GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
GREG COMBET & ANOR PLAINTIFFS
AND
COMMONWEALTH OF AUSTRALIA & ORS DEFENDANTS
Combet v Commonwealth of Australia [2005] HCA 61
Date of order: 29 September 2005 Date of publication of reasons: 21 October 2005 S359/2005
ORDER
The questions stated by the parties in the Special Case for the opinion of the Full Court are answered as follows:
(1) Q. Do the Plaintiffs, or either of them, have standing to seek the relief sought in the Statement of Claim in the Further Amended Writ of Summons?
A.It is unnecessary to answer this question.
(2) Q. If yes to (1), is the withdrawal of money from the Treasury of the Commonwealth to pay for the Government's Advertisements authorised by the Departmental Appropriation?
A.It is not appropriate to answer this question.
(3) Q. If no to (2), have the Plaintiffs established a basis for any, and if so which, of the relief sought in the Amended Statement of Claim?
A.The Plaintiffs have not established a basis for any of the relief sought in the Amended Statement of Claim or the alternative relief foreshadowed at the hearing of the Special Case, namely, declarations concerning payments to meet expenses incurred by the Commonwealth under contracts and arrangements for and in relation to certain past advertisements.
(4)Q. If yes to (3), should any such relief be refused on discretionary grounds?
A.It is unnecessary to answer this question.
(5)Q. Who should pay the costs of the proceedings?
A.The Plaintiffs.
Representation:
S J Gageler SC with J K Kirk for the plaintiffs (instructed by Maurice Blackburn Cashman)
D M J Bennett QC, Solicitor-General of the Commonwealth with S B Lloyd and K J Graham for the defendants (instructed by Australian Government Solicitor)
Intervener:
R J Meadows QC, Solicitor-General for the State of Western Australia with J C Pritchard intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor's Office (Western Australia))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Combet v Commonwealth of Australia
Statutes – Appropriation Act – Construction – Appropriation of moneys from Consolidated Revenue Fund – Expenditure of public money on advertising to provide information about, and promote, the Government's workplace relations reform package – Whether expenditure authorised by an appropriation made by law – Construction of Appropriation Act (No 1) 2005-2006 (Cth) – Whether expenditure falls within Outcome 2, "Higher productivity, higher pay workplaces", of the Department of Employment and Workplace Relations – Whether amounts issued out of Consolidated Revenue Fund for "departmental items" and for "administered items" tied to "outcomes".
Constitutional law (Cth) – Appropriation of moneys from Consolidated Revenue Fund – Standing to bring action for declarations and injunctions – Standing of Member of House of Representatives and Shadow Attorney-General – Standing of Secretary of peak union body – Justiciability of proceedings – Whether proceedings present a…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Combet v The Commonwealth [2005] HCA 61
Case
[2005] HCA 61
Decision Date
CaseChat Overview and Summary
The case of *Combet v The Commonwealth* involved a dispute brought before the High Court of Australia by Mr. Combet, a Member of the House of Representatives and Shadow Attorney-General, and Mr. Smith, the Secretary of the Australian Council of Trade Unions (ACTU). The plaintiffs sought declarations and injunctions to restrain the Commonwealth from expending public funds on advertising promoting the Government's workplace relations reform package, alleging the expenditure was not authorised by the Appropriation Act (No 1) 2005-2006 (Cth).
The central legal issues before the Court were whether the expenditure on the advertisements was authorised by the Appropriation Act (No 1) 2005-2006, specifically whether it fell within the defined "Outcome 2" of the Department of Employment and Workplace Relations, and whether the plaintiffs possessed the requisite standing to bring the action. The Court was also asked to consider the justiciability of the proceedings and whether any relief sought should be refused on discretionary grounds.
The Court, in answering the questions posed in the Special Case, ultimately determined that it was not appropriate to answer the questions regarding the authorisation of the expenditure or the basis for relief. The Court found that the plaintiffs had not established a basis for any of the relief sought, including declarations concerning payments for past advertisements. Consequently, the Court ordered that the plaintiffs pay the costs of the proceedings.
Orders
Orders of the court
The questions stated by the parties in the Special Case for the opinion of the Full Court are answered as follows:
(1) Q. Do the Plaintiffs, or either of them, have standing to seek the relief sought in the Statement of Claim in the Further Amended Writ of Summons?
A. It is unnecessary to answer this question.
(2) Q. If yes to (1), is the withdrawal of money from the Treasury of the Commonwealth to pay for the Government's Advertisements authorised by the Departmental Appropriation?
A. It is not appropriate to answer this question.
(3) Q. If no to (2), have the Plaintiffs established a basis for any, and if so which, of the relief sought in the Amended Statement of Claim?
A. The Plaintiffs have not established a basis for any of the relief sought in the Amended Statement of Claim or the alternative relief foreshadowed at the hearing of the Special Case, namely, declarations concerning payments to meet expenses incurred by the Commonwealth under contracts and arrangements for and in relation to certain past advertisements.
(4) Q. If yes to (3), should any such relief be refused on discretionary grounds?
A. It is unnecessary to answer this question.
(5) Q. Who should pay the costs of the proceedings?
A. The Plaintiffs.
Background
Background to the litigation
In my opinion, Act No 1 did not authorise expenditure on this advertising. The defendants contend that it did so because the Act authorised expenditure by the Department of Employment and Workplace Relations on advertising that could reasonably result in higher productivity or higher pay in Australian workplaces. However, the defendants tendered no expert evidence that these advertisements might achieve either result and, after examining them, I can see no rational connection between the advertisements and higher productivity or higher pay. The advertisements provide no information, instruction, encouragement or exhortation that could lead to higher productivity or higher pay. The joint judgment of Gummow, Hayne, Callinan and Heydon JJ asserts, despite the contention of the defendants, that it is not necessary that the expenditure be conducive to achieving higher productivity or higher pay or any outcome specified in Act No 1. For the reasons set out in this judgment, however, that assertion cannot be accepted. Not only is it contrary to what was common ground between the plaintiffs and the defendants but it is contrary to the language of Act No 1, the parliamentary practice, the parliamentary documents that explain the operation of Act No 1 and the understanding of all members of the Parliament. I venture to think that the joint judgment places a construction on Act No 1 that will surprise all members of the Parliament irrespective of party or ideology. It follows that Act No 1 did not authorise the expenditure of the moneys of the Commonwealth on the advertisements. A declaration to that effect should be made and the defendants should be restrained by injunction from spending the moneys of the Commonwealth on advertisements in the form or to the effect of those already published. The material facts In May 2005, the Prime Minister informed the House of Representatives[9] that the federal government intended to legislate to reform workplace relations in Australia by introducing a unified national system. The Prime Minister gave no details of how this would be achieved. When this Court heard argument in the present proceedings, no legislation had been introduced into either House of Parliament to give effect to the proposed changes. [9]Australia, House of Representatives, Parliamentary Debates (Hansard), 26 May 2005 at 38-43. In the weeks after the Prime Minister's announcement, the Australian Council of Trade Unions ("the ACTU") began a campaign opposing the proposed reforms. The campaign included rallies and marches and extensive television advertising. On and after 9 July 2005, the first defendant, the Commonwealth, responded to this campaign by publishing advertisements in newspapers in all States and Territories. On and after 23 July 2005, the first defendant also responded to the campaign of the ACTU by broadcasting advertisements on commercial radio stations. As at 15 August 2005, the first defendant had entered into contracts for advertising and related services with a value of at least $3.84 million. The cost of the advertising has been or will be met from public funds drawn from the Treasury of the Commonwealth. Unless restrained by this Court, the first defendant proposes to use funds of the Commonwealth to pay for advertisements concerning its industrial relations package.