Responsible Government,Federalism and the School Chaplaincy Case

Williams v Commonwealth [2012] HCA 23, (‘Williams’).

Scripture Union, ‘Working Principles’: See <http://www.scriptureunion.org.au>.

Williams George , Human Rights under the Australian Constitution (OUP, 1999) 128.

Notoriously difficult questions, long subject to speculation: eg Saunders Cheryl , ‘The Development of the Commonwealth Spending Power’ (1978) 11 MULR 369.

Pape v Commissioner of Taxation [2009] HCA 23, (‘Pape’)

Ibid ( Gummow Crennan and Bell JJ ) [228].

Davis v Commonwealth [1988] HCA 63, (‘Davis’). Although the power extends only to reasonable incidents (here, establishing a Bicentennial Authority and its symbols, but not to control everyday expressions like ‘Sydney 1988’). Similarly, a power to give benefits may not extend to erect a broader scheme of regulation: A-G (Vic); ex rel Dale v Commonwealth (Pharmaceutical Benefits Case) [1945] HCA 30.

Pape [2009] HCA 23, ( French CJ ) [8]-[9]. Emphasis added.

Williams [2012] HCA 23, ( Gummow and Bell JJ ) [146].

Ibid ( Hayne J ) [204].

Brazil Patrick and Mitchell Bevan , (eds), Opinions of Attorneys-General of the Commonwealth of Australia, Volume 1: 1901–14 (AGPS, 1981) 129, 131–132.

Australian Constitution s 51(xxiiiA).

Williams [2012] HCA 23, ( Hayne J and Kiefel J ).

Ibid ( French CJ ) [1].

New South Wales v Commonwealth [2006] HCA 52, (‘WorkChoices Case’).

Craven Greg , ‘Struggle ahead for the States’, The Australian (Sydney), 16 November 2006.

WorkChoices Case [2006] HCA 52, ( Callinan J ) [779].

Davis [1988] HCA 63, ( Brennan J ) [13].

Ibid ( Mason CJ Deane and Gaudron JJ ) [14].

Williams [2012] HCA 23, ( Gummow and Bell JJ ) [145].

Ibid ( French CJ ) [60].

Combet v Commonwealth [2005] HCA 61: For critique see Orr Graeme , ‘Government Advertising: Parliament and Political Equality’ (2005) 46 Papers on Parliament 1, 12–15.

Discussed in Williams [2012] HCA 23, ( French CJ ) [68]–[69].

Twomey Anne , ‘Bringing down the House? Keeping school chaplains means a surrender to the Executive’, The Conversation (27 June 2012) <http://theconversation.edu.au/bringing-down-the-house-keeping-school-chaplains-means-a-surrender-to-the-executive-7926>.

There is also the question of whether charitable bodies like Scripture Union are ‘trading’ corporations.

Unless the States are just conduits for the money: compare the Schools Assistance Act 2008 (Cth) governing Commonwealth funding of private schools.

Fenna Alan , ‘Commonwealth Fiscal Power and Australian Federalism’ (2008) 31 UNSWLJ 509, 515.

In the 2000s, approximately 45 per cent of state revenue was from Commonwealth sources; in the 1940s and again in the late 1970s that figure was between 44 and 65 per cent, Australian Government, Australia's Future Tax System: Architecture of Australia's Tax and Transfer System (Department of Treasury, 6/8/2008) Section 10, Chart 10.5. Currently the figure is about 50 per cent, just under half via tied grants.

Ha v New South Wales [1997] HCA 34. Invalidating state tobacco and petrol licence fees as excises on production. State taxes on intangibles, especially gambling revenue, remain.

Compare Williams George and Pillai Sangeetha , ‘Commonwealth Power over Higher Education’ (2011) 30 UQLJ 287.

As occurred in earlier decades under the various States Grants (Universities) Acts. We say ‘may be’, not because we think Commonwealth direct funding of universities is constitutional after these two cases, but because there may be no-one with standing who would want to upset this apple-cart.

Cohn Margit , ‘Medieval Chains, Invisible Inks: On Non-Statutory Powers of the Executive’ (2005) 25 Oxford Journal of Legal Studies 97, 100–101.

Ex-Christmas Islander Association Inc v A-G (Cth) [2005] FCA.

Australian Constitution s 75 (formerly known as prerogative writs).