Richard Ackland’s piece in the SMH 27/06/08 : High Court ponders World Youth Day largesse.

June 30, 2008 at 2:15 am (Uncategorized) (, , , , , )

 

High Court ponders World Youth Day largesse

Richard Ackland           Sydney Morning Herald     27/06/08

Five days before the last federal election John Howard dipped with desperation into his grab bag of tricks and came up with $22 million of Commonwealth money for World Youth Day – the Catholic Church’s proselytising and marketing extravaganza to be held in this city next month.

Is that expenditure in breach of the constitution? The issue has hurriedly come before the High Court. It has had a couple of rounds already, and is on again this morning.

The applicant is Carmelo Vescio, a non-practising Catholic. When he heard about this money being splashed around in an effort to woo the vote of wavering Catholics he immediately contacted the relevant minister in Canberra, Peter McGauran (Xavier College, Melbourne), to ask, “On what basis are you doing this?”

He received no reply. Howard and his staff also refused to respond. Appropriate ministers in the current government have not replied.

On March 20, Vescio filed a writ of summons in the High Court seeking to challenge the expenditure as offending section 116 of the constitution, which says: “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as qualification for any office or public trust under the Commonwealth.”

These funds for World Youth Day will be appropriated by legislation. Of course it is not the only money for the event. The NSW Government is ladling another $86 million, Telstra is stumping up a heap of sponsorship money, and if you look up the World Youth Day shop on the internet you can see the dazzling array of merchandise, or “religious products”, that can be ordered with your credit card.

Does section 116 get in the way of Howard’s political bribe? The High Court has shown reluctance to get involved, except for Justice Michael Kirby (Fort Street High).

When the writ arrived the Chief Justice, Murray Gleeson (St Joseph’s, Hunters Hill) refused to accept it. He directed the court registrar to decline to issue the proceedings without the leave of a judge.

Vescio and his lawyers then sought leave from Justice Susan Crennan (Our Lady of Mercy, Heidelberg). She refused it, saying the documents were “confusing, prolix and embarrassing”. She added that the complaints “are political in nature”, presumably unlike Howard’s largesse.

So it came on before Kirby last Friday. Time is of the essence because Vescio wants the money stopped before it is all gobbled up in the frenzy of papal excitement.

Five days before the last federal election John Howard dipped with desperation into his grab bag of tricks and came up with $22 million of Commonwealth money for World Youth Day – the Catholic Church’s proselytising and marketing extravaganza to be held in this city next month.

Is that expenditure in breach of the constitution? The issue has hurriedly come before the High Court. It has had a couple of rounds already, and is on again this morning.

The applicant is Carmelo Vescio, a non-practising Catholic. When he heard about this money being splashed around in an effort to woo the vote of wavering Catholics he immediately contacted the relevant minister in Canberra, Peter McGauran (Xavier College, Melbourne), to ask, “On what basis are you doing this?”

He received no reply. Howard and his staff also refused to respond. Appropriate ministers in the current government have not replied.

On March 20, Vescio filed a writ of summons in the High Court seeking to challenge the expenditure as offending section 116 of the constitution, which says: “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as qualification for any office or public trust under the Commonwealth.”

These funds for World Youth Day will be appropriated by legislation. Of course it is not the only money for the event. The NSW Government is ladling another $86 million, Telstra is stumping up a heap of sponsorship money, and if you look up the World Youth Day shop on the internet you can see the dazzling array of merchandise, or “religious products”, that can be ordered with your credit card.

Does section 116 get in the way of Howard’s political bribe? The High Court has shown reluctance to get involved, except for Justice Michael Kirby (Fort Street High).

When the writ arrived the Chief Justice, Murray Gleeson (St Joseph’s, Hunters Hill) refused to accept it. He directed the court registrar to decline to issue the proceedings without the leave of a judge.

Vescio and his lawyers then sought leave from Justice Susan Crennan (Our Lady of Mercy, Heidelberg). She refused it, saying the documents were “confusing, prolix and embarrassing”. She added that the complaints “are political in nature”, presumably unlike Howard’s largesse.

So it came on before Kirby last Friday. Time is of the essence because Vescio wants the money stopped before it is all gobbled up in the frenzy of papal excitement.

Kirby was not actually hearing an appeal from Crennan. He was only deciding whether the application for leave to issue the summons was reasonably arguable.

The appeal from Crennan is on this morning before a full court. In breathing life into the case and saying it should be expedited, Kirby said: “If there is some defect in the applicant’s process it is sometimes appropriate to endeavour to cure that defect, rather than to prevent the person having one of the most fundamental rights that exists in a society governed by the rule of law, which is access to the courts.”

How’s that for a swipe? It got better: “The reference by Justice Crennan to the fact that the complaints of the applicant are ‘political in nature’ does not necessarily render them insusceptible to consideration against the standards set by the Constitution.”

The hurdles that have to be leapt by Vescio’s legal team include earlier decisions of the court on giving money to church schools, the Greg Combet case (Work Choices advertising) where “appropriation for the purposes of the Commonwealth” was considered, and also the various decisions on an individual’s “standing” to challenge the constitutionality of a law.

As Kirby said, it is all “arguable”.

And some of the arguments have already emerged. The applicant says he is personally affected by being excluded from Royal Randwick as a racegoer during the papal mass. He’s also excluded from certain streets and “airwaves”.

Counsel for the applicant, Peter King (Sydney Church of England Grammar School), said that during World Youth Day (ie. a week) people who go to Randwick are excluded from practising any other religion except Catholicism. This amounts to an “interference” in religious observance – sponsored by the state.

The particulars asserted before the court say that that the papal mass is a religious observance and so it must be taken as correct that “it excludes participation by persons who profess other faiths and religions”.

We will see how it fares today. If Vescio is not successful in his leave appeal then he can join the NoToPope brigade and hand out condoms to the worshipful “pilgrims” flocking to the holy of holies – Randwick racecourse.

justinian@lawpress.com.au

 

Kirby was not actually hearing an appeal from Crennan. He was only deciding whether the application for leave to issue the summons was reasonably arguable.

The appeal from Crennan is on this morning before a full court. In breathing life into the case and saying it should be expedited, Kirby said: “If there is some defect in the applicant’s process it is sometimes appropriate to endeavour to cure that defect, rather than to prevent the person having one of the most fundamental rights that exists in a society governed by the rule of law, which is access to the courts.”

How’s that for a swipe? It got better: “The reference by Justice Crennan to the fact that the complaints of the applicant are ‘political in nature’ does not necessarily render them insusceptible to consideration against the standards set by the Constitution.”

The hurdles that have to be leapt by Vescio’s legal team include earlier decisions of the court on giving money to church schools, the Greg Combet case (Work Choices advertising) where “appropriation for the purposes of the Commonwealth” was considered, and also the various decisions on an individual’s “standing” to challenge the constitutionality of a law.

As Kirby said, it is all “arguable”.

And some of the arguments have already emerged. The applicant says he is personally affected by being excluded from Royal Randwick as a racegoer during the papal mass. He’s also excluded from certain streets and “airwaves”.

Counsel for the applicant, Peter King (Sydney Church of England Grammar School), said that during World Youth Day (ie. a week) people who go to Randwick are excluded from practising any other religion except Catholicism. This amounts to an “interference” in religious observance – sponsored by the state.

The particulars asserted before the court say that that the papal mass is a religious observance and so it must be taken as correct that “it excludes participation by persons who profess other faiths and religions”.

We will see how it fares today. If Vescio is not successful in his leave appeal then he can join the NoToPope brigade and hand out condoms to the worshipful “pilgrims” flocking to the holy of holies – Randwick racecourse.

justinian@lawpress.com.au

————————————————————————————

 

As a practising Catholic (St Ignatius’ College, Riverview), I found much to agree with Richard Ackland’s piece in the SMH 27/06/08 : High Court ponders World Youth Day largesse.

 

Many Australians, I’m sure, would be less than impressed with tax payers’ money going directly to promote a religious function. The Church in any secular society is always ill-advised if it needlessly antagonizes people in seeking privileged treatment from the authorities at the expense of others. The dispute with the racing fraternity about  Randwick Racecourse being used for a Papal Mass is a point in question. Surely there is ample church property in and around Sydney where this event could take place; the grounds of my old school, Riverview readily come to mind. The citizens of this country may be favourably disposed towards World Youth Day but many may not want to have to pay for it or be disadvantaged by it.

 

David Wall

152 Wilson Street

Newtown 2042 NSW

Phone: 02 95505053

 

 

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