Wilkie & Ors v The Commonwealth of Australia & Ors; Australian Marriage Equality Ltd & Anor v Minister for Finance Mathias Cormann & Anor

[2017] HCATrans 175

[2017] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M105 of 2017

B e t w e e n -

ANDREW DAMIEN WILKIE

First Plaintiff

FELICITY JENNIFER MARLOWE

Second Plaintiff

PFLAG BRISBANE INC

Third Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR FINANCE

Second Defendant

TREASURER

Third Defendant

AUSTRALIAN STATISTICIAN

Fourth Defendant

ELECTORAL COMMISSIONER

Fifth Defendant

Office of the Registry
  Melbourne  No M106 of 2017

B e t w e e n -

AUSTRALIAN MARRIAGE EQUALITY LTD

First Plaintiff

SENATOR JANET RICE

Second Plaintiff

and

MINISTER FOR FINANCE MATHIAS CORMANN

First Defendant

AUSTRALIAN STATISTICIAN

Second Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 6 SEPTEMBER 2017, AT 10.22 AM

(Continued from 5/9/17)

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   Yes, Ms Foley.

MS FOLEY:   If the Court pleases.  Before the Solicitor‑General rises, we have circulated a note in response to Justice Gordon’s question yesterday in relation to the 1908 yearbook.  I will not address your Honours in relation to that.  I would note that we have included in the note some information in relation to something we came across as we were researching the yearbook and that is that there was a proposal put in Victoria in 1900 to the Parliament to add questions to the census and the questions were directed to whether or not persons responding to the census were in favour of women’s suffrage.  Those proposals were rejected.  We have included relevant Hansard for the Court’s consideration together with the note.

KIEFEL CJ:   Thank you, Ms Foley.  Yes, Mr Solicitor.

MR DONAGHUE:   Your Honours, it is useful, in my submission, to identify at the outset how the claims in these two proceedings stick together.  In the Wilkie proceeding, one part of the challenge, as your Honours have heard, is to the direction that was given by the Treasurer under section 9 of the Census and Statistics Act which I will call the Statistics Act.  Plainly enough, if that part of the Wilkie proceeding were to succeed, then in light of the grounds upon which that challenge is advanced the effect would be that the survey proposed to be carried out by the Statistician in the Australian Bureau of Statistics would not be able to proceed.  So, it is reasonably easy to see that relief in respect of that part of the case would have utility. 

The difficulty, we submit, with respect to our friends, is that the grounds upon which that claim is advanced are extremely weak.  While I will develop this, of course, in summary, they are weak because first the claim confronts very considerable standing difficulties in that it essentially requires the conclusion that the receipt in the mail of a piece of paper that the person is free to throw away, is under no obligation to complete and receives in common with 16 million other people is enough to generate a special interest. 

If that hurdle can be overcome then, as a matter of substance, the Court depends on acceptance of one of two arguments as we understand it, one, that the collection of information about opinions is not statistics because even though the ordinary meaning of the word “statistics” would include information about collection – the collection of information about opinions, the word should be understood by reference to governmental practice in 1900. 

That is one limb or the other limb is the proposition that if what is to occur can be characterised as a vote that, for some reason, means that it cannot also be characterised as the collection of statistical information.  In our submission, both of those arguments are very weak so that if they are reached your Honours should dismiss that part of the case and it is perhaps not surprising in light of those hurdles that the plaintiffs in the AME proceedings chose not even to advance an attack on the statistics direction.

If that part of the Wilkie proceedings fails then the premise is that there is a valid direction to the Statistician requiring the Statistician to collect the information set out in that direction.  Against that backdrop, one then comes to the question about money, the money to be used to pay for the discharge of that statutory function. 

That part of the case, as your Honours have heard yesterday, principally involves a challenge to the determination made by the Finance Minister under section 10(2) of the relevant – the 2017/18 Appropriation Act, to add an additional $122 million to the departmental item to be used by the ABS in the discharge of its departmental expenditure.  

Now, that part of the case, we submit, with respect, is a little difficult to understand because it is not, as your Honours will appreciate, a challenge to the power to spend.  It is not a challenge of the case of the kind considered by this Court in the two Williams matters.  If it were a challenge of that kind then obviously there would not be any problem in respect of justiciability or the existence of a matter and we do not suggest otherwise. 

But, in our submission, the plaintiffs in both proceedings have correctly accepted or proceeded on the basis that the ABS does have the statutory power to expend funds in the discharge of its statutory functions.  The challenge that they advance is directed, not to the existence of power to spend à la Williams but to the validity of the anterior step of the parliamentary appropriation of funds and, having been directed in that way, the challenge encounters the considerable obstacle, in our submission, that it is settled that an appropriation of funds has no effect on private rights or interests.

GAGELER J:   Well, it has an effect on section 83 of the Constitution.

MR DONAGHUE:   It does.

GAGELER J:   And their case is at root founded on the proposition that section 83 prohibits the drawing and expenditure and therefore expenditure of unappropriated funds and these funds have not been appropriated.

MR DONAGHUE:   Your Honour, if I could defer my answer to that question for only five minutes ‑ ‑ ‑

GAGELER J:   Of course.

MR DONAGHUE: ‑ ‑ ‑ or so because that is the first part of the case I am going to come to, but in effect the question is does compliance with section 81 and 83 give rise to a justiciable controversy as to the power to spend funds and our submission is it does not. Those two provisions are directed to parliamentary control of the Executive but they are matters that are internal to the Commonwealth, not directed to the interface or the interaction between the Commonwealth and a private citizen.

GAGELER J:   And you will address us on the Auckland Harbour Board doctrine in that context?

MR DONAGHUE:   Well, I was not proposing to directly do so.  I understand the relevance of the Auckland Harbour Board doctrine to that but I was principally going to direct your Honours to AAP in that context but I will come to it very shortly.  Our submission is that as far as we have been able to ascertain, there is no case where private plaintiffs have been held to have standing to challenge the validity of an appropriation, which is effectively what is happening in this Court now and so plaintiffs in that respect are seeking to break new ground. 

But there is then the additional difficulty that even if that obstacle can be overcome and even if the arguments your Honours have heard about urgency and unforeseen in section 10 were to be decided against the Commonwealth – and I will submit that they should not be for reasons I will develop – one is still left with the problem that a challenge to the determination, the advance, says nothing about the use of the $348 million that was appropriated to the ABS for use in departmental expenditure by that body.

So that if it be the case that the discharge of the statutory functions of the ABS falls within the departmental item, and we submit that it clearly does, then in circumstances where by hypothesis the challenge that a direction has failed and so there is a duty on the ABS to carry out the survey, one is left wondering why the ABS cannot, and indeed is not required, to continue to carry out the survey and to use the funds that have been appropriated to it by Parliament in Schedule 1 of the Act.  That would be the position, we submit, unless the government were to choose – or the Treasurer were to choose to revoke the direction if the advance were to fall.

Now, the only part of the case that is directed to that $348 million is question 4(b) in the AME proceeding which was touched on right at the end of the hearing yesterday and that part of the case involves the, we respectfully submit, ambitious proposition that there is a justiciable limit identified by reference to the words “the ordinary annual services of the government” that notwithstanding the terms of the Appropriation Act involves an overlay of judicial inquiry as to, as we understand the argument, has the ABS done something like this before, and if it has not done something like this before then the activity is said to be outside the ordinary annual services of government and therefore outside the appropriation, even if the language of the appropriation is not expressed in terms that direct attention to that concept at all.  That again is novel, we submit is weak, and unless that part of the case fails then nothing that is put on the financial side of the case deals with the question of whether or not the survey can proceed.  The attack on the determination itself does not intercept with that issue. 

Now, I propose to work through those issues in the orders that your Honour has seen in the outline that we have handed up.  We do not propose to address the two cases separately even though there are some issues that arise only in respect of one, so that is a single outline that applies to both proceedings.  For that reason, we took the liberty of slightly exceeding the three pages.  I trust that the Court will excuse that liberty.

Can I start with standing or, perhaps more precisely, with the matter question.  As this Court has emphasised now over a considerable period of time, when in federal jurisdiction, as obviously we are, the standing requirement is subsumed within the constitutional requirement that there be a matter.  Your Honour said that in Pape, particularly in the joint judgment of Justices Gummow, Crennan and Bell. I will not take your Honours to it. The reference is (2009) 238 CLR 1. The relevant passage is at 152.

More recently in Kuczborski, which I will come to shortly, Chief Justice French said that:

The question of standing converges upon the constitutional question of jurisdiction and is appropriately determined at the outset.

In the same case your Honour Justice Bell, at 278, collected the authorities, referring to the requirement that there has to be:

a real controversy about an immediate right, duty or liability of the plaintiff ‑

As I have said in summarising in opening, this is not a submission that a dispute about executive spending does not give rise to a matter.  This particular submission I am now advancing focuses on the fact that the challenge is to that anterior appropriation step.

In the Wilkie matter – again, your Honours do not need to go to it – it is accepted in the reply, at paragraph 2, that the Wilkie plaintiffs are challenging an appropriation, so there is no debate between us about that.  By contrast, in the AME proceeding, the AME plaintiffs do deny that they are challenging an appropriation and they seek to characterise their case as a challenge to executive action taken under section 10.  They make the submission that they are seeking to uphold the appropriation rather than to challenge it.

That appears to echo a submission perhaps more appropriately made in Combet’s Case, where the argument was about whether or not the particular spending was within the appropriation.  It does not fit very nicely with a case where there is actually an attack on the determination, the sole effect of which, if valid, is to increase the departmental item by $122 million.  We submit that as a matter of substance there is no doubt that the AME proceeding is challenging the deemed amendment of the appropriation.  That determination is of course a legislative instrument so it does not fit terribly well with the suggestion that what is being challenged is executive action and so we submit that the Wilkie plaintiffs were correct in acknowledging the character of the case.  That takes one immediately to the question:  can one challenge an appropriation in that way?

To address that, can I ask your Honours to go to the AAP Case (1975) 134 CLR 338. It is in the joint bundle at tab 35. If your Honours could go first to the judgment of Justice Jacobs at page 410. There is a long paragraph at the bottom of page 410. A little above halfway down that paragraph there is a sentence that begins:

In my opinion the appropriation by the Commonwealth Parliament of moneys of the Commonwealth to the purposes stated in the Appropriation Act cannot by itself be the subject of legal challenge. The appropriation is a matter internal to the Government of the Commonwealth. It may not make valid anything which cannot be validated. That depends on the breadth of the Commonwealth power of appropriation and expenditure expressed in s. 81 ‑

So his Honour takes a wide view about section 81 but his Honour then says:

However, even when those words are given a limited meaning it does not follow that the Appropriation Act or any part thereof can be declared invalid.  The appropriation is no more than an earmarking of the money, which remains the property of the Commonwealth.  All it does is to disclose that the Parliament assents to the expenditure of the moneys appropriated for the purposes stated in the appropriation. 

That passage at the top of page 411 about earmarking and all it does was picked up ‑ I am going to come back to stay with AAP, but if your Honours could just briefly go to Pape, which is tab 61 in the joint bundle.  That passage was picked up in the joint judgment of Justices Gummow, Crennan and Bell, at paragraph 177 on page 73.  At the top of page 73 in 177:

There is, as Mason J indicated in . . . AAP –

I will come to the passage:

no analogy between the validity of legislation and the validity of expenditure.  Jacobs J, with respect, correctly said of an appropriation that it “is no more than an earmarking of the money, which remains the property of the Commonwealth” ‑

There is then a quotation with approval from Justice Stephen, again which I am about to come to, but the second of those passages which is approved, an Appropriation Act:

is an Act which, while a necessary precondition to lawful disbursement of money by the Treasury, is not in any way directed to the citizens of the Commonwealth; it does not speak in the language of regulation, it neither confers rights or privileges nor imposes duties or obligations.

KIEFEL CJ:   Does this though answer the question whether or not ‑ your point is that there can be no challenge to an Appropriation Act as such but does it answer the question whether or not there can be a challenge to a provision appearing within an Appropriation Act which does not have that character?

MR DONAGHUE:   Well, your Honour, in my submission, we do not have a provision of that kind.  Justice Jacobs’ remarks are directed to an Appropriation Act or part thereof and my submission is that what we are concerned with in this case is the ‑ and I need to come to how we characterise it, but we are essentially concerned with a challenge to a set of provisions, the effect of which was to appropriate $122 million.

KIEFEL CJ:   I thought it was more particularly to section 10.

MR DONAGHUE:   Well, there is a challenge to the validity of the whole of section 10 but insofar as there is a challenge to the determination, the specific determination, all that does is appropriate, in combination we say ‑ the determination in combination with section 12, all it does is appropriate funds.

KIEFEL CJ:   I thought it was also part of your submission that section 10 had the effect of authorising expenditure ‑ ‑ ‑

MR DONAGHUE:   No.

KIEFEL CJ:   ‑ ‑ ‑ the appropriation takes effect under section 12.

MR DONAGHUE:   The appropriation takes effect by virtue of section 10 and section 12 but we do not say it authorises the expenditure of those funds.  That authorisation comes from the Statistics Act and the ABS Act.  So, it is no part of our case that there is authority to spend arising out of this Act.

GAGELER J:   Now, do you accept the statement of Justice Stephen you have just read that an appropriation:

is a necessary precondition to lawful disbursement of money by the Treasury ‑

more accurately, from the Treasury.

MR DONAGHUE: Yes. Your Honour, I accept it in the sense that it is reflective of the plain terms of section 83 but that does not, in my submission, mean that the question of whether there is or is not an appropriation covering the topic is a justiciable one able to be litigated by a private citizen as against the Commonwealth on the basis that they say there is not one.

GAGELER J:   Well, let us take that in stages.

MR DONAGHUE:   Yes.

GAGELER J:   Is section 83 a prohibition on the withdrawal of money from the Treasury except under an appropriation by law?

MR DONAGHUE:   Well, your Honour, if you mean by that a justiciable prohibition ‑ ‑ ‑

GAGELER J:   Yes.

MR DONAGHUE:   No.

GAGELER J:   It is not justiciable.

MR DONAGHUE:   No.  That, in my submission, is the effect of the AAP Case, because otherwise one could always challenge this on the basis that the only reason the appropriation is happening is because of section 81 and 83 ‑ ‑ ‑

GAGELER J:   Well, I have never heard a submission to that effect before but if that is the submission, how do you explain the Auckland Harbour Board doctrine?  That is, if there is expenditure from the Treasury that is not the subject of an appropriation, then the expenditure is unlawful and gives rise to an action and restitution at common law.

MR DONAGHUE:   Yes.  Well, your Honour, I accept that the authorities are to that effect and that one can bring an action of that kind and there are many cases and there is standing to bring an action of that kind; I am not challenging any of that.  But our submission is that for the reasons identified in AAP, and AAP obviously was a challenge squarely to the Appropriation Act itself.

GAGELER J:   Yes.

MR DONAGHUE:   The challenge failed.  In Justice Stephen’s view, it failed on standing grounds and the case has been understood in Davis which I will come to later, as authority for the proposition that one cannot bring an effective challenge to an Appropriation Act.  That is enough for me in this case.  I do not need to say one cannot as a component of a restitutionary action point to the existence of an appropriation.

EDELMAN J: But what would be the purpose then of making section 83 non‑justiciable if the challenge could immediately be brought at the next stage after the expenditure?

MR DONAGHUE: A number of possible purposes, your Honour, because at that point the character of the action is very different. It is a much more precise action where there has been a particular expenditure which has been pointed to and which is being said did not occur with lawful authority. Sections 81 and 83 and the financial framework provisions that sit under them are, in our submission, directed to ensuring proper parliamentary control over executive expenditure.

But the point where the private citizens’ interests are engaged is at the point where the money is spent and that can be engaged via a Williams‑type action to say that there is no statutory authority to spend.  Auckland Harbour Board suggests it can be challenged in a restitutionary function.  But, again, that is at the level of an actual payment of funds that has occurred.  It is not focusing – I accept that it is conceptually focusing in part – one element of it is the appropriation.

EDELMAN J:   But then you could bring a quia timet injunction.

MR DONAGHUE:   Your Honour, not if what the Court said in AAP is right because, again, it is suggesting that the appropriation has no effect on private rights.  If there is no effect on private rights ‑ ‑ ‑

EDELMAN J:   But that is what I do not understand.  You can bring an injunction but you cannot bring a quia timet injunction.

MR DONAGHUE:   The injunction to restrain spending, your Honour, or to restrain the appropriation?

EDELMAN J:   To restrain the appropriation which would be appropriation for the purposes of later expenditure.

MR DONAGHUE: Your Honour, I have not accepted one could bring an injunction proceeding to prevent the appropriation because the appropriation is nothing more than an earmarking of funds. It has no effect on rights. I make that submission notwithstanding section 81 because the High Court said that in AAP notwithstanding section 81.

GAGELER J:   Mr Solicitor, I understand an argument about standing but you seem to be putting this at a higher level of justiciability, or have I driven you to that unnecessarily?

MR DONAGHUE:   Your Honour, they do run together to a certain level.  I am content to put ‑ ‑ ‑

GAGELER J:   You do not have to worry about standing if it is not justiciable.

MR DONAGHUE:   No.  Justice Stephen decided AAP on the basis of standing and said “I therefore do not need to decide the justiciability question that might also arise”.  It is sufficient for our purposes to make the argument as a standing argument which is how we have done it in writing.  But we are conscious of the fact that it is sometimes said in this Court one should not really focus it on -as a question of standing rather than as a question of jurisdiction.

GAGELER J:   You do not challenge Brown v West, do you?

MR DONAGHUE:   No, your Honour, but I do think I will come to Brown v West and submit that it needs some care because Brown v West is essentially a De Keyser Hotel Case principally.  The appropriation issue in that case really only arose at a very secondary level as to whether there was anything that could be found in the Appropriation Act that would overcome the fact that non‑statutory executive power had been excluded and the Court said no.  So it was not formulated in a way that is comparable to the AAP scenario which is the analogy we say is the strongest to be drawn here. 

If this case had been completely differently constituted and one had looked, for example, at whether or not the Finance Minister had made determinations under the Public Governance and Performance Act, the current equivalent of drawing rights, one would be in a different territory where one might be closer to being able to look at the existence of the appropriation or not and that was how Combet appears to have sought to overcome these problems by focusing on that step rather than the appropriation itself.  But here the plaintiffs have just gone directly to the appropriation and we submit they cannot do it because they are challenging something that does not affect their rights.

Can I take your Honours perhaps to develop the submission back to AAP and particularly to Justice Stephen’s analysis of the matter which is the most detailed analysis.  This is an analysis that leads his Honour to the conclusion that there is no standing to challenge the appropriation.  So, in 384, at the start of his Honour’s judgment, about point 3 or point 4 down the page, his Honour says:

It is necessary to examine with some care precisely what it is which is here said to be ultra vires.  By its legislation what Parliament has done is to authorize the Treasurer to issue out of the Consolidated Revenue Fund –

the amount:

Appropriation Acts represent one aspect of the legislature’s control over the executive arm of government in matters financial –

and there is then some discussion of the history.  But then over the page on 385, the first full paragraph:

Because the plaintiffs attack the Appropriation Act on grounds of ultra vires a misleading colour may tend to be given to these proceedings; they tend to be assimilated to proceedings, familiar in this Court, in which it is said that by the enactment of particular legislation the legislative powers of the Commonwealth have been exceeded.  In fact rather different issues are raised; the real substance of the plaintiffs’ complaint must be, not that the Commonwealth has exceeded its legislative competence but rather that, by the manner in which it is proposing to spend its revenues, it is exceeding its spending powers –

So there was a link drawn there that perhaps has now been more clearly recognised and drawn in this Court’s decisions in Pape and Williams.  So one needs care both with this case and with Brown v West in that respect.  Then having discussed some of the background of the development of appropriations laws which his Honour explains as quite special – a special kind of Act of Parliament, over on 386 it is said:

When an item in an Appropriation Act is attacked as ultra vires it is not in any real sense the Commonwealth Parliament’s legislative power that is attacked but rather the taking of the first step in the expenditure of moneys –

Justices Isaacs and Rich are quoted from Colonial Ammunition:

“The object of Parliament in such a case is financial, not regulative.

That is in another passage regularly picked up.  It is picked up in Pape at 202 and Combet at 149.  Then at the bottom of 386:

It is, then, with this special type of Act of Parliament that the present proceedings are concerned.  It is an Act which, while a necessary precondition to lawful disbursement of money by the Treasury –

So, there is no denial of that proposition in his Honour’s judgment:

is not in any way directed to the citizens of the Commonwealth; it does not speak in the language of regulation, it neither confers rights or privileges nor imposes duties or obligations.  It only permits of moneys held in the Treasury being paid out, upon the Governor‑General’s warrant, to departments of the Government.  Its importance is essentially confined to the polity in question, here the federal polity . . . has no direct effect upon the powers or interests of the other component parts of the federation, the States.

That led his Honour to the conclusion that not even a State or a State Attorney‑General would have an interest in challenging an appropriation.  That is not a conclusion that commended itself to Justice Mason, as his Honour then was.  He, to divert slightly, at page 401 of the judgment, about point 8, identified the real interests of the States as being:

constituent elements in the federation –

that being a federation of which:

there is a division of powers and a consequential allocation of responsibilities –

That idea that the States would have standing as component parts of the Federation enforcing perhaps otherwise unenforceable legal boundaries was picked up by Justice Gummow and your Honour Justice Bell in Williams and, as we read the judgment, Chief Justice French, Justice Hayne, Justice Crennan and Justice Kiefel all agreed with that idea.

So we do not suggest that the State would not have standing to bring a challenge of this kind and that perhaps comes some distance towards answering your Honour Justice Gageler’s question.  Perhaps it is better put as a question of standing than justiciability if a State can come and enforce the limit as is suggested.

But the weight of what Justice Stephen says there in the passage I have just read, Justice Jacob said at the passage I read earlier at the bottom of 410 is that Appropriation Acts have a special character not affecting the rights or interests of citizens.  Justice Stephen returns to the point at the bottom of 390, again emphasising the absence of an effect on an Appropriation Act on citizens – the last full paragraph on page 390:

no ordinary law making function at all, not purporting to govern the conduct of the citizens –

GAGELER J:   Now, Mr Solicitor, the context of the AAP Case was the traditional understanding that section 81 was a source of spending power.

MR DONAGHUE:   Yes.

GAGELER J:   The whole argument was focused on a particular appropriation, the argument being that within the language of section 81 this was not an appropriation for the purposes of the Commonwealth.

MR DONAGHUE:  Yes.

GAGELER J:   So anyone who is looking at section 81 alone and they are looking at that language which was or perhaps was seen as language of limitation, I think the whole case is explained in that context.

MR DONAGHUE:   But that is a context, we submit, your Honour, that suggests that the appropriation had more effect rather than less because it is a context where it was thought once Parliament had appropriated then the money was there and there was a perhaps unlimited, perhaps only very generally limited power to spend it. 

So to the extent that there was parliamentary control, it was the appropriation or nothing and yet you still have four members of the Court saying there is either no judicial limit or no standing.  We submit in a post‑Pape/Williams universe, it is now clear that the appropriation itself does not give you the authority to spend to which your Honour just referred and it is thus even clearer that the appropriation itself is not having any effect on the rights of citizens.

GAGELER J:    In a post‑Pape universe, the appropriation remains a condition precedent to spending, does it not?

MR DONAGHUE:   Yes, as it was in AAP, but only one of multiple condition precedents because there now must be statutory authority except in the residual cases recognised in Williams and the condition precedent is a condition precedent, we submit, that is a condition precedent internal to the polity, not effective of the rights of citizens. 

So I do not accept that it is a condition precedent enforceable at the right of a private citizen because if it was, in our submission AAP makes no sense.  Why would there be no standing or justiciability if, appropriation always having been a condition precedent to spending, someone could say well, my argument is you have no authority to spend, therefore, I can challenge the appropriation.  The legal context, we submit, is stronger rather than weaker for the point that we make.

BELL J:   The recognition post‑AAP and contrary to Justice Stephen’s analysis that the Attorneys of the States have an interest in enforcing constitutional limits within the federal compact, once that is recognised what is your answer to the argument in some instances the States may not have an interest in doing so and why is it said that in such a circumstance a citizen may not have the same interest in enforcing the limits of power?

MR DONAGHUE:   The State has an interest only as a fall‑back to say that in a system of limited government there should always be someone who at least has the capacity to come and enforce the limit.

BELL J:    That is the very matter I am taking up with you - if there should always be someone to enforce the limit of power where there is a suggestion that the constitutional limitation is not being complied with but that someone – in this instance, the Attorneys of the States – shows no interest in doing so.

MR DONAGHUE:   Your Honour, always someone who can, not always someone who will.

BELL J:    Yes.

MR DONAGHUE:   Otherwise there is no point having a standing rule because whenever somebody wishes to bring a case and they no interest then they could come to the Court ‑ ‑ ‑

BELL J:    It is just it has been suggested in more recent times that when one looks at the issue of standing perhaps a degree of flexibility is necessary where the consideration is the limits of constitutional power.

MR DONAGHUE:   Yes, your Honour, but those statements are made in a context where I think invariably the matter in issue sought to be challenged has some effect on rights and here the Appropriation Act opens the door of the Treasury for a limited purpose but does nothing more.  It does not require anyone to come in, it does not require the money to be spent, it does not therefore impact on anyone other than the person who has the capacity to enter the Treasury ‑ ‑ ‑

BELL J:    And this is where your argument, you say, is strengthened by Pape and Williams.

MR DONAGHUE:   Precisely and if the challenge had been brought on those grounds, I would not be making the argument but because it is accepted, at least implicitly, that the ABS does have the statutory authority to satisfy the Williams requirement, that does not mean that there suddenly becomes a capacity to challenge this anterior step not affecting rights.

KIEFEL CJ:   It might be said that there are differences of views, in particular expressed in the Bateman’s Bay Case and in some authority in the United Kingdom about the level of interest or rights that are necessary for standing, but if we put that to one side, do you go so far as to say that there can be no public interest in the question of whether or not an appropriation is prohibited under the Constitution which might found a basis for writs of prohibition?

MR DONAGHUE:   No public interest, your Honour.

KIEFEL CJ:   No public interest.

MR DONAGHUE:   That has not been part of my case because I do not understand the plaintiffs to be asserting that they have standing on the basis of public interest of that character.  They assert that their interests are affected in such a way as to give them standing.  I think, your Honour, my answer to your question would be to the extent that there is a public interest of that kind it is capable of being vindicated by the States and no one else, that nobody else has a right to step in and to say, “I will vindicate that public interest.”  They would have a right at the much more concrete level of spending that might offend.  I will not keep returning to AAP but perhaps it is worth taking your Honours to Justice Mason’s observations in AAP at 394 because ‑ ‑ ‑

EDELMAN J:   Just before you do, Mr Solicitor, my understanding of the plaintiffs’ submissions, at least in the Wilkie Case, was that it was broader than that at least in relation to the submission about prohibition that - as I understood the submission it was that the rights of the Official Statistician were affected and prohibition permitted a stranger to bring – or to have standing to bring an action that affected the rights of another party.

MR DONAGHUE:   Yes.  Your Honour, the submissions we make about standing in relation to the challenge to the direction are different to the submissions we make about standing to the determination.

EDELMAN J:   Yes, all right.

MR DONAGHUE:   I am only now talking about the determination.  I will come to the direction and the prohibition at that – but this part of my case is directed to the determination and the appropriation.

GAGELER J:   Justice Edelman’s question I think was pointing out that one of the writs of prohibition sought in the Wilkie matter is prohibition directed to the Australian Statistician to prevent the expenditure by the Australian Statistician of this $122 million, on their case purportedly allocated by the section 10 determination.

MR DONAGHUE:   Yes.  I apologise if I misunderstood Justice Edelman’s question.  I thought we were talking about the effect of the rights on the Statistician from the direction where there is an effect, but there are other answers we would give.  The advance has no effect on the right of the Statistician because it does not require the Statistician to do anything.  It opens the door to the Statistician in relation to the drawing of that 122 million and does nothing else.  It is an earmarking of those funds.  But because it is regulatory – sorry, financial, not regulatory, not impacting on the rights of anyone outside of the interface between the Parliament and the Executive in relation to the spending of funds we submit that there is no effect on rights from the appropriation and ‑ ‑ ‑

EDELMAN J:   Is that test properly phrased, though?  Is the test just one of whether it has an effect on rights or would it include a potential effect on rights?  So would there be standing, for example, in the Pape Case if the money had not yet been expended but it was proposed to be expended immediately?

MR DONAGHUE:   Your Honour, there would be standing to challenge the ‑ ‑ ‑

EDELMAN J:   Put aside the advance point for the moment.

MR DONAGHUE:   To challenge the spending – there would be standing to challenge the spending.  There would not be standing to challenge the appropriation.

EDELMAN J:   Yes, so the form of the test then is not whether rights are affected.  The form of the test is whether rights are or might be affected.

MR DONAGHUE:   Your Honour, if ‑ ‑ ‑

EDELMAN J:   Put aside the question about an advance.

MR DONAGHUE:   Yes.

EDELMAN J:   The simple question for standing is not one which requires that rights are or have been affected.

MR DONAGHUE:   No, I accept ‑ ‑ ‑

EDELMAN J:   It includes where rights might be affected.

MR DONAGHUE: I accept that that is so, certainly for injunctive or prohibition‑type relief. But they would have to be potentially affected by the thing against which relief is sought and where that thing is an appropriation they never will be because the appropriation itself does not have that effect. It is the spending that has that effect. So there is ample capacity to challenge, but I come back to the proposition that section 81 of course has always been there.

It was not news to their Honours in the AAP Case that there was a requirement in sections 81 and 83 that money could only be drawn from the Treasury in circumstances where there was an appropriation. But that did not change the analysis that the appropriation had no effect on anyone’s rights, and part of the reason for that is the kind of reasoning that Justice Mason explained on 394 when he talked about the very great damage that would be done to orderly processes of Parliament if the contrary position were to prevail. So, in the long paragraph beginning at about point 2 on the page:

It is not lightly to be supposed that the framers of the Constitution intended to circumscribe the process of parliamentary appropriation by the constraints on constitutional power and thereby to expose the items in an Appropriation Act to judicial scrutiny and declarations of invalidity. Consequences more detrimental and prejudicial to the process of Parliament would be difficult to conceive.

And so on.

GAGELER J:   This is all in the context of a big debate about what “purposes of the Commonwealth” mean in section 81, it has got nothing to do with this case.

MR DONAGHUE:   Well, your Honour, in my submission, it is in the context of a debate on that point where it was thought that that was the only arguable limit on Commonwealth power to spend.  I fully accept that that point was in play in this case, but the character that the Court explains as attending an Appropriation Act, in my submission, is not dependent on any proposition one way or the other about the scope of the expression “the purposes of the Commonwealth”.

The width of that expression was determinative to the ultimate result reached by a number of the Judges in the case.  Three Judges said within, three Judges said without.  Justice Stephen said non‑justiciable and so the result was that the challenge failed.  So I fully accept, of course, that that issue was important, but this discussion about the character of an Appropriation Act as not affecting the rights of the citizen is not dependent on that analysis.

That, we submit, was correctly expressed – and I will not take your Honours to it, we have given the references in writing, but in Davis v The Commonwealth, Chief Justice Mason and Justices Deane and Gaudron said at pages 95 to 96 that AAP:

stands as an authority for the proposition that the validity of an appropriation act is not ordinarily susceptible to effective legal challenge.

That is what their Honours said – is the point established by the case?  If that is right, then that is a substantial obstacle to the case that the plaintiffs are bringing in this matter.

GORDON J:   Can I ask a really fundamental question?  Do you need any more than the two propositions that I understand you make, the first being that appropriation involves legal segregation is proposition number 1; and second that it is Parliament in making the appropriation that determines in a sense both the purpose for which it is to be appropriated and the degree of specificity.  Do you need any more than that in dealing with this issue about standing?  In other words, both those questions are questions for the Parliament and not for an individual.

MR DONAGHUE:   Well, your Honour, it may be that those two propositions are enough.  I have been advancing a third, which is that those matters being matters for the Parliament are not matters that have any further significance for individuals, and I added that third step which does seem to us to emerge from AAP, because when one then sits that proposition together with Kuczborski and the other authorities in this case about what you need for standing, you need an effect on rights and interests of the very kind that we say AAP denies in relation to an appropriation.  So if your Honour does not think I need to take that ‑ ‑ ‑

GORDON J:   I think I took the third step, probably not as elegantly as you put it.

MR DONAGHUE:   Yes, and perhaps from there if I could take your Honours to the Kuczborski passages that we say marry up with the submission I have just been putting.  Kuczborski is at tab 55 in the joint bundle, and it is (2014) 254 CLR 51. If I could just take your Honours to page 106, paragraph 177 and following in the joint judgment of your Honours Justices Crennan, Kiefel, Gageler and Keane. So 177 is a citation of the familiar ACF test – sufficient interests.  Then over the page on 182 and picking up Batemans Bay, it is pointed out that Justices Gaudron, Gummow and Kirby held in Batemans Bay:

that a plaintiff had standing where its interest was “as a matter of practical reality . . . immediate, significant and peculiar to [it]”.

And I emphasise there to save me coming back to it the “significant and peculiar to it” words which are both, we submit, highly relevant when one comes to the effect of the receipt of the survey form and whether that is enough to achieve standing.  Then later in paragraph 182, it is recognised that the practical effect of the Act under challenge here was likely to be to discourage membership of the relevant motorcycle gang.  So it was going to have – could be expected to have that effect and it was said:

That might be disappointing for the plaintiff in a way which would be peculiar to him, in the sense that members of the general public would not be similarly affected.  But to say that the VLAD Act is calculated to discourage membership of the HAMC –

the gang of which he was a member:

is distinctly not to say that the legal position of the plaintiff is immediately or significantly affected by the VLAD Act.  His liberty and other rights, duties, liabilities and obligations remain unaffected by the enactment of these provisions; and his legal position would not be materially advantaged if his challenge were to succeed.

So the focus of the Court there was very much not on, in a context where it was accepted that there would be some effect on membership of the gang of which he was a member, the focus was upon the affectation of the legal position of the plaintiff.  Over at 185 it is emphasised that even though there is:

It may be accepted that there is a general public interest that governments act in accordance with the law enforced by the courts; but to conclude that the plaintiff’s sense of grievance at the injustice of these laws is not an interest which suffices to give him standing to challenge their validity is not to undermine this aspect of the rule of law.  Any person actually in jeopardy . . . will have standing –

so a person whose legal interests were actually affected.  Our submission is applying ‑ ‑ ‑

EDELMAN J:   What was the legal interest, legal right in the sense of rights, duties, liabilities, obligations of the plaintiff in Batemans Bay that was affected?

MR DONAGHUE:   I thought the standing was denied in Batemans Bay but I may have misremembered.  Can I take that on notice?

EDELMAN J:   Yes.

MR DONAGHUE:   I think it was in relation to the release – receipt of funds but I will come back to your Honour, if I might.

KEANE J:   It might have been that it was the interest in the ownership of the goodwill of the business that would be adversely affected by the activities, the ultra vires activities that the defendant proposed to engage in.

MR DONAGHUE:   Thank you, your Honour, that does sound right.  So, your Honour, our submission on this point is that if the effect of an appropriation act be as explained in AAP, then the consequence of that is that the entirety of the AME proceeding fails because that proceeding is only about the validity of the determination.  The consequence would be that the same part of the Wilkie proceeding would fail and the challenge to section 10 would fail. 

None of that is to deny the significance of an appropriation.  As your Honours are well aware, one critical role of the appropriation process is in facilitating parliamentary oversight of the Executive, the Estimates Committee system exists for that purpose.  In the Parliament there is in the specific context of the advance – and I will take your Honours to some examples of this later – an institutionalised reporting regime whereby uses of the advance are reported to the Parliament and the Auditor‑General audits those usages. 

So there remain an array of parliamentary scrutiny mechanisms that give effect to the appropriation requirement in a way that is faithful to what is contemplated by the Constitution and section 97 of the Constitution in particular in foreshadowing or maintaining the existence of State auditing arrangements until the Commonwealth Parliament otherwise provide it. Chief Justice Gleeson in Combet specifically pointed to the operation of appropriations in a context that includes, as his Honour said:

public scrutiny and political debate concerning budget estimates and expenditure review. 

So our submission is not that the appropriation is meaningless, it is that it is not enforceable at the suit of a private individual.

Can I turn from there to the specific submissions made by the plaintiffs in relation to their interests, the two plaintiffs, Mr Wilkie and Senator Rice as Members of Parliament, and the asserted represented standing claim on that basis?  Our submission is that the status of a person as a parliamentarian does not give rise to any general right to bring legal proceedings to enforce laws that have been passed by the Parliament of any kind.  Their status as parliamentarians gave them a right to vote and to participate in the Parliament, including with respect to the particular Appropriation Act that is in issue in these proceedings.  They presumably did participate in that debate.

Parliament’s choice ‑ decision was to enact section 10, a provision that included both section 10(2) and section 10(4), and by enacting 10(2) Parliament can only have decided that in the circumstances there specified, its intention was that the Finance Minister would have the power within boundaries up to the 295 million specified in subsection (3) to increase the items in Schedule 1 and it likewise decided that the exercise of that power should not be subject to disallowance.

In our submission, there is no circumvention of the rights of parliamentarians for provisions that they have enacted to then be implemented.  In particular, the disallowance or the exclusion of disallowance in section 10(4) does not involve any circumvention of the rights of parliamentarians because that rather suggests that there has, at some point in time, been a capacity in Parliament to disallow the advance and that has never been the position.

So, the historical position was that prior to the commencement of the legislative instruments, now Legislation Act, that there was a power to disallow regulations found in the Acts Interpretation Act in section 48 and the power to disallow instruments where the law expressly made the instruments disallowable, that was in the old 46A.

When the Legislative Instruments Act commenced, which was on 1 January 2005, it expanded the general disallowance powers to a wider range of instruments and the very first Appropriation Act – annual Appropriation Act that came after the commencement of that Act was the 2005/2006 Act where section 10(4) – the equivalent of section 10(4) first appeared.  So, the enactment of that provision was not changing the position from a previous parliamentary right to disallow to non‑disallowance.  It was recognising that a determination that had not previously been disallowable under the Acts Interpretation regime should remain not disallowable under the new wider legislative instruments regime.  So, there is no circumvention of function there.

Our submission is that it is wrong in principle to conclude that a parliamentarian has a roving interest in the enforcement of laws that the Parliament has passed.  Your Honour Justice Edelman asked Mr Merkel yesterday a question about whether there were other cases where a person has obtained standing by reason of their occupational position when their own interests were not affected and Mr Merkel came back and gave your Honour a list of cases.  In our submission, none of those cases are cases of that kind.  They are all cases where a person had standing by reason of their occupation because a law affected people who conducted – who carried out that occupation.  They were not getting standing.

NETTLE J:   Freedom to trade.

MR DONAGHUE:   Largely, yes, so BMA for example is doctors who have been regulated by the relevant pharmaceutical Act.  The only exception that occurs to us, your Honour, is the Attorney‑General who had a particular capacity to bring litigation in the public interest even where there was no effect on the Attorney‑General’s rights.  In that respect, the Attorney‑General is distinct from all other parliamentarians.  The argument that is being advanced on behalf of parliamentarians rather tends to equate their position with that of the Attorney.

GAGELER J:   What about a Shadow Attorney?

MR DONAGHUE:   Argued, of course, in Combet.  In our submission, while endorsed by two Justices in that case, they were both dissenting and, in our submission, there is no reason to think that that argument was accepted by anyone else and, in our submission, it should not have been.  The Attorney‑General’s position is not just that of a parliamentarian but a parliamentarian with particular historic responsibilities for protecting the public interest which, we submit, there is no reason to extend to the Shadow Attorney.

GAGELER J:   While I am detaining you, there is one way in which Mr Wilkie’s standing is put that I do not think you have addressed and that is if he is right and the Commonwealth Statistician has no power to spend this $122 million, the consequence is that the spending needs to be – if it is to occur at all, needs to be authorised by a further Act of Parliament in respect of which he would have a vote as a Member of Parliament.  That is one of the ways in which the argument is put.  Why is that not a sufficient interest?

MR DONAGHUE:   Well, your Honour, in our submission, the interest – Mr Wilkie’s position there is no different from the position of any other representative and the fact that he has a – and I hope that your Honour is not putting that to me that it is ‑ that argument if it is good must apply to at least all of the members of the House of Representatives and perhaps to ‑ ‑ ‑

GAGELER J:   It must, it must, and probably the Senate as well.

MR DONAGHUE:   Probably the Senate as well.  In our submission, the proposition amounts to the contention that a parliamentarian has an interest in a law that Parliament might in the future wish to pass and, in my submission, that proposition is too broad.  I am about to take your Honours to a case that, we submit, correctly recognises that the interest of a representative is no greater than the interest of the person that they represent and that is how we put it.

Your Honour Justice Edelman, I think the answer to your question about Bateman’s Bay appears at paragraph 52; the conduct of the funeral benefit fund by:

the appellants would cause severe detriment to the –

respondent’s insurance or benefit fund business.  So, it was, as Justice Keane put to me, I think, an adverse impact on the business.  Could I ask your Honours to go very briefly to Perrett v Attorney‑General which is tab 63 in the joint bundle.  This is a judgment of Justice Dowsett sitting as a single judge in the Federal Court.  We are taking your Honours to it as a convenient encapsulation of discussion of the relevant issue.

The relevant discussion of standing commences at about paragraph 30.  It was a case where the applicants were parliamentarians and senators.  It was about the disallowance of regulations and it was said that in the capacity as a Member of the House and the Senate, that there was a relevant interest.  So, if your Honours go to paragraph 30 you will see there is just a discussion of the familiar passages from the main authorities.  Then there is discussion of Brown v West at 36 where his Honour concludes, we submit, correctly:

that Mr Brown’s interest was not as a Member of Parliament per se, but as a Member of Parliament who was, or might have been entitled to a particular allowance ‑

a particular postal allowance.  I will come to Brown v West later but, we submit, that is correct.  Then there is a discussion of Combet and the position of Ms Roxon as the Shadow Attorney‑General.  Justice McHugh’s observations are quoted and his Honour then at paragraph 38, we respectfully submit, correctly observes that the precise basis upon which Justice McHugh found that Ms Roxon would have standing was not totally clear.

His Honour referred to her status as the Shadow Attorney‑General, he referred to her position as a Member of Parliament.  There was a discussion of a possible equation of the interest necessary to seek an injunction with the interest necessary to obtain prohibition.  So, quite exactly what combination of those matters was critical, was not entirely clear.  And then at paragraph 39 his Honour refers to, having noted the possible advantages of the approach taken by Justices McHugh and Kirby, pointed out:

There are also arguments against them.  Firstly, the two Houses of Parliament, in conjunction with the Governor‑General, make the law.  Individual parliamentarians do not.  Secondly, enforcement of the law is a matter for the Executive, not the Parliament or parliamentarians.  Further, parliamentary supervision of the Executive depends upon constitutional and legislative arrangements.  One can imagine many difficulties emerging if individual Members of Parliament were generally permitted to seek to enforce the law.

His Honour suggests that there is no principled basis for finding otherwise.  And then finally in paragraph 40 notes an earlier judgment of Justice Drummond, also of the Federal Court, finding ‑ and this is Robinson’s Case in the long quote on page 486 that ‑ in the middle of that quote:

I do not think that a person can derive standing from being the elected representative of an aggregation of members of the public, none of whom individually has standing to sue.

His Honour endorsed that line of reasoning.  We respectfully adopt that analysis as correct. 

Finally, in relation to standing can I touch briefly on the question of the Treasurer’s direction – sorry, finally, before coming to prohibition – it is put against us that, as recipients of the survey form, the plaintiffs have standing.  That, as was noted yesterday I think by your Honour Justice Bell, is an interest that is shared in common with approximately 16 million other people.

Not only is it shared in common, it is an interest that depends on the proposition that receiving a document in the mail that legally can be returned or thrown away at the option of the recipient has a sufficient effect so as to generate a right to bring a proceeding in this Court.  In our submission, that interest, if it exists at all, is so trivial as to fall foul of the need for a materiality standard of the kind recognised in a passage from Bateman’s Bay quoted in Kuczborski that I went to earlier.

NETTLE J:   What about their point that, as opposed to other electors, they are so offended by the receipt of the document by reason that it occurs to them as others being permitted to pass judgment on their sexuality?

MR DONAGHUE:   Your Honour, there seem to be two dimensions of that, as we understand the submission.  Part of the submission is that it is put that the mere fact of having the survey calls into question the status of the relationship is I think the way that it is put.  Our submission on that is that the receipt of the form does no such thing.  This is a form which will ask the electors who receive it whether the law should be changed to allow same‑sex couples to marry. 

To the extent that there is any aspersion cast on the legitimacy of the family unit, that is a consequence of the existing law that imposes a distinction between same‑sex couples and other couples.  The purpose of the survey is to ask whether that distinction should be removed and in our submission the asking of the question whether the distinction should be removed does not cast the aspersion that is suggested.

The other aspect of it, as we understand the submission, is connected to apprehension held, particularly by the second plaintiff, about the way the debate will be carried out with respect to the survey if it proceeds and the effect that the public debate might have upon her and her family.  Our submission in that respect is that there is a disconnect in that regard between the relief that is sought and the apprehension that is said to give rise to the interest. 

This is not a claim that anything done by the ABS itself is going to have an adverse effect on interests.  It is a claim that third parties might do something that has an adverse effect on interests and the action of those third parties are then said to generate the standing against the ABS.  In our submission, that is not ordinarily a basis upon which standing would be recognised. 

So if one takes an example far removed from the present, if, for example, an anti‑abortion or hate speech person from overseas seeks a visa to come to Australia and is granted such a visa it would, we submit, not be an ordinary application of the standing rules to find that any person in the group who might be offended by the person who is coming to Australia would have standing to challenge the grant of the visa because, notwithstanding that the speech might occur, there would not be a sufficient relationship between relief to quash the visa on the one hand and the apprehension that it would give rise to the right on the other.

Your Honours, I otherwise rely on our written submissions on the standing point, particularly in relation to the organisations, but I do need to say something briefly about prohibition.  If your Honours could turn to the application book in the Wilkie matter, on page 10 you will see the claims for prohibition there set out.

The point to which we draw particular attention is that the writ is sought not against the Minister for Finance or the Treasurer, not against the people who issued the direction or the determination; it is sought against the fourth defendant, the Statistician, and the fifth defendant, the Electoral Commissioner, to prevent them from carrying out steps to implement the advance or the determination.

Now, in our submission, the advance and the determination, both being legislative instruments, are not instruments that could simply properly be treated as nullities by the Statistician.  We are not in the territory of an administrative decision perhaps susceptible to a Bhardwaj‑type analysis.  Unless the plaintiffs obtain relief to quash or to have declared invalid - they do not seek relief to quash, but a declaration of invalidity would do, we accept - in our submission, the legal duty of the Statistician is to comply with the direction. 

If the plaintiffs can obtain relief against the advance and the direction, as are sought in the first three paragraphs of the relief claimed, then they will succeed in this action.  But if they cannot obtain that relief because they do not have standing to do so, the fact that prohibition might have a wider standing rule does not help them because the prohibition will not properly issue in a situation to prohibit someone who would otherwise be acting lawfully, complying with their legal obligations.

Now, we have added to the bundle, although I will not take your Honours to it, a decision of Justice McHugh in a case called Re Ruddick; Ex parte Reyes, where his Honour discusses this idea between paragraphs 23 and 27.  But that was a claim where prohibition was sought against the Minister in respect of the detention and removal of an unlawful non‑citizen in circumstances where relief had not been obtained against the decisions that made the non‑citizen an unlawful non‑citizen.

Justice McHugh said you cannot get prohibition in a case of that kind because the Minister is doing what he is lawfully required to do by the Act.  It is only if you quash those anterior decisions that there would then be a basis for saying that it was not lawful to continue to carry out the duty that the statute seemed to impose.  So, in our submission, the attempt to sidestep the standing rules by prohibition against people implementing decisions does not overcome the need to quash those decisions and for that reason prohibition does not avail our friends ‑ ‑ ‑

GAGELER J:   So you are not putting a proposition that prohibition would only be available against the Australian Statistician if the Australian Statistician was acting, and I quote, “quasi‑judicially”?

MR DONAGHUE:   No, I am not putting that proposition.  I will come to right in a minute, but I am not putting that proposition.  Ultimately, my submission, your Honour, is that your Honours do not need to reach that question.  If there is no basis for a prohibition on other grounds, then your Honours should not reconsider the…..  That is what I am going to say about it.

The other answer we make, which we submit means that your Honours do not need to go further, is that it is plain enough, we submit, on the authorities that whatever the position may be in relation to strangers, prohibition must nevertheless be sought against a decision that has an effect on rights or interests.  If that is right – and we submit that it is clear that it is – then the submissions I have already made in relation to the advance deal with the claim in paragraph 5 and the submissions about the trivial effect of the – I withdraw that.  The submissions about the advance deal with paragraph 5.

Insofar as prohibition is then sought against the Statistician – and this is the point your Honour Justice Edelman put to me – the idea appears to be this, that where there is a dispute that involves an affectation of rights or a legal instrument of a kind that involves an affectation of rights - and here our friends point to the effect that the direction has on the Statistician - someone whose rights are not immediately involved in that dispute can nevertheless come in, in effect, as a stranger on behalf of the person whose rights are affected, to seek prohibition restraining that effect on rights.

The difficulty applying that kind of analysis here is that the prohibition is sought against the Statistician, the very person whose rights are said to be being affected, so it is not prohibition against the person who is unlawfully affecting the rights; it is prohibition against the person whose rights are affected.  That does not make sense with respect to our friends.

The target is – so had prohibition been sought against the Treasurer before the direction was made, the analysis of our friends might hold.  But it does not hold against the very person whose rights are said to be affected.  So if there is not a sufficient effect on rights to satisfy the standing rules necessary to quash the advance and the determination itself, for those reasons we submit that prohibition does not overcome the standing problem.  If that is right, your Honours do not need to reach the correctness of right.

There is, we respectfully accept, much to be said for the analysis that the law has developed and provided a further explanation of the concept of the duty to act judicially in Ridge v Baldwin and the cases that have followed.  There is still some debate, reflected in the latest edition of Aronson on judicial review as to this requirement.  In my submission, unless your Honours need to get to this point, we should not get there in this case, being a case that has been urgently brought on and has a number of other issues that have occupied the time of the parties in the argument.  If your Honours do need to get there, so be it, but in our submission you do not for the reasons I have just identified.

Can I turn then to the question of the validity of section 10, which of course is reached only if the plaintiff has a sufficient interest in the challenge to the Appropriation Act.  Can I start with questions of construction?  If your Honours could turn up section 10.  By “construction” I do not here mean construction of the criteria “unforeseen” and “urgent”, which I will come to when I reach the part of the case concerned with the determination, but instead questions of construction about what section 10 actually does.

We submit that there are really two main competing interpretations of section 10 and that section 10 is valid on either one of them.  The first construction is the construction raised I think by both your Honours Justice Keane and Justice Edelman yesterday, that a proper way to read section 10 and section 12 is as involving a conditional appropriation.  So that when one looks at section 12, it appropriates the Consolidated Revenue Fund:

as necessary for the purposes of this Act -

Those purposes plainly include the appropriation of the total funds specified in section 6, as detailed in Schedule 1, but they also include, in our submission, appropriations up to the total of $295 million on the Minister’s satisfaction of the conditions specified in section 10(1).

If that be the correct construction, and we submit that construction has much to commend it, there is plainly no delegation of the appropriation function and so the whole foundation for the attack on the validity of section 10 is removed because Parliament has done the appropriating in two different forms, partly by section 12 operating on Schedule 1 and partly by section 12 operating on section 10.

The other possible construction is that again section 10 and section 12 operate together but that section 12 operates once on the commencement of the Act to appropriate both the Schedule 1 amounts but also the entire 295 million specified in section 10(3), which is thereafter able to be allocated amongst the items in Schedule 1 by reason of the determination power. 

That approach would be the approach that operated for the first 90 years of Federation, that the entirety of the advance was appropriated at the outset by the Parliament and that there was then a power to distribute.  We accept that it does not jump out at one, as a matter of the construction of the Act it involves reading section 12 as appropriating – reading the maximum in 10(3) as being appropriated in full and then allocated.

That maximum, your Honours will have noted, while in and of itself a significant number, in the context of the funds appropriated by this Act it is a modest contingency fund.  It is 0.3 of the total amount appropriated by this Act.  The purpose of the appropriation on that model is to provide a modest contingency fund to be used for urgent and unforeseen expenses or, on the Finance Minister’s satisfaction of urgent and unforeseen expenses.  It would effectively amount to a continuation of the pre‑accruals model.

Either way, in our submission, there is no delegation, let alone invalid delegation, of the appropriation function.  It is not appropriation by executive fiat and it does not suffer any of the various objections that the plaintiffs have articulated in writing.

KIEFEL CJ:   Mr Solicitor, could I just clarify with you, are you saying on both approaches to possible construction, conditional appropriation or immediate appropriation, it is section 12 read with section 10?

MR DONAGHUE:   Yes.

KIEFEL CJ:   To effect the appropriation rather than section 12 simpliciter effecting the appropriation?

MR DONAGHUE:   Well, on the second of the constructions it would be section 12 simpliciter effecting the appropriation which is then allocated pursuant to section 10.

KIEFEL CJ:   To section 10.  Yes, thank you.

MR DONAGHUE:   Yes.  Now, can I take your Honours fairly briefly I hope through the history of the advance for two purposes; one, to demonstrate that historically, as I have just put the method used was to appropriate the total and for the Treasurer and later the Finance Minister to allocate amongst various heads – part of the point of doing that is that the analysis should demonstrate that the appropriation in blank argument that is put against us, if it be good, is an objection that goes to the validity of every Appropriation Act that the Parliament passed since 1901.

So, Mr Merkel suggested to your Honours that the attack was just on what has happened since 1999.  That may be so in relation to aspects of the delegation argument but it is not so in relation to the appropriation in blank argument.  The other point of the exercise is that it will allow me to illustrate to your Honours the evolution of the criteria which is relevant both to the jurisdictional fact argument but also to the construction of “unforeseen” and “urgent”.  So, it will be relevant to the next topic that I will come to.

Could I ask your Honours to start ‑ I think your Honours have this material in reverse chronological order, so if you could start at tab 15 in the joint bundle and I will take your Honours backwards.  I hope your Honours have behind tab 15 the very first Act ever passed by the Commonwealth Parliament, Act No 1 of 1901 which appropriated funds for the new polity including, your Honours will see on the second page, an advance to the Treasurer for £10,000.

Now, on the next page your Honours will see a schedule, or sorry perhaps – on the same page as the advance to the Treasurer, the second page of the bundle, your Honours will see at the top of the page the heading “Abstract of the Schedule” to which this Act refers.  There is a practice, the origins of which appear to be lost in the mists of time, that the Acts as passed contained only an abstract of the schedule.  The full schedule was, as we understand it, initially not provided to the Parliament at all but the Senate promptly objected to that and in 1901 they were given the full schedule for the Bill that became the Appropriation Act but when the Act was then reprinted it contained only the abstract and not the full schedule. 

So, in order to get the full schedule that corresponds to the abstract, one needs to go to the Bill that became the Appropriation Act and that is what we have given you.  So, whenever your Honours look at the full schedule here you are looking at the schedule to the Bill that became the Act that it follows.  Your Honours will see there in relation to this initial advance that the advance to the Treasurer was described as being:  to enable the Treasurer to make an advance to public offices to pay expenses of an unforeseen nature.  So, we have a concept of “unforeseen” right back at the start and which may afterwards be submitted to parliamentary appropriations.

Now, if your Honours could then go to the next Act which is back at 14 in your Honours’ bundle.  This is from the following year, 1902, Act No 16 of 1902.  You will see the appropriation occurs by force of section 2 which appropriates funds:

for the purposes and services expressed in the second schedule hereto.

Then if you turn to the next page you will see an abstract of the second schedule.  Again, there is an advance to the Treasurer, it has gone up to £100,000 from 10,000 which, in the context of this Appropriation Bill is actually a significant percentage – higher percentage by some distance from the current model.  Then on the last page your Honours should see in the fourth schedule advanced to the Treasurer the purpose specified again “to make advances . . . of an unforeseen nature”.

Now, it is plain, we submit, on the model that you see here that section 2 appropriated all of the funds for the purposes specified in the second schedule, meaning that it appropriated the entire 100,000 advance to the Treasurer on the commencement of the Act. 

Now, going then to tab 13 in your Honours’ bundle is the 1904 Act, same general model, in section 3 appropriating the funds for the purposes of the second schedule.  The abstract from the second schedule shows an advance to the Treasurer of £200,000.  So plainly in the early years of Federation it was found necessary to utilise this advance increasingly, it went from 10,000, 100,000, 200,000 very quickly.  And then you will see in the abstract to the 1904 Act the purpose described has omitted the unforeseen limitation:

To enable the Treasurer to make advances to Public Officers and to meet expenditure, particulars of which will afterwards be included ‑

So there was appropriation by force of this Act for the full £200,000 and no very tight criteria specified by reference to how that money could be applied.

What your Honours I hope have behind tab 12 in your bundle is then an extract from the Audit Act of 1901.  This is an Act that was amended in 1906 to insert the provisions that your Honours should see at 36A, and this explained what was done with the advance.  So 36A provided for:

Expenditure in excess of specific appropriation or not specifically provided for by appropriation may be charged to such heads as the Minister may direct provided that the total expenditure so charged in any financial year, after deduction of amounts of repayments . . . shall not at any time exceed the amount appropriated for that year under the head “Advance to the –

Treasurer.  So one had the full amount appropriated and the Treasurer under then 36A then given what is described later in the materials as a bookkeeping type function of breaking up that amount between various heads of expenditure up to the total amount that had been appropriated.

While your Honours have that section in front of you, at the top of the page in the middle of 36A, hopefully beginning with the words “exists”, your Honours will see the words “exists, shall not . . . exceed”.  This provision remains substantially in this form for decades up until the 1980s, but it was amended in 1961 to add after the words “shall not” the words “at any time”.  So that amendment was made in 1961, so it became “shall not at any time exceed the amount appropriated for that year”.

The significance of that was that it made it a running balance, so instead of having 295 available for the – or instead of having the amount of the advance whatever it was available for that year and only that amount, there was a practice that developed whereby amounts could be drawn against the advance but then perhaps appropriated back again, repaid later in the year and then that amount became available again to be drawn against the advance, and Commonwealth financial practices in relation to that have varied over time.  But the point is that it was a bookkeeping allocation amongst functions, all of the money having been appropriated initially.  I do not think I need to give your Honours more detail about the recovery arrangements.

If you then go to tab 11, you will see the form this took in the 1960s with, again, similar appropriation by force of section 4 “for the purposes and services” specified in Schedule 2.  The abstract then lists a number of different purposes.  By now the advance to the Treasurer has grown to £16 million but again, plainly, the full amount appropriated on the commencement of the Act and the purpose specified in the longer extract at Division No. 650:

To enable the Treasurer to make advances which will be recovered within the financial year; and to make moneys available to meet expenditure, particulars of which will afterwards be submitted . . . or, pending the issue of a warrant.

So there is still no urgency or unforeseen criteria; there is an appropriation in general terms to create a contingency fund, which the Treasurer then allocates under 36A.  As your Honours will appreciate, our point is that, if the complaints that are made about section 10 are put, they are complaints that equally apply to all of these regimes through a very long history of parliamentary practice.

Now, the change really comes at the end of the 1970s by reason of a Senate standing committee report to which reference is made in the submissions and which your Honours will find in the joint bundle at tab 109, if your Honours could go to that.  This is a report of the Senate Standing Committee for Finance and Government Operations, a Report on the Advance to the Minister for Finance of August 1979.

If your Honours start at paragraph 1.6, there are some aspects of what I am about to read to your Honours, for reasons I will explain, are of questionable accuracy in terms of the summary of the legal position that they put forward, but it is said in 1.6 that:

Authority for the Advance is given to the Minister for Finance by section 36A of the Audit Act ‑

That is not quite right.  The authority comes from the appropriation and then there is authority to divide it by 36A.  In 1.7 it said there has been “some confusion . . . since its creation.  And there was a citation from the parliamentary debates at the time of the introduction of 36A, concluding with Sir John Forrest describing the matter as “only a bookkeeping matter”.

There is then a suggestion in 1.7 – again, not accurate, we respectfully submit – that 36A gives the power to expend the money.  It does not do that; it gives power to divide up the appropriation, the power to spend coming from elsewhere.  Then there is an explanation in 1.8 of the recovery of the advance that I foreshadowed earlier.

If your Honours then go on to 1.10 on page 6, you will see there that the court refer to the then current criteria which did not specify urgency or unforeseen criteria.  But then in 1.12 it was pointed out that there had been directions issued under the Audit Act and the finance regulations, the effect of which was that the advance was to be used only in what were then called “urgent or special circumstances”.

In 1.15 there is a collection of different words that have been used at various different times throughout the history of the Federation to describe the kinds of situations the advance was directed to.  That then led to the recommendations that the committee made.  It was in favour of the retention of a Central Contingency Fund.  It looked at the practice in the various different States, at the time New South Wales, Victoria, Queensland, South Australia et cetera.  Briefly, it is an overseas practice in relation to contingency funds.  All of them had some version or another of the advance.

It comes to the recommendation at 2.27 through to 2.29.  The committee considered clarifying the confusing criteria, suggested at the end of 2.27 that the advance should only be used in “urgent and unforeseen circumstances”.  It pointed out in 2.28 that it thought “urgent and special” was “too vague”, expressly rejected the term “unforeseeable” so chose “unforeseen” in preference to “unforeseeable” for reasons there explained, because “unforeseeable” would be too strict.  And it said in 2.29 that – and this is the matter that your Honour Justice Edelman I think raised yesterday, envisaged that “unforeseen” included “unforeseen as to amount”.  There was then a suggestion in 2.30 that what should happen was that the regulations should be amended to make provision for the criteria that the committee had recommended.

Now, in response to that report, the Department of Finance sought advice from the Attorney‑General’s Department, and advice was provided by Mr Dennis Rose, which is in your Honours’ material, behind tab 108.  This assists in understanding how one moved from the 1979 recommendations to the form that then became the standard form that one has seen in the advance since, albeit with various drafting modifications.

Mr Rose was asked to comment on the recommendation in relation to the inclusion of “urgent and unforeseen circumstances” and that the criteria be put into the regulations.  In paragraph 3 of his opinion he was critical of the urgent and unforeseen criteria as being “imprecise”.  I will not read your Honours the discussion but, in effect, he says, if you do that there will be a review of expenditure based on things that are really matters for judgment, that involve judgment and not simply a question of fact.  There is a reference to Auckland Harbour Board and the possibilities that funds would be able to be recovered if the criteria were not properly met.  He then recommended, at paragraph 7, that if the criteria were to be used they should be conditioned on satisfaction so as to avoid the problems that had been identified – plainly, the recommendation being that both of the criteria be conditioned on satisfaction.

He then explained, in paragraphs 8 and 9 why the criteria could not be put into the regulations.  He said it would not be authorised by the Audit Act.  The regs could not be made under the Audit Act.  He then explained in the last paragraph of the opinion, paragraph 11, that the committee had misunderstood the operation of 36A, that it was not – this is right at the end of page 4 – it:

does not itself appropriate any moneys or give authority to expend them.

That comes from the advance itself:

Section 36A was inserted in 1906 . . . to authorize the charging of the relevant expenditure to such heads as the Treasurer directed . . . provide, in effect, an interpretative provision –

a bookkeeping‑type function.

Immediately after that, when one gets to the Appropriation Act that your Honours should have behind tab 8 in the bundle, which is the 1981‑82 Act, it still appropriates the entire amount.  In section 4, appropriates amounts “for the services [specified] in Schedule 2”, but then when you go to the abstract to Schedule 2 you see an advance to the Finance Minister, in the middle of the list, for $125 million.  But then when one comes to the full version of Schedule 2 for the advance to the Finance Minister, in paragraph (b) one has ‑ as Mr Rose had recommended ‑ the Finance Minister:

is satisfied is expenditure that is urgently required and that was unforeseen ‑

Now, from there if your Honours then go to the version – the 87/88 Act behind tab 7 in the bundle you see the same criteria, same model – same criteria, on the last page the full extract from Schedule 2, the drafting has become even clearer in that the Finance Minister “is satisfied” that the:

expenditure that:

(A)     is urgently required; and

(B)     was unforeseen ‑

So that it is crystal clear in that version that the satisfaction of the Finance Minister applies to both limbs.

Next there is another parliamentary committee report – I am nearly through this exercise, your Honours, but behind tab 100 in the joint bundle, this is a report concerning the version of the Act that your Honours have just seen.  Again, this time the Joint Committee of Public Accounts reporting into the Advance ‑ and if your Honours go to the preface on page (v), you will see the Committee report by referring to the advance being ‑ making provision for:

a central contingency fund.  The Advance is necessary for the smooth running of the Government because it provides flexibility, particularly for urgent and unforeseen expenditures.

It is noted in the second paragraph there that the:

expenditure of funds from the Advance takes place without prior specific Parliamentary sanction; only the total [amount of the] Advance has been appropriated.

Which is right, that is how it then worked.  Then, if your Honours go into the body of the Report at page 1 you will see in paragraph 1.2 it is explained that:

In the normal course of events detailed specific appropriations for expenditure are passed by the Parliament –

It is perhaps a little more aspirational than true in terms of the specificity to which it refers, but it then goes on to point out that:

there will always be cases where, due to various reasons particularly in urgent and unforeseen circumstances, moneys will be required for expenditure before the next Appropriation Bills are passed by the Parliament.

Which are the words we emphasise because your Honours will recognise that that reflects the submission that we will be putting in respect of urgency.

Now, finally, your Honours, if you go to tab 5 in the bundle, this is the 2000/2001 Act, so this is post the commencement of accrual accounting, one then sees a very different model.  Instead of there being an appropriation for the amount in Schedule 2 and the amount in Schedule 2 including an advance with some amount of money, you see an Act that quite closely resembles in its structure the Act with which your Honours are now concerned.  The advance is found in section 11 and the structure of section 11 is similar but not identical to section 10 of the current Act.

I would ask your Honours to focus on the language of paragraph 1(b).  So, one has an end at the end of 1(a) – I am sorry, in fact, your Honours, we can start with 1(a).  So, there is an urgent need for expenditure that is not provided for or insufficiently provided for in Schedule 1 and the additional expenditure, plainly the expenditure for which “there is the urgent need” and the language then repeats:

is not provided for, or is insufficiently provided for, in the Schedule ‑

So, the last words at paragraph (a) are exactly the same as the words of paragraph (b) followed by the end.  The only change that has happened between this version and section 10 that one has now is that the repetitious words are deleted and the end is removed, so that the section runs on.

GAGELER J:   Are you saying it was just a drafting change?

MR DONAGHUE:   Exactly, plainly a drafting change when you look at it, because all that happened was that the section removed words that were repeated and that was then allowed to run on, so that the “becauses” then qualify or provide the reasons for the earlier changes but it was nothing more than a drafting tightening up.

GAGELER J:   It is a shame that it was clearer before.

MR DONAGHUE:   It is a shame that it was clearer before, except that ‑ it was clearer by reason of the repetition of words but, in our submission, the deletion of repeated words cannot properly be regarded as changing the meaning of the section.

It is clear back from 1979 that when these words came in it was deliberately decided to condition them on satisfaction.  That happened.  It happened repeatedly and the only thing that has changed is the drafting change that your Honours see there.  That is, in our submission, a very infirm basis to change the criteria from a “state of satisfaction” criteria to a jurisdictional fact.

GAGELER J:   Mr Solicitor, was the Dennis Rose opinion a public document until you just showed it to us?

MR DONAGHUE:   No, but it is plainly, we submit, part of the legislative history of the provisions and it is referred to, though not quoted, in that 1988 report to which I took your Honours.  There is a legal opinion on the back of – annexed to that opinion which refers back to the Dennis Rose opinion and says the Act was amended following that opinion, so one can trace it in that way.

So, having taken your Honours through that history, we submit that when one then comes to consider the Wilkie plaintiffs’ proposition that section 10 is invalid because it is beyond the power of the Parliament to provide for the advance, that argument encounters very considerable objections.

If the section be construed in the second of the two ways I identified, that is, that it appropriates the full amount, it is exactly the same as the mechanism that has been adopted since Federation and this Court has accepted that it is for Parliament to decide – while Parliament has control of executive expenditure, it is for Parliament to decide how it will exercise that control and Parliament decided how to exercise that control in the very first Act that it passed and has never changed its mind, in our submission.  So that it is not open to our friends now after nearly 120 years of practice to assert that it is beyond Parliament’s constitutional competence to provide for the advance in that way.

If the Act be construed according to the other construction so that it is a contingent appropriation, then the model did change at the time of accrual accounting, but it did not change in an impermissible way because it is still Parliament that is doing the appropriating.  There is no delegation of that function.  It is a contingent appropriation.  But the objection has been fundamentally based around the proposition of an improper delegation.  The objection fails as a matter of the proper construction of the provision. 

The particular objection based on section 10(4) fails for the reason that I have already foreshadowed, that this is a function that has never been disallowable, and so there is no bypassing of a role that the Senate has ever previously had.  As again I think I have already sufficiently addressed, the “appropriation in blank” objection, for much of the period that I have just taken your Honours through there was an advance to the Treasurer to create a contingency fund and no specification of purpose beyond that the money would be available to be allocated pursuant to 36A of the Audit Act with criteria by reference to whether the funds would be recovered by a subsequent appropriation or not.

Once one gets the current criteria – the criteria have never been more detailed than they are now.  The unforeseen and urgent criteria - satisfaction as urgent and unforeseen is as precise a limitation of the contingency fund provided by the advance as there has ever been.  Justice McHugh in Northern Suburbs, specifically by reference to the “appropriation in blank” observations of Chief Justice Latham in Dale, said of his Honour the Chief Justice’s observations - at 600 to 601 in Northern Suburbs:

it seems to have been ignored by successive governments who annually voted an Advance to the Treasurer without specifying the purposes for which he may spend the money allotted.

So, in our submission, your Honours should reject the challenge to section 10.  Can I move then to the validity of the determination itself, this being part of the case that is common to both the Wilkie and AME proceeding.  I think, your Honours, I have already said most of what I need to say about the jurisdictional fact argument that the AME plaintiffs run.

Your Honours will understand the Wilkie plaintiffs do not assert that either of these criteria are jurisdictional facts.  The AME plaintiffs assert that the unforeseen is a jurisdictional fact.  That submission, we say, even leaving the history aside entirely, does not accord with the plain meaning of the words for the reasons your Honour Justice Nettle put to my friend, Ms Richardson, yesterday.

But when read in light of the history that I have just taken your Honours through it is even clearer that the satisfaction of the Minister conditions both.  The technique that Parliament has used is the technique your Honour Justice Gageler recently described in Plaintiff M96A as an established drafting technique to avoid litigation directly on factual questions as to the conditions of the statutory power.  Your Honour there cited a case, Bankstown v Fripp, from 1919.  It is a very well‑established technique that we submit Parliament has here used. 

The authorities governing review of that kind of power are familiar to your Honours.  We have cited Australian Heritage Commission v Mount Isa Mines as a good example.  Our friends, I think, rely on the Malaysia Declaration Case.  Your Honours will recall that is not a case where the power was conditioned by ministerial satisfaction.  The argument in that case was about whether it was a jurisdictional fact in circumstances where Parliament had not used the established drafting technique that has been used here.

So, if I could turn from the hypothesis that both criteria are to be determined by reference to ministerial satisfaction, although, ultimately, it will not matter.  We submit when the provisions are correctly construed we need a way, but on that hypothesis – first to the question of an urgent need for expenditure, our submission is that one needs to approach that asking, first, what is the relevant need for expenditure and then, is it urgent? 

As we understand the case against us it is suggested that “urgent” means either a need for immediate attention arising from external circumstance – the external circumstance idea seems to be part of it – or too urgent to allow you to return to Parliament for a special appropriation.  I think that they are the two main ways that the case is put against us and if I could deal with them in turn?

As to the external circumstance idea, there is no doubt that urgency can be caused by external circumstances – no dispute – the natural disaster, the flood, the unforeseen military events.  Our submission is that the meaning of the word is not confined to that case.  The ordinary meaning of the word does not support confining it to that situation because the urgency is connected to a need for expenditure and a need for expenditure can arise by reasons of external circumstance.  But, it can also arise for other reasons, including the need for expenditure to implement a government policy decision of some kind. 

So when one asks for – and even in the context of the external circumstance – the flood, or the tsunami overseas, for example, does not itself create the need for expenditure.  What creates the need for expenditure is the government decision responding to the external circumstance.  So there is inevitably going to be a decision‑making process tied up with the question of whether or not there is a need for expenditure.

Our friends, we think, assume that inability to legislate a government policy is not an external circumstance.  It is not clear to us why that assumption is correct.  In circumstances where the government policy is to pass particular legislation, that becomes unachievable and the government then decides on a different policy that creates a need for expenditure.  It, we submit, tends to illustrate the rather malleable nature of the external/internal criteria.

Our submission, your Honours, is that it is a central function of the Executive Government to decide and prioritise between the issues facing the nation and which require attention in priority to others and how those issues are to be addressed.  While that function undoubtedly is partially performed in the context of the federal budget every year, the budget is not the only time that the government is able to make judgments and set priorities that might give rise to a need for expenditure.

Gradual problems might, for example, become more acute over time.  Particular events might occur that create public momentum for a particular change so that even if the problem is not new it nevertheless in the proper judgment of the Executive Government calls for a response that requires resources to be devoted to the task.

So we gave a Centrelink example, a tax on Centrelink staff example in our written submissions, but one could multiply the examples, responses to the ice epidemic, childhood obesity, high housing prices, all of these things are ongoing policy problems which the government might properly decide at various times are problems that should be addressed in a particular way by it.

Now, in many situations, statutory authority that is sufficient to allow the government to implement the chosen response will already exist.  One can take, for example, a possible inquiry into banks.  ASIC likely has – or the ACCC has within its existing statutory framework the powers that it would need to conduct an inquiry of that kind.  There is no need to return to the Parliament to obtain those powers, but what there may be a need to do is to obtain additional funding in order to implement the identified response and, in our submission, if what is occurring is occurring outside of the ordinary budget cycle at a time when the expenditure cannot be provided for through that mechanism, the advance to the Finance Minister is an available mechanism for funding that kind of response.

“Urgent”, in our submission, is just an ordinary English word.  It is an ordinary English word that is used in this section in connection with the satisfaction of the Finance Minister.  Our friends need to show an error of law on this part of their case, as we understand it.  They seek to demonstrate a misconstruction of the section in order to impugn the Finance Minister’s exercise of discretion.  But urgency in its ordinary meaning is a relative concept, some things are relatively more urgent than others.

The level of urgency requires an evaluative judgment to be made between different and competing priorities and in that context we submit it is entirely appropriate for the kinds of reasons that Mr Rose gave in his advice to repose that judgment in the Executive on the satisfaction of the Executive because it is not a judgment that is one which can lend itself to bright lines enforceable in litigation.  The Court is not well placed, in our submission, to make the judgments as to relative priorities and timeframes of the kind that are called for in deciding whether or not there is or is not an urgent need for expenditure.

So, in our submission, it is not an error of law for the Finance Minister to conclude in circumstances where the Cabinet has decided that a particular policy should be pursued and that it should be pursued in a particular timeframe - it is open to the Finance Minister to be satisfied that that generates urgency of the kind to which the section is directed.

Now, the second answer that our friends give to that is to say, well, what you need to do in that scenario is not to call on the advance but to come back to Parliament.  If Parliament is sitting you need to come back and get special appropriation to pay for policy, and they apparently say that, and we think logically must say that, irrespective of the size of the payment.  Whether the policy calls for a response of $100,000, $1 million, or $100 million, cannot vary the meaning of the word “urgent”, in our submission.

So, if one has to come back to the Parliament for the small payment because the urgency criteria is not satisfied if you can go to the Parliament, the same must be true large or small.  In our submission, to say that if it is possible to return to the Parliament one must do so is a long way from the text of the section.  If that was the intention of the advance, it would have been easy to use language that much more clearly conveyed that than the meaning of the word “urgent”. 

It is not how it appears to have been understood.  For example, in the 1988 report that I showed to your Honours, the Joint Public Accounts Committee referred to the capacity to come back “if the expenditure was required before the next Appropriation Act” was the language that the Joint Public Accounts Committee used there. 

That, we submit, is a natural meaning of the provision, not disruptive of ordinary parliamentary business by requiring the ordinary legislative program to be interrupted every time there is an unforeseen item of expenditure, if Parliament is sitting, to say, “Because you’re sitting, Parliament, it is practical to return to you, so now we need to ask you to authorise this payment, which was unforeseen”.  That would be obviously highly disruptive of the orderly conduct of the legislative program in the Parliament.

It would also be a criterion that would mean there is some tension between this and the external circumstance because even in the event of the tsunami or the natural disaster, if Parliament is sitting the advance could not be used in that situation and it would still be necessary to come back to the Parliament to ask for the authorisation.  So it would very heavily circumscribe the utilisation of the power.

As your Honours will have seen in the material, the budget cycle to which we are referring, one sees Bills 1 and 2 - Appropriation Acts 1 and 2 are the main budget bills, usually introduced in May, passed in June to commence on 1 July.  There is very commonly another pair of odd and even numbered bills, 3 and 4, usually introduced in February and passed in March.  That is the ordinary cycle.  Very occasionally there is a 5 and 6 Bill, but not commonly in recent years.

In our submission, it is again open to the Finance Minister, bearing in mind that ordinary cycle, to look at expenditure and say is there a need for this expenditure to occur in a timeframe that may seem impracticable to deal with it within that budget cycle.  If so, then the condition is satisfied.

Now, against that, if our friends were right and these criteria are properly to be understood as not satisfied if it is possible to come back to the Parliament, one would expect to find – and bearing in mind that Parliament enacts these advance provisions multiple times every year, their Honours are not looking at a provision passed once a long time ago, Parliament repeatedly gives expression to its will in relation to the advance by enacting a provision in that form.  Every time it passes an Appropriation Act No 1, No 2, No 3, No 4, they all contain a provision of that kind.

If Parliament’s intention was that expenditure should come back to it on an item‑by‑item basis if Parliament is sitting one would expect to see very many special Appropriation Acts being passed by which Parliament would authorise specific expenditure, but in fact one sees nothing of the kind. 

So we have looked, going back to 2000, for particular Acts of Parliament appropriating particular amounts of money for particular purposes and one finds back to 2000 only just over a dozen – I think it is about 15 or 16 acts of that kind – and almost invariably they are for amounts that far exceed the total amounts of the advance.  They are for very large amounts of money.  They could not be dealt with by the advance because they are for amounts that are hugely in excess of the amount provided for.

Rather than spend time orally taking your Honours through that we have prepared a table that summarises all of them and it has been handed to your Honours.  I do not need to take your Honours through it but there are only a couple of Acts on the list that are smaller than the total of the advance at the time and in each case your Honours can see from the Acts on either side that they were passed as part of a package where there were other bills providing for larger amounts.

Our submission is that parliamentary practice does not bear out the idea that one needs to go back for special appropriations.  Similarly, Parliament receives regular reporting as to the use of the advance.  So every year that the advance is used, and this is pursuant to recommendations made by parliamentary committees, the Finance Minister gives a report to the Parliament as to how the advance was used, what it was used on, et cetera, and the Auditor‑General looks at that report.

There was one of those reports already included in the joint bundle, at tab 93.  Your Honours have, I believe, been given two others, which are for 2011/12 and 2012/13, so your Honours can see the form which this reporting takes.  Ms Richardson yesterday made some references to these documents which are all available on the website. 

The reason for the apparently slightly odd selection of dates is that what we have given your Honours is the last three reports.  The gap between the 2012/13 report and the 2016 report is because there was no use of the advance in those years.  In years when the advance is not used at all there is no report.  But what one can see, if your Honours turn, for example, to the 2011/12 report, in the introduction on page 1, it says that it gives a summary of the legal and policy framework and detailed information on each advance.  That is in the first paragraph. 

Then, if your Honours look at some of the examples, if you go to page 8, for example, there was a use of the advance in connection with what appears to have been an advertising campaign to inform the Australian public of payments, tax cuts and entitlements.  There are, on page 10, references to funding in respect of the Australian Ballet for $2 million; the Moonah Arts Centre for $4 million.  There is not a lot of detail provided.  On page 11 you see the use of the advance in respect of the Wellesley Park upgrade for $1.2 million; the Centre for Rowing Excellence in New Town Bay for $2.5 million; Greater Western Sydney AFL Multicultural Centre for $2 million.

None of those examples comes near to the natural disaster sort of example as the kind of thing necessary to create an urgent need for expenditure.  While accepting your Honours do not have a great deal of information about any of those processes, the proposition that the expenditure must be so urgent that it is not possible to come back to Parliament to get a specific Act is difficult to reconcile with the way that the power is actually used because it is very hard to see how expenditure on an arts centre, a rowing centre or a multicultural centre could ever be so urgent that it was not possible to come back to Parliament to obtain an appropriation in relation to that amount of money.  Your Honours will see similar examples in the other reports; I do not need to go to them.

GAGELER J:   Mr Solicitor, do these reports have a statutory basis?

MR DONAGHUE:   I do not believe that they do, your Honour.  I might check that, but I think that they are a product of Parliament having ‑ at the time that it discontinued its past practice of going back and appropriating all of the money that had been previously advanced – this is back in the 50s – it was recognised that that did not make sense because the money had already been appropriated in the original Act, in the schedule, and appropriating it again was pointless. 

But that had been the mechanism by which Parliament looked at what had been done with the advance.  So when that was discontinued the Senate Committee said, “What should happen instead is you should give us a detailed report on the way you have used it every year”.  I think that that remains the foundation.

GORDON J:   Just so I am clear, under the earlier Appropriation Act you took us to, it was a provision within the statute that there will be particulars provided to Parliament because if you looked at the advance it said particulars of which are to be submitted to the Parliament. 

MR DONAGHUE:   It would after wise be, indeed.  So that was the early practice.  I was going to take your Honours through some of them and I decided that ‑ ‑ ‑

GORDON J:   No, that was the original practice and then it changed.

MR DONAGHUE:   That was the original practice.  It changed in the mid‑50s.  There was a period where the money was all reappropriated again and then there was a period where there was notional recovery and then the advance.  If the amount was repaid to the Treasurer for the advance then it became available to be used again.  Then there was a period right up until 2008/09, which your Honours saw yesterday, when there was a big jump in the amount of the advance. 

The reason for the big jump was that that was the end of recovering from the advance.  Parliament just said, “We will not continue this idea of repaying the advance”.  Because there was no more repaying, it was necessary to have a larger advance to accommodate the same programs that had previously been going through.

GAGELER J:   Where do we see that explained, the difference between 2007/2008 and 2008/2009?

MR DONAGHUE:   There is a reference to it in the explanatory memorandum to the 2008/2009 Act and that being the reason that the amount was dramatically increased in that year.  I am not sure that there is a ‑ I might, your Honour, over lunch check if I can give your Honour a better answer than that but there is certainly a reference to it there.  I am not sure if there is a public explanation of it in any other forum.

So, your Honours, for the reasons that I have just identified, in our submission, it was open to – in effect the urgency and the unforeseen criteria in section 10 can in some sense be regarded as bookends in that the unforeseen criteria is a criteria directed to why the expense was not included in the last Appropriation Act, why it was not included in the budget, and the urgency requirement is an explanation of why it is not waiting for the next one.  It is situating the need for expenditure in a period in between the periods where the expenditure can properly otherwise be being dealt with in part of the ordinary budget cycle and, in those circumstances, we submit, that it being common ground that on 5 May, the last day for inclusion in the No 1 Act, it had not been foreseen that there was a need for expenditure on a postal survey to be conducted by the ABS; it was not included there, I will come to foreseen in a little detail in a minute.

But, focusing just on urgency, in circumstances where Cabinet decides on 7 August to adopt the policy that the ABS carry out the survey and that the results be available by the middle of November, in our submission, it was open on the ordinary meaning of the words for the Finance Minister to be satisfied that the expenditure was urgent within the meaning of that provision as I have endeavoured to explain it.  For our friends to succeed in their attack, they need to demonstrate that, not only that the submission I just put is wrong but that, as a matter of law, it was not open to the Finance Minister to be satisfied that the decision that had been made by the Cabinet did create a need for expenditure that was urgent in that way.

In terms of the second criteria, the unforeseen criteria, if your Honours return to the text of section 10, there is one element of this that, we submit, requires some perhaps greater emphasis than it has so far received.  So the:

section applies if the Finance Minister is satisfied that there is an urgent need for expenditure, in the current year, that is not provided for . . . in Schedule 1 ‑

When one looks at Schedule 1 to this Act, one finds a schedule that provides for particular expenditure by reference to departmental items and administered items of particular entities.  The whole structure of the schedule is arranged by those kinds of expenditure entity by entity by entity and, in our submission, within the context of an Act that contains Schedule 1 structured in that way, the only way that Schedule 1 could have provided for the expenditure is if there was an entity where it was appropriate to specify an administered item or a departmental item for that entity.  If there was not a foreseen need to make provision in Schedule 1 of that kind, then Schedule 1 could not have provided for the expenditure.

So that one has to read this provision in the context of the Act of which it forms a part, including the schedule, and one is asking a question about why was particular expenditure not included in Schedule 1; was it because of erroneous omission or understatement – not relevant here ‑ was it because the expenditure, being the expenditure for which there was an urgent need, was not foreseen until after here, 5 May.  In our submission, it is an essential component of answering that question to say, well, if it was not foreseen that a particular entity would discharge a particular function, then that criteria is satisfied because Schedule 1 could not sensibly have provided for the inclusion of the amount.

In that respect, the evidence of the Finance Minister is plainly critical.  Your Honours have been to the affidavit enough.  I do not need to take you back to it, but the Finance Minister’s evidence was very clear that he was unaware on 5 May of any proposal for the ABS to conduct a survey on same‑sex marriage and that it was not government policy for it to do so.  The government’s policy remained a different policy, to conduct a compulsory attendance plebiscite and, consistently with that evidence, there was a contingent liability, as your Honours know, for that different policy in the budget papers.

The proposition that this limb, this unforeseen limb, is not satisfied seems to involve the idea that because certain Ministers were publicly thinking about a particular proposal that the government had not adopted that there was a need for expenditure in respect of that proposal, and in our submission that cannot be right.  There cannot be a need for expenditure until there is a decision taken of a kind that the expenditure will be incurred.

KIEFEL CJ:   Well, indeed, I thought that is what was put against you, that what was unforeseen was the Cabinet decision and not the expenditure.  I mean, in one sense what seems to be in common between the parties is that what must be unforeseen is the expenditure, and as I understood what was put against you was that it was not that there would be the need for some kind of expenditure by some entity, but rather that the Cabinet decision had not occurred and that is not unforeseen need in relation to expenditure.

MR DONAGHUE:   Well, our submission, your Honour, is that the unforeseen need in relation to expenditure is an unforeseen need for the urgent expenditure which is not provided for in the schedule, so that one is asking the question, in effect, did Schedule 1 fail to provide for expenditure by the ABS because no one had foreseen expenditure by the ABS on or before 5 May?  That is how we submit that the section should be read, because unless someone had foreseen the need for expenditure by the ABS prior to that date, Schedule 1 could not have provided for it.

KIEFEL CJ:   So your argument, I take it, is that the need for expenditure arises with respect to the entities in Schedule 1.

MR DONAGHUE:   Exactly.  Because Schedule 1 is structured by entity, the foresight necessarily links to the entity.  Now, if there was foresight of a proposal that the AEC might conduct a postal ballot, still, in our submission, does not create a need for expenditure, because at that point in time while certain Ministers might have been thinking that this was an idea worth exploring, it could not sensibly have been provided for in Schedule 1 because that would have involved appropriating $122 million to the AEC even though no one had asked the AEC to do anything.

There would have been the contingent liability for $170 million for the compulsory attendance plebiscite and this additional pot of money appropriated to the AEC because there were Ministers thinking about a proposal that the government had not adopted.  That would be a most surprising, to say the least, approach to parliamentary appropriation to appropriate hundreds of millions ‑ or over a hundred million dollars on that speculative possibility.

So that, even accepting foresight of the possibility of the AEC, we submit that that does not demonstrate that expenditure by the AEC would have been unforeseen, but even if we were wrong about that, the uncontradicted evidence is that the ABS just were not on the table at all and that is enough, we submit, for us to succeed on this limb of the case.  Finally, on this ‑ ‑ ‑

BELL J:   Just before you move from that, what is your response to the submission that the Minister has got the power under section 75 of the Public Governance Act to transfer funds so it is artificial to speak of an unforeseen need for expenditure in those circumstances tied to an entity?

MR DONAGHUE:   That was in fact the precise point I was about to turn to, your Honour.  So, two answers.  The first answer is that underlying that argument, the section 75 argument, does seem to be the idea that the 122 million should have been appropriated to the AEC because if it was not appropriated to the AEC it could not have been transferred to the ABS.

So the argument does not work unless the possibility mooted by the Ministers in March was enough to get the money appropriated in Schedule 1, and we submit that to appropriate the money to the AEC on the off chance that it might be needed or that it could be transferred to somebody else who needed it is a suggestion that is unattractive as a matter of public financial administration, and it does not seem to be any better from a parliamentary control perspective than just using the contingency fund as has in fact been used, because it is the Finance Minister who moves the funds under section 75.  So it is the Finance Minister making the decision in either circumstance, so we have some difficulty with the argument for that reason.

But perhaps more fundamentally, if your Honours could turn to section 75 which is in the joint bundle at tab 29, in our submission, it does not deal with this situation at all because this provision is not a provision that it is just about transferring money between different entities in Schedule 1.  This is a provision that is directed to the transfer of functions between non‑corporate government entities.  So, 75(1):

This section applies if a function of a non‑corporate Commonwealth entity . . . is transferred to another non‑corporate Commonwealth entity, either because the transferring entity is abolished or for any other reason.

When that happens, the Finance Minister then has a determination power that allows him to move the money around.  The clear example of the situation to which that is directed is a machinery of government change that re‑allocates functions.  So, for example, the published decision of the government to create a Home Office will involve some functions that were traditionally functions of the Attorney‑General’s Department being moved into the Home Office and some functions from various other parts of the Commonwealth Government will be moved.

To the extent that money has been appropriated to the Attorney‑General’s Department in respect of functions that are now to be exercised by some other part of the Commonwealth Government, this is a power that allows those funds to be moved to the new home.  But what it does not allow, absent a transfer of functions, is money just to be moved from one agency to the other.

So, in our submission, the AME plaintiffs’ reliance on that section not only does not – or does not align with what the section – with the work that the section is created to do and one sees – I will not take your Honours to it – but one sees a discussion of machinery of government changes through variations of the Administrative Arrangements Orders in the explanatory memorandum to that provision when it was enacted.

But also it seems not to improve at all – no improvement at all on the position that section 10 could be exercised because it seems better, in our submission, looking at the coherent operation of these financial provisions, to allow no provision to be made for expenditure until a decision is made actually to incur that expenditure and then to deal with that need through the advance, rather than to guess about whether there will be a need to appropriate funds based on the guess and then to transfer them around, as our friends seem to be suggesting.

I note the time, your Honours.  Is that a convenient time?

KIEFEL CJ:   Mr Solicitor, when you come later to the final topic under heading G, do you propose to address in any more detail the substantive questions in the special case in the AME proceedings?  I am speaking of questions 3(b) and 4(b) in any more detail?

MR DONAGHUE:   Questions 3(b) and 4(b)?

KIEFEL CJ:   Yes, I think that is the – that is, assuming of course the standing was answered in favour of the plaintiffs.

MR DONAGHUE:   I propose to address them under heading D, your Honour, so that is ‑ ‑ ‑

KIEFEL CJ:   Under heading D?

MR DONAGHUE:   I am nearly there – the ordinary annual services of government is the part of the – so once I finish with the advance, which I have nearly done, I am up to paragraph 15.

KIEFEL CJ:   I am speaking of the answers themselves.

MR DONAGHUE:   The answers themselves to the questions?

KIEFEL CJ:   Yes, as to whether or not more may be required, given the form in which the questions are posed.

MR DONAGHUE:   Your Honour, I will look at that after lunch.  Thank you.

KIEFEL CJ:   The Court will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2:15 PM:

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE:   Thank you, your Honour.  Your Honours, before the break, your Honour Justice Gageler asked me two questions.  You asked, one, whether there was a statutory foundation for the reports to which I referred.  The answer is no.  The history is as I recounted it back to that 57 change of practice.  There have been various parliamentary committee reports that have referred to the reports made by the Minister as to the advance since then but there is no statutory underpinning for it.  The other question your Honour asked me was about documents evidencing the change in recovery practice and my instructions are there are no public documents other than the explanatory memorandum to the 2008/09 Act.  The reference is paragraph 56 in that explanatory memorandum.

GAGELER J:   Thank you.

MR DONAGHUE:   Your Honours, can I conclude my submissions about the validity of the determination by dealing with the error that is described in the submissions as a conflation of criteria.  This is an argument based on the explanatory statement which your Honours find in the application book at page 56 in the Wilkie matter.  It turns on one sentence in the fourth paragraph of that explanatory statement.  The premise for the argument is that the Court should treat this explanatory statement for a legislative instrument as if it were a statement of the Minister’s reasons for making the instrument and, as your Honours will have seen in the written submissions, we contest that premise.

In our submission, this is a document more akin to an explanatory memorandum than to a statement of reasons for an administrative decision. It is a document that is prepared pursuant to an obligation imposed on a rule maker by section 15J(2) of the Legislation Act (2003) that I do not need to take your Honours to, but relevantly that provision requires the explanatory statement to – in paragraph (b)?

explain the purpose and operation of the instrument –

So, it is forward looking.  It is looking at how the instrument is to operate and its purpose.  It is not looking at why the rule maker was satisfied that any preconditions for the power were satisfied.  Given the nature of the obligation we submit that it does not provide a safe foundation for an assumption as to reasons, particularly in circumstances where here we have an unchallenged affidavit from the person who made the instrument explaining directly his satisfaction – the basis upon which he was satisfied as to the two preconditions.

Your Honours have seen the affidavit, particularly in paragraph 13 of the affidavit which is in the book at 180 to 181.  The Minister addresses those criteria in terms that make it plain, in our submission, that he did not conflate the two criteria.  In other words, he did not mistakenly proceed upon the basis that there was one criterion rather than two.  In circumstances where the Minister has sworn to his state of satisfaction and his evidence to that effect is unchallenged, in our submission that evidence should be accepted and that would be the end of that ground. 

In the alternative, we submit that in any event, even if your Honours were just to focus on the explanatory statement and not to have regard to the Minister’s affidavit, the error is still not made good.  We say that because the submission to the contrary involves an overly zealous reading of the statements and thus infringes the Wu Shan Liang principle. 

The reason we say that – if your Honours have the statement at page 56 – is that your Honours will see paragraph 1 of that statement sets out in unimpeachable terms the correct operation of section 10(1).  Then, paragraph 7, which is the paragraph immediately under the heading, “Advances to the Finance Minister”, about point 7 on the page, again refers to the annual AFM – advance to the Finance Minister – enabling the Minister to “facilitate urgent and unforeseen expenditure”.  Again, the document is drafted in terms that recognise the existence of two criteria rather than one.

In circumstances where there are multiple references in the document that correctly identify the applicable legal test, one should not, in our submission, readily conclude that somewhere in the middle of the reasons, between those two paragraphs, the Minister lost sight of the governing criteria and somehow conflated the two of them.

We accept that the language of that particular sentence that is impugned does, adopting what appears to have been a shorthand, link the two criteria together, but in circumstances where it was the decision made by the government to achieve a particular outcome by a particular time there is a factual relationship between the reasons that the two criteria were satisfied, the decision being made, after the relevant date it was unforeseen, it being made requiring action by a particular time it was urgent.  In those circumstances we submit that on a fair reading of the document it does not disclose jurisdictional error.

The other point we make really by way of passing is even if all that were wrong and there were an error on that account, unless the plaintiffs were to succeed in any of their other grounds there would be absolutely no reason the determination could not just be remade by the Finance Minister ‑ that is, if we are right about the meanings of the term and the only error was said to be some conflation evident in the document that would be readily remedied.

Your Honours, can I turn then to the next part of our submissions which deals with the ordinary annual services of government, which is the point that is peculiar to the AME proceeding rather than the Wilkie proceeding.  So this is section D of the outline, paragraphs 16 through to 19, starting with questions 3(a) and 4(a) which are the justiciability questions. 

Question 3(a) asks whether there is a justiciable limit on the power to make a determination under section 10 by reason of the concept of the ordinary annual services of the government and 4(a) asks whether there is a justiciable limit of the same kind not on the determination‑making power but on any funds appropriated by the Parliament itself in Schedule 1.  That is the difference between the two questions.

As your Honours know, the phrase “the ordinary annual services of the government” is a phrase that is used twice in the Constitution. It is used in section 53 and in 54 and in both of those contexts this Court has long accepted that the provisions are directed towards the intramural relationships between the two Houses of Parliament and that compliance with them is not justiciable, and the contrary is not suggested by the plaintiffs in the AME matter.

If I could ask your Honours very quickly to turn to Permanent Trustees, which is at tab 62 in the joint bundle, just to show your Honours the way this has been expressed by the Court, and the relevant passage in Permanent Trustees (2004) 220 CLR 388 at 409, paragraph 41. There in the joint judgment of five members of the Court there is endorsed what is described as the “received opinion” of the Court from the Native Title Act Case.

“Section 53 is a procedural provision governing the intra‑mural activities of the Parliament.  The traditional view is that this Court does not interfere in those activities.  That view was stated . . . in Northern Suburbs General Cemetery Reserve Trust v The Commonwealth in reference to s 54 –

So it has been stated in reference to both 53 and 54:

‘a failure to comply with the dictates of a procedural provision, such as s 54, dealing with a “bill” or a “proposed law” is not –

and there are two limbs to this:

contemporaneously justiciable –

which picks up the fact that those provisions talk about proposed laws rather than laws, but the second limb is:

and does not give rise to invalidity of the resulting Act when it has been passed by the two Houses of the Parliament and has received the royal assent.’

So not only is it not contemporaneously justiciable in relation to proposed laws but even once you have a law that has been passed the question of compliance with provisions is not a justiciable one.  Section 54, of course, is the provision that provides that:

The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation.

So it is not a justiciable question, having regard to section 54, whether a law deals only with the ordinary annual services of the government.  As I say, the contrary does not appear to be asserted.  But even though the contrary is not expressly asserted, the plaintiffs in AME seek to sidestep the issue by saying we are not asserting a breach of section 54; we are saying that, as a matter of construction, the Act is to be read as subject to a limit, the content of which is identical to section 54.

The reason for that is that the long title of the Act uses that phrase, and the text of the Act should be read as being subject to an implication corresponding to the content of the long title. That is as we understand the way the argument is put. The long title, in our submission, is plainly explicable on the basis of dealing with the intramural relations between the Houses - the House of Representatives needs to flag for the Senate that the Bill it is dealing with is a Bill that deals with the ordinary annual services of the government so as to make clear the operation of section 53 in relation to the provision. In our submission it does no more than that.

In our submission the only reason – I will come to the text of the Appropriation Act shortly – but the only reason one would even consider reading the operative provisions of that Act as being subject to a limitation by reference to the ordinary annual services of the government is if one had to read it that way in order to preserve its validity.  But that would be an argument about breach of section 54 and the plaintiffs have expressly eschewed that proposition.

If there is no argument to the effect that one needs to read the Appropriation Act down in order to avoid infringing a constitutional limit referable to the ordinary annual services of the government, in our submission there is no basis as a matter of statutory interpretation for seeking to import that limit into the Act.

If that were to be wrong, the proposition would be that – the plaintiffs in AME, to be fair, do not run away from this; they expressly acknowledge this in paragraph 22 of their reply – not just in relation to the advances and the determination but in relation to any funds appropriated by the Parliament for the ordinary annual services, any funds appropriated in Appropriation Act (No 1) or (No 3), one could run one’s finger over Schedule 1 and, in relation to any items of expenditure found there, ask the question not “Is this expenditure within the departmental outcome or an administered outcome?” but “Is this expenditure for something of the kind this agency has done before?  Is it ordinary?”  If it is not, on this argument, the appropriation would be invalid to that extent. 

That would, we submit, involve a level of judicial review of expenditure and appropriation of a kind not seen before, and that would raise the very kinds of issues that Sir Anthony Mason talked about in his judgment in AAP, to which I took your Honours earlier.

The Court has been alive to the dangers or the risks associated with transgressing the non‑justiciable limits of 53 and 54 in the past.  One case where that is clear is in the joint judgment of Justices Gummow, Brennan and Bell in Pape.  Can I ask your Honours to turn briefly to that?  It is tab 61 in the joint bundle.  Page 70, paragraphs 163 through to 166 is the relevant part of the judgment.  Their Honours note:

The question assumes that the Commissioner is bound by the terms of s 83 and that this may present a justiciable issue as to the existence of an “appropriation” within the meaning of . . . s 81.

So that is the kind of question your Honour Justice Gageler was raising with me this morning.

Notwithstanding the doubts expressed by Jacobs J, and perhaps by Mason J, in . . . (AAP Case) the contrary is not submitted in the present dispute.

Then at 165 it is pointed out the traditional view about intramural activities of the Parliament not giving rise to invalidity, citing the passage in Permanent Trustee that I have already taken your Honours to.  Then at 166:

The adjudication of the issue presented by Question 3, respecting the operation of ss 81 and 83 of the Constitution, thus requires some care lest that adjudication trespass upon the anterior operation of s 53 with respect to the passage of the Bill –

We respectfully submit that the same care is required in this case, that the argument advanced by the AME plaintiffs is an argument that invites your Honours to trespass into the precise area that would be required were compliance with section 54 to impose a justiciable limit on appropriations.

The next matter to which I take the Court is the judgment of the Court in Brown v West which is at tab 42 in the joint bundle – Brown v West (1990) 169 CLR 195 and Brown v West is relied on by our friends as showing that there is no non‑justiciability problem in relation to the ordinary annual services argument that they advance.

This case was not a case that involved a challenge to an Appropriation Act or an appropriation at all.  It involved a challenge to a decision by a Commonwealth Minister in the purported exercise of non‑statutory executive power to increase the postal allowance that had been set in the exercise of a statutory executive power by the Remuneration Tribunal.

So the Remuneration Tribunal had a reference made to it by the Minister, it determined that the postal allowance should be set at a particular level.  The Commonwealth Minister then sought to increase by a very large amount the postal allowance payable to parliamentarians and a Member of the Parliament who would have been entitled to receive that allowance challenged the exercise of power to increase the allowance.

The main issue in the case was whether or not any non‑statutory executive power that may have existed had been excluded by the operation of the Remuneration Tribunal legislation.  So it was a De Keyser Hotel argument about whether or not the existence of a statutory regime on a particular topic had excluded any residual non‑statutory executive power. 

That part of the case obviously would not raise any question of justiciability or of standing where the issue arose in relation to a person who was purportedly entitled to the relevant allowance and in those circumstances it is, we submit, not surprising that justiciability and standing arguments did not feature in the case.  The Court said in identifying the relevant interest that Mr Brown had – which is identified right at the end of the judgment at page 212, about point 8 on the page, it is said:

Although the plaintiff has an interest in knowing whether or not he is entitled to a supplementary allowance, there may be other persons –

et cetera.  So that was the interest that the Court had identified.  If your Honours go to page 200 in the report, you will see that towards the bottom of the page the Court identify – this is about point 8 or eight lines up from the bottom:

Upon the pleadings, there are two questions of law on which the demurrer might turn:  first, whether the executive power of the Commonwealth extends to the provision of a postage allowance supplementary to the postage allowance determined by the Tribunal –

That is the question I have already identified:

and second, whether the Supply Act (No. 1) 1989‑1990 contains an appropriation for the purpose of supplementing the postal allowance determined by the Tribunal -

that being where the Minister was proposing to get the money for to pay the supplementary amount.  Their Honours then say:

The two questions are closely related, for an affirmative answer to the second question would bear upon the scope of the executive power.

Now, in our submission, very considerable caution is required about that sentence because that is a pre‑Pape sentence that suggests that the existence of an appropriation for an amount bore on the existence of executive power to spend the amount and, in our submission, it is difficult to see how that could still be said in the face of the decision of the Court in Pape.  So there is a need, in our submission, to exercise some caution with this case in relation to its discussion of the connection between appropriation and spending because it does not clearly demarcate between those two concepts.

At page 204 of the report, again, near the bottom, you see the De Keyser Hotel reasoning.  So, putting aside for the moment the Supply Act, the operation of the Parliamentary Allowances Act and the Remuneration Tribunal Act:

upon a determination which specifies the level of benefit to be enjoyed denies the existence of an executive power to increase that level.

The reasons are then explained at the top of 205:

It is a necessary implication –

in effect, that there be no residual executive power and at the end of that paragraph De Keyser’s Hotel is cited.  Having reached that conclusion that non‑statutory executive power was excluded, it is in that context that the Court then comes to the Supply Act, Appropriation Act questions and the question that it then asks itself as you see continuing down 205 is – is the position changed by an appropriation to plug the gap or to add the power back again. 

There is a general discussion over the next few pages about the operation of Appropriation Acts, Supply Acts, the Supply Act appropriating pending the making of an Appropriation Act later in the year which was the practice before the budget was moved from August into May, none of that is important for present purposes. 

Having then gone through that discussion, the Court gets to the detail of the Appropriation Act at 209.  It is an Appropriation Act that – I am sorry, before you get to that, if your Honours go back to 208 you will see at the top of 208 there is approval of Chief Justice Latham’s remarks about appropriations in blank “for no designated purpose”.  That is relevant because on the very next page of the judgment at the bottom of the page you will see that there is a reference to the “Advance to the Minister for Finance” in terms as you see over the page relevantly the same as they are now, satisfied about urgent expenditure that was unforeseen. 

So, while the Court was cognisant of the idea that there be limits on appropriations in blank, there is nothing in this judgment to suggest that it thought that there was any difficulty with the advance in that respect even though framed in the same way it is here.  But then when one comes to the crucial part of the case for the plaintiff’s point of view which is 211, in our submission, what one finds is that the key reasoning is at the bottom of 211 and on to page 212 where, in the last paragraph of 211 - and I will come back to the paragraph above but in the last paragraph of 211 it is said:  

the basic consideration must be whether the Parliament, in making the appropriation in question, intends to override existing legislation . . . The Appropriation Act must be read in the context of the existing legislation which, unless repealed by the Appropriation Act, requires that the purposes to be found in the broad terms of the Appropriation Act be limited to accord with the existing legislation.

It would therefore be wrong to search in the Supply Act (No 1) for an appropriation for the purpose of supplementing a postage allowance determined by the Tribunal without having regard –

to the same statutory provisions which had been held to exclude the non‑statutory executive power.  In effect, the reasoning is we have just found that these statutory provisions constitute a code effectively that excludes non‑statutory executive power.  We should not find that the Appropriation Act reverses that conclusion unless it is clear from the Appropriation Act that it intended to supplement or modify the operation of that code and for that reason the argument based on the Supply Act failed.  It did not provide the alternative source of authority for which the Commonwealth had there intended.  So that is the main reasoning in the case but one does have, back on 211, a reference in one paragraph in about point 6 of the page to the fact that, in effect, to treat the Supply Act as containing: 

an appropriation for the purpose of supplementing the postal allowance would be to find in it an appropriation for the funding of a new policy which, by parliamentary practice, would be found only in a bill for special legislation or, at the least, in Appropriation Bill (No. 2).

That is a tacit reference to the compact of 1965 and to parliamentary practice and it is seemingly on that basis and that basis alone that it is said that it is justiciable to review appropriation legislation for the purposes of compliance, to see whether or not the appropriation is for the ordinary annual services of the government.

The Court in Combet looked at that passage and characterised the Court in Brown v West as having placed limited reliance on parliamentary practice.  That is how the plurality in Combet characterised it at paragraph 155 and we submit, for the reasons I have just given; that is a fair summary.  It is in no way a critical part of the Court’s reasoning in Brown v West.

GORDON J:   Is not your further point though that even if it was here, as I understand your argument, parliamentary practice does not assist because there is no parliamentary practice?

MR DONAGHUE:   That is right, your Honour.  So that part of our answer and the other point I was going to make is that in Combet it was said that no one was critical of the very limited reliance that was placed on parliamentary practice.  The difficulty is really as your Honour Justice Gordon puts to me, that one cannot safely draw, in our submission, the kind of inference that the Court drew there because it does require one to be able to form a confident conclusion about what exactly the parliamentary practice is as a foundation for the inference and whatever the position may have been in 1990, and we have not taken ourselves back in time to that point, now, on the existing parliamentary materials that are in the special case book, in our submission, you cannot safely draw that inference. 

There are disagreements between the Executive and the Senate in relation to the parameters of the ordinary annual services of government concept.  They are disagreements that include the extent to which new policies can be properly included in an odd numbered Appropriation Act, if those new policies fall within an administered outcome and for reasons I will also come to, perhaps also in relation to new policies within departmental expenditure. 

If there is not a disagreement on that last point, on departmental expenditure, it is because it is clear that new policies can come within departmental expenditure but I will come to that.  So, in our submission, parliamentary practice now does not provide a safe inference for the kind of inference that was drawn in Brown v West, limited though it was. 

So, in our submission, to the extent that questions 3(a) and 4(a) ask about justiciability, they are asking is it possible, notwithstanding the non‑justiciability of section 54 to ask exactly the same question as an implied limit on the power to make a determination under section 10(2) or on the power to appropriate more generally, as found in the appropriations in section 12 and Schedule 1 and we submit that one cannot, by the back door mechanism of the long title of the Act, have the Court answer exactly the same question that the Court has refused to answer via the direct mechanisms of section 53 and section 54.

If we are wrong about that and so the question of whether or not expenditure within the ordinary annual services of government is justiciable, then that takes us to questions 3(b) and 4(b) in the special case about whether or not one can find here invalidity of the determination or invalidity of the appropriation itself because this Act is properly interpreted as limited to the ordinary annual services of the government and the expense in question falls outside of that category. 

That, we submit, is really to ask the wrong question.  To ask that question at all is to ask a question in the terms of the long title of the Act and not in terms of the text of the Act in circumstances where in Combet the Court made it clear that an Appropriation Act like any other Act, should be interpreted having regard first and foremost to its text.

So the starting point, we submit, must be the determination itself.  The determination your Honours will see at page 248 of the special case book, which your Honours I think were taken to very early in the case and I take you back to it for this purpose, that having recited the criteria, what this determination in its terms does, is require:

That the Act have effect as if Schedule 1 of the Act were amended so that –

a particular item in a particular column in a particular table, in Schedule 1, were increased by the amount listed in column 3 below – which is 122 million.  The particular item in the particular column in the particular table is the table dealing with the ABS and the item is the “departmental item” for the ABS.  You see that in column 1, “Appropriation Act (No. 1) 20017‑2018”.  What is amended is the departmental item and it is amended by adding $122 million to the existing figure.  So, that is what the Finance Minister purported to do.

To work out whether that amount of money is limited by the ordinary annual services of government, one has to look at what does the Act say can be done with a departmental item.  And, for that one needs to go back to the Appropriation Act and to the definitions, starting at section 3.  This is a journey through some provisions that are materially in the same form as the Combet provisions, as far as we can tell.  So, if your Honours go to section 3, you will see there is a definition of departmental item:

departmental item means the total amount set out in Schedule 1 in relation to a non‑corporate entity under the heading “Departmental”.

So, when the $348 million that originally appeared in Schedule 1 has $122 million added to it by reason of the determination, the departmental item becomes the total of those two figures.  There is a note under that item, which received some attention in Combet, that the amount set out opposite the outcomes under the heading “Departmental and Notional”, they are not part of the item, they do not in any way restrict – and I emphasise that word – the scope of the expenditure.

Now, from there, one then goes to see, what does the Act say about a departmental item?  In section 7 of the Act, it provides that:

The amounts specified in the departmental item –

That is the total for the non‑corporate entity:

may be applied for –

and the operative expression is:

the departmental expenditure of the –

item, “departmental expenditure” being a term that is not defined in the Act but that is given an expanse of interpretation in Combet, so the departmental expenditure of the entity.

When one goes, then, to the schedule of the Act as it applies to the ABS which should be included in your Honours’ material, on the page headed “Treasury Portfolio”, and it is page 144 of the Act.  You see that there is a table for the Australian Bureau of Statistics with columns for “Departmental”, “Administered” and “Total”.  Under “Administered” there is nothing.  So, there are no administered items for the ABS, only departmental items.  But, notwithstanding that there are only departmental items and that an outcome is notional for a departmental item as opposed to controlling for an administered item, there is still an outcome here.  So, it does not control but Parliament has said that within the context of this departmental item, it envisages as the only outcome specified:

Decisions on important matters made by governments, business and the broader community are informed by objective, relevant and trusted official statistics produced through the collection and integration of data ‑

Now, in our submission, it is plain that the survey would fall within that outcome and, in fact, as we understand it, the plaintiffs in AME do not contend otherwise.  Instead of contending that the survey does not fall within the outcome, their submission is that the outcome is irrelevant to the construction of or through the understanding of departmental item and they make that submission on the basis of a passage in Combet.

If your Honours could turn to Combet (2005) 224 CLR 494, which is in tab 45, volume 2 of the joint bundle, there is one passage in Combet that does seem to give some support to the applicants in their submission because at page 566, paragraph 130 in the plurality judgment it is said, four lines down:

The outcomes stated throughout Sch 1 cannot assist the characterisation of expenditures as “departmental expenditure” –

So accepted on the face of that, that does lend some support to what our friends say.  It is though, in our submission, necessary to compare that passage with various other remarks made by the plurality which suggests that what their Honours may have had in mind was that departmental outcome could not restrict the concept of departmental expenditure, because the actual argument that was advanced by the plaintiffs in Combet was that the expenditure that was contemplated on advertising the Work Choices reforms did not fall within the relevant outcomes for the departmental expenditure, and the debate between the parties was principally concerned ‑ ‑ ‑

GAGELER J:   I am sorry.

MR DONAGHUE:   I know I am in dangerous territory, your Honour.

GAGELER J:   Go on.

MR DONAGHUE:   I hesitated before I went there, your Honour.  But what the Court held, the determinative conclusion, in our submission, was that even if the expenditure was not within a departmental outcome, it could still be a departmental expenditure and therefore that the outcome was not determinative.  It would have been determinative for an administered item; was not determinative for departmental expenditure.  That is, we submit, important to read in these paragraphs because the focus was on whether the outcome restricted, not on whether the outcome assisted at all in giving content to the notion of departmental expenditure, and if one looks, for example, at paragraph 129 just above the paragraph our friends rely on, there is a reference to the note to the definition where their Honours record the fact that it says:

are not part of the item and do not in any way restrict the scope of the expenditure –

Similarly, at the end of paragraph 132 on the top of page 567, it said the item:

should be taken to fetter the scope of the expenditure –

In 136(vi):

But, in so far as they are linked to departmental items, outcomes are not part of that item and do not restrict the scope –

So there are quite a number of references that suggest that what the plurality had in mind was the limiting function of the outcome rather than assisting.  That, we submit, makes quite some degree of sense because if one cannot use the outcome to restrict and one also cannot use the outcome to help give content to the departmental expenditure, that suggests one has to ignore the outcome completely.

These are words that Parliament has enacted in Schedule 1 of the Act that it is not likely, in our submission, that the Court was saying that the words have to be ignored entirely in the statutory interpretation exercise of giving content to departmental expenditure, and that is certainly how Chief Justice Gleeson saw it at paragraph 26 in Combet.  His Honour treated the outcome as something that could assist in considering what is meant by departmental expenditure.  Paragraph 26 is a long paragraph, but right in the middle of page 529 his Honour says:

Taken together, however, outcomes towards which the Department . . . is working assist in considering what is meant by “departmental expenditure”.

If that is so, then we submit that if we are right in submitting that the proposed survey here falls within the outcome, that assists in reaching the conclusion that it is part of the departmental expenditure that section 7 of the Act identifies as the permitted purpose for the appropriated total amount in the schedule.

Our friends suggest that departmental expenditure should not be given any wide meaning, that it needs to be confined to the old notion of running costs which they suggest are salaries, administrative expenses.  In our submission, that is – that submission is not correct.  It is an expression that was understood widely – ordinary annual services of government, that is, is an expression that was understood widely and departmental expenditure was an expression that was understood widely in Combet.  So, at the bottom of page 528, still in Chief Justice Gleeson’s judgment, his Honour refers to section 7(2) of the then Appropriation Act then in issue, refers to the appropriated amount, says:

The long title of the Appropriation Act, understood in the light of s 53 of the Constitution, shows that the expenditure referred to in s 7 is for the ordinary annual services of Government.  That, however, is an expression of wide import.

His Honour said.  Similarly, in the plurality judgment at paragraph 158 on page 576 the plurality point out that:

Making an appropriation for a departmental item that may be applied only for an entity’s departmental expenditure (not otherwise specified or identified) does not represent any radical departure from previous federal parliamentary practice.

There is references then to the portfolio budget statements containing an explanation of the concepts of departmental items and administered items.  You see the same explanations given in the explanatory memorandum to the current 2017/18 Act.  A departmental item is:

“Assets, liabilities, revenues and expenses in relation to an agency or authority that are controlled by the agency. 

It includes the kinds of things our friends refer to, the running expenses, the employer and supplier expenses and other costs which are “incurred by the agency in providing its goods and services”.  The distinction that one sees between departmental items and administrative items is that if the agency controls the expenditure itself, it is a departmental item.  If it is giving money to someone else pursuant to a grants process or something of that kind, it is an administered item.  So, most non‑corporate Commonwealth entities have departmental items, not administered items, because they are receiving funds to discharge whatever their purposes are, including their statutory purposes. 

Here, we submit, there is no question that the Statistician having received the direction to undertake the survey, the Statistician and the ABS control the way that they are going to carry out that activity.  Everything about the conduct of that activity in the exercise of the ABS’s power is subject to the control of the Statistician and there is no foundation for treating that as anything other than departmental expenditure of the ABS, it is expenditure incurred performing statutory functions of the ABS.

So, in light of that sequence of operative provisions, we submit there is no ambiguity at all about the ambit of the appropriation and none of those operative sections ask the Court to answer any question about the ordinary annual services of government.  The question is about the departmental expenditure of the ABS.  It is not about whether the expenditure is for the ordinary annual services of the government. 

If that be right and there be no ambiguity there, there is simply no room to engage in the kind of exercise our friends invite by reference to the long title to say that there is this super added limit.  To the extent that there is reliance placed by our friends on parliamentary practice to try to give content to – and a limiting content to the ordinary annual services of government, we are content to substantially rely on our written submissions in that respect but there is one supplementary point that I seek to make orally and that requires me to take your Honours in the special case book to page 732 which is right near the end of the book.

This is a page to which my learned friend, Ms Richardson, took your Honours.  It is a letter from the Finance Minister to the Chair of the Senate Standing Committee for the Scrutiny of Bills responding to a query from that committee about the inclusion of certain items in a No 1 Bill, and as we understood our friend’s submission, it was that your Honours did not need to worry too much about the area of disagreement between the Executive and the Senate because the disagreement just related to administered expenses and the inclusion of new policies in administered expenses.

If your Honours look at the last paragraph on that page, you will see there is a reference back to the variation to the arrangements in February 1999 when accrual accounting came in:

The attached overview of the Compact explained that new administered expenses that fall within an existing outcome would be included in Bill No. 1.

That is part of the controversy.  The next sentence though, is the important one:

Also, amounts appropriated for departmental expenses, which were equivalent to the previous concept of running costs, would continue to be appropriated in Bill No. 1.

And then over the page at 561, the second last full paragraph, there is references to two of the disputed measures being the department expenses:

Infrastructure Growth . . . and the Tasmanian Major Projects . . . Department expenditure includes continuing and new departmental activities, and accordingly, amounts for these departmental measures were included in Bill No. 1.

So part of what was being put was that there is no constraint on new departmental activities within the Executive’s understanding of the compact and so really that goes to partially making good the answer I gave to Justice Gordon earlier.  We submit that parliamentary practice does not provide a safe foundation for a limiting inference.

The other thing I would note, your Honours, is that I think right at the very end of the book on 742 there is an extract from the Senate in March 2016 where there is apparently bipartisan support in the Senate for an approach that, we submit, is consistent with the Executive understanding, rather than the Senate understanding.  Your Honours, that is all I want to say about ordinary annual services.

Could I turn to the statistics direction and I intend to be quite brief on this.  So, we think there are really two arguments.  First, that the direction requires the statistician to conduct a vote now, the argument apparently relying substantially on the fact that the proposal for the ABS to conduct the survey follows the Senate’s rejection of the Bill to conduct a compulsory attendance plebiscite.

In our submission, this, as a legal argument, lacks force because it ultimately appears to depend upon a single characterisation idea that if the activity can be characterised as a vote, then it cannot fall within the idea of statistical information.  That, I think, was put to Ms Foley and she denied that it was a single characterisation point and seemed to accept that both characterisations could apply, but if that be the position then the argument goes nowhere because it does not matter, in our submission, whether or not you can call what is happening a vote.

The only legally relevant question is, is this a direction supported by section 9(1)(b) of the Statistics Act and that depends on whether it is a collection of statistical information.  It does not depend on whether or not the same process can be labelled by reference to some other word, particularly bearing in mind that none of the relevant words are terms of art; a plebiscite or a vote or a survey can cover a wide range of different kinds of activities which overlap in some areas and do not overlap in others.

In our submission, provided that the collection of opinions from a specified chosen population on a chosen question can be counted and aggregated, analysed and used to yield facts about the holding of opinions, then the activity is properly characterised as a collection of statistical information that falls within section 9.

Now, if it were necessary to try to choose between the labels, then we submit that this particular exercise lacks many of the ordinary characteristics in Australia of a vote; in particular, it is not compulsory, it is not taking place in person and it is not determinative of any outcome.  In all three of those respects, the process differs from an ordinary vote in Australia, but in the end, as I submitted, it does not matter whether one can put it in the vote box or not, as long as the exercise falls within the category of a collection of statistical information, the direction is valid.

Our friends seem to make a point that there was something problematic with the selection of the class of persons whose opinions were to be sought as electors and, indeed, there was an argument advanced – not pleaded by our friends – that the Treasurer had no power to specify the group of people as electors.  In our submission, that cannot be right.  Any collection of statistical information will always, as a very first step in the process, need to identify a target group whose opinions are to be surveyed if the exercise is directed to opinion.

So if, for example, the ABS wishes to acquire information about rural Australians, it will need to specify that there is a category of rural Australians defined in some way who then form the target class whose opinions will be sought.  In another context it might, for example, seek information about the exporting of goods, and again, there is a definition of the target class as the first step in the process. 

There cannot, in our submission, be anything irrational or problematic about the identification of electors as a group whose opinions are sought because by definition electors are a group whose opinions are specified as the group whose opinions will determine who governs the country.  The criteria that identify those persons as the appropriate people to make that choice can be adopted or incorporated as the criteria that define the class of person whose opinions will be sought through a statistical exercise.

So our submission is that when your Honours look at what is happening here, this is not, contrary to the plaintiffs’ suggestion, some mere drafting device to circumvent a limit on power.  This is a policy adopted in circumstances where a different policy was put forward and rejected by the Senate, a different policy that required people to attend a compulsory plebiscite. 

That option having been rejected, the Commonwealth made the perfectly available decision of saying, well, what else is available to us within power that can be done to achieve the end that we seek and a different policy was selected – directed to that end.  There is nothing circuitous or objectionable about that.

The other point is the proposition that the ABS cannot collect information about opinions.  That is a submission that is advanced, notwithstanding the plaintiff’s acceptance that both the meaning of statistics is broad and that it in its ordinary meaning would include the collection of opinions.  I hope it is not too much of a debating point, your Honours, to note that we have given your Honours in the bundle at tab 101 a current statistics textbook. 

It is literally a textbook example of the collection of statistical information to seek the opinions of a population about same‑sex marriage.  On page 1 of the current statistics textbook, that is given as an example of the exercise.  In our submission, it could not be clearer that the collection of information of the kind sought in this case falls within the ordinary conception of the collection of statistical information.  Our friends do not really seem to say otherwise.  Their argument is that the legal meaning of the term should be confined to governmental activity in relation to the collection of statistical information as at 1900. 

Now, that argument encounters numerous difficulties.  Were it to be accepted, it would impose a fetter on the capacity of the ABS to collect information to inform government decision‑making across its exercise of legislative executive power of a quite radical kind.  It would be inconsistent with at least 60 years of practice at the Commonwealth level and there are many examples given of the collection of opinion information of a kind said by the plaintiffs to be invalid in the special case in the AME proceeding. 

But, also, your Honours, it is a submission that is devoid of any plausible legal justification. In writing the way that our friends put this is that they did not suggest that there was anything inherent in the language “statistical information” in section 9 that limited the words. They said one needed to read down statistical information in the Act by reference to the head of power in section 51(xi) of the Constitution in relation to census and statistics.

That, we submit, cannot be right because as this Court has regularly emphasised the head of power needs to be read with all the generality that the words admit. There is no way in which this Court would confine the head of power in 51(xi) to statistics as a matter of governmental practice in 1900. That would deny the settled understanding of the Constitution as a document intended to endure, pursuant to which laws might be made for the life and progress of the community – to use Justice Isaacs’ language – construing the words with all the generality that they admit.

We have referred in writing to Grain Pool (2002) CLR 479 – I will not take your Honours to it. It is in tab 50 of the joint bundle. But that is a case in which quite a similar argument was put by reference to the patents power seeking to tie its meaning to 1900. Between paragraphs 16 and 23, there is a useful encapsulation of the doctrine of the Court in relation to the interpretation of head of powers that makes it very clear that it is not to be tied back to 1900.

EDELMAN J:   That is where the head of power involves some degree of flexibility like patents or, you would say, census and statistics and so on.

MR DONAGHUE:   We would, yes.

EDELMAN J:   But it is not necessarily the case in relation to provisions such as what a jury means or things like that.

MR DONAGHUE:   No.  But in relation to heads of power, your Honour, there are – I cannot presently think of any which are fixed at a point of time as at their meaning in 1900.  The doctrine is described in various ways.  Sometimes the language of connotation and denotation is used in the denotation of the word evolving or changing over time.  We gave your Honours an extract from Justice McHugh’s judgment in Wakim – paragraphs 40 through to about 50 – where his Honour discusses the authorities in the Court on that topic.

You see another example of that occurring in the context of the marriage power in the Court’s decision in the same‑sex marriage case where there was a discussion about whether marriage, under that power, was to be confined to its meaning as at 1900 or whether it evolved.  Obviously, the Court held that it was not confined by reference to its 1900 meaning.

So, in our submission, there is no plausible principle of statutory interpretation that would confine the collection of statistical information by reference to governmental practice at 1900 and your Honours should reject that submission.  Similarly there is, if that submission is rejected, absolutely no reason why the wide language used in the regulations under the Statistics Act in regulation 13, would be confined, particularly given that they are all introduced by wide connecting language in relation to them.

I do not propose to develop what we have said in writing beyond to say that our friends had not conceded that a survey – this survey relates to law reform.  It is very difficult to see why it does not relate to law, law reform being, we submit, a subset of the topic law.  If the survey is in relation to one, it is in relation to both.  I do not seek to add to what we have said in writing in relation to ground 6 which concerns the AEC.  So that leaves only the question of relief.

Could I start with the Wilkie matter?  Your Honours will see the relief claimed at page 10.  There is, in our submission, subject to the question of standing, but if the plaintiffs have standing and otherwise make good their substantive grounds there is no problem in relation to claims 1, 2 and 3.  In our submission, the declaration sought in claim 4 is not properly phrased.  Indeed, it is framed so widely as to be – its meaning is completely unclear.  In particular, the phrase “conducting a postal vote”, in our submission, does not make it clear what it is that the ABS is or is not entitled to do.

In relation to 5 and 6, in addition to the submissions I have already made about prohibition, we submit that there is this problem.  In this proceeding, the Wilkie proceeding, there is no relief sought in relation to the $348 million appropriated to the departmental expenses of the ABS by Schedule 1.  So any relief that is sought in this proceeding can relate only to spending of some money rather than other money where all of the money together in total forms the departmental item to be applied to departmental expenditure.

That, in our submission, gives rise to the kind of problem that Justice Jacobs identified in AAP at 412 which was referred to with approval by the plurality in Combet at 165 where their Honours talk about the difficulty, if not impossibility, of separating the rights to spend some money rather than other money where it is all intermingled because here the Court could not, in our submission, properly grant relief that would impinge upon the capacity of the ABS to spend money appropriated in Schedule 1.

KIEFEL CJ:   Is the problem overcome by identifying the object of the expenditure?

MR DONAGHUE:   No, in my submission, because if the object of the expenditure is to carry on the survey, that cannot be prohibited in respect of the existing 348 million.  This relief is in respect of – both 5 and 6 are relief in respect of the advance, so they do not turn on any question about the validity or otherwise of the direction and, in our submission, that involves one immediately in the task of saying, well, some parts of the departmental item cannot be spent on the object but because other parts of it can there is difficulty in specifying the relief.  It is, in our submission, not for us to draft our friends’ relief but that they would need to specify the relief in a form that overcomes the objection to which Justice Jacobs referred at 412.

NETTLE J:   Would 5 not have the practical effect that because they were not permitted to spend the appropriation, the 122, they might think twice about spending what little is left of the 347?

MR DONAGHUE:   Well, that is possible, your Honour.  If it be what little is left, that money was appropriated at the start of June, but there is no evidence before the Court in that respect.  As we understand the point that his Honour Justice Jacobs was making, it is that there is nothing – the legality of expenditure is to be distinguished from the legality of legislation or legislative action and if it is lawful to spend a particular dollar doing a particular thing, then it is difficult to frame relief to stop that occurring because – depending on the source of the dollar, whether the dollar comes from one source rather than another.

Now, it may be that relief framed in the way that your Honour refers to would at least have some implications in that one would expect that, in the event that the Court were to find that that 122 million was unavailable, there would be a decision to be made by the government as to whether or not to revoke the direction, but unless the direction is revoked the duty would remain.

Your Honour the Chief Justice asked me about the answers to the questions in AME and we have given some thought to that, although I confess, your Honour, that I am not certain that we have captured the import of the question that your Honour was putting to us.  It does seem to us that one option that would be available to the Court in light of the urgency with which the matter has been brought on would be to, as a matter of urgency, answer question 5, because question 5 is the question that will determine whether or not the survey can continue.

Your Honours will recall that the Statistician gave an undertaking to the Court that expires at midnight on Monday, 11 September, but in the event that the Court were to answer question 5 prior to that time, it would not, in our submission, be necessary for the Court to answer all of the other questions prior to that time and that would be sufficient to allow the parties to know where they stood.

NETTLE J:   So, that would be answered on the basis of assuming without deciding that there was standing.

MR DONAGHUE:   Yes, and that would then – well, it might depend exactly how your Honours were minded to answer the question.  Obviously, answering question 5 has a bit wrapped up in it and question 5 itself, if your Honours were to answer all of questions 2, 3(b) and 4(b) no, then it would follow, we submit, that the answer to question 5 would be no, but one could also get to the answer - question 5 no on the basis that question 1 was answered no. 

So, your Honours would not have to determine which path or, indeed, your Honours would not all have to follow the same path to get to an answer to question 5.  If there were to be a majority answer to question 5 then that would be open, the pathway.  Of course, your Honours will understand our submission is that all of questions 1 to 4 should be answered no and, therefore, that question 5 should be answered none, but in the event that the Court were not minded to – or was not in a position quickly to come to a final answer for all of those questions, it does seem to us that the pathway I have proposed is an available means by which the matter could be addressed.  I am not sure if that answers the question your Honour the Chief Justice put to me before lunch.

KIEFEL CJ:   It was a very general question.  Thank you, Mr Solicitor.

EDELMAN J:   Question 5, I mean, could also be addressed on the basis that Justice Nettle has mentioned that it potentially even included question 1.  In other words, if the answer to question 1 is that either or both of the plaintiffs have standing, and the answer to questions 2, 3(b) and 4(b) is yes, what, if any, of the relief sought in the amended statement of claim should the plaintiffs be granted?  That would then cover all of the questions, would it not?  Your answer would remain the same as would the answer that is sought by the plaintiffs.

MR DONAGHUE:   Yes, that is so, your Honour.  Because of the way that questions 2 and 3 and – or 2 and 3 are drafted, they are both premised on an affirmative answer to the standing question.  So because of the incorporation of 2 and 3 in 5 one, I think, can get to that answer.

EDELMAN J:   I see.

GAGELER J:   These are the parties’ questions I know, but they are extremely prescriptive having those introductory words.  I mean, 5 would

be a lot easier perhaps to answer crisply if it did not have the introductory words and just started “What, if any”.

MR DONAGHUE:   “What, if any relief” ‑ ‑ ‑

GAGELER J:   Similarly, with the earlier questions, instead of premising each question on the answer to the previous question.

MR DONAGHUE:   Your Honour, for our part - and I have not discussed this with our friends but I would have no difficulty with amending question 5 in that way if it assisted the Court in answering the question – question 5.  If question 5 were to be amended to say “What, if any, relief should be granted”, that would not create difficulties from our perspective.  I accept the force of what your Honour says about the direction or the pathway of the reasoning through the questions.  Unless the Court has any questions, those are our submissions.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.  Mr Merkel.

MR MERKEL:   If the Court pleases, could I just make some brief comments about standing?  My learned friend seeks to segregate the claims in the proceeding and equate different claims with standing.  There is an anticipation of that approach that we sought to define the matter before the Court which we have set out at transcript 4, lines 24 to 45 and we say that there is one matter with the different claims in it ultimately leading to the claims for relief that my learned friend just took your Honours to.

There are one or two matters we would seek to say in respect of the standing.  My learned friend uses the Kuczborski analysis of right and interest as if it was definitive of sufficiency of standing rather than the relevant aspect of standing that came up in that case.  We say his approach does not withstand analysis in the light of decisions of this Court in Onus and also in Williams where standing was conceded but Mr Williams’ interest was his children were attending a school at which the chaplaincy services were being made available but they were not compelled to attend those services, and there was no issue about standing.

Could I go to the reliance on the AAP Case?  Not only was that in a different context, but of course we are challenging the validity not of an appropriation as such; we are going through a pathway of challenging the validity of a legislative instrument which my learned friend does not dispute is judicially reviewable, and one of the aspects of that instrument being the one decision or determination made under section 10 is to claim that the section is invalid, so that we are not in the context of an AAP situation at all.

My learned friend said that the situation in Williams ultimately is different to that in the present case in that we are not challenging authority; we are only challenging appropriation.  But that is not correct at all.  If we succeed in our claim, there is not only an invalid appropriation, but also the reliance by the Australian Statistician on the direction is also invalid, so that the Statistician has no legal authority to expend the money. 

So, the two steps in Williams we say arise directly in the present case.  They are not capable of being sidestepped.  So in that sense, even though the challenge to the Statistician’s power is not a constitutional challenge, it is a challenge that he has no authority to engage in the survey that he is undertaking.

The last point I wanted to make is your Honour the Chief Justice referred to the judgment in England.  That is the Inland Revenue Commissioners; Ex parte National Federation and it is a judgment of Lord Diplock which is in tab 80, volume 4 at page 64 where his Lordship referred to the lacuna that would exist if there were no public interest consideration of the kind that we rely on in the present case.  We say what his Lordship said applies particularly to the present case.

A final matter I wanted to say is my learned friend emphasised that our claim in respect of being electors is based solely upon the receipt of the form.  The source of the claim is the unauthorised exercise of power by the Electoral Commissioner in using the form in the way he is proposing to do.  It is that way that we say we have a legal right or interest or a sufficient interest, not just solely based on the receipt.

Can I go to my learned friend the Solicitor’s arguments on appropriation?  There are two critical aspects of departure from previous practice that we say give rise to what ultimately we claim is an impermissible delegation of power.  My learned friend had taken your Honours to the history and up to 1957 the appropriation was made but then it was subject to a statutory scheme where the particulars were required to be provided to Parliament which then confirmed or made the appropriation upon that being carried out. 

So, as a matter of fact the appropriation until 1957 was made based upon the Treasurer’s advance, but then confirmed or made de facto authorising what had occurred by a later Act of Parliament.  So Parliament in that way remained in control and remained supervising the appropriation.  That stopped in 1957, but can I jump ahead to now because your Honours have been taken to the history of concern by the Senate and the House about how the advance to the Finance Minister is to be dealt with. 

The present regime departed significantly from that history because we now have, putting aside the proper construction of the Appropriation Act, we now have a statutory scheme under which there is no supervision, no statutory reporting or no control of Parliament.  The determination that is made under section 10 is made and having its statutory effect – and I will come to that in a moment – but it is completed and only reported to Parliament in an explanatory statement which is not disallowable.  So, the role up to 1957 where Parliament had control and supervision in the process that we have talked about has now been taken away completely.  That is the first major departure.

The second major departure is that we would disagree with my learned friend’s characterisation of “this is just a matter of looking at sections 10 and 12 and saying there was an appropriation in respect of the section 10 amount when the Act was passed or a conditional appropriation subject to the contingency of the determination”. 

We say that ignores the critical role that is given to section 6 and the schedule and the wording of section 10, which enables the Minister by his determination to amend the Appropriation Act and it is that delegation of power which we say is impermissible because when you couple it together with the disallowance provision under section 10(4) that has totally removed any supervision or control of Parliament in respect of appropriations dealing with the annual services of government or the budgetary process in Acts No 1 and 2.

My learned friend also made a point about disallowance being a critical aspect of the Dignan analysis.  He did not respond to that.  Rather, what my learned friend the Solicitor responded to is disallowance has always been the practice and therefore it should not be treated as some deprivation of Parliament’s control or supervision. 

With respect, his analysis showed that throughout the century it was incumbent upon Parliament to expressly authorise disallowance and that had not occurred.  But under the current regime, which is under the Legislative Instruments Act, now the Legislation Act, since 2003 that has been reversed. The current practice is to treat instruments as disallowable unless expressly made not to be able to be the subject of disallowance under section 42 in the statutory scheme of the Legislation Act.

We say it is the combination of those circumstances rather than just one or other, having regard to the historical practice that my learned friend relies upon, that has ultimately resulted in the impermissible delegation and the elimination – and we say this is a critical point which my learned friend the Solicitor had no answer to – of ultimate parliamentary supervision and control of the advance to the Finance Minister.  It is not an advance that is capable of being remedied under the existing statutory regime because once appropriated it is appropriated and once spent it is spent.

We say repeal for reasons we have addressed your Honours is not a practicable option because it is giving effect to a government policy, therefore it will not get to the Upper House.  In any event, the Upper House cannot amend a money Bill, which is exactly the way this process has been carried out.  That is how we would respond to my learned friend’s submissions on the Appropriation Act. 

Can I briefly address “urgent need”?  Can I hand up to your Honours the explanatory memorandum for the 2008/09 Act, which has been referred to but I do not think has been incorporated in the book.  I hand up copies to your Honours.  While that is being done can I indicate to your Honours that in my learned friend’s legislative history different expressions have been used concerning urgency:  it was urgently required, urgent circumstances and now, in its present form, urgent need.

The aspect of what is required as urgency, from what we have been able to see, has really only been addressed when we got the explanatory memorandum to the Act in its current form.  We make no comment about the changes or the reasons for the changes, but urgent need remains a constant factor.  In the memorandum, in paragraph 54, your Honours will see a reference to the advance to Finance Minister guidelines at about the eighth line in paragraph 54, referring to the expense being required within two weeks, as a guideline.

What we say is that it does tell us that when the current form was introduced, urgency and the word “urgent” had a bigger role to play than that which my learned friend the Solicitor has put before the Court.  If one analyses my learned friend’s submission, it comes down to a need that was unforeseen, therefore being urgent, leaving no word for “urgent” in that framework.

His second answer is that it is an evaluative decision by the Minister and not something that the Court should intervene in but of course it is evaluative by the Minister because it is preconditioned on satisfaction.  But that does not mean the Minister can misdirect himself or herself as to what is required by the word “urgent”.

In the end, my learned friend’s submission retreated in writing, but possibly not today, to saying it must be urgent in the context of the annual budgetary cycle.  We do not put that urgent is divorced from context or circumstances.  So for the small appropriation that your Honour Justice Gageler raised and my learned friend the Solicitor mentioned, it may be that that would fall within a standing appropriation or a departmental item or as a matter of practicality would not be what you would expect to be put before the Parliament.

We are not in that context.  We are in a dramatically new policy requiring a major expenditure of 122 million, which is about a third or more of the total budget of the Bureau of Statistics and we say in Brown v West there was a reference to a new policy being the subject of a special enactment. 

In the circumstances, having regard to parliamentary practice and all the circumstances of the case and in particular the circumstances that this matter was put in its policy context to the Senate on 9 August, and we put to your Honours by way of example, which my learned friend did not respond to, if it were put and rejected as a postal vote, how could it be said to be urgent?  That must mean the word “urgent” has something to do. 

But my learned friend’s argument really says needed, unforeseen.  Therefore, what is needed and unforeseen is the postal vote to be completed by 15 November.  What is the urgency?  Because it was needed and unforeseen.  We say that it is circular and it shows that there was a misdirection of the kind which we have indicated or alternatively a mandatory consideration was not had regard to as to the factors that made it urgent. 

They may be external, they may be government policy, but there is something that requires consideration of whether, having regard to the magnitude of the sum, the amount involved and the fact it is a totally new policy, Parliament could be and would be bypassed, particularly on the facts of the present case that construction definitely comes in issue and we say has not been addressed.

We say that on our argument a conflation is not a matter of form, as my learned friend the Solicitor puts it, but the conflation is real.  It does not matter whether your read the affidavit or you read the determination.  There is nothing in either that takes you beyond an unforeseen need.  So we say no consideration has been given to whether that unforeseen need is an urgent need.  So we say that on those grounds the determination should be set aside and deemed to be invalid. 

Can I go to the statistics that my learned friend puts.  We are not putting that the meaning of statistical information cannot include an opinion in its ordinary and natural meaning.  The reference back to the 1905 material and the material that was handed up this morning is intended to demonstrate that when Parliament enacted the original legislation and gave power to collect statistical information the intent was to use it - that term and to gather information in the manner and in the way and by reference to the subjects that had been collected at that point of time.

It is not a “frozen in time” analysis because what we say is that the issues of whether a subjective opinion should be sought or could be sought were dealt with at that time and there is nothing that has changed that makes that some “frozen in time” or “only historical” analysis.  Having regard to the historical analysis, we say that Parliament’s intent was to use statistical information in that more confined way and not to broaden it in the way that it has been sought to be carried out in the present case.

My learned friend said that a direction can be given to target a group and then identify the persons whose opinions are to be surveyed.  What we say is that the difference between us is the requirement of statistical information is able to be the subject of a direction but not the subject of a direction as to who is to be the subject of the gathering of the information.  The statistical information goes to the subject matter of what is to be directed.  How the statistical information is to be gathered and who it is to be gathered from, is a matter for the Statistician.

So, we say it goes beyond the power in the Act to approach it in the way my learned friend has approached it and, as we understand it, a direction of this kind has never been given before.  We may stand corrected, but it is our understanding that there has been no direction at all to actually specify down to the detail of what we have here, as to the persons who are to be the subject of the survey and who are to be surveyed and those who are not to be surveyed.  That is a matter, we say, has the Minister moving into the confines and the exercising part of the power of the Statistician. 

Can I go just finally to my learned friend’s response to the Electoral Commissioner?  He has not ‑ and I only point this out ‑ he has not addressed the central argument that we put which is that section 7(1)(a) is a power of the Commonwealth Electoral Act and the power can only be exercised in respect of functions of the Electoral Commission which are set out in section 7 and, therefore, my learned friend the Solicitor cannot rely on a circle because it is a power, it is a function.  It must be a power addressing a function and there is no function in section 7 which is being addressed by the Commissioner’s role in this survey, and we say the Commissioner’s role in the survey is exemplified by the role in respect of silent voters where only the Commissioner can send out forms for the silent voters under the Act. 

So, it is not a question that arises in any academic or hypothetical situation.  It is a very real situation and, indeed, as we gather the agreed fact and the material before the Court, this process could not be engaged in without the active role, whether by secondment, assistance or exercising of

powers of the Commission in respect of silent voters, under the Commonwealth Electoral Act.

So, can I finally come to the issue of relief, we do say that there is nothing in my learned friend’s point about the oddity of a stranger, if that is the basis on which we ultimately may get standing in seeking prohibition in respect of either the Electoral Commissioner or the Australian Statistician.  We understand my learned friend does not have anything to say in opposition to the declaratory relief sought.

We would say that the declaratory relief, as with certiorari under section 75, is a stepping stone to the prerogative relief and it cannot be divorced from it, so the standing issue in respect of prerogative relief directly involves the same question as the standing for declaratory relief.  It is not a separate pathway, it is one pathway, but we would say, with respect, we would adopt what my learned friend the Chief Justice said to my learned friend, that the relief was drawn at the commencement of the proceeding.  We now know precisely what the steps are and we say that the relief could be moulded and framed to the object of the expenditure and the object of the determination and we say that would be just a matter of moulding the relief strictly in that way.

We say the point my learned friend raises about prohibiting the Australian Statistician from expending moneys that were already appropriated to him, does not arise because we draw your Honours’ attention to the passage in Brown v West at page 211 where their Honours said exactly what has happened here. It is clear that the $345 million or thereabouts that was the subject of the appropriation to the Statistician, was not based upon this policy but was based upon a totally different factual environment and this policy cannot be used and cannot be turned around to deal with what has been approved by Parliament in respect of the appropriation for the departmental items of the Australian Statistician.

But we say the point does not arise because we would say that the relief we seek would not be moulded to anything more than the exact activities of the Commissioner and the Australian Statistician which we are challenging.  They are the submissions we would make, if your Honours please.

KIEFEL CJ:   Yes, thank you, Mr Merkel.  Yes, Ms Richardson. 

MS RICHARDSON:   Thank you, your Honour.  If I may first deal with some of the questions that I was asked yesterday?  Firstly, the question of Justice Gageler as to whether the No 3 Act has been enacted.  We have inquired and the answer is no, it has not.  In relation to Justice Nettle’s question – that is to whether or not one can look at the schedule to drive an indication of what Parliament considered to be in the ordinary annual services of government.  We say that that phrase has content which is amenable to judicial determination, and we note that in Pape at 197, the plurality observed that statements of purpose in the current forms of appropriation acts:

provides an insufficient textual basis for the determination of issues of constitutional fact –

We say, similarly, in terms of the validity of any particular spending activity because they are at such a level of generality.  So, we say, this favours the proposition that the outcomes in Schedule 1 do not shed light as to the meaning of “ordinary annual services of government”.

We also note the conclusion of the plurality in Combet, at paragraph 130, that the items and outcomes listed in Schedule 1 cannot assist with the characterisation of expenditures as departmental expenditure.  We rely, then, on our reply submissions in writing at paragraph 15.

So, we say in conclusion, that one cannot construe parts of the 2017 Act, including material in the Schedule, in a manner that would be contrary to the overall purpose of the Act, which is the ordinary annual services of government, as the explanatory memorandum itself states.

I will finally note in relation to Combet, that there was no – it was not a proposition put in that case that the advertising campaign of expenditure did not meet the description of departmental expenditure.  So, that challenge was not made in that case.  I refer to the decision of the plurality at paragraph 163(7).

Next, in relation to Justice Gordon’s question of yesterday as to whether the approach of Chief Justice Gleeson in the Combet case suggested a particular approach in relation to appropriations.  In relation to Justice Gleeson in his decision at paragraph 8, his Honour refers – two‑thirds of the way through paragraph 8 – to the fact that:

The Appropriation Act, in its long title, is described as an Act to appropriate money out of the Consolidated Revenue Fund for the ordinary annual services of the Government, and for related purposes.

So, we say, this suggests that the phrase “ordinary annual services of Government” is an expression with content, that is, independent from the purposes stated within the Appropriation Act and that the phrase sets a limit on the purposes of the Act.  We say this is reinforced by the analysis of Chief Justice Gleeson at paragraph 23 of his judgment.

The next point I would address is the learned Solicitor‑General’s suggestion today in relation to the relation between the Executive and the Senate since 1990.  The Solicitor‑General referred to the special case book at 742 and 743 and he relied on those pages for the proposition that recently – that is, in the Senate on 17 March 2016, the approach taken by Senators reflected what he characterised was the Executive’s world view as to what the current version of the compact means.

I will just draw the Court’s attention to the fact that both Senator Dastyari, being an Opposition Senator, and Senator Sinodinos, being a Government Senator, both explained their understanding of the compact as being that new administered expenses which fall within existing outcomes could be included in odd‑numbered Bills.  So, there is no suggestion there that departmental expenses can be included.  So, in our submission, it is consistent with our written submissions.

Next, I would like to address the criterion of unforeseen in section 10.  The Solicitor‑General suggested today that the plaintiffs in M106 have to show that the expenditure on a voluntary plebiscite could have been provided for in the schedule to the 2017 Act when the Bill was presented in May 2017.  That is, he characterised our case as being that, in effect, the March conversations or the March suggestions whereby Minister Cormann deposed that he was aware that his ministerial colleagues were considering alternative means by which the government’s policy of a plebiscite might be pursued.

He characterised it as though those March conversations need to have risen up or crystallised or risen up to the level whereby that expenditure could have been included in the schedule to that Act.  We say that is not our argument and that is not a matter we have to prove.  Rather, we say there are two scenarios here.  First, there could be a type of expenditure where the Executive has decided that it wishes to go ahead with particular expenditure, and so it includes that expenditure in Schedule 1; that is, the proposal is firm enough and it is crystallised enough to include it in Schedule 1.

A separate scenario, which is we say the scenario here, is where the expenditure is within the contemplation of the Executive when the Appropriation Bills were introduced in May 2017.  That is, it is not yet policy to expend that money.  So, we say in the second scenario, if the Executive thereafter crystallises its policy and makes a decision that it does in fact wish to expend that money, we say the advance is unavailable in those circumstances, and the reason is that that expenditure was in contemplation, it was considered, which means it was not unforeseen within the meaning of section 10 at the relevant time.

We rely for that language in our written reply at footnote 10.  We just note the Department of Finance’s guide to appropriation which are quoted in footnote 10, which provides the AFM provision, makes clear that for the proposed expenditure to be considered unforeseen it must be expenditure that was not within the contemplation of the government when the Appropriation Bills were introduced to Parliament. 

So we say this is a safeguard, the requirement of unforeseen.  That is, the advance will only become available to the Executive after the budgetary oversight process has closed in May if that expenditure, being a defined term in section 3, was not within the contemplation of the government when the Bills were introduced.  Rather, in these circumstances where the expenditure on the Minister’s own affidavit, in our submission, was being discussed and he was aware of the suggestions, that the advance is not available in those circumstances and his options thereafter are through the Executive to either seek a special Appropriation Bill and the learned Solicitor‑General has handed up a table today which has a series of special Appropriation Bills where exactly that pathway was adopted and, in my submission, contrary to his submission, there are a number of examples where amounts for under $100 million were spent. 

So there is not some suggestion that one only seeks a special appropriation when it is a much larger amount of money.  To the contrary, the practice has been to seek special appropriations for smaller amounts.  So the first permissible pathway is to seek a special appropriation, or the second is to wait until the next budgetary cycle.

In relation to the facts on “unforeseen”, we say, this is an easier case because the Minister himself has deposed in paragraph 8 of his affidavit at special case book 305 that he was:

aware of suggestions from Ministerial colleagues of alternative means by which the Government’s policy of conducting a plebiscite . . . might be pursued. 

So this is not a case – I am arguing this on the basis of our secondary construction that this is a matter for the satisfaction of the Minister.  So, it might be put against us in a more difficult factual scenario, how would the Minister know whether particular expenditure was foreseen in the sense of whether people had been talking about it within the Executive or contemplating it.  This is not that difficult case because on this construction it is a matter within the satisfaction of the Minister and, therefore, relevantly here it is a matter within the knowledge of the Minister and he has deposed to the fact that he knew. 

So, in our submission, this is the easy case where the Minister has given evidence that he knew.  In addition to the factual references I gave the Court yesterday in relation to how Minister Cormann characterised the expenditure that he was authorising, I would just like to give the Court a couple of additional references that I did not give yesterday.  The first is at 266 and 267 and this is a media – the transcript of a media interview given by Senator Cormann on 9 August which is the day he made the decision to advance the moneys for the postal – voluntary postal plebiscite.  If the Court would not mind turning to page 266, so at line 49 he says:

We will now press ahead with the postal plebiscite.

So, the context of this is plainly that it must be in the afternoon after the Senate has voted down the 2016 compulsory Plebiscite Bill.  Then over the page on 267 he says at about line 10:

Over the next three and a half months the Australian people will have the opportunity to express their view, to have their say on whether or not they believe that the definition of marriage should be changed.

Then, he says at about line 25:

If we now were just to have a vote in the Parliament without letting the Australian people [have] a say on this, without them being part of this decision making process, we believe that the losing side of the argument across the community would still not accept the outcome.  So we believe that giving the Australian people the opportunity to have a say offers the opportunity of a more permanent resolution of this issue, offers the opportunity for a community consensus –

Then he goes on at line 30 again to say we are giving people a “fair opportunity to have their say” and he says the same thing at line 40:

We do want to give the Australian people the opportunity to have their say.

So, yesterday I took the Court to the early paragraphs of our submissions in‑chief where we say Minister Cormann was characterising the policy in exactly the same terms in August of 2016, in February of 2017, that is, that there is a policy of giving people a say through a plebiscite.  The other factual references I will give to the Court are at special case book 270 to 273 where Minister Cormann is giving another interview on 9 August, being the day he made the decision to advance the money.  Then if the Court would turn to page 272, at about line 41, he says:

What we have said over the last 24 hours is that our next best way to keep faith with the commitment we made to the Australian people to give everyone the opportunity to have their say was to go through a voluntary postal plebiscite exercise and that we would conduct that through the ABS.

Then, he says at 273, at about line 19:

What I have said is that this is an opportunity for all Australians to have their say –

and then he goes on to repeat that language at various points through the interview. 

So the reason for the references to those factual matters is that the relevant question, in my submission, the Minister was required to direct himself to when making the section 10 advance is what is the expenditure that was unprovided for and the answer to that question on the 9th was the expenditure that is not provided for was expenditure on a voluntary postal plebiscite.  Now, we know that because that is what the explanatory statement says he was doing.  So that must be the expenditure he is providing for because that is what he said.

The second question he had to ask himself was, was that expenditure not provided for because it was unforeseen as at 5 May 2017?  We say that the Minister, based on the material available to him, could not answer that question positively.  Also we say he fell into error because that is not the question to which he directed himself because in fact, because of the affidavit of Minister Cormann, he accepts that he knew, as at 5 May 2017, that he had ministerial colleagues who were expressly contemplating the alternative means by which the government’s policy of a plebiscite might be pursued.

Of course, Minister Cormann’s evidence is not a government policy of a compulsory plebiscite; it is a policy of a plebiscite that might be pursued and that is what was being canvassed in March.  So we say if Minister Cormann had directed himself to the correct question, he could not have answered that the expenditure is not provided for because it was unforeseen.  Rather, the answer was it was not provided for because as at 5 May the government had not yet made a decision about whether it wanted to have a voluntary postal plebiscite.  It was still exploring the alternative means by which that might be pursued. 

But in terms of the criterion in section 10 it was in contemplation and it was being expressly discussed between ministerial colleagues.  But in terms of the opinion about which the Minister had to direct himself under section 10, it did not direct the Minister to the question was the final government decision on this question foreseen?  Was the expenditure not provided for because you did not foresee the government decision on a particular day in August or at all? 

Section 10 did not direct him to the question of was it unforeseen which non‑corporate entity in Schedule 1 might extend the funds?  None of those matters are referred to in section 10.  Rather, it fixes upon expenditure, which is a defined term.

Finally, I would say on that topic that in Brown v West it was expressly pleaded by the defendants that they could rely on the advance to the Finance Minister to fund the postal allowance that was at issue in that case.  So on the Commonwealth’s construction of “unforeseen” in section 10, which was also the same concept that was used in the advance in Brown v West, that would mean that the Executive could have used the advance in Brown v West to fund a decision about a postal allowance.

The defendants could have said to the Court in that case, “Well, we didn’t know we were going to make a decision to provide for a postal allowance at the time this Bill went before the House of Representatives and therefore it was unforeseen and the moment we made the decision it became foreseen, or it was unforeseen up until that point.”

So in my submission, the construction contended for by the Commonwealth and the breadth that is given to “unforeseen” is inconsistent with the unanimous decision of the High Court in Brown v West at 212 of the judgment at point 4 of the page, the advance was not available.

In relation to the Public Governance, Performance and Accountability Act in relation to section 75, we say that the Commonwealth has put an erroneous and narrow construction on section 75 of that Act.  We note at the outset that the relevant extracts from that Act are at tab 29 in volume 1. Section 75(1) speaks about a function:

if a function of a non‑corporate Commonwealth entity . . . is transferred –

But it says if it is transferred:

either because the transferring entity is abolished or for any other reason.

So we say the fact that the language “for any other reason” is included in that subsection makes it clear that this is a provision of some breadth and flexibility; it can be for any other reason.  It is not the case, as the learned Solicitor‑General submitted, that it can only be in a narrow context of formal government changes of abolishing departments and so on.  That cannot be correct because subsection (1) gives different scenarios which might engage it.

One is “the transferring entity is abolished”, so that is more akin to the Solicitor‑General’s example where, in effect, something is abolished and given to someone else, and so on, or “for any other reason” suggests that it can be for any reason including the reason, we would say here, that a particular function was going to be carried out by one entity at one point in time and later on a decision was made for it to be carried out by another.

I note in this respect in terms of what the word “function” means, it is not defined in the Act.  In my submission, if it was meant to be given a narrow meaning, it would have been defined in that way.  But to the contrary, it should be read consistently with the objects which are set out in section 5 at page 3 of the print and they include subsection (a):

The objects of this Act are:

(a)to establish a coherent system of governance and accountability across Commonwealth entities; and

. . . 

(c)to require the Commonwealth and Commonwealth entities:

 . . . 

(iii)to use and manage public resources properly; and

(iv)to work cooperatively with others to achieve common objectives, where practicable –

We say these objects suggest flexibility and practical outcome focus and we ask here what is the common objective as referred to in outcome 5(c)(iv), and the common objective is delivering a particular function which if, for example, a voluntary plebiscite by the AEC had have been provided for, the common objective would be that the plebiscite is delivered but it is just delivered by someone else.

Now, we have made plain that it is not part of our case that the Commonwealth or the Executive as at May should have or could have provided for a line item for the AEC to conduct a voluntary plebiscite.  It is not part of our case because we say what matters is the criterion in section 10 which is whether that expenditure was unforeseen.

The last thing I would note is in relation to the breadth of “function”, that the Solicitor‑General himself used that language in a broad sense this morning when he said – he articulated the point as being if it was not foreseen that a particular entity would carry out a particular function at a particular time – so he himself was using the language “function” in the natural flexible sense that we would contend it should be used for in section 75.

The last thing I would note in relation to the Public Governance, Performance and Accountability Act is that we noted in our written reply at paragraph 11 that the existence of section 75 in that Act affects the operation of the entire 2017 Act including in particular the discretion in section 10 and we note that the explanatory memorandum to the 2017 Act expressly refers to the fact – it in effect says in the operation of the advance - in effect before you come looking for an advance from the Finance Minister, you should consider whether options are available under sections 75 and 76 of the PGPA Act.

So, it is expressly contemplating this interaction and flexibility provided by the PGPA Act in terms of transferring moneys between entities, which of course reflects the fact that they have no separate legal personality and they are part of the Commonwealth in any event.

We say that the explanatory memorandum also expressly supports the construction that we place on the breadth of 75.  The explanatory memorandum talks about options – options under section 75 – which again speaks of breadth.

Lastly, we would say in relation to relief, if I could just take the Court to the relief that we seek – it is at special case book 13 in the writ of summons.  In prayer 1 the Court will see the defined term “Plebiscite”.  We say in response to Chief Justice Kiefel’s observation that that is relief which identifies the object of the expenditure and therefore that it avoids any infirmity or lack of clarity in terms of a fund that might have mixed funds in it, because the relief is directed at making declarations about the object for which moneys are pursued that it is in an appropriate form.  The Court will see that the term “Plebiscite” is picked up in the prayers that follow, including the injunctions we seek.  The focus of the injunctions we seek are in relation to the object of expenditure.

I would finally note in relation to prayer 4 which, for example, seeks an injunction restraining the Australian Statistician:

from drawing down on any funds made available to the ABS by the Minister or his delegates, whether in purported reliance on the Determination or not ‑

If I could just explain the reference to “or not”. Obviously the reference to “in reliance on the Determination” is where we are impugning the determination. We separately impugn the ability of the Statistician or the ABS to use the original $348 million item. We note that under section 51 of the Public Governance, Performance and Accountability Act it has the effect that the original pot of money that was appropriated to the ABS upon commencement of this Act was made available to the ABS by the Minister. 

So it is not just the determination moneys, in effect, made available through the mechanism of the determination. The original pot of money was made available from the Minister by operation of section 51. We say that the breadth of the relief we seek appropriately reflects the statutory scheme. May it please the Court.

KIEFEL CJ:   Thank you.  The Court will pronounce orders in this matter at 2.15 tomorrow.  The Court will now adjourn.

AT 4.12 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 7 SEPTEMBER 2017