properly within the Govt’s taxing power and the hand back to the States – well that is an arrangement between the Govt and the States

    If not – what’s it mean for Tasmania?

  38. dan

    Thats what i thought Louis, If we divide into Counties, then we become like the UK and that is hardly great.

  39. val majkus

    and Louis copy of an e mail I received earlier today:

    Gillard is not on her own in imposing climate change fraud on Australia. Here is a UN group that collects money from your local council and imposes Agenda 21 on your area without your vote or permission.
    They are called “International Council for Environmental Initiatives”. They are unelected and not voted on but they take over all development in councils that agree. They represent the UN and their mission is to impose Sustainability on all regions of the world. That is what they think is sustainable, not what locals know is sustainable.
    Wonder how the Victorian bushfires were so bad? I bet these clowns were running the local council agendas.
    So Gillard thinks she is safe in imposing a destructive CARBON DIOXIDE (PLANT FOOD) tax based on a scam on Australia because these socialists have been imposing the conditions since 1998.
    Here is the link to the contact page for this UN anti Australian treasonous group:-
    http://www.iclei.org/index.php?id=global-contact-us
    Link to the COMMUNIST UNITED NATIONS AGENDA 21…..
    http://www.un.org/esa/dsd/agenda21/
    The Totalitarian Threat of Agenda 21
    http://www.prisonplanet.com/the-totalitarian-threat-of-agenda-21.html
    Agenda 21 Exposed
    http://www.facebook.com/pages/Agenda-21-Exposed/150975061627200?sk=wall

  40. Driftforge

    1 Sydney (NSW) 4,627,345
    2 Melbourne (VIC) 4,137,432
    3 Brisbane (QLD) 2,074,222
    4 Perth (WA) 1,738,807
    5 Adelaide (SA) 1,212,982

    Out of 22.6 all up, 12.7 in the top five cities.

    Actually, the ABS has just done a redistribution of regional areas – the couple I have looked at seem reasonable so far.

  41. John Comnenus

    Val,

    if the Feds don’t distribute as much GST or increase the MMRT rate as punishment for the States increasing their royalties then that might mean that such a measure falls afoul of the can’t discriminate between the states provision.

  42. twostix

    No twostix, i’m suggesting devolution of power to am more local level, it’s not really a very controversial idea. You are projecting what you think i mean, rather than actually reading it.

    Do you support more smaller sovereign states?

  43. val majkus

    John but the GST agreement between the Feds and the States does not rely on any head of Constitutional Power
    So with respect don’t think your point applies though as a Queenslander I would like it to

  44. SteveC

    twostix, yes. But as I said, that’s goig to be a very slow huge task. Starting by beefing up local government (which is answerable to state govt) would be a practical start that doesn’t require state or federal constitutional change. Brisbane did a good job I believe (i don’t live there) when they created one very karge council for brisbane, replacing lots of small councils.

  45. daddy dave

    LOL seriously? I actually wasn’t expecting that.

  46. Tal

    Nanny Roxon is at the helm,God knows what will be destroyed this time

  47. val majkus

    and of course Garrett has vowed to continue it
    Garrett vows
    I’m not too sure that he appreciates the limits of Constitutional power

  48. dismissive

    Always remember that the Commonwealth Constitution as confirmed by referendum has no recognition of Local Government. All their power/authority comes from the states. Any state can devolve or withdraw powers to LGAs.

    I would question how the commonwealth can make any grants to LGAs directly.

    Personally I would like to see them all abolished.

  49. Infidel Tiger

    Roxon stands behind school chaplaincy program.

    Demons out!

    “Jesus commands you to pay more tax, stop smoking, eat less, exercise more, drink less, vote for us….”

  50. dan

    Zarathustra Demands you Fuck off Roxon

  51. Matt

    Personally I would like to see them all abolished

    If you abolish local government – what process do you see for the involvement of local communities in local decisions? Do decisions on local parks, garbage collection, road maintenance etc. in Nyngan then get made by public servants responsible to politicians in Sydney?

    As a general principle decisions should be made at the lowest possible level relative to the area they affect. Decisions that affect only a local community should be made by that community – not by Sydney and/or Canberra. Decisions that only affect WA should be made in WA etc.

    I would question how the commonwealth can make any grants to LGAs directly.

    I would agree here – it has always been a little bit dodgy and would be impossible without the tacit agreement of the states. The main grant to Local Government is made to the states and then distributed by the State Government to Councils in line with state government rules. This seems quite constitutionally correct.

    The relatively recent Roads to Recovery program however bypasses the state goverment (a decision by the Howard government to stop the then-ALP state governments diverting the funds to their pet projects as opposed to improving local roards) and it is hard to see how this would be constitutionally defendible if the states (or a third party) objected.

  52. Jim Rose

    more than a few lawyers will be burning the mid-night oil on this one.

  53. Marty

    Sinclair, you must be a bit duller than I realised (which still makes you quite smart, so don’t worry) if you seriously think this had anything to do with an objection to the nature of government funding! It was religiously motivated – nothing more and nothing less. This does not represent an ideology of government rectitude any more than KRudd’s stimulus program. If one thing is certain, it is will not spawn fresh claims of the kind you’re interested in. I thought it was funded by GetUP?!

  54. val majkus

    hope so Jim and I hope they’re sceptics

  55. daddy dave

    Do decisions on local parks, garbage collection, road maintenance etc. in Nyngan then get made by public servants responsible to politicians in Sydney?

    Yeah, this is just another version of the nurses-teachers-firemen gambit. (“What do you mean, reduce the size of government? What will happen to all the nurses-teachers-firemen?”

    I have no problem with councils running local parks and road maintenance. I do have a problem with councils building a thousand monstrous bureaucracies across the land in a thousand shiny council buildings, each one micro-managing property development, policing the lopping of branches from trees on private property, squelching private investment and behaving parasitically on businesses and homeowners.

    As for garbage collection, they’ve even fucked that up. Council regulated garbage bins have become too small, in the name of green values and encouraging us to waste less. If you miss one garbage run, you’re toast.

  56. daddy dave

    So therefore, Matt, while you’re right in principle that local decision making is better than distant central planners, councils in Australia have run amok. How do we solve this problem?

  57. duncan

    Roxon stands behind school chaplaincy program.

    Why be surprised? I think she’s twigged to the ramifications of the decision as much as the next guy.

    Its not that she actually support chaplaincy

  58. C.L.

    Yeah, this is just another version of the nurses-teachers-firemen gambit. (“What do you mean, reduce the size of government? What will happen to all the nurses-teachers-firemen?”

    The cliche du jour is “frontline services,” Dave.

  59. C.L.

    Why be surprised? I think she’s twigged to the ramifications of the decision as much as the next guy.

    Its not that she actually support chaplaincy.

    Right.

  60. Infidel Tiger

    If we reduce government spending how will we fine 40 guys having a bit of fun fishing in a remote bush camp without a licence? How will we pay for grocery watch? How will we send delegates to the Tunisian Lesbian Penis Puppetry Forum?

    Next you will want taxation simplified and lowered.

  61. dismissive

    Bottom line is to restart. And yes it will be close to impossible. But LGAs must be more closely linked to politics that people think matter to them.
    I like a variant of the Soviet Model of election to enforce interest in LGA and improve the candidates.

    So choose (within your state structure) a number of government levels that make sense to manage your local,regional, state operation. You, the voter, vote once for your very local area to elect one candidate. The appropriate grouping become your local council. These then elect one (or more as appropriate) of their number to the next level and so on. You could even sortition at these points.

    So to become Premier of a state you have to be elected to local council thereby improving your candidates.

    This should also allow you to more appropriately partition functions to each level as you are can’t push the blame off to the other level.

  62. Matt

    How do we solve this problem?

    Not by creating a bigger problem – unless you think that distant central planners will be less parasitic on businesses and homeowners, which the evidence to date is scant.

    To use your garbage collection example: Who is likely to be more responsive to community complaints about bin size – state government or local government? I mean, the state governments are the bodies passing the legislation micromanaging recreational fishing but I am sure with garbage collection it will different …

    The problems associated with local government micromanagement will not go away if the state government takes responsibility for those same functions. The only thing that will change will be the micromanagement will take place at a greater distance from the people impacted.

    Planning legislation (inlcuding local town planning instruments etc.) is state government legislation – but enforced by the Council. Remove the Council and the plans still exist.

    The answer – and I do have an answer – is to do a few things:

    1) Tighten the various Local Government Acts to limit the Council’s ability to act outside a relatively restricted remit. Councils should not be permitted to have a position on Jewish settlement in the West Bank, nor should they have the whole gamut of diversity officers, community coordinators etc. Bring them back to the basics of roads, parks, rubbish etc.

    2) Make local government areas smaller, not larger. Large Councils lose touch with constituents and allow for empire building by bureaucrats. It is a bit hard to build an empire in an organisation with a budget of $10m per year, a lot easier when the budget is $400m per year.

    Personally I would like to see decisions on local policing and education made at the local level – as they do in the US – but I don’t think this is likely to fly here.

  63. Sean

    How will we send delegates to the Tunisian Lesbian Penis Puppetry Forum?

    Don’t forget the one-legged-polish-lesbian forum.

  64. val majkus

    yeah! Newman is proposing laws to prevent Qld based unions from donating to the Labor party

  65. Matt

    The Key government in New Zealand is currently undertaking a review of their Local Government arrangements and some it looks worthwhile:

    The broad purpose of the Local Government Act 2002 covering social, economic, cultural, environment well-being is unrealistic. It creates false expectations about what councils can achieve and confusion over the proper roles with respect to central government and private sector.

    The problem is illustrated by councils setting targets for NCEA pass rates, greenhouse gas emission reductions and reduced child abuse in their communities. These are very real and important issues but are not the responsibility of councils

    The role of local government in NZ will be changed as a result.

    The Local Government Act 2002 will be amended to replace references to the ‘social, economic, environmental and cultural well-being of communities’ (the four well beings) with a new purpose for councils of ‘providing good quality local infrastructure, public services and regulatory functions at the least possible cost to households and business.’

    I would suggest that this could be tightened even further.

  66. val majkus

    and if GST is proportionately distributed what happens to Tasmania?
    Just repeating
    Not that today’s decision had any ramification on that point (in my view) but just repeating my comment to John

  67. Infidel Tiger

    and if GST is proportionately distributed what happens to Tasmania?

    They take a time out from molesting their kin and get jobs.

  68. Infidel Tiger

    Personally I would like to see decisions on local policing and education made at the local level – as they do in the US – but I don’t think this is likely to fly here.

    One of the reasons the US is the brokest nation in history is because all those quaint little one horse communities decided to give the police chief, the fire chief, the head of the PTA etc. exorbitant benefits and salaries. Even at a level where everyone knows everyone, politicians and public servants are greedy trough snorting pigs.

  69. Cato the Elder

    Frankly Val, who cares what happens to Tasmania?
    They managed to extort an equal number of senators back at Federation; and since then they have been leeching off everyone else. OK, that happens, everyone has a poor cousin.

    What narks me is that they now use it as a licence to elect Green governments who implement every dip-shit tree hugging piece of bull – and then send the bill to the rest of us!

    FFS, give taxation back to the States as it was before the WWII power grab (“just temporary, to fight the war”) and let the States compete for the most effective model.

    The Greens must be totally destroyed.

  70. daddy dave

    give taxation back to the States as it was before the WWII power grab (“just temporary, to fight the war”) and let the States compete for the most effective model.

    I like the sound of that.
    It would be the easiest – and possibly only – way to solve the GST allocation problem. And its long term effects would be detrimental to the disproportionate power of both Tasmania and the Greens.

  71. Matt

    One of the reasons the US is the brokest nation in history is because all those quaint little one horse communities decided to give the police chief, the fire chief, the head of the PTA etc. exorbitant benefits and salaries. Even at a level where everyone knows everyone, politicians and public servants are greedy trough snorting pigs

    Is it any different at State and Federal level in the US? The state police and the state employed teachers in Wisconsin for example are no better than the locally employed ones. The USPS staff have gold plated benefits as much as any locally employed staff.

    The problem is the culture of entitlement, not the level of government responsible for the function.

  72. hzhousewife

    I have come across robust and various discussion on this topic (modernizing our Federation) repeatedly and under a large number of topics on many blogs I read.
    Someone surely can get an article into MSM to begin what will be a 20 yr process to change things……
    HELP …someone out there….. lets get going in reformatory changes for the better of all of us.

  73. Quentin George

    There’s a problem in that most councils are too small to effectively deliver any service – some rural shires cover huge areas with tiny populations and can’t scrape the cash together to build a single bridge, at the same time as Clover Moore wastes time building bike lanes for inner city Sydney.

    First thing to be done to LGAs has to be to reduce the number of them. It is absurd the number of LGAs in Sydney, for instance. A big city council would be able to kick in the cash required for Sydney infrastructure, allowing the state government to actually focus on NSW as a whole. Then, with the state freed up to take on other things, the federal government’s tentacles could be finally removed from the areas states are supposed to take care of (health, education etc).

  74. val majkus

    and hz keeping in mind that any change to the Constitution what’s your proposal for reformatory changes
    that is what ‘modernizing of the Federation’ would you propose

  75. val majkus

    sorry ‘requires to be passed by referendum’ after Constitution

  76. cohenite

    Apart from the parliamentary constraints on executive power listed by the decision there is also the limitations governing regulations which often put the steel into legislative intent.

    All regulations pursuant to legislation must be tabled in accordance with the requirements of the Acts Interpretation Act 1901 and as amended by the Legislative Instruments Act 2003.

    The effect of these provisions are that any regulation, or as they are known, delegated legislation must be before parliament for 6 sitting days and may be objected to by any member moving amotion to disallow.

    Any regulation which does not undertake this process is considered a nullity.

    Executive action may bypass this procedure only if legislation exists which provides for ministerial discretion.

    The significance of this case is not so much that its ratio concerns an elementary aspect of law making; that is expenditure can only take place after legislation has been enacted pursuant to a Constitutional head of power, but that the boofheads in government did not realise that.

  77. pete m

    The title is misleading and wrong.

    The Court ruled the program as established is constitutionally valid and can be funded, but only with the authority of an Act of Parliament.

    So what was ruled unconstitutional was the executive decision to fund it outside of such Act.

    The title should be:

    “Executive funding without Parliamentary mandate in legislation ruled unconstitutional”.

    The current title is unnecessarily inflammatory.

    And those like the Greens saying just fund counsellors / social workers, not religious backed persons, miss the point that these roles are already covered by school counsellors, teachers and deputies etc. The chaplaincy program funds what the students see as an independent person from the school to be their support /community liason / sounding board.

    It has without question saved lives. I’ve met and heard from the students who speak of this support stopping them from suiciding.

    Once again the Greens would just say – tragedies happen.

    as others have said – they must be crushed.

  78. Sinclair Davidson

    Marty – I understand the original motivation – but that doesn’t detract from the point that a limit on government spending has been established.

  79. First thing I’d do to fix the local council issue is ban party politics at the local government level. No more of this bullshit of people running for local council under a Labor or Greens party platform. Then I’d make the local council vote non-compulsory again and legally limit the remit – parks, gardens, garbage, maintenance. That’s it. You campaign to be allowed to fulfil a pre-ordained set of council responsibilities to the best of your ability, not to bring your personal political agenda to the table.

  80. Quentin George

    perturbed – your idea has merit. Too many councils waste time and money with things like “nuclear free zones” or banning imports from Israel while the actual services they exist to deliver wither.

  81. PSC

    ban party politics

    As a true leftist I’m a big fan of the ban-stick – particularly banning freedom of expression when it comes to politics. Or was that a true centre-right winger and/or libertarian.

    I forget. So easy to confuse the ideologies.

  82. Driftforge

    What narks me is that they now use it as a licence to elect Green governments who implement every dip-shit tree hugging piece of bull – and then send the bill to the rest of us!

    FFS, the biggest problem we have in Tasmania is greenies up on the big island thinking Tasmania is a good place for pet projects. Mostly, we can deal with the ones we’ve got here (current situation aside, only temporary). But the regular usage of Tasmania as a green project dumping ground for federal purposes is crippling over time.

  83. Driftforge

    Local councils – they’re both too big and too small. Too big to really take community input and direction, too small (often) to have the quality of staff and councillors required to run the thing well.

    Then I’d make the local council vote non-compulsory again and legally limit the remit

    Ours is still non-compulsory, but limiting the remit is probably one key change needed.

    Also, limit council debt to what they can borrow from their own ratepayers.

  84. Driftforge

    So.. 16 New states.

    Codes based off ASGS.

    Riverina – 103, 109, 113, 215, 216, 20203, 405, 40701, 40703
    Snowy – 101, 204, 205
    New England – 104, 106, 108, 110, 112, 307
    Greater Sydney

    Goldfields – 201, 20202, 20203, 203,
    Great Ocean Road – 217, 40702
    Greater Melbourne

    Reef Coast – 306, 308, 312, 318, 319
    Greater Brisbane

    Greater Adelaide

    South West 501, 50801, 509

    Outback – 105, 31503, 406, 50803, 50805M, 50806EP, 70201

    NW Shelf – 50802, 50805*, 50806*

    Northern Australia – 31501, 31502, 50804, 701, 70202, 70203, 70204, 70205

    Northern Tasmania – 602, 604
    Green Enclave – 601, 603

  85. wreckage

    Driftforge, that just makes me sad, because I know it will never happen.

  86. Zatara

    How about doing away with the miriad of local councils and have city councils for populated area, and beyond them Counties?

    It’s not like it’s a never been tried idea, nor one that hasn’t passed the test of time…

  87. Entropy

    It’s a terrible idea, Zab. You end up with donut ‘counties’ with the regional centre in the middle. The county ends up little more than a fixer upper of dirt roads with councillors selected from a very small population, whereas all the municipal functions are concentrated in the hole in the donut. Queensland got rid of this system about five years ago.

  88. amortiser

    Many years ago I wrote to Barry Cohen, the Minister responsible for the Arts, asking him to advise me under what clause of the Constitution he was able to spend money on the arts as section 51 made no provision for the Commonwealth to legislate in relation to the arts.

    The bureaucrats are very creative when necessary. What power can you invoke when you don’t have an explicit power? The implied nationhood power!!!! Their own Clayton’s Power.

    To challenge much of this rubbish you have to have “standing” and being a taxpayer is not sufficient.

    This decision opens the way for possible clawback but beware “the implied nationhood power”.

  89. Driftforge

    After a little fiddling, Australia looks like this.

    Looks like this

  90. Cory Olsen

    Doesn’t France have this?

    Doesn’t look so good to me.

    Replacing a few large bureaucracies… with lots of little bureaucracies…just doesn’t seem cost effect.

    How about stripping back LG, and saving some crash. LG services (trash collection, tips, retarded arts festivals) can be privatised and funded by State Gov (if needed at all).

  91. Cory Olsen

    damn auto-spelling.

  92. Driftforge

    The big difference this provides over other changes is that you would get more regionally appropriate legislation. At the moment, legislation is inherently dominated by the needs and mores of the big cities – which is often not great for the regional areas.

    No amount of fuddling around with local government will fix that.

    Another change this would bring about over time is less primacy in the existing large cities. Regional governments will encourage regional development, without leaking public service to the big smoke.

  93. Econocrat

    LOL!

    573. “Benefits to students” provided pursuant to s 51(xxiiiA) must be provided by the Commonwealth[707] to students. Benefits may be provided to students through a third party. The passage from the BMA Case quoted above recognises this. However, care must be taken not to give s 51(xxiiiA) a wider operation than was intended. The power given is to provide benefits to students, not funding to schools. The power to provide benefits to students is not one to assist schools to provide services associated with education which may be of some benefit to students. Moreover, benefits provided to students in reliance on s 51(xxiiiA) must be provided to students as a class. It is clear from the Funding Agreement itself that the chaplaincy services are to be provided not only to students, but to the school’s staff and members of the wider school community. This suggests that there is a wider purpose to the Funding Agreement.

  94. Pingback: Chaplaincy program unconstitutional II at Catallaxy Files

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