High Court challenge could derail chaplain program, pork barrelling

Billions of dollars worth of federal government programs – including "pork barrel" spending on community centres, pools and sporting grounds – could be ruled unconstitutional in a High Court case to begin in Canberra on Tuesday.

The case has been launched by Toowoomba jazz singer and father-of-six Ron Williams, who won a 2012 High Court case challenging the legitimacy of the federal government’s school chaplaincy program. Legal experts say another victory for Mr Williams could throw up to 10 per cent of Commonwealth spending into doubt and reverse the trend towards centralised power in Canberra.

"This is a very big federalism case and will be important for years to come – it goes far beyond the school chaplaincy program," University of Sydney constitutional law professor Anne Twomey said.

"This goes to the Commonwealth’s ability to fund all sorts of programs where they don’t have the legislative power to do so."

University of NSW law professor George Williams said: "What’s under challenge is the Commonwealth’s ability to give money to whomever it wants, whenever it wants. It’s hard to overplay the significance of this case. This goes to the very structure of how we are governed."

Professor Williams (no relation to Mr Williams) said the most likely outcome was the Commonwealth would lose the case.

Mr Williams, a passionate secularist, won his previous battle against the chaplaincy program when the High Court justices voted six to one that it exceeded the Commonwealth’s spending powers.

Days later, the Gillard government rushed through new legislation to ensure the program and more than 400 other funding arrangements – including drought assistance and counter-terrorism exercises – could continue.

Mr Williams’ latest case challenges the constitutional validity of this law.

The defendants in the case – to be heard on Tuesday through to Thursday – include the federal government and Scripture Union Queensland, which provides the chaplains at the school where Mr Williams’ children attend. States including NSW and Victoria have made submissions backing the High Court’s original ruling.

Professor Twomey said the High Court had been willing to curtail the Commonwealth’s power in several recent cases. "If the High Court forces governments to legislate these programs, it will make Commonwealth spending more efficient, better targeted and subject to more scrutiny," she said.

Scripture Union Queensland chief executive Peter James said the defendants have a strong case based on the federal government’s "corporations power" and right to legislate in the interests of students. A spokesman for Attorney-General George Brandis declined to comment.

The Commission of Audit last week recommended the $222 million school chaplaincy program, due to expire this year, should be abolished. But the Coalition promised to continue it before the last federal election.

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