What now after Williams?

What began as a court case about the funding of chaplains in Queensland government schools has the potential to reshape state and Commonwealth relations…

Speaking at a recent event organised by IPAA Victoria and DPC, Professor of Constitutional Law Anne Twomey explored the implications of the recent High Court decision in Williams v Commonwealth.

Ironically the initial basis of the case, which was that the funding of school chaplaincy programs was in breach of a notional separation of Church and State, was dismissed by the High Court.

However, the Court ruled against the chaplaincy program for quite a different reason, which related to Commonwealth’s power to fund activities without supporting legislation. In response, the Commonwealth moved quickly to pass legislation giving authority to the Executive to make, vary or administer any arrangement by which public money is paid out by the Commonwealth.

However, in the long run, Professor Twomey argued, it may be that the Williams decision will deeply affect Commonwealth/State relations given the range of complex funding agreements that now exist between different levels of Australian government.

Professor Twomey noted that, broadly speaking, the Williams case was a serious loss for the Commonwealth and that it builds a stronger argument that the Commonwealth cannot now simply spend on whatever it wants.

She noted that much of the previous thinking about the about the power of Canberra had been based on the idea of the nationhood power of the Commonwealth. It was “nationhood” power that had previously been used by the High Court to justify financial benefits paid out during the height of the global financial crisis and that had been challenged in the Pape v Commonwealth case. Professor Twomey noted that the new decision in Williams had now significantly limited this nationhood power, as well as the executive powers of the Commonwealth government more broadly

One important outcome of this limitation could be that the High Court might now view the Commonwealth’s use of funding agreements with state governments to be “coercive”. Many state governments have claimed that the reluctance of Canberra to engage in real negotiations in the creation of funding agreements in areas like education, effectively does makes them coercive.

In essence, Professor Williams concluded, the Williams case could herald a new era of federalism in Australia, with greater negotiating power moving back to the states and with greater demands for Commonwealth parliamentary scrutiny on the spending of taxpayer dollars.


A copy of Professor Twomey's presentation and her responses to the unanswered questions from the seminar are linked below.


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