Page 5016 - Week 16 - Tuesday, 26 November 1991
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In one sense, at a very superficial level, it is, of course, quite unfair and unreasonable that a pupil in a government school should receive something like five times the amount that a pupil in a non-government school receives. But that is only a very superficial and shallow interpretation of what "fair and reasonable" would mean. If one were to take it to another depth, one would, of course, understand the history of government funding of non-government education or would take into account a whole range of factors. How many one would take into account is not a matter that is terribly clear to me. This is the point in respect of my concern about this proposal: I do not know what would be considered fair and reasonable by a court, and I think that I, as a legislator prepared to consider this amendment and pass it into law, ought to know what would be considered fair and reasonable by a court.
What test are we putting in place here? Is this a requirement which we as politicians, we as legislators, would wish to see in place with respect to the conduct of government in the funding of different aspects of education? I cannot answer that question. I am not sufficiently au fait with the current interpretation of "fair" or "reasonable" in the legal lexicon to be able to answer that question. I do not think anybody here could. Even if that were the case, I would, of course, have to subject that to changes in interpretation by the courts from time to time. So, because of that uncertainty about this provision, I cannot support that aspect of the amendment.
I also think that the Attorney, Mr Connolly, is right to suggest that this, in fact, involves the legislature surrendering to the courts its responsibilities. We would be having the courts second-guess decisions that governments, in particular, make. And we would seem, in that sense, to be asking the courts to do what we ourselves cannot; that is, make decisions about what is fair and reasonable in respect of the funding of these things. I do not believe that that is a role that should be played by the court. I know that, if I were Minister for Education, I would greatly resent having a court second-guess allocations on a very political basis between different areas of education.
I think also that it is reasonable to talk about what the non-government school community would expect in these circumstances. I have discussed it with representatives of the non-government education sector. They indicated to me that they have concerns about the proposal and would not wish at this stage to support it. I have also discussed other options with them from time to time, including the whole question of opposing the Appropriation Bill or amending it on the basis of this concern. They have very sensibly agreed that that is not a desirable thing for politicians in this place to be doing. They deserve some credit for their good sense in that regard.
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