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

[2017] HCATrans 174

[2017] HCATrans 174

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 TUESDAY, 5 SEPTEMBER 2017, AT 10.15 AM

Copyright in the High Court of Australia

____________________

MR R. MERKEL, QC:   If the Court pleases, I appear with my learned friends, MS K.E. FOLEY and MR C.J. TRAN, for the plaintiffs in M105/2017.  (instructed by Public Interest Advocacy Centre)

MS K.M. RICHARDSON, SC:   May it please the Court, I appear with my learned friends, MR J.S. EMMETT, MR G.E.S. NG and MS S. PALANIAPPAN, for the plaintiffs in matter M106/2017.  (instructed by Human Rights Law Centre)

MR S.P. DONAGHUE QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with my learned friends, MR M.J. O’MEARA and MR B.K. LIM, for the first to third defendants in M105/2017 and for the first defendant in M106/2017.  I also appear for the Commonwealth Attorney‑General intervening in M106/2017.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   There are submitting appearances for the fourth and fifth defendants in M105/2017 and a submitting appearance for the second defendant in M106/2017.  Yes, Mr Merkel.

MR MERKEL:   If the Court pleases, can I just indicate to your Honours that the parties have agreed on a splitting of time and the plaintiffs in both matters will finish today ‑ ‑ ‑

KIEFEL CJ:   Yes.

MR MERKEL:   ‑ ‑ ‑on the agreed time split.  Your Honours, our proceeding concerns the Finance Minister’s determination under section 10 of what I will call the (No 1) Appropriation Act made on 9 August and the determination is at page 54 of the application book and can I take your Honours quickly to it.  The determination as set out has effect as if Schedule 1 to the (No 1) Appropriation Act were amended to result in an increase in the column and table for the entity listed, which is the Australian Bureau of Statistics, of an amount listed in column 3 of the table.  The effect of that is that the $88 billion or thereabouts the subject of Schedule 1 was increased by the additional amount of $122 million by having effect as amended by section 10 of the (No 1) Appropriation Act. 

I should indicate to your Honours the explanatory statement for the determination is at pages 56 and 57 of the application book and I will go to that in due course.  The (No 1) Appropriation Act is at tab 1 of volume 1 and the explanatory memorandum to that Act which I will take you to in due course is at tab 95 in volume 4.

The second statutory instrument with which we are concerned is the Treasurer’s direction made under section 9(1)(b) of the Census and Statistics Act also on 9 August.  If it matters, it appears that it was made a few hours after the determination and that directed the Australian Statistician to conduct what was described as the Australian Marriage Law Postal Survey which I will refer to in our submissions as “the survey”.

That direction is at application book, page 59, and it is a statutory instrument and sets out the collection of statistics that were directed, and the explanatory statement is at pages 62 to 64 of the application book, the determination and direction of both legislative instruments, but are not disallowable by either House of Parliament under section 42 of the Legislation Act.  The non‑disallowance comes about by reason of section 10(4) of the (No 1) Appropriation Act and also by reason of the regulations which are referred to in the last paragraph of application book, page 62.

A central issue in the proceeding is whether the funding for and conduct of the survey, without Parliament’s direct authorisation, is unlawful.  On the plaintiffs’ case, the matter before the Court involves five related questions.  The first is do the plaintiffs have standing to seek the relief set out in their amended application?  The second is is section 10 of the (No 1) Appropriation Act, pursuant to which the Finance Minister’s determination was made, a valid law of the Commonwealth?  The third question is the Finance Minister’s determination, pursuant to which the money required to fund the Treasurer’s direction was appropriated, valid?  The fourth question is is the Treasurer’s direction pursuant to which the Australian Statistician is to conduct the survey valid, and the fifth question is what relief, if any, should be granted to the plaintiffs?

If the plaintiffs succeed in obtaining the relief they seek there are three main consequences.  The first is that the purported appropriation of the $122 million for the funding of the survey will not be available to fund it.  Secondly, we say the funding is a necessary but not a sufficient requirement to authorise the Commonwealth to spend the money necessary to conduct the survey, and thirdly, as a consequence, the Australian Statistician and the Electoral Commissioner will not be authorised under their respective statutes to conduct or participate in the conduct of the survey.

It is in that context that we turn to the first question which is the standing issues.  We first address the standing of the first plaintiff, which is Mr Wilkie, who is a Member of the House of Representatives.  Can I take your Honours directly to the decision in Combet which is tab 45 of volume 2 where two Members of the Court considered the issue of standing in respect of a Member of Parliament concerning a challenge to the Appropriation Act.  It is at tab 45, your Honours. 

Justice McHugh dealt with the issue of standing at paragraph 97 which is at page 556, and his Honour set out the standing of Ms Roxon as a Member of the House of Representatives and set out in that paragraph the issues that would give her standing in that proceeding, her role being recognised under the Constitution, having:

a special interest in ensuring that public moneys are not expended inconsistently with the terms of Act No 1 passed by the Parliament of which she is a member. Furthermore, she is seeking an injunction to restrain an officer of the Commonwealth from acting in contravention of the law and s 83 of the Constitution.  Her action is brought under s 75(v) –

and his Honour goes on to say that that reasoning could extend to a prohibition and an injunction, but critically we say that all of those factors set out by his Honour, including that prohibition is available to a stranger, would apply in the present case.  Justice Kirby dealt with the standing issue at paragraph 308, set out similar reasons – I will not read the paragraph to your Honour, but we say the reasons of his Honour in paragraphs 308 and 309 are on all‑fours with the situation in the present case.  But Mr Wilkie has two added grounds that were not in existence in ‑ ‑ ‑

KIEFEL CJ:   The majority in Combet did not express a view in relation to standing.  It was not addressed.

MR MERKEL:   That is correct, your Honour.  So, that is the authority that we say from members of this Court that is directly in point but can I add that we say that the case for standing of Mr Wilkie in the present case is an even stronger one and we have sought to address that in paragraph 8 – directly in paragraph 8 of our reply submissions.  Can I ask your Honour to go there?  Sorry, paragraph 2 of our reply submissions; sorry, your Honours.

What we say is in addition the role of section 10 in relation to the Finance Minister’s determination and the Treasurer’s direction has denied to the first plaintiff – that is Mr Wilkie ‑ his constitutional function as a member of the House of voting in relation to the amendment to the Appropriation Act which is the issue directly under challenge and the disallowance of – the capacity of Parliament to disallow an instrument which again is an issue raised directly by the challenge because of section 10(4) making the determination a non‑disallowable instrument.

KIEFEL CJ:   But to say that is simply to point to consequences of invalidity.  I mean, the question is either validity or not, is it not?

MR MERKEL: Yes, your Honour, but the interest ‑ and we would say the question of a sufficient interest does have regard to the fact that the section under challenge has the consequence of bypassing Parliament and, therefore, as a Member of Parliament he is not able to exercise his constitutional function in respect of an amendment to the Appropriation Bill and he, of course, has a special role there because as a member of the House it is only the House of Representatives that can amend a money Bill under the Constitution. So, we say ‑ ‑ ‑

KIEFEL CJ:   But the relief you seek is directed to questions of validity.  The relief you seek does not – is not bound up with these special interests that you are identifying now.

MR MERKEL:   Well, your Honour, we would say there is expressed very strongly and clearly by Professor Campbell in her article that the consequence of what we say has occurred – it is at volume 4 tab 89 and I take your Honours to what the Professor said, this is over 40 years ago, on her article on parliamentary appropriations.  The Professor discusses the various issues but the top of page ‑ ‑ ‑

BELL J:   What tab did you say?

MR MERKEL:   Sorry, it is tab 89, your Honour in volume 4.  As your Honours will have discerned from the submissions, there has been a long history of the contingency fund and special allowance being made for an advance to a Finance Minister for unforeseen or urgent expenditure and what the Professor said in respect of that particular system as it operated in the United Kingdom, similar principles to here, that it is as an effective method of by‑passing prior parliamentary sanction of expenditure as could be imagined and that it gives the Executive substantial freedom from prior parliamentary scrutiny of its policy decisions.  The same may be said of the advances to the Treasurer.

Now, that is precisely what is in issue in the present case.  It is the bypassing of Parliament in respect of the subject matter of the determination in issue in this case.

BELL J:   If the provision is infirm on that account, what greater interest does a Member of Parliament have than any other member of the Australia polity in the circumstance that the Parliament has been bypassed by a mechanism that is constitutionally infirm?

MR MERKEL:   We would say, your Honour, relying the approach of Justice McHugh and Justice Kirby, but also on the Constitution itself, the people have given to Mr Wilkie and other Members of Parliament the constitutional role of ensuring that moneys are appropriated in accordance with law and we say it is that constitutional function that separates someone in Mr Wilkie’s position from any other member of the public and we say that is a sufficient interest in terms of the standing interest. But we say that, that is how we put Mr Wilkie’s interest as a Member of Parliament and we go further though; we say he ‑ ‑ ‑

EDELMAN J:   Is there any other area of law where a person has ever been given standing by virtue of their role or their employment, rather than by virtue of anything that affects that person directly or indirectly?

MR MERKEL:    I cannot answer that question at the moment.  Can I come back to that, your Honour?  We do say that this is a unique set of circumstances and sufficiency of interest requires regard to be had to all the circumstances of the case which we do address under our various heads of putting forward Mr Wilkie’s standing.  But we have ‑ ‑ ‑

KIEFEL CJ:   But you are also relying upon the other grounds that were identified by Justice McHugh in Combet; namely, set the orders sought against an officer of the Commonwealth under section 75(v) and the fact that writs of prohibition are sought.

MR MERKEL:   Yes, your Honour.  We come to each of those grounds and we say that Mr Wilkie is in that very position.  We just say that the particular function that is denied to him as a Member puts his case in a stronger position than in Combet but he does have all the features of Combet’s Case, on all‑fours with his case.  But there is a third basis for ‑ ‑ ‑

GORDON J:   You said there were two added grounds; one was the denial of his constitutional function.  What is the other added ground?

MR MERKEL:   The first ground, your Honour is just he is a Member of Parliament.  That is relying on ‑ ‑ ‑

GORDON J:   No, I understand that, but then you said you had two added grounds.  One was denial of his constitutional function ‑ ‑ ‑

MR MERKEL:   The second ground is the constitutional function in respect of the Appropriation Act.  The third, your Honour, is his position and role as an elector and what we have done, we have tried to articulate that in paragraph 3 of our reply submission but it goes on the following basis, your Honours, that Mr Wilkie ‑ and this applies also to the second plaintiff ‑ was required by law under the statutory scheme in section 101 and following of the Commonwealth Electoral Act to enrol as an elector. 

Under section 90B(4) of that Act, the Commission may give details of his enrolment to a prescribed authority which has access to the role.  Under section 4(1) of the Act and regulation 6 of the Electoral and Referendum Regulations 2016, the Australian Bureau of Statistics is a prescribed authority for the purposes, amongst other things, of compiling statistical information.  He is seeking relief to say that the function being engaged in by the Electoral Commissioner and the Australian Statistician is not authorised by law and, therefore, their use of the role is unlawful and that it is therefore unlawful because there is no lawful authority for them to send out the survey to him, which he is seeking to challenge.

So, we say that that is analogous to the situation in Pape, and I will just give your Honours the reference, at paragraph 158 which is in volume 3 of tab 61.  Mr Pape was a taxpayer who objected to the authority of the government to send him a $900 tax bonus ‑ ‑ ‑

BELL J:   In Pape, I think it was ‑ his standing in relation to his receipt of the $900 under the tax bonus legislation was accepted.

MR MERKEL:   That is so, your Honour, but we say that the receipt in the mail of the postal survey form that will be sent to Mr Wilkie derives from his compulsory enrolment, which was an enrolment for purposes authorised by the Commonwealth Electoral Act, not for purposes that were not authorised by that Act or otherwise in law.  We say that raises the same issue.  It does not give him a financial interest, but we say it is a sufficient interest, having regard to the use of the roll in the way that we say is not authorised by law.

BELL J:   This is a special interest that he shares with 16 million other Australian.

MR MERKEL:   We make the same point as was made in that regard in Pape, your Honour; that is, that because there are a large number of people that does not deny the interest, or sufficiency of interest, of one of that group.

EDELMAN J:   Except in Pape would there not have been an obligation upon Mr Pape, potentially subject to defences, to repay the money if it were invalidly paid to him?

MR MERKEL:   That could be so, your Honour.

EDELMAN J:   Is that not a fairly substantial difference in that the payment would directly then affect his rights and duties?

MR MERKEL:   It is an interest, your Honour, that is a financial interest, but I was answering her Honour Justice Bell’s question in terms of number because a large number of people may have an interest in the legality of conduct that relates to them; it does not deny one of that group in having that sufficiency of interest which is required. 

That is how we put the situation in respect of the roll.  I am told, your Honour, Justice Edelman, there are cases, which I will mention later if I can, which satisfy the requirement your Honour said.

GAGELER J:   It is the Auckland Harbour Board principle that is peppered throughout the submissions.

MR MERKEL:   Yes, thank you, your Honour.

GAGELER J:   And that was the basis of the concession in Pape.

MR MERKEL:   Thank you, your Honour. 

Could I go next to the special role, and this relates back to the point your Honour the Chief Justice made about the constitutional writ.  We do rely on the decision in Bateman’s Bay, which is at tab 41 of volume 2, at paragraph 46, where their Honours talk of a special interest.  Particularly over the page, at 206, their Honours cautioned against too narrow a view in respect of standing in matters that involve the public interest and referred to Justice Brennan’s warning in Onus v Alcoa that:

to deny standing may be to “deny an important category of modern public statutory duties an effective procedure for curial enforcement.

There is a similar warning about a lacuna in the Internal Revenue Commission; National Federation of Lord Diplock.  We have mentioned a number of cases from other jurisdictions at footnote 4 of our reply.  We say the absence of any alternative remedy or any alternative person having a sufficient interest would effectively leave the exercise of the discretionary powers, the subject of the case, at large and unreviewable.  There is a real issue about whether State Attorneys‑General would have an interest in respect of the Appropriation Act, and the Commonwealth has raised the question of whether there is a matter, because under section 78A they can only intervene in a matter.  But, again, it is an area that would not be something that would affect any particular State right or interest. 

It is true that the Electoral Commissioner and the Australian Statistician would have an interest but it is not expected that they would be seeking to challenge the authority given to them.  So if the Commonwealth’s submissions are correct, this would lead ultimately to this decision being, in practical terms, unreviewable and without anyone able to challenge it.  We say that the warning of Lord Diplock in the passage in Bateman’s Bay would caution strongly against taking that kind of approach to the question of interest.

We have covered paragraph 2 of our submission in respect of standing for Mr Wilkie.  We say that the second plaintiff also has a sufficient interest.  We have tried to set out in our principal submission, at paragraph 8, in the affidavit material at appeal book 38 to 39, in paragraphs 20 to 21, and in our reply submission at paragraph 4, the reasons why we say the second plaintiff, Ms Marlowe, has a special interest.  She has the same interest as Mr Wilkie has as an elector but also, we say, there is a more fundamental question about her interest, and that is that she is in a same‑sex relationship family with children and her interest is that what is being put up by the survey is a vote by the electorate on her suitability to be in a family relationship or an unmarried or married family relationship.

We say that the suitability of her being in that situation being put under question directly by the survey in the public domain with every elector in Australia being asked to vote upon or express their opinion, however it might be put, on the suitability and legitimacy of her relationship is a matter that gives her a very special interest.  We have looked for something analogous and the closest we can find would be how this Court approached the issue of reputation in Ainsworth.  I will not take your Honours to it but it is at tab 37, volume 2 in the discussion of Mr Ainsworth ‑ ‑ ‑

KIEFEL CJ:   That was vindicating reputation.

MR MERKEL:   Yes, your Honour, and we ‑ ‑ ‑

KIEFEL CJ:   The authorities in this area, though, deal with the question of whether a person’s emotional concern is a sufficient interest.  How do you distinguish this plaintiff’s position in that regard?

MR MERKEL:   We say, your Honour, this is not just an emotional concern.  Her concern is put at the objective level of out there in the public domain the Australian electors are being asked to express an opinion on her suitability and the legitimacy of her and her partner to have a family in a married or unmarried situation and we say that goes much further than a personal - emotional or a personal concern; it is putting into the public domain for an objective vote on her family unit. 

It is personally distressing, but that is not the basis ultimately on which it is put.  It is put out there at that objective level and we say if repute can be a sufficient interest, as in Ainsworth – and it is important to look at what the situation was in Ainsworth.  His company was the subject of a report that it was not suitable to be involved in the poker machine industry in Queensland.  It cast an aspersion on his reputation as the managing director of the company.

We say that the same kind of aspersion is being cast by this vote directly on the family unit and the personal relationship that is the situation of the second plaintiff and we say, having regard to Bateman’s Bay - that passage about social and economic circumstances change, new situations arise - this is unique.

Later on in our submissions, when we deal with the Census and Statistics Act aspect of the case, we will demonstrate how unique and odd it is that a personal opinion is being asked about a relationship of this kind that goes to statutory power.  We say she certainly, in our submission, does have what we would call a sufficient interest.  We have set that out in our submissions.

On the third plaintiff, we rely on what is set out in the outline at paragraph 4 and we will adopt the submissions of the plaintiffs concerning the corporate entity in M106.  We do not wish to say anything further.  In paragraph 5 of the outline we have dealt with the plaintiffs’ standing as strangers to seek prohibition.  The Commonwealth has relied on R v Wright as authority of this Court.  That prohibition is limited based on a common law history of limitation to defend its acting judicially or quasi judicially. 

We want to make three points about the situation in Wright.  The first is that that is no longer the common law and the cases we have referred to have an elaborate discussion of why that is not the common law any longer in the United Kingdom or Australia.  So the basis for the decision in that court, while correct at the time, is no longer correct.  So that places that limitation as no longer an appropriate limitation.

The second limitation is, of course, a stranger comes in in respect of a right or interest affected of another person where the other person does not come in to challenge the exercise of power which will be the subject of a writ of prohibition by a public authority in excess of its jurisdiction or without having jurisdiction to exercise the power. 

We say here the person most directly affected - whose rights and interests are affected by this conduct - would be the Official Statistician - was not coming before the Court for obvious reasons, but we say that classically fits in to the stranger jurisdiction that exists under section 75(v) and is so well established.

So we say that if all our other points are not correct, and subject to any discretion the Court may exercise, there is standing as a stranger and we say the present case a fortiori is a case where there are no discretionary reasons for not allowing the writ to be sought.

EDELMAN J:   When you say that R v Wright has been overtaken or is not good law any more, has the change been anything more than just to really elaborate upon and define what is meant by a duty to act judicially or quasi‑judicially?

MR MERKEL:   I do not think so, your Honour.  We were going to come back to this at a later point if need be to go into more detail, but our understanding of the authorities is that it is not limited to circumstances where a public authority is under a duty to act judicially.  It covers the circumstances where a public authority is acting in excess of its power because clearly there is no acting judicially or anything vaguely acting judicially about the role of the Statistician or the Electoral Commissioner here.

EDELMAN J:   But is there not a further qualification that the acting in excess of its power must still affect the rights of persons?

MR MERKEL:   We say the rights of persons are the rights here of the Official Statistician.  It is the person in whose favour the stranger comes in to the court to seek relief and there are others, but we picked the Australian Statistician as the most obvious person because that statistician is directly affected at two levels:  whether the funding is available to conduct the survey that has been directed to be conducted; and whether that survey is within power under the statute.  So, we say that is the alternative basis on which we put our role in respect of standing.

Can I go to the second question, which is the invalidity of section 10, and that does require me to take your Honours through the statute which is at tab 1 and can I ask your Honours also to get out volume 4, tab 95 which is the explanatory memorandum?  Before doing so, can I give your Honours the briefest outline of the history which I understand will be more extensively explored by the Commonwealth and also in the second case? 

Until 1999 the process by which an advance was made to the Treasurer, starting from 1901 all the way through to the end of the century, was by an appropriation being made giving certain discretions to the Treasurer as to how it was to be employed.  In 1999 the government moved to an accrual accounting basis and changed to the present structure by which the appropriation was no longer made in the No 1 Appropriation Bill, but provision was made for the Treasurer to determine that an amount be appropriated in a form that changed since 1999. 

It found its way into its present form in 2008/2009, but there was also the intervention of the Legislative Instruments Act which became the Legislation Act which was incorporated into the criteria.  But the idea or notion of an unforeseen and urgent expenditure has been around for a long time and was the subject of a 1979 parliamentary committee report.

It is wrong to say that this historically has its antecedent in this structural way back to 1901.  The change that we are concerned with in this case has only been since 1999 and the present form of the Act did not change substantially from 2005 to 2006, which picked up the Legislation Act or the Legislative Instruments Act as it then was, into its present form which has something to do, as I understand it, with the construction arguments that have been put in the second case but are not critical to our case.  So we are concerned with the form of the Act as present enacted and being the Act pursuant to which the determination I took your Honours to was made.

GAGELER J:   So, let me understand this.  Your complaint is with the form in which the advance to the Minister for Finance has existed since 1999.

MR MERKEL:   Yes, your Honour, although we would say not so much the form – the form, yes, but the structural significance of the change of form which means that ultimate control and ultimate supervision of any amount capable of being the subject of the determination has been transferred by the Parliament to a member of the Executive Government.

GAGELER J:   There was a change in the expression of the criteria of which the Minister needed to be satisfied between the 2007/2008 Act and the 2008/2009 Act.  The current version is the version that has existed since 2008/2009.  Does that change between those two financial years feature at all in your argument?

MR MERKEL:   No, your Honour.  We will rely upon the unforeseen arguments put in the second case.  We will not address them separately save on the arguments we put which is as to misdirection of law.  We say particularly in respect of the words “urgent need” – and we may reflect on this, but the argument we put does not seem to be affected by the changes in drafting because urgent need has been a requirement either in those terms exactly or as underlying the considerations that give rise to the exercise of the discretion of the Finance Minister.  But I will come to that on our construction argument.

Can I go to the Act and start with section 6?  Can I indicate to your Honours that the point of difference that appears to have emerged between ourselves and the Commonwealth is the significance to be given to section 12?  Ultimately, we say the Commonwealth seems to retreat into section 12 as the sole relevant and operative provision.  We say the Act must be read as a whole and section 12 does no more than require with the mandatory requirement that the final step in any appropriation must be by an Act of Parliament, not by any delegated legislation, and that has been long established and we say section 12 performs that function.

But to treat section 12 as the sole section of concern and ignore the role of section 6 we say is the fundamental error that seeps through the Commonwealth’s submissions.  We seek to make that good.  If you go to section 6 it sets out the total of the items specified in Schedule 1 and sets out the amount and notes that the schedule “can be adjusted under Part 3” which is section 10.  Then you go to the items in the schedule which are departmental items, administered items and corporate entity items. 

Then can we go to Schedule 1?  There is a summary of the amounts that bring us to the $88 billion and the Australian Bureau of Statistics falls under Treasury and you have the – I think on the last page – the Treasury portfolio sets out the Australian Bureau of Statistics – the departmental amount of $348 million - is the total for the Department.

So that is how the Act operates.  We say even though it is clear from the Act, it becomes abundantly clear from the explanatory memorandum that the appropriation in this Act is made when the Act is passed.  So when the Act is passed the $88 billion is appropriated out of consolidated revenue by reason of the operation of these provisions, particularly sections 6 and 12.

We go to section 10 in Part 3 and we see that what section 10 provides for is subject to the satisfaction of the Minister as to the statutory criteria - and we, for the purposes of our case, are putting this satisfaction as preconditioning each of the criteria and we, in the alternative, will adopt the plaintiffs in 106 but we do not wish to address that separately - when the criteria are satisfied - and relevantly in the present case the relevant criteria are a satisfaction there is an urgent need for an expenditure that was unforeseen - the determination can be made.  Then the determination by the Minister under subsection (2):

has effect as if Schedule 1 were amended, in accordance with a determination of the Finance Minister, to make provision for so much (if any) of the expenditure as the Finance Minister determines.

Then there is a financial limit which means this power cannot be exercised above that limit but within that limit of 295 million the discretion and determination of the Finance Minister has the effect of amending Schedule 1 and increasing the amount appropriated by 122 million – in the present case - or such other amount as is the subject of the determination. 

Subsection (4) provides that the determination is a legislative instrument but is not disallowable and is not sunsetted under the Legislation Act. So we go then to section 12 which does the work that we say the Constitution requires and that is that in an appropriation act there must be words that the revenue fund is appropriated in accordance with the provisions of the Act.

Can I just indicate to your Honours – we will hand up later the No 2 Act and the No 2 explanatory memorandum which relevantly is in identical form and we say that the consequence of the Commonwealth’s submissions produces the startling result that the advance to the Finance Minister – both under the No 1 Act and also – staying with the No 1 Act - can increase any item, can change any outcome and increase the amount funding that outcome or can add a new item or a new outcome across the whole spectrum of government.

We say that the consequence of this statutory scheme is that the Parliament has impermissibly conferred power on the Minister, a Member of the Executive Government, to amend the Appropriation Act in a way that has the effect of appropriating money, $122 million, for an outcome or for a department which the legislature has not considered or provided for.

KIEFEL CJ:   The Commonwealth says that the simple effect is that the amount that is provided for in Schedule 1 against a department or agency such as the Australian Bureau of Statistics is increased, but there is no other major alteration of an item or a purpose or an outcome.  It is simply an additional amount that is made available for expenditure.

MR MERKEL:   Your Honour, it is an additional amount but it is by amendment of the Act that it has that effect.  Could I take your Honours to the explanatory memorandum – if you have the Commonwealth ‑ ‑ ‑

GORDON J:   To an amendment of the Act or an amendment of the schedule?

MR MERKEL:   It is an amendment to the schedule, your Honour, which is part of the Act, and we say ‑ ‑ ‑

GORDON J:   Which has been considered by Parliament and passed.

MR MERKEL:   Section 10(4).  Section 10 has been considered by Parliament and passed and the question is whether the delegation from the Parliament of this power to the Minister is one that takes it outside the constitutional requirement that ultimate supervision and control of expenditure that includes items and amounts of expenditure is to be by Parliament and this excludes a role of Parliament entirely in respect of the appropriations, the subject of the Act.

KIEFEL CJ:   Section 10 is, is it not, legislative authority?

MR MERKEL:   Yes, it is a delegated legislative authority, your Honour, and we say that delegated legislative authority is not permissible.  We will take your Honour later to Dignan - one of the issues in Dignan which, of course, was based on a historical exception about delegated legislative power - it had been too late to change that having regard to the separation of powers context which was being considered - but one of the factors that both Justice Dixon and Justice Evatt commented upon is Parliament’s capacity to supervise by disallowing an instrument because in Dignan itself it was a disallowable instrument and that, in that case, gave at least that aspect of supervision of Parliament, which is denied in section 10.

GORDON J:   If you put aside the disallowance argument, in Dignan does not Justice Dixon draw a distinction between the delegation of power to make law – which, on one view, is not permissible – versus conferring an authority or discretion as to its execution, which Parliament itself has given the person to consider.  Are we not in that second category?

MR MERKEL:   No, your Honour, we say that Dignan ‑ ‑ ‑

GORDON J:   A discretion which has to be made pursuant to the law which has been provided for by Parliament.  Here section 10(2):  conditions unforeseen, urgent, subject to an amount.

MR MERKEL:   But, your Honour, that gives no work and no effect to the requirement which is in section 10 but has to be in section 10 because it amends this Act that section 10 determinations have effect as a law and amend the Act.  Ultimately the test has to be, when this Act was passed, $88 billion was appropriated.  When the determination was made, an extra $122 million was appropriated by reason of the determination and the amendment it made to the schedule and necessarily, your Honour, to section 6 because section 6 itself set out the amount.  So, one cannot divorce the schedule from the Act.  But could I take your Honours to ‑ ‑ ‑

GORDON J:   What effect does this sort of argument have on standing appropriations?  If you just step back for a moment and look at what up to 80 per cent of the budget has dealt with which is by a provision in an Act which says the amount is to be treated as appropriated for the purposes of dealing with the constitutional structure, there there is no amount.  Parliament has given the authority and discretion, subject to certain criteria for pensions, for a whole range of things.

MR MERKEL:   Your Honour, that is correct, and one of our criticisms and a major criticism we make of what has happened in the No 1 Act in its present form is sections 6, 10 and 12 operate as a standing appropriation.  The one thing our history tells us is standing appropriations have not been accepted as being able to be incorporated into the annual budgetary cycle covered by section 53 in the ordinary annual services of government. 

Standing appropriations have been discussed in many cases in this Court. They have a long history that predates the Constitution and are the one exception to parliamentary supervision and control and have long been such an exception and, as in Dignan, the exception that historically had been accepted of delegating legislative power - and the power in Dignan was to make legislation that could affect and alter other legislation, ultimately their Honours said it had too long an antecedent history to change the law because of a separation of powers doctrine which was evolving under the Constitution or had evolved.

In the present case we say section 53 and the statutory scheme with which we are concerned in respect of annual appropriations make a standing appropriation a quantum leap which is not justified or warranted by history.  Of course we accept standing appropriations are the exception.

GAGELER J:   Well, the exception that covers about 85 per cent of Commonwealth expenditure.

GORDON J:   It does.

MR MERKEL:   Your Honour, that is an historical exception which predates Federation and one can accept or not accept the need for it, but as one may have had to accept the outcome in Dignan’s Case as dictated by history. Your Honour, the point of outstanding appropriations is about meeting liabilities of governments so that, for example, a government authority that has to be under a continuing obligation to pay money has historically had a standing appropriation to enable the payment of that money because it happens from day to day, month to month, and so forth. But if standing appropriations were incorporated further than that there would be no need for special appropriations. So, when one had the Northern Territory intervention one could have just had a standing appropriation and, we say, that that is an extension which is not warranted by the Constitution.

GAGELER J:   Now, until that last submission, I had not understood your argument as distinct from the argument of the plaintiff’s in the companion case to rest in any way on sections 53 to 55 of the Constitution. Do any of the arguments for invalidity that you summarise in paragraph 7 of your outline turn on the distinction between an appropriation for the ordinary annual services of government and another form of appropriation?

MR MERKEL:   Your Honour, they do turn on that distinction because that is the Act with which we are concerned and we have, I thought, throughout our submissions, made the constitutional structure upon which we rely to say that it had been subverted by the current formulation in section 10 is the section 53, 54, 56, 81 and 83 and, we say, annual services of government cannot be the subject of anything like a standing appropriation. 

So, I am sorry if ‑ we had hoped that had been made clear, but we also say the same vice occurs in respect of the (No 2) Act with which we are not concerned, but the way in which this now works, your Honour, is that if the Commonwealth is correct, section 10 becomes because of the operation of section 12 a standing appropriation. We say that is the quantum leap which has no historical foundation for it and, in fact, the Constitution speaks directly against it. We do not argue like the second case that this is not ordinary annual services and does not fall within that category. We approach the case on the basis that the Act as it is working and as is stated and we say that the consequence is that impermissible delegation which, we say, has occurred.

KIEFEL CJ:   Sorry, just so I understand your point.  Your point is that there is no appropriation under section 10 and what it stands for is an authority which is unlawful and that the Parliament cannot provide to the Finance Minister or the Treasurer.

MR MERKEL:   I think that is a fair summation, your Honour. 

KIEFEL CJ:   So, really what your case – if that is right then your case really turns upon the notion of an impermissible delegation by the Parliament. 

MR MERKEL:   Yes, your Honour, that is one heading, but we have put it in a number of ways but the outcome comes down to that point, Parliament has exceeded its power by delegating the authority to the Minister to amend the Act in this way which has the consequence of changing the appropriation that otherwise was – the amount otherwise appropriated under the Act.  It does come down to that point.

But I was going to take your Honours to the explanatory memorandum because we say that the Commonwealth’s approach to this Act cannot be justified when one looks at the explanatory memorandum which, we say, clearly indicates what both the intention and function of this statutory scheme is.  It is tab 95, volume 4, your Honours.  Could I just say in further answer to your Honour the Chief Justice’s question, the nature and extent of the delegation is, of course, relevant, not just the fact of delegation but the terms on which it is able to be exercised, and I will come to this in a moment when we address how the criteria work according to the Commonwealth’s construction, it is virtually an unbridled discretion or an unbounded discretion, the Commonwealth are contending for, not justiciable and not able to be reviewed outside of Parliament.

KIEFEL CJ:   Well, I think Professor Campbell to whom you have earlier referred and relied describes it as an authority to expend up to a maximum amount.  Would you agree with that?

MR MERKEL: It is an authority to amend the Act to expend – to cause the expenditure and appropriation up to that amount, yes, your Honour. We do not resile from the fact that Parliament does set an amount which is the maximum amount but, we say, constitutional validity cannot depend upon the amount. If this year it is 249 million and the Court sanctions this as an appropriate method of dealing with the annual services of government and there might be a standing appropriation, that can change to $5 billion or $10 billion. We say the validity cannot depend on quantum and it avails the Commonwealth not at all to say it is point something or other of the total percentage. It may be this year but the question is one of how to follow this pathway and the structural change made in 1999, we say, does not – is a step not authorised by the Constitution.

KIEFEL CJ:   Were not the main structural changes related to departmental items and administered items and the like?

MR MERKEL:   I think it was that the change with which we are concerned, your Honour, is the change of an – prior to 1999 the $249 million was appropriated under the Act at the time that the Act was passed.  Therefore, the delegation was to exercise a discretion as to how that appropriated amount was spent.  Now, it is a discretion to appropriate the amount which, we say, is a fundamental structural change which takes us down to far‑reaching consequences in respect of the budget and the appropriations that may be authorised under the (No 1) Act and the (No 2) Act. 

We say that the role of special appropriation such as occurred with the Northern Territory intervention would no longer have any need for them at all unless there was some need for a legislative framework for a new policy to be given effect to.  This case is a good example of how that has occurred because under the plebiscite there were extensive statutory changes to the Electoral Act in different legislative schemes to enable that to be carried into effect.  This legislative scheme for the survey has achieved an outcome, true it is without compulsory voting, but an outcome that produces ultimately a similar consequence bypassing Parliament because the precondition that preceded these steps was the Senate again rejecting the plebiscite, which it did.

KIEFEL CJ:   When you say bypassing Parliament you mean bypassing the Senate because it is Parliament’s own statute?

MR MERKEL:   Yes, absolutely correct, your Honour, bypassing the Senate as a House that if this were a disallowable instrument could disallow it.  That produces the ultimate irony in this case, the Finance Minister is a Senator who has power to amend the Bill as a member of the Executive Government, a Bill that the Senate itself cannot amend.  So, we say, the bypassing is significant and the fact that the Senate cannot amend a money Bill and it is only the House that can do it, is relevant.

EDELMAN J:   This submission really rests on the words, this Act has effect as if Schedule 1 were amended, because without those words section 10 would effectively be construed when read with section 12 as a conditional appropriation, would it not?

MR MERKEL:   Well, except for the fact, your Honour, that the $88 billion is appropriated under section 6 so it is not just a formal step, it actually increases the amount appropriated ‑ ‑ ‑

EDELMAN J:   Subject to conditions.

MR MERKEL:   Subject to statutory conditions being met and a determination which are preconditioned on those criteria.  But can I take your Honours to how the legislature was told that this Bill works and that is back to tab 95?  Can we go to page 8 which deals with clause 10:

27       Clause 10 of the Bill enables the Finance Minister to provide additional appropriations for items when satisfied that there is an urgent need for expenditure and the existing appropriation is inadequate.  This additional appropriation is referred to as the Advance to the Finance Minister (AFM).  Subclause 10(3) provides that the total amount that can be determined under the AFM provision is $295 million.

28       Subclause 10(1) establishes the criteria about which the Finance Minister must be satisfied before determining to add an amount to an item of an entity.

29       The Finance Minister will only consider issuing an amount under subclause 10(1) if satisfied there is an urgent need for expenditure that is not provided for, or is insufficiently provided for, in Schedule 1, because of an omission or understatement, or because of unforeseen circumstances.

Then it has referred to the PGPA Act. But, importantly, this does treat the decision as amending the Act by making an appropriation, not just formally taking some step in respect of an appropriation already made. The Commonwealth does in various paragraphs of their submission seem to suggest there is an appropriation prior to the determination. We say, that is not tenable in respect of the way the Act is worded, nor is it tenable if the explanatory statement is a correct expression of the statutory scheme.

KEANE J:   Why does one not simply understand this is a conditional appropriation?

MR MERKEL:   Your Honour, to understand it that way would have to treat the appropriation of $88 billion in section 6 as $88 billion plus 122 million or plus 249 million.

KEANE J:   If section 10 satisfied.

MR MERKEL:   Well, we say that that is inverting the process of construction of the Act because the Act says, and the explanatory memorandum I have just read to your Honour accurately says, that the determination is the appropriation.  It is not satisfying a condition in existence and therefore bringing into effect an – it brings into effect an appropriation; it does not become the condition that makes an earlier appropriation unconditional.  But could I say to your Honour ‑ ‑ ‑

EDELMAN J:   Except section 10 is one of the purposes of the Act and the appropriation in section 12 is concerned with appropriation for the purposes of the Act.

MR MERKEL:   Well, your Honour, I will come to the explanatory memorandum, that is correct, and we say because it is for one of the purposes of the Act when section 10 becomes operative, section 12 at that point causes the appropriation to be made under section 10 at the date the determination is made because the Act is then amended.  But I just point out to your Honours that the explanatory memorandum we say accurately sets out the operation of section 10, but so does clause 12.  But can I just go to paragraph 31 because we will come to this as a separate leg of our argument because this is the disallowance provision:

Subclause 10(4) provides that a determination under subclause 10(2) is a legislative instrument, which must be tabled in Parliament. It is not subject to section 42 (disallowance) of the Legislation Act 2003 as this would frustrate the purpose of the provision, which is to provide additional appropriation for [current] expenditure. Further, an AFM is not subject to Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003; legislative instruments enabled by the Bill, once enacted, automatically repeal when the Act itself repeals (see clause 13).

So this is taken out of the purview or supervision of Parliament, which is a very significant matter.  We are not just looking at 10(1), (2) and (3), but we are looking at 10(4) too, and I will come back to that.  But can I finally go to paragraph 33 about clause 12?

Clause 12 provides that the CRF is appropriated as necessary for the purposes of the Bill. Significantly, this clause means that there is an appropriation in law when the Act commences. That is, the appropriations are not made or brought into existence just before they are paid, but when the Act commences. This clause indicates that the amounts appropriated may be affected by the PGPA Act –

So we say that those clauses in the explanatory memorandum and the wording of the Act sit very uncomfortably with the notion of an appropriation being made in respect of the $249 million or an appropriation being made conditional upon a determination of the Minister. But either way, no matter how it is approached, the ultimate question when one looks at the practical – we say and legal – but if we just confine it to the practical effect, there is a delegation of the power to cause an appropriation to the Finance Minister and the ultimate question for this Court is whether the Constitution authorises that. We say that that question is fairly raised by however one approaches the Act. There was no such thing in this sense of a conditional appropriation in the prior legislative scheme.

So we also finally draw your Honours’ attention to clause 35 of the explanatory memorandum which again sets out how Schedule 1 operates and how it interacts with the other provisions.  Before going to the primary argument we put about the impermissible transfer or delegation of power to the Minister, we say it is important to look at the nature and extent of the delegation which is the equivalent of the legislative power the Finance Minister is given under section 10, and that requires some consideration of the criteria.

Can I just at this level of our case accept the Commonwealth’s argument about how the criteria operate, because that is relevant to the ambit of operation of the discretion given to the Minister under section 10, and can I give your Honours just the references?  I will not take you to it, but unforeseen expenditure is put by the Commonwealth and defined in paragraphs 50 to 54 of the Commonwealth’s submissions in 105 and 32 to 37 of the Commonwealth’s submissions in proceeding 106.  What the Commonwealth is contending for is an unforeseen expenditure arises when the Commonwealth has a policy and makes a policy concerning the manner and timeframe within which that is to be achieved.

In the present case, a postal survey by the ABS, that is the unforeseen expenditure, and the undisputed facts are that the notion of a postal survey by the ABS as opposed to the plebiscite or a postal survey more generally, the ABS aspect of it was unforeseen.  So any expenditure in relation to any departmental item or outcome on the line that is unforeseen satisfies the unforeseen criterion.

Then we go to urgent need, and can I ask your Honours to note in proceeding 105 the Commonwealth puts it position at paragraphs 47 to 49 and in 106 at paragraphs 28 to 31.  It divides need and urgent.  The need the Commonwealth contends for is the expenditure is needed to implement the policy ‑ it says, in the matter, I am not sure whether that is a typographical error meaning “in the manner”, but it does not matter – in the matter, in the manner, and within the government’s timeframe.  In the current context, the need was to complete the survey as a matter of government policy by 15 November.

So any policy that produces a need for expenditure to implement the policy satisfies unforeseen and urgent ‑ and need.  Urgent, the Commonwealth puts forward in paragraph 30 in the Commonwealth’s submissions at 106, and it puts urgency in the context of the government “cannot practically await a [parliamentary] appropriation according to the ordinary budgetary process”.  Not parliamentary process, not a special Appropriation Act, but according to the budgetary process over the six‑month or 12‑month cycle.

So we say that that criteria if correct – and we will address your Honour on a slightly different version, particularly on the word “urgent” – but if that is correct it has the full equivalence of conferring upon the Finance Minister a standing appropriation for any item as long as government policy to implement the item requires an expenditure.  The breadth of it, even though we put it as in effect an appropriation in blank, but we do not have to rest on that; we say the cumulative effect of all of the criticisms we make, and we have tried to summarise them in our outline, is the transfer of ultimate control and supervision of the amount the subject of a section 10 determination from Parliament to the Minister.

So we should say – and we will come to this as a separate line – the Commonwealth also contend that the exercise of the discretion as to unforeseen and urgent is not justiciable, relying on the Australian Conservation Foundation Case, so it becomes on the Commonwealth’s submission an unbridled discretion which makes it the full equivalent of a standing appropriation.

KIEFEL CJ:   I thought the Commonwealth had said that the question of whether or not the Finance Minister could be satisfied was reviewable but that you would have to identify error in the process.

MR MERKEL:   Sorry, that is correct, your Honour.  It put a submission reviewable maybe in a general sense but it says a determination as to urgency is a peculiar matter within the discretion of the Executive Government.  But your Honour is correct, it does admit that it is reviewable but on its construction the grounds for review, because they say effectively all that was needed in the present case – and this case is the perfect example to test the ambit of the power – a change of government policy made on 8 August to have a postal survey if the Senate rejected the Plebiscite Bill, which it did, then the direction and determination was made, to give effect to government policy

It is startling in the material and what we have in the present case is an explanatory statement for the Minister’s determination plus an affidavit which raises its own question but you will look in vain for any circumstance that explains urgency outside the government policy implementation.

A date of 15 November is proffered but no reason is put forward for why that date should not be a month earlier or a month later.  This is carefully considered material and that is the government’s compliance with urgency and the only basis upon which that position that the government has taken in respect of the determination necessary to enable the direction to be carried into effect is government policy.  We do not criticise that government policy is there to have policy and to carry it into effect, but not this way.

GAGELER J:   Mr Merkel, where are we up to in your outline?

KIEFEL CJ:   We are still on section 10, validity, are we not?

MR MERKEL:   Yes, section 10, your Honour, at paragraph 7.  So what we say, your Honours, is that the consequence – going back to paragraph 7 and I will take your Honours briefly to a few of the authorities on this, but we say that ‑ ‑ ‑

KIEFEL CJ:   I think what Justice Gageler was asking you was whether you had finished with paragraph 7 and you are actually moving into paragraph 9 of your outline.

MR MERKEL:   No, not quite yet, your Honours.  I had not quite finished with 7.  What I wanted to do is take your Honours to some of the cases we have referred to.

GAGELER J:   Mr Merkel, I am sorry:  are these subparagraphs (a) to (e) in paragraph 7 to be read as separate arguments?  Are they to be read as summaries of the numerous arguments in your written submissions?

MR MERKEL:   I think it is fair to say, your Honour, they are to be read as summaries of the detailed arguments we have put in our written submissions and we say that separately but cumulatively they have the consequence of an impermissible delegation of power to the Finance Minister. 

GORDON J:   Just so I am clear, does that mean that (b) is in effect the primary submission and these others are additional matters that go to support that conclusion?

MR MERKEL:   I think it is a fair way of putting it, your Honour, but that is under the rubric of considering the nature and extent of the delegation which includes the consequences of each of the other paragraphs, but it does come down to that fundamental point. 

Can I take your Honours to how this kind of issue was approached in Brown v West, which is tab 42 of volume 2.  This is a different case but it does have some analogy with the present case because it related to the question of whether there was a residual power to increase an allowance that was not appropriated by legislation.

Could I go to the concepts that we have employed in our submissions which we say are the underlying constitutional principle.  The Commonwealth accepts the constitutional principle of parliamentary control and supervision of appropriations but we say what their Honours were concerned about here was what we have employed in paragraph 7, which is the ultimate and effective responsibility which is passed on to the Minister here.  Can I go to page 205 in the last paragraph:

Subject to certain provisions in the Constitution which charge the Consolidated Revenue Fund . . . with the payment of particular items of expenditure (the A.A.P. Case), the power of appropriation is reposed solely in the Parliament. It is by ss. 81 and 83 that our Constitution assures to the people the effective control of the public purse (to adapt a phrase of Isaacs J. ‑

Then going over to page 207, last paragraph:

Historically, the need of the Executive Government to seek annual appropriations of the Consolidated Revenue Fund “for the service of the year” or “in respect of the year” has been the means, and it remains one of the critical means, by which the Parliament retains an ultimate control over the public purse strings, but the Parliament forgoes its annually‑exercised power over expenditure by government when a law containing a standing appropriation is enacted.

There you have the matter that I dealt with earlier:

Standing appropriations need not be included in annual appropriations.  Browning . . . reports that an estimated two‑thirds –

I think your Honour Justice Gageler said it looked like maybe 80 per cent:

from the Consolidated Revenue Fund is not by appropriations for the service of the year or in respect of the year, but by standing appropriations.

An appropriation, whether annual or standing, must designate the purpose . . . for which the moneys appropriated –

And then there is the passage of Chief Justice Latham about not having appropriations in blank and then there is a reference to Justice Isaacs:

“‘Appropriation of money to a Commonwealth purpose’ means legally segregating it from the general mass of the Consolidated Fund and dedicating it to the execution of some purpose which either the Constitution has itself declared, or Parliament has lawfully determined, shall be carried out.”

Could we also take your Honours to 211, in the middle of the page:

To predicate of the Supply Act . . . that it contained 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).  It can therefore be taken that, not only by reason of s. 3(2) but also as a matter of parliamentary practice, the Supply Act . . . was not intended to include an appropriation for new policies.

We say that section 10 does enable an appropriation for a new policy subject to the criteria but it suffers the vice of the appropriation being caused by the decision of the Finance Minister and being brought into effect by that decision.

Could we go to a passage of Justice Brennan  in Northern Suburbs which is tab 58 in volume 2, and we say this also gives your Honours some assistance as to what is required of an appropriation.  The passage is at page 581 to 582 – sorry, I should point out the passage from the judgment of Chief Justice Mason and Justices Deane, Toohey and Gaudron at 578 to 579 where their Honours say at the bottom of 578:

But even if the failure to comply with s. 54 were a ground of invalidity, it is clear that the appropriation is a standing appropriation and that, therefore, the Administration Act does not appropriate money for the ordinary annual services of the Government.  So much is established by Brown v West.

We say that is a clear distinction of the kind we are drawing between standing appropriations and the appropriations required to satisfy the Constitution in respect of ordinary annual services of government. Can I go next to Justice Brennan at 581 to 582 where His Honour in the last three lines of the main paragraph, after referring to sections 81 and 83, says that those provisions:

thus give effect to the constitutional principle “that no money can be taken out of the consolidated Fund into which the revenues of the State have been paid, excepting under a distinct authorization from Parliament itself”.

The critical question is whether ss. 33 and 34 of the Administration Act validly appropriate the moneys falling within –

those paragraphs, and then his Honour sets out in a passage we say is relevant to the present case:

Appropriations are of two kinds – standing (or special) and annual.  An appropriation of either kind must specify the purpose for which it is made for it must be made for a purpose of the Commonwealth, however general the purposes of the Commonwealth may be.  It is of the nature of an appropriation that it appropriates either a sum certain or a sum calculable by reference to specified criteria.  There can be no appropriation in gross, authorizing the withdrawal of whatever sum the Executive Government may decide in the exercise of an unfettered discretion.

Your Honours, we say ‑ ‑ ‑

KEANE J:   Well, Mr Merkel, you need to read the next sentence too, do you not?

MR MERKEL:   Yes:

That is not to say that a discretionary judgment may not have a part to play in fixing the amount of the sum appropriated, but the amount must be referable to a criterion other than mere discretion.

GORDON J:   Is that not exactly the distinction I was pointing out before earlier that is taken in Dignan’s Case, rather than delegation of the lawmaking power standing in stark contrast to that sort of exercise?

MR MERKEL:   Your Honour, it is relevant to that but the reason I refer to the appropriation must be in respect of a sum certain or a sum ascertainable is that a sum certain and ascertainable only came into existence on 9 August when the Finance Minister made his determination.  It meets any argument, your Honour.  It is an additional ground for meeting any argument that the Minister’s determination did not cause and carry into effect an appropriation.

KIEFEL CJ:   What do you say about the last sentence in the paragraph:

If a law grants to the Executive Government a right to withdraw a sum of money from C.R.F. and to apply that money to the purpose of the Commonwealth stated in that law, it is in form an appropriation.

MR MERKEL:   Your Honour, we say that would depend upon the appropriation – the law actually appropriating a sum, your Honour.  That would apply to the format that the advance to the Treasurer was in at the time of this case where there was an appropriation and the amount could be expended at the discretion of the Treasurer.  His Honour was not referring to or considering whether the appropriation came into effect only when the determination was made because the Act in the form it was in at that time provided specifically for an appropriation and a determination to apply the money for that purpose.  That means there is an appropriation in that context.

KIEFEL CJ:   But what their Honours say there could be applied to the notion of a fund set aside as an advance to the Finance Minister or in the days gone by to the Treasurer.

MR MERKEL:   Your Honour, that comes back to the central issue which is the structural problem that we say arises from the current form and current process adopted by the government which is not to appropriate until and unless the Finance Minister makes a determination.  I do not think there his Honour is contemplating what we have in issue in the present case.  It certainly was not a question in that case and it was not part of the framework in that case, but it raises all of the issues that we have set out in paragraph 7 which we say are central to the outcome of the present case.  Justice McHugh discussed that criterion at page 600 where, in the last sentence of the middle paragraph, his Honour made the point:

it must nominate an amount of money to be appropriated or specify a formula or criterion by which the amount appropriated can be determined.

It is correct at 601 his Honour did view the Minister’s discretion as being very broad but again that was in the context of a statutory scheme where the Appropriation Act did actually appropriate the amount leaving certain discretions.  So we say that the cases do assist us and are consistent with the argument and the underlying premises of the argument that we are putting to your Honours.  Can I just briefly go to the question of disallowance?

NETTLE J:   Just before you do, I want to ask one question.  You said much earlier that sections 6, 10 and 12 created a standing appropriation but the cases show that a standing appropriation cannot be included in an annual Appropriation Act.  Is it these cases such as Northern Suburbs that you say show that? 

MR MERKEL:   Yes, your Honour, but there are a lot of – a number of cases have commented on standing appropriations as something separate from the annual services of government.

NETTLE J:   I think I understand that but you said – the point I am driving at is you said that one may not have a standing appropriation included in an annual Appropriation Act. 

MR MERKEL:   We would say you cannot have a standing appropriation which is subject to discretion and we say that ultimately what the Commonwealth is putting - if I can just use it by way of this example.  Put to a side section 6 because that takes it outside of the sphere of a standing appropriation if it were in respect of appropriated money, but on the Commonwealth’s submission this Act could consist just of sections 10 and 12 and that would have – sorry, 6 and 12, that would make 12 operate as a standing appropriation if there was a power in the Executive to just appropriate money under an Act without having to go through a statutory scheme which carried into effect the appropriation.

GAGELER J:   I do not know what you mean by “standing appropriation”. It is not a technical term. You get the ordinary annual services of government from section 54 and section 54 of the Constitution says that:

The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government –

cannot deal with anything else, so that is where you get the principle from, but to call things standing appropriations in the abstract I am not sure is helpful.

MR MERKEL:   Well, I will move on from that, your Honour.  I accept it was really in response to certain questions about how broad the discretion could be and that takes us one into what might be an analogy with the standing appropriation but we rest our case on this Act being for the ordinary annual services of government and ‑ ‑ ‑

NETTLE J:   Just one more question, if this were a standing appropriation of the kind to which Justice Brennan refers in Northern Suburbs and to which her Honour the Chief Justice referred a little earlier, is the vice with it that it is included in an annual Appropriation Act or that the criteria for the exercise of the discretion on which it is conditioned are too broad?

MR MERKEL:   Your Honour, we say both but basically the fundamental problem is including it in an annual services of government Act because it must appropriate it in a way that satisfies the requirements of sections 81 and 83, as well as the scheme in 53, 54 and 56, but 53 and 54 apply to annual services of government which can only deal with annual services of government.

NETTLE J:   You could put it in any sort of Act, could you not, as long as it were a standing appropriation and the exercised conditions were sufficiently delineated?

MR MERKEL:   Well, your Honour, with respect, I accept what Justice Gageler put to me, standing appropriation can cover special appropriations or reform historically of the standing appropriation which allowed money to be appropriated on executive decision‑making to meet current indebtedness which could not have been anticipated.

NETTLE J:   I am sorry to be obtuse; it is just that it seemed to me a point of importance in your submissions that 6, 10 and 12 created a standing appropriation but the cases show one cannot have a standing appropriation in an annual Appropriation Act.  It is the latter part of that proposition that I am concerned to understand – why can it not be included in ‑ ‑ ‑

MR MERKEL:   Yes, because, your Honour, it suffers all of the infirmities set out in paragraph 7, putting the disallowance aside, and we say that they are infirmities that are not permissible in respect of an Act dealing with the annual services of government and we say in that context it is not permissible to allow executive discretion as against Parliament to determine the amount to be appropriated.

NETTLE J:   I have those, thank you, but I am still asking why – putting those considerations to one side, why cannot the thing be included in an annual Appropriation Act?

MR MERKEL:   Because, your Honour, the annual Appropriation Act – the standing appropriation is an historical exception where there is, and has been accepted to be, a certain amount of power to be delegated to an executive authority to meet some expenditures which were covered, and therefore it is an exception to what I would say is the non‑delegation rule. It is not an exception that has been incorporated or accepted as being part of the annual services of government because that is not the way historically that has been employed, but importantly the annual services of government has its own scheme under the Constitution which requires parliamentary supervision and ultimate control over the appropriation for annual services.

We say that there is a central vice in even considering that kind of delegation scheme because ultimately the end result, if you look at Acts 1 and 2 of this statutory scheme with the same discretions as we have in section 10 in Act No 2, that virtually has no limiting principle in respect of appropriation other than purposes of the Commonwealth which become the issue when the money – as a result of Williams – when the money is to be expended there must be legislative authority outside the Appropriation Act. 

So we say that approaching it in the way of conferring a discretion has very, very far‑reaching consequences, your Honour, and we say this case shows - is a very good example of it.

GAGELER J:   Mr Merkel, your complaint is about the validity of section 10 of Appropriation Act (No 1), as I understand it from your last submission, would apply equally to an equivalent provision in Appropriation Act (No 2).

MR MERKEL:   Yes, except one difference, your Honour.  The No 1 Act is annual services and the No 2 Act is not so limited.

GAGELER J:   Of course that is the difference ‑ ‑ ‑

MR MERKEL:   Yes.

GAGELER J:   ‑ ‑ ‑ but it really goes back to what the ordinary annual services of government have to do with any of your propositions in paragraph 7 of your submissions?

MR MERKEL:   Your Honour, we say because of the statutory scheme for annual services of government and the inability of the Senate to amend – we say that the principles apply to annual services of government.  We say they also apply on a wider basis.  The Court may accept it only applies in a narrower sense or on a wider sense.  But we say these are fundamental constitutional principles which we say apply to appropriations and Appropriation Acts.  We say that is why special appropriations - and the Northern Territory intervention was one example I gave your Honours – do require a special appropriation and it must be by Parliament, not by executive fiat.

GORDON J:   Could I just ask one very practical question?  Where do we find the submissions about the significance of ordinary annual services of government in your submissions – written submissions?

MR MERKEL:   Can I check that and give your Honour the response?

GORDON J:   Sure.

MR MERKEL:   We have referred to those sections.

GORDON J:   No, I mean this argument – the significance of it that is now being put. 

MR MERKEL:   Can I come back to your Honour with the answer?

NETTLE J:   Can I just ask - is it because you say this allocation is not part of the ordinary annual services of government but it cannot be included in an annual appropriation act?

MR MERKEL: We are putting the argument, contrary to what is in 106 - we are putting the argument that accepting this is annual services of government as enacted we say that within that statutory and constitutional scheme this power to delegate is not permitted by the Constitution. I am told by my learned juniors that footnote 13 of the reply mentions that, your Honour.

GORDON J:   Footnote 13 of the reply.

KIEFEL CJ:   It is not exactly the centre of your submissions, is it?

GORDON J:   That is interesting – right in the centre.

MR MERKEL:   When your Honour says the centre, our submissions, we say ‑ ‑ ‑

KIEFEL CJ:   Well, they do not appear in your written submissions in‑chief at all.

MR MERKEL:   We have relied upon – we are responding to the Commonwealth’s position but, your Honour, we do say that we put it in the first instance in the statutory scheme stemming from 53, 54, but we also put it on a wider basis but it is only in the context of annual services that this issue arises because that is what Appropriation Act (No 1) is concerned with.

GAGELER J:   I think you said you were going to take us, at some stage, to Appropriation Act (No 2) - for what purpose?

MR MERKEL:   We will hand it up to your Honours but only to show the same statutory scheme exists, the same wording of the same scheme.  That is all, your Honours.

GAGELER J:   It is interesting, but how does it assist ‑ ‑ ‑

MR MERKEL:   I do not need to take it any further, your Honour.  Can I go to the last point that we wanted to address in this section of our submissions and that is the notion of section 10(4) insulating the Minister’s determination from parliamentary disallowance.  Can I just indicate to your Honours that in Dignan’s Case – can I go to it and can I hand up page 123 to your Honours of the decision of Justice Evatt which was not included in the volume - it is tab 73, volume 3 - at 102 in Justice Dixon’s judgment, halfway through the main paragraph there at the top of the page, his Honour says:

Major consequences are suggested by the emphasis laid in Powell’s Case and in Hodge’s Case upon the retention by the Legislature of the whole of its power of control and of its capacity to take the matter back into its own hands.  After the long history of parliamentary delegation in Britain and the British colonies, it may be right to treat subordinate legislation which remains under parliamentary control as lacking the independent and unqualified authority which is an attribute of true legislative power, at any rate when there has been an attempt to confer any very general legislative capacity.  But, whatever may be its rationale, we should now adhere –

to it.  But legislative control, in this case, existed because it was a legislative instrument that could be disallowed by either House of Parliament.  There is not that same ability of repeal or legislative instrument in respect of an annual services Act and Justice Evatt, at page 120 – and, of course, we are in a constitutional category where there is no acceptance of delegated legislative power as there was in Dignan for a section 51 head of power. It is not suggested by the Commonwealth that appropriation power may be delegated but we say if it is to be delegated and that is the practical effect there must be some kind of legislative control or supervision which is totally lacking by reason of section 10(4). What his Honour said at page 120, in paragraphs 1 to 3:

The fact that the grant of power is made to the Executive Government rather than to an authority which is not responsible to Parliament, may be a circumstance which assists the validity of the legislation. The further removed the law‑making authority is from continuous contact with Parliament, the less likely it is that the law will be a law with respect to any of the subject matters enumerated in secs. 51 and 52 of the Constitution.

Then down to paragraph 3:

The fact that Parliament can repeal or amend legislation conferring legislative power will not be a relevant matter because parliamentary power of repeal or amendment applies equally to all enactments.  But all other restrictions placed by Parliament upon the exercise of the power by the subordinate law‑making authority will be important.

Can I just ask your Honours – it is not there – at page 123 his Honour says, dealing with the present case:

But it expressly reserved to each House of Parliament the right, under certain circumstances, of disallowing any regulations.

His Honour regarded that as a significant matter.  Cases have referred to – Capital Duplicators has referred to both repeal and subordinated legislation being disallowed by a House of Parliament. But we say repeal in this context is obviously impracticable because it is a money bill and the Senate has no role, cannot amend and the problem of rejecting supply has its own history and, therefore, it effectively, by removing the subordinate legislation power of disallowance from either House removes the essential element of control and supervision which the cases have said is an important element in justifying the delegation of legislative power in respect of enactments under sections 51 and 52.

So we use that by way of analogy to show the vice that we have referred to in paragraph 7(c) of our outline.  Also we have a number of criticisms in addition to the disallowance and the unrealistic aspect in practical terms of repeal.  But we say the parliamentary explanation that giving a power of disallowance would frustrate the purpose of the amendment inverts this constitutional structure of supervision and control.

First of all, disallowance only operates prospectively under section 42 of the Legislation Act and secondly, it inverts the control of Parliament by transferring it to control of the Executive by ensuring Parliament has no supervision or right of control and we say it also has the practical consequence of immunising or - immunising is not the right word, but enabling government to bypass the process of negotiation by which one would expect Parliament to approve and not disallow because negotiation with the Executive Government and Parliament could produce an outcome which would avoid disallowance.  So we say for those reasons the Act, or section 10 and the determination that is made under it, are invalid. 

Could I go next to the next segment of our submission which starts at paragraph 9 onwards which is the invalidity of the determination?  Your Honour the Chief Justice is correct that the Commonwealth’s submissions, paragraph 39, the Commonwealth accepts that a judicial review on the basis of misconstruing a criterion or misconstruing the law, the subject of the determination, and a decision by decision‑maker that no reasonable decision‑maker could make, are reviewable grounds for a decision made under section 10.

We set out in paragraphs 9 to 12 of our outline the submissions that we put and I can address your Honours on fairly briefly about the satisfaction of the Minister so that our submissions on invalidity accept that the Minister’s satisfaction preconditions urgent need and foreseeability, whether the expenditure is unforeseen and we say that we have addressed your Honour on the construction the Commonwealth put on “unforeseen” and that depends entirely on the two views being put forward with whether what has to be unforeseen is the line item and the postal survey by the ABS, in which case there is no issue by us on a challenge of fact that it was unforeseen to be conducted by the Australian Bureau of Statistics.

In the 106 proceeding, our learned friend will be putting submissions on unforeseen which we will adopt and we do not wish to separately address.  What we wish to address is the criterion of satisfaction as to an urgent need and we say there is a fundamental vice in the failure of the Commonwealth’s submission to give any work to be done whatsoever by the word “urgent”.  We say that urgency and need are conflated and there is no separate requirement for urgency because when you look at the Commonwealth’s explanatory statement of the Minister, what the Commonwealth relies upon, and the Minister’s affidavit, which I will take your Honours shortly to, the need is to have conducted the postal survey, the subject of the Treasurer’s direction, to be completed by 15 November.

So, on that basis, the survey to be started now and completed by 15 November is the unforeseen expenditure now needed on 9 August.  From then on the material is silent as to why that need was urgent and we say urgent in this context, and we say construction of the word “urgent” has to have regard to the text, context and purpose and the purpose plainly is a need that is sufficiently compelling or sufficiently pressing to ‑ ‑ ‑

KIEFEL CJ:   It is a need for expenditure, though.  It is not a ‑ ‑ ‑

MR MERKEL:   It is a need for expenditure ‑ ‑ ‑

KIEFEL CJ:   It is not a felt need; it is a need to spend some money.

MR MERKEL:   Yes, it is a need to spend some money but the need has to be carried into effect because it is urgent which we say means that it is not practicable to seek a special appropriation from the Parliament and therefore resort to section 10 is necessary to satisfy the requirement of urgency.  Now, we say that the present case tests that proposition.  The Commonwealth contend that it means urgency, not being able to go back to the Parliament within the budgetary cycle of 12 months or whatever, but we say that really is not a very attractive justification for what has occurred in the present case.  It has nothing to do with the annual budgetary cycle because if there is a new policy, as was discussed by Justice Brennan in the passage I took you to, a special appropriation can be made for it. 

GAGELER J:   Well, what if it was just a couple of million dollars?

MR MERKEL:   Your Honour, every case needs to be determined on its own facts but the word “urgent” has to have work to do.  Our problem is, your Honour, that what your Honours put does not take us past the question of need.  If it was not practicable to go to Parliament because Parliament was not sitting and expenditure had to be incurred so be it.  But we say the amount involved cannot be determinative of the meaning of the word “urgent”. 

It may be relevant it some circumstances but the present case is a paradigm of why the Commonwealth must necessarily be wrong.  If the fundamental purpose is ultimate parliamentary control and responsibility for expenditures - and we will put in this category we are talking about major expenditures - so giving an example of a small expenditure is maybe not a way appropriate to test it.  This is a new policy involving a major expenditure and the precondition for the expenditure was that the Senate reject the Plebiscite Bill which occurred on 8 August.  The Senate was sitting at the very time and has resumed sitting yesterday so there is no reason at all proffered why this was so urgent it could not be put to a House to approve, which is what we say gives meaningful effect to the word “urgent”.

Could I give your Honours this example - can we test it this way?  Say if what went to the Senate on 8 August was the Plebiscite Bill and the postal survey in a legislative form appropriating the $122 million and the Plebiscite Bill was rejected and the postal survey was rejected or withdrawn - it would not matter which for the purpose of our example - and then on that night the Finance Minister’s determination was made, we would say the Finance Minister’s determination on 8 August would satisfy the requirement of it being unforeseen, it would satisfy the requirement of it being needed, so the only way in which that situation which was obviously an unintended outcome could be challenged was there was no urgent need and there was no urgent need because the government was quite able to put the appropriation for the survey to the House and to the Senate on those days but it did not occur.

So we say that in three ways we say that the discretion has miscarried.  We say when you look at the explanatory statement - and we set this out in some detail in our submissions - when you look at the explanatory statement it contains the passage by the Minister that there was an urgent need because it was unforeseen and we say that is clearly a misdirection as to the criterion of urgency and it is totally circular. 

We say that if the Minister’s affidavit is looked at, and that is at 179 to 181, the only additional factor put forward by the Minister to justify urgency - and we have objected to the relevance of it on the basis that there is no supplementation of reasons, but even if it were accepted as relevant, all that the Minister does is add an additional basis for urgency saying that the survey was to be completed by 15 November but that was the need for the expenditure, to have the expenditure start so it could have the survey completed by 15 November.

So on either approach there is simply no work to be done by the word “urgent”.  We say that it is quite clear that the Minister must necessarily have misdirected himself as to the meaning of “urgency” or, put another way, failed to have regard to a relevant consideration as to whether the need was urgent.  It is either a misdirection or a failure to have regard to the relevant consideration, which are both jurisdictional errors on the basis accepted as reviewable by the Commonwealth.

We say that either by conflating the criteria of “urgency” and “unforeseen” in the explanatory statement or misconstruing the criteria there was jurisdictional error on the part of the Minister.  We put in the alternative, if we needed to go there, that on the facts of this case no Minister acting reasonably could have concluded in accordance with law that this was an urgent need.

That is how we put the administrative law case.  We have articulated it in some detail in our submissions and we put it on the basis, even accepting the Commonwealth’s submission, that satisfaction preconditions both the state of mind in respect of “urgent” need and the requirement of “unforeseen”.  In our application we have also adopted the argument that “unforeseen” is to be objective but we rely on the plaintiffs’ submissions in the 106 case on that ground and we do not wish to separately address that ground. 

GAGELER J:   In relation to your third way of putting the urgency argument – that is, unreasonableness – does that assume against you the Minister’s construction?  That is, you are concerned with the budgetary cycle?

MR MERKEL:   If that is the concern, it seems that I could not succeed on reasonableness, your Honour.

GAGELER J:   So does “reasonableness” add anything to your second ground?

MR MERKEL:   Probably not, your Honour, but because this construction is a moving feast ultimately we are put in a situation of having only one fact really put forward on urgency, which is in fact the need, which is completion by 15 November.  However the Court may ultimately construe the word “urgent” may depend upon whether a reasonableness criterion is satisfied, but if it is on the Commonwealth’s construction then obviously the need was urgent because the next budgetary cycle could not satisfy the requirement.  We say Parliament was sitting, so we do not actually have to go there, and it is sitting today.

They are the submissions that we put on invalidity.  I think I have identified at paragraph 12 the point of construction which my learned friend, Ms Richardson, will elaborate on in 106, and we do not want to duplicate the submissions.  Can I ask my learned junior, Ms Foley, to

address your Honours on the census and statistics part of the case, which are dealt with in paragraphs 13 through to 16, if your Honours please.

MS FOLEY:   If the Court pleases.  I will be addressing grounds 4, 5 and 6.  Grounds 4 and 5 concern the validity of the direction made by the Treasurer on 9 August.  Your Honours will have observed that the CS direction was amended on 16 August 2017.  That amendment direction is in the special case book in the M106 proceeding, at page 181.

If I can just note a matter of housekeeping, the amendment that was effected by that direction was in relation to the definition of “elector”.  In the plaintiffs’ reply, at footnote 20, we should have referred to the amended definition of “elector” rather than the earlier definition.  We have prepared an amended reply which simply corrects footnote 20.  We have provided that to the Commonwealth and there is no objection to that being filed, so with the Court’s leave we would seek to file the amended reply simply to correct footnote 20.  I circulate that, your Honour.

GAGELER J:   Does the amendment to the direction matter?

MS FOLEY:   It does not matter, your Honour.  We simply wanted to correct the footnote to ensure that that was put before the Court.

Ground 6 concerns the Electoral Commissioner’s authority to participate in the process established by the direction.

If I can turn then to ground 4.  The plaintiffs make two arguments.  The first is the contention that although the CS direction is framed as a direction to the Statistician, under section 9(1)(b) of the Statistics Act to collect statistical information as a matter of substance, we say, the Statistician is being directed to conduct a postal vote.

As a starting point it may be observed that the practical operation of the CS direction is to have electors answer effectively the same question that was to be submitted to electors at the proposed plebiscite; namely:  should the law be changed to allow same‑sex couples to marry?  The Court will see that in the Bill, at section 5(2). 

Further, although described as a survey, the Treasurer has in this case directed the Statistician not only as to the subject matter to be surveyed but has defined for the Statistician who the respondents are to be, and those respondents are to be electors.  If the direction to the Statistician is simply an exercise in collecting statistical information about views on whether the law should be changed to allow same‑sex marriage, why the need to define the class of respondents as “electors”?

The plaintiffs say that there is no power under section 9(1)(b) for the Minister to have defined the class of participants or respondents at all.  The plaintiffs have also not been able to identify any other direction given to the Statistician under section 9(1)(b) where the class of respondents has been specified or defined by the Minister making the direction.

We say the fact that the CS direction takes this further step not only directs the Statistician as to the kind of information that is to be collected but it directs the Statistician as to the class of participants underscores that the process here is something different from the collection of statistical information as contemplated by section 9(1)(b).  We say that that process is in substance to enable the taking of a vote.

KIEFEL CJ:   But votes have consequences.

MS FOLEY:   Not always, your Honour.  We have considered, for example, the 1933 referendum that was conducted in Western Australia as to secession.  In that case, although the vote was yes, ultimately there was no secession; the British Parliament did not allow it.  We disagree with the Commonwealth’s point that it is a necessary element of a vote that there be an immediate consequence.

KIEFEL CJ:   Or the real possibility of a consequence.  I mean, in the case of the secession vote it was overruled by a joint committee of the House of Commons and the House of Lords.  If that hurdle had not been put there the vote might have been effective.  It certainly could not have been taken to the government of the United Kingdom without that vote.  It had consequences.  What does this have?

MS FOLEY:   We say they are the same kinds of consequences in that sense here.  The Commonwealth has not taken the rather bold step of saying that there are no consequences at all to this survey.  The Commonwealth has said quite carefully, we think, that there are no immediate consequences.

KIEFEL CJ:   Yes.

MS FOLEY:   We say that the same point applied in relation to the 1933 secession.  Now, plebiscites are understood to be votes and they do not always have immediate consequences in the sense that the Commonwealth has employed that term.  So we do not agree with that as a necessary characteristic of what is understood to be a vote.

KIEFEL CJ:   But you are saying you are almost ad idem then that what is to be produced out of this survey is something which provides a foundation for further action.

MS FOLEY:   Indeed.  The Commonwealth’s submission ‑ ‑ ‑

KIEFEL CJ:   How does that, in the terms of the Census and Statistics Act, take it out of the relevant statutory power?

MS FOLEY:   Indeed, your Honour, and this goes to the question of characterisation.  We accept that the relevant question is whether or not the direction is properly considered a direction to collect statistical information under section 9(1)(b). 

Now, there might be circumstances where a direction to collect statistical information has also characteristics of what one might see as a vote and in that case we do not say that the two concepts are mutually exclusive.  But we say in construing or characterising what has happened in this case, when one looks at a range of features that we have pointed to – and I will also come to the argument of course about what is statistical information – that in this particular case it cannot be properly characterised as a collection of statistical information.  And when you ask:  well, what is it then?  We say, well, it is a vote.  But we do not say that the two concepts are mutually exclusive concepts.  Rather, the Court’s task, as your Honour the Chief Justice has identified, is to characterise it either as properly falling within section 9(1)(b) or not.

EDELMAN J:   It does not really matter, then, whether it is a vote or not because it may be possible that something could be characterised as both a vote and as being a collection of statistical information.

MS FOLEY:   In some other case, your Honour is exactly right.  It is helpful here, perhaps as an analytical tool because if one is asking:  what, then, is really going on?  And we know from cases like how the Court needs to look at the practical operation, we say, well, the practical operation here is to take a vote.  And a particular feature that we have focused upon is the fact that the class of recipients or respondents, rather, has been defined not by the Statistician, because the Statistician might have thought whether that was relevant or not to the collection of this information, but by the Treasurer.  We say that that is a very important point.

The next feature that we point to, your Honours, when asking:  what is the CS Direction doing as a matter of substance, is the fact that the ABS will be using external observers as part of the process.  If I can take your Honours to the application book, please, at page 169?  This is exhibit JH11 to the affidavit of Jonathon Hunyor and it is a document published by the ABS in relation to the process for the survey.  If your Honours could, please, turn to page 172.  At 40 your Honours will see a subheading “Assurance of Integrity and Quality”.  What we see there in the second paragraph, under that subheading, is that:

Observers will be nominated by Commonwealth parliamentarians to observe key steps in the survey process in order to provide an outside view to the Australian Statistician on the integrity of the survey process.

Now, although described as “observers” the role appears to us to be relevantly identical to that of a scrutineer.  The plaintiffs have not identified any other occasion where the Statistician has used “observers” in this way.  And there is certainly no provision in the Statistics Act or in the Australian Bureau of Statistics Act dealing with observers and setting up some kind of system for their conduct.  That may be contrasted with the system that is established in the Commonwealth Electoral Act in relation to scrutineers. 

We say it is also relevant in characterising the process established by the CS Direction that the direction does not accommodate the possibility that there will be persons who wish to express a view about the change to the law to permit same‑sex marriage but not by this method.

GORDON J:   So is that right in relation to subsection 6(2) which talks about the ability of the ABS to collaborate with bodies and one of them is in relation to “securing the observance of statistical standards”.  Does that not answer that question?

MS FOLEY:   It does not, your Honour, because what we are looking at here is what questions have the Statistician – what information has the Statistician been asked to collect?  And what we know from the material that the ABS has provided is that only one question will be asked.  Now, it might be different if the Statistician had decided to ask this question in a number of different ways in order to properly answer the question whether or not these electors have a view on the subject but do not wish to express that view by way of this process.  But the fact that this decision has been made to frame it in terms of one question but, more importantly, that the direction in setting out the categories of information to be collected did not accommodate this possibility says to us, again, that what this process is directed to is a binary result, a group of yeses and a group of noes, not a collection of information about these views in the Australian population, because if that were the case, you would be asking that question:  do you have a view, but you do not want to give it by this particular means?

KIEFEL CJ:   I am sorry, I do not quite follow this.  Under the statistical information direction the statistical information, in the first instance, is said to be about the proportion of electors who wish to express a view.

MS FOLEY:   Yes, but not by this process, your Honour.  That is the difficulty we have with it.

KIEFEL CJ:   Well, but you are still getting more than a yes or no answer, are you not?  You might say that it is imperfect, but the question here that you are addressing is whether or not this is a binary process of voting.  But you are still obtaining, are you not, information about those people who do and do not wish to express a view?

MS FOLEY:   Except that we know that only one question is going to be put in the survey, your Honours.

KEANE J:   Participation is voluntary?

MS FOLEY:   Yes, your Honour.

KEANE J:   It is certainly not like a vote in Australia where voting is compulsory.

MS FOLEY:   Indeed.

KEANE J:   And if someone does not want to participate and express a view one way or the other they could just throw the thing in the bin.

MS FOLEY:   They can, but what we do not know is whether that person has a view on the subject in relation to section 3(1)(a) of the direction but does not want to express that view by this process.  That is what we will not know.  And we say this tells you something about the process that has been established.

KEANE J:   Well, it does not tell you very much, does it?  It certainly does not tell you it is a vote.

MS FOLEY:   We say it is one of the features that assists in characterising it not as a true collection of statistical information but in reality, in practical effect, as a vote.  We say that the failure to accommodate that possibility in the questions, or the issues, rather, that have been identified in this direction does tell to that point.

KIEFEL CJ:   What does it tell you?

MS FOLEY:   It tells us that there was not an interest in whether there would be a group of electors who had a view and wished to express it under 3(1)(a) but not by this process.

KIEFEL CJ:   Yes, that is just repeating your question another way.  But your point is that this tells you something about it being a vote.  That is the part I do not understand.

MS FOLEY:   Yes.  To put the point this way, your Honour:  if it were simply a collection of statistical information about views within the Australian population on same‑sex marriage the Statistician, firstly, would not be confined to the class of electors – that has been done by the Minister – but, secondly, you would be asking a question to those participants relevant to whether they object to the process itself because only then will you know, to answer 3(1)(a), whether you are getting a true picture of who wishes to express a view on this subject and if there is not a reason that they are ‑ ‑ ‑

EDELMAN J:   It may be that that gap might be one of the very things that makes it a statistic because the essence of statistics is drawing inferences.  And if there is that gap there, the fact that you have not got a survey of all electors, might be one of the reasons why you have to draw an inference.

MS FOLEY:   It is a dangerous inference to draw we say, your Honour, when you could actually just ask the direction question.  If you can directly ask the people who are participating whether they have a view but they do not wish to express it by this particular method, why would you not do that, unless what you want at the end of the day is a group of yeses and a group of noes to count?  That is the submission.

BELL J:   That may show that there might be, on some analyses, a better way of conducting the postal survey, but it does not explain why the survey is not within the terms of 9(1)(b).

MS FOLEY:   We say it is one of the features that the Court should have regard to in assessing the practical operation of the process that has been established, consistently with the principles in Ha v New South Wales, by this direction.  If it were that feature alone, then we would not have an argument.  What we are saying to the Court is, looking at the process that has been established, there are several features which we say mean that the direction, properly understood, sets up a process that is not consistent with a collection of statistical information for the purposes of section 9(1)(b).

KIEFEL CJ:   Then I think you are going to address why it is not statistical information.

MS FOLEY:   Indeed.  If I could turn to that, which is dealt with in the plaintiffs’ submissions, at paragraphs 67 to 75?  And we are now at the outline, at paragraph 14.  This is the second argument that the plaintiffs advance and the argument is that the term “statistical information” in the Statistics Act, read in context and having regard to the statutory purpose, does not extend to the collection of information by the ABS about personal opinions held by the Australian population.

Now, there is no dispute between the parties that the word “statistics” and the words “statistical information”, read in isolation, are broad concepts.  But we say that is not the question.  The question is:  how the term “statistical information” is to be understood, as it is used in the Statistics Act where it is the ABS, part of the Commonwealth Executive, empowered to collect information from the population, including by directing people to answer questions.

GORDON J:   I thought your complaint was about – I thought your opening statement – your complaint was about opinions.

MS FOLEY:   Indeed.

GORDON J:   Is that it?  Is that the focus of it?

MS FOLEY:   The focus is yes, we say there is a limitation on the kind of information that can be collected under this Act and the limitation, we say, it was a power that was never conferred, was in relation to collecting information from the Australian population about their personal opinions.

GORDON J:   It is interesting because if you go back and look at the Commonwealth yearbooks from 1901 onwards you have got a statistician there collecting a whole range of opinions about what Australia might look like and those opinions are recorded in those yearbooks.  They are subsequently amended by way of – by the statistician explaining in subsequent years that views have changed.  They clearly thought that was statistical information at that time.

MS FOLEY:   Your Honour, I reviewed the particular yearbook that your Honour refers to ‑ ‑ ‑

GORDON J:   Not just that one, if you go forward to 1915 they have got opinions expressed.

MS FOLEY:   Yes, we do not see that the statistician during that period ever collected information from the population about opinions.  What we see and we have identified an area which is religion which is one area where they get close to that but even then it is characterised in terms of the manifestation, the denomination that a person belongs to which, we say, is different because it is their public identification of being part of a religious denomination.

GORDON J:   I think, on proper reflection, you might find they extend to even bizarre things including information such as whether or not appropriate land is good and whether or not people expressed a view about whether it was capable of carrying a particular type of cattle.  I mean, opinions were expressed on a whole range of topics because they were trying to work out what Australia was going to look like.  Why is that not this situation?

MS FOLEY:   Your Honour, the necessary point in time, of course, was the point in time that the Act was passed and we say there, and if I may develop this submission, that it is relevant to look firstly at the second reading speech and, secondly, at the pre‑Federation colonial practice and the kinds of material that was considered appropriate for these governmental bodies to be asking of their citizens.

Your Honours, if I can take you to the second reading speech, it is at volume 4, tab 91 in the joint index.  If your Honours have that – now, in the second reading speech, looking at page 1384, the Minister of Home Affairs, Mr Groom, said that:

The object of the Bill is to enable the Commonwealth to establish a central bureau of statistics in order that it may furnish to the world statistical returns with respect to the matters under its special jurisdiction, and also publish certain statistics having reference to the affairs of Australia as a whole.

He observed that the position in Australia was different from other countries because in Australia each State has a statistical department organised to supply information for its own special purposes.  Now, turning to 1385 and looking at the second column, we see that Mr Groom emphasised two matters in particular, the need to compile Commonwealth statistics on a uniform basis and also the need to collect information relevant to subjects especially controlled by the Commonwealth.

Now, importantly, we say, there is no suggestion in the second reading speech that the power conferred on the Commonwealth Executive to collect statistical information from the population was intended to do something or permit something radically different from what the colonial bodies had been doing pre‑Federation.  We have reviewed the annual statistics of the colonies and we can see that the primary focus there is on data accumulation with respect to industry, agriculture, employment, trade, education and transportation.  Now, the Commonwealth may have added subject matter through this Bill but what we do not find in the pre‑Federation colonial experience is statistical collection by the colonies about the personal opinions held by the population.

GAGELER J:   Can I just ask, is this a constitutional argument or is this entirely directed to the statutory language?

MS FOLEY:   We have put a constitutional argument in our written submissions as well as an argument based on the statute.  The arguments, in some ways, amount to the same thing because the Court in this case, of course, does not have to look to the entire meaning of the relevant constitutional provision.  We are only concerned about its power to confer on a Commonwealth body, powers to collect information from the population and because in 1905 when this Bill was passed they were so focused on the constitutional conferral of power, the analysis really becomes the same.  But, here, we say, your Honours, you do not need to engage in that larger constitutional question, it can be addressed solely as a question of the meaning of statistical information in this Act in 1905 when it was passed.

GAGELER J:   Why 1905 when the Act has been amended many times since then?

MS FOLEY:   We see ‑ and we have looked at the subsequent amendments, your Honours, but the statistical information term we do not see as having been relevantly amended or affected by subsequent developments.  Indeed, in 1975 when the ABS Act was passed there is express reference in the second reading speech to that Act that one needed to refer back to the Census and Statistics Act in order for the two Acts to be working together.  So, there was, in a sense, through the passage of the 1975 ABS Act that any change was affected to the scope of statistical information in the 1905 Act.

GAGELER J:   Which is to be fixed by colonial practice in your submission.

MS FOLEY:   No, your Honours, it is not a question of being fixed, it is a question of what power at that time was conferred on the then bureau in relation to the collection of information.  We say that at that time what was not contemplated was a power that would extend into the realm of asking the population about their personal beliefs except in relation to religion where, as we have said, even then there was (a) clear concern about it and you will see that it is debated, not only in the colonial period but also in the second reading speech for this 1905 Bill about whether people could be asked the question about religion but, more importantly, it was focused on the outward manifestation, not a question of internal belief.

We say, your Honours, that this is a very useful example of the exception proving the rule.  The fact that there was concern about this one question in relation to religion, the fact that an exemption from liability for failure to answer that question was carved out in the 1905 Act, consistently which had been done with colonies and has now found life in the current legislation, demonstrates that there was not a sense of a broader power beyond that to be able to inquire into the personal opinions of the Australian population.

NETTLE J:   So, the connotation of statistical information is limited to colonial times.

MS FOLEY:   Effectively, yes, limited to the power that was conferred in 1905 in relation to that Act, the way that the power was understood and contemplated to be conferred on the Commonwealth, yes.

EDELMAN J:   Your submission is essentially that because the words have not changed in any relevant respect since 1905 that the parliamentary intention ought to be the same in the legislation now.

MS FOLEY:   Indeed.  Yes.

NETTLE J:   Why would one not assume that the connotation was sufficiently broad to embrace changing social conceptions with statistical information?

MS FOLEY:   The Commonwealth has raised that argument, your Honour, and we say it is interesting because we do not see that this really is a situation where there is a need to apply the words or phrases from 1905 or from Federation to circumstances that might be said to be outside the contemplation of the framers or those who passed the Statistics Act because, we say, looking even at the Commonwealth’s material the word “statistics” had the same meaning, it has not really changed over time, but more than that, the policy considerations about whether or not the government, the Executive Government, should be able to ask those kinds of questions of the population, those policy considerations have not changed either.  We say this is not a situation, contrary to what the Commonwealth has said, where there has been some dramatic change in Australian society that would lead us to think that the people who passed the 1905 Act could not possibly have contemplated this as a policy concern and we know that they did ‑ ‑ ‑

KIEFEL CJ:   Is it the case, though, that statistical information is a much larger part of day to day life today than it perhaps was then?  I mean, polling is definitely a way of life for some.  Would you call a news poll statistical information?

MS FOLEY:   It obtains statistics, yes, but the question here is not, as I have said, the bare meaning of the word “statistics” or the bare meaning of the word “statistical information” but a power conferred on a government authority which can be exercised, or not in this case, to direct people to answer the questions.  We say that is a different kind of concern and it is something that was agitating the minds in 1905 and also in the colonial period.

KIEFEL CJ:   Is your approach limiting it though, really, to the notion of a census rather than the ascertainment of statistical information?  Information is such a broad concept.

MS FOLEY:   It is a very broad concept but, your Honour, in terms of the question about has this really developed and changed over time – as her Honour Justice Gordon noted, when one looks at even the 1901 to 1907 statistics that are in the 1908 Australian yearbook, there is an incredible wealth of statistics and information that was collected even then.  We do not see that there has been some dramatic change in the way that Australian society is structured or the way that statistics are understood as operating relevant to government practice that would say that there is a different issue now about taking that step and permitting the statistical authority, an arm of the government, to ask these questions about personal opinion that was not contemplated in 1905.  That is the submission.

GORDON J:   The point is it was contemplated.  They were asking questions about social conditions and what Australia was like.  That is the point against you.  I thought your argument was it was an opinion question.

MS FOLEY:   It is an opinion question, your Honour, and in that regard ‑ ‑ ‑

GORDON J:   They were asking about opinions as well.  I do not understand how resort to this material is of assistance to you when they were doing exactly what it is you are complaining about.

MS FOLEY:   Your Honour, the Commonwealth has identified in their submissions – I believe 1960 as being the first time that opinions were being sought and they have pointed to some examples in 1981.  We looked at the pre‑Federation colonial statistics and found nothing about opinion.  Over lunch, your Honour, we will review again.

GORDON J:   The point is that even if you start at 1960, why is it that it is of any assistance to you?

MS FOLEY:   Because the question is not what the ABS thought was permissible in 1960.  The question is what was authorised when the Act was passed in 1905.

GORDON J:   Well, let us deal with that argument.  What are you going to do about the line of authority which says we do not look at words and statutes in 1900 at the time of Federation and stop?  I mean, there is a whole range of authorities which say, properly, that in certain circumstances it is appropriate to adapt.  Let us just stop and ask about the sort of questions you might ask in 2017.  What is wrong with it?  It is clearly statistical information at one level, you accept that.

MS FOLEY:   Yes, we do.

GORDON J:   Your complaint is about opinion.

MS FOLEY:   Indeed, personal opinions held by the population.

GORDON J:   Let us deal with that issue in 2017 context.

MS FOLEY:   We are happy to, your Honour, and I go back to the point that in order to apply the authorities that your Honour refers to, there needs to be a sense that the circumstances have relevantly changed and they are the circumstances that were not within the contemplation of the individuals who passed the 1905 Act.  We say, the relevant circumstances in relation to this issue, whether it is permissible for the Executive Government to have power to ask a question – sometimes in a compulsory way – of a member of the Australian population about their personal opinions is not a circumstance which has changed.

We see in the debates for the second reading speech for the 1905 Act and in the pre‑colonial, pre‑Federation practice, that even in relation to the one question where they got close, there was a concern, there was an understanding, and, critically, an exemption was granted for people who did not want to answer that question.

KIEFEL CJ:   I think we have understood that aspect of your argument, Ms Foley.

MS FOLEY:   Thank you, your Honours.

KIEFEL CJ:   But, underlying what you say, at least it seems to me, is some idea of there being some inherent limitation on the types of questions which a government could garner from the public for its own purposes to determine questions that might be useful to governments.  What you have not really discussed is what is the general utility and purpose of the gathering of information.  That would not have changed over time, perhaps, but the topics might have.

MS FOLEY:   Indeed.

KIEFEL CJ:   As I say, it seems to me that you are approaching this as if there is some need for there to be a limitation which inheres in this power and I do not really understand why that would be so.  Why would not the question be one of utility for a government to ask a question in terms of the things that it needs to do in terms of governance.

MS FOLEY:   Indeed.  Your Honour, we do not make a general submission about other government departments who might simply be ringing you on the phone – and we know plenty of government departments throughout Australia and in the State Government context do this to gather their own statistical information when it is not done in a compulsory manner and when there is not power to do it in a compulsory manner.  We are not talking about those kinds of government surveys.  Here, we are talking about what was the scope of the power conferred on the Commonwealth entity – as it was at that time the bureau – where there were powers and there still are to require people to answer their questions and where offences are created if the questions are not answered?

The question, we say, is one of statutory construction.  Was that power conferred on that bureau by this Act in relation to statistical information?  Did it extend into the realm of personal opinion?  And, we say, no.

GAGELER J:   Does your submission draw a distinction between opinion and belief?

MS FOLEY:   We are focused on opinion.  We do not see there as being a relevant distinction between the two, your Honour.

GAGELER J:   Right.  And, that would mean that in your submission, the exemption from liability in respect of religious belief was superfluous because the question about belief would not be a question directed towards the collection of statistical information.

MS FOLEY:   Except to the extent that the way the questions were framed was often in relation to religious denomination.  That was often the focus and the reporting was often in relation to religious denomination.  So, there was a need and it was very carefully debated in the second reading and in the debates in relation to the Bill as to whether or not that should be there or not and the decision was taken, consistently with the pre‑Federation colonial practice, that, yes, people needed to know that they could not be compelled to answer that question.  But, we say, as I have said, that that is really the exception that proves the rule.

Your Honours, if I could turn to ground 5 which is the ground relevant to the census and statistics regulations.  By this ground, the plaintiffs contend that the CS direction is invalid because the opinions sought are not in relation to matters proscribed by regulation 13 of the statistics regulations.  The plaintiffs accept that the words “in relation to” are broad words.  But, in asking how broadly should the Court construe those words as well as the proscribed matters themselves, the plaintiffs say that the Court should have regard to the fact – and I have already mentioned these provisions – that the statistician is empowered under section 10(4) and section 11(2) to direct people to answer questions and to provide information in circumstances where failure to do so is an offence under section 14 of the Act.  We say, that tells against the very broad construction urged upon the Court by the Commonwealth.

Can I turn to the first item, and that is births, deaths, marriages and divorces?  The Commonwealth has relied on three and I am now looking at the first.  We say that the use of the plural “marriages” suggests, particularly when read in the context of births, deaths, marriages and divorces, that item 5 is concerned with marriages that take place within the population and facts about the marriages that take place rather than marriage as a concept.  This would include, for example, how many Australians marry in a particular year or other facts about those marriages, such as the average age at which those Australians who married, married, or the average length of a marriage in Australia. 

NETTLE J:   Is that limited to colonial conceptions of marriage or range more broadly?

MS FOLEY:   Having looked at the more recent yearbooks, questions are also asked in relation to de facto relationships, your Honour, but that may be ‑ and I will have to check, it may come under another item in the regulation ‑ but we would say here, particularly read in the context of births, deaths, marriages and divorces, what we are looking at ‑ whether it is de facto relationships or not ‑ we are looking at the event that takes place.

We say that statistical information about opinions whether the law should be changed to permit same‑sex marriage is not statistical information about marriages or in relation to marriages.  It is, rather, statistical information about something else.  It is about a change to the law about same‑sex marriage.  You might even describe it as in relation to law reform but, we say, it is not statistical information in relation to marriages as that word is used in item 5.

If I can turn then to item 30 which is law?  Now, even if statistical information extends to opinions, we say an opinion about whether a law should be changed is an opinion about law reform, it is not an opinion about law.  Law in its ordinary meaning refers to a system of rules recognised as regulating the actions of members of a given community.  We say it is a concept that refers to the system of rules that exist.  Your Honours, I see that it is 12.45.

KIEFEL CJ:   Yes.  We might adjourn, then, until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Yes, Ms Foley.

MS FOLEY:   Your Honours, before I abruptly finished at lunchtime, I was addressing your Honours on ground 5 in relation to the second item in the regulation that is relied upon by the Commonwealth and that is law.  Before I turn to that, in relation to Justice Gordon’s question about the 1901 to 1907 statistics in the 1908 yearbook, we have been doing work on that over lunch but we would appreciate the opportunity to put a note before the Court in the morning, if that is an acceptable course.

KIEFEL CJ:   Yes.

MS FOLEY:   Thank you.  Turning then to ground 5, the plaintiffs say in relation to item 30 that as a matter of ordinary language the subject of whether a particular law should be changed is considered to be something different from law itself.  It is part of the subject that is known as law reform and that subject matter which is concerned with what the law might be or changes that might be made to the law to improve it we say is understood in ordinary usage to be different from the law.

For that reason we say that statistical information in relation to law does not extend to statistical information about what the law should be or views about whether the law should change in a particular way.  Item 38 that is relied upon by the Commonwealth, and this is the third item, concerns population and the social, economic and demographic characteristics of the population.  In its ordinary meaning, “characteristics” refers to a feature or quality belonging typically to a person and serving to identify them; also, a distinguishing feature or quality.

We say that a person’s opinion about whether the law should be changed to permit same‑sex marriage is not a distinguishing feature or quality of the population in this sense.  We say that a characteristic of the population is something more than that and the words “of the population” are important in this context.  We say it refers to concepts such as race or gender or social class. 

As to item 38, we say that the Commonwealth’s submissions, and we refer here to paragraph 78 of their submissions, do not give any real work to do to the word “characteristics” in this item.  As we have submitted, a characteristic is a distinguishing feature or quality and we say that an opinion about whether the law should be changed to allow same‑sex marriage cannot be understood as a characteristic of the population as it is meant in item 38. 

To summarise in relation to our challenge to the regulations, we say that collecting statistical information about opinions on a change to the law to permit same‑sex marriage is collecting statistical information in relation to that subject matter – a change to the law – and might also be statistical information in relation to law reform.  But we say that those matters do not fall within any of the three items that have been relied upon by the Commonwealth. 

Your Honours, I now turn to ground 6, which is dealt with in our reply at paragraph 18 and in the outline at paragraph 16.  By ground 6, the plaintiffs contend that the Electoral Commissioner has no authority under the Electoral Act to participate in the process established by the CS direction.  The Commonwealth in its submissions relies on section 7A of the Electoral Act as supporting the AEC’s arrangements with the ABS.  Section 7A we say confers a power on the AEC to make arrangements for the supply of goods and services to persons or bodies, but it does not enlarge the AEC’s functions as set out in section 7 of the Electoral Act.

The powers conferred on the Commission by section 7A are not at large.  We say they cannot be disconnected from the AEC’s functions.  Now, those functions as set out in section 7 of the Electoral Act, we say do not permit the AEC to have a role in relation to the postal survey.  Looking to section 7, it is made clear in the Commonwealth’s submissions at paragraph 80 that the Commonwealth relies solely on section 1, paragraph (a).  The Commonwealth concedes in paragraph 80 of its submissions that none of the other functions in section 7(1) are relevant in the present context. 

Section 7(1)(a) can only be relied upon if one can identify another function that is permitted or required to be performed by or under the Electoral Act.  As I have said, the only provision expressly relied upon by the Commonwealth as invoking section 7(1)(a) is section 7A.  For the reasons given, we say that 7A confers a power but is not properly understood as enlarging the AEC’s function as set out in section 7.

In the plaintiffs’ submission, the AEC has no power under section 7A or otherwise to assist the ABS in conducting a postal survey by dispatching forms to silent electors, and there is no power under section 7A to act on any arrangement to provide other goods and services to the ABS.  The only permissible role we say that the AEC has is in providing electoral roll information to the ABS, and that is only permitted if the ABS is collecting statistical information.  That result is made good by reference to the particular provisions in the regulations that allow the AEC to provide roll information to the Statistician in particular circumstances for particular purposes.

GAGELER J:   What particular actions of the Electoral Commissioner do you challenge, and where do we find them specified in the material?

MS FOLEY:   Probably the easiest reference is in the Commonwealth’s submissions.  Paragraph 79 of the Commonwealth’s submissions where they refer to our submissions and say that it appears that the plaintiffs, from footnote 103, refer to:

the AEC’s participation by way of updating the electoral roll for the purposes of providing the roll to the ABS, and dispatching forms to electors whose addresses have been excluded or deleted -

In relation to the first, we agree with the Commonwealth that if this is statistical information there is a particular provision under the Electoral Act for the AEC to provide the roll information to the ABS.  So, we do not press the challenge in that regard but there are two other aspects to it. 

The two are these.  First, the dispatching of forms to silent electors, that is not something we say that there is any power to do and it is not consistent with any of the functions under section 7 of the Electoral Act and the second, and we have to refer here to the fact that the Commonwealth in paragraph 81 of its submissions refers to the fact that there is an arrangement between the AEC and the ABS under section 7A of the Electoral Act and we say giving effect to that arrangement, whatever it might be, is something which is not authorised unless you can identify a function under section 7 to rely upon and we say that the Commonwealth has not been able to do that because what has been relied upon is section 7A which is a power not a function.  That is the argument.

We say that the way the AEC could have been given a role in all of this was pursuant to section 7(1)(g), which allows the Commission to

perform functions conferred on it by or under any law of the Commonwealth but in the absence of such a law the AEC simply has no authority to take part in this process other than providing the electoral roll information to the ABS.  Your Honours, those are the plaintiffs’ submissions in relation to grounds 4, 5 and 6.  I understand my learned leader wishes to address the Court on a remaining issue.

MR MERKEL:   I just wanted to respond to the question your Honour Justice Edelman asked this morning about standing in relation to the manner in which someone may perform their work.  Your Honour, can I just give your Honour the references.  This was the subject of consideration by Justice Dixon in the Federal Council of the British Medical Association v The Commonwealth (1949) 79 CLR 201 and the passages that are relevant are 126 to 127 and 137 to 138 – sorry, the passage that is relevant is 257 and it was referred to and cited with approval in Croome v Tasmania (1997) 191 CLR at 126 to 127 and 137 to 138.

In the brief time available there are some analogous cases concerning standing and if I can just your Honour the references.  There is Ogle v Strickland (1987) 13 FCR 306 and there is also Re Bromfield; Ex parte Western Australian Newspapers Ltd (1991) 6 WAR 153 and the passages are at 193 and 171. If the Court pleases, they are the submissions of the plaintiffs in the proceeding 105.

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

MS RICHARDSON:   May it please the Court.  The plaintiffs in M106 are not contending that any part of the 2017 Act is invalid.  Rather, the first way we put our case is to challenge the determination made by the Finance Minister.  Question 2 set out in the special case book at page 84 addresses the question as to whether the determination is invalid and we put that in three different ways.

The first way is to say that the Finance Minister collapsed the two criteria in section 10(1)(b), namely, the urgent need criteria and the unforeseen criteria, and that is evidenced in the explanatory statement that the Finance Minister made on the day he made his decision to make the determination.  I do not wish address that orally, but we adopt the submissions also made by M105 in writing.  The short point is that in the explanatory statement which appears at page 250 of the special case book where the Finance Minister says at about line 27:

These circumstances meet the requirements of section 10 of the Act regarding the expenditure being urgent because it was unforeseen.

So we say he has effectively said it is urgent because it is unforeseen and he has collapsed the two criteria.

KIEFEL CJ:   And you also adopt the submission that they should be taken to be the statement of reasons?

MS RICHARDSON:   Yes, your Honour.

KIEFEL CJ:   And cannot be supplemented.

MS RICHARDSON:   Yes.  So we adopt the submissions of M105 in that respect.  The second way we put our case is in relation to the unforeseen criterion.  The first way we put that matter is to say that unforeseen is a jurisdictional fact – that is, that it is not a matter for the satisfaction of the Minister for the reasons we have set out in writing at paragraphs 49 to 51 in‑chief and in our reply at paragraph 67.  We say that reading section 10 as a matter of satisfaction for the Minister would pay insufficient regard to the text, context and evident purpose of the section and we refer there to the case of Plaintiff M70 (2011) 244 CLR 144 at paragraph 109.

Firstly, in terms of the text, if I could ask the Court to turn to the spiral bound slim folder that was handed up entitled “Reference Material”.  If the Court would not mind turning that sideways it is a landscape table.  The Court will see on page 3 the first advance extracted there is in 98/99 and the Court will see that the form of the advance there was contained within the schedule itself and that is the last year in which it was contained within the schedule rather than being a conferral of a discretion up in the Act itself.

So the difference there, because the amount of the advance in the schedule is that the amount was appropriated upon commencement and thereafter it was in effect a discretion by reference to the criteria in the schedule as to how the Minister would appropriate the money, by contrast, over the page, starting on page 4, in the 99/2000, this is the first time that the advance appears in the body of the Act itself.  Then if the Court would go to page 5, that is the advance in the 2000/01 year. It is not relevantly extracted there but I can tell the Court that that is the first year that the definition of “expenditure” was inserted into the Act and it was in a form that has been consistent ever since and reflects the current definition of “expenditure” in section 3.

The next relevant change is in the 05/06 Act, which we see on page 10 and the Court will see there section 12(4).  That is the first time that the disallowance provision of the Legislative Instruments Act was excluded by operation there of section 12(4) and then if the Court would go forward and keep open pages 12 to 13, because I will be drawing comparisons between them. 

So in relation to, at page 13, the 2008/09 year, this is the significant change upon which we rely where we say the Act or the advance comes into its modern form in terms of the chapeau to subsection (1) reflecting current drafting of the advance.  So the Court will see there, in section 14, the language of the chapeau there matches the language in the advance in the 2007 Act.  If the Court would compare that to the advance on page 12, 2007/08 year, the chapeau to subsection (1) is obviously far shorter and reads only “This section applies if the Finance Minister is satisfied that” and thereafter the colon appears. 

So, in our submission, the structuring of the advance, up until 2007/08, makes it clear on the Commonwealth’s argument that both criterion are a matter of satisfaction for the Minister, whereas we say that there was a significant change in drafting, commencing in 2008/09, whereby the matter of urgent need is plainly a matter of satisfaction of the Minister.  It is wrapped up in the chapeau itself, whereas the unforeseen criterion is now broken out into its own subsection 1(b) and we ‑ ‑ ‑

GAGELER J:   Ms Richardson, there is an explanatory memorandum for this Act.

MS RICHARDSON:   Yes, your Honour.

GAGELER J:   Will you be taking us to that – which might have something in it for everyone, but it perhaps can be used to shed some light on the change that occurred.

MS RICHARDSON:   I think I may know what your Honour is referring to.  The explanatory memorandum says, in respect of that year - well, in respect of one of the changes if I may come back a second, the other change that happened in that year was that the cap on the total advance jumped $295 million.  Prior to that, it had been at $175 million for the previous eight years.  So we say that was a significant increase in the scope of discretion conferred on the Minister.

Now, the explanatory memorandum to that Act records that the total limit for the advance is higher than in previous Acts as the previous arrangements for recovering AFM amounts from the additional estimates Acts will be discontinued.  So what that was speaking to was the prior arrangement in the No 3 Act.  The way the advance was dealt with was later in the appropriations financial year there would be a No 3 Act that also contained a provision called “Advance to the Finance Minister” which had the effect, it is said in subsection 4, if an amount that has been, in effect, advanced by the Minister under the advance is recovered in Schedule 1 to the No 3 Act, then that amount is to be disregarded for the purposes of the cap. 

So, in effect, it was structured like a running loan so that the amounts were advanced to agencies under the advance and then in the No 3 Act the amount that was advanced to the agency would be included in the schedule as an amount given to that agency and then the amount of the – in effect it would be recovered under additional estimates and that is what the explanatory memorandum was referring to, and then the cap would be replenished to that amount.

In the current approach it is different.  There is still the same evening up of the books that happened in the No 3 Act, which has not yet happened for this financial year but it happens later in the appropriations year whereby there is always a provision in the No 3 Act entitled “Advance to the Finance Minister” where there is this evening up of books.  So the way it works now is that if the amount of money is included in the schedule to the No 3 Act as being, in effect, specifically booked to that agency and then the amount of the advance to the Minister is replenished so that it is reset and the amount is, in effect, formally booked to that agency in the schedule. 

So it is revealed that that amount has gone forward, but it does not count as an additional appropriation to the agency because they have already received it under the advance so it is notionally included in the schedule.  So both regimes involve this evening up of books in the No 3 Act in relation to the advance.  We say regardless of whether the unforeseen criterion is a jurisdictional fact ‑ ‑ ‑

NETTLE J:   Just before you go from that, is it suggested that there is any degree at all of ambiguity in the words of the statute that would entitle one to read it otherwise than in accordance with its plain and ordinary meaning?

MS RICHARDSON:   No, your Honour.  Our first submission is that it is plain from the way section 10 is structured in the 2017 Act that the matter for satisfaction is included in the chapeau and that the unforeseen matter is a different criterion, so we say there is no ambiguity in that respect. 

NETTLE J:   But the Minister’s satisfaction as it is drafted according to its plain and ordinary meaning conditions both of the criteria that follow, does it not?

MS RICHARDSON:   Well, the first way we put our case is that unforeseen is a jurisdictional fact, that it does not condition ‑ ‑ ‑

NETTLE J:   I understand that but why?  It says “in satisfaction”.

MS RICHARDSON:   Well, we say because the two matters in subsections (a) and (b) as a syntactical matter are broken out into separate subsections.  We rely on the change in drafting that commenced in the 2008/09 Act where the previous version of the Act, we accept, was much plainer in its intent that both matters would be a matter of satisfaction.

KIEFEL CJ:   But they are simply the bases upon which the Minister can be satisfied, are they not?  I mean, the ordinary reading is that the Minister is satisfied that there is an urgent need for expenditure on account of - for the reasons that are then provided in (a) and (b).

MS RICHARDSON:   Well, we say that in the context of the Constitution and the fact that this is a Henry VIII clause and the various reasons we have given that this clause would not be read expansively such that the question of unforeseen was the subject of the subjective satisfaction of the Minister.

NETTLE J:   But it is not expansively.  Each of the ‘becauses’ that begin paragraphs (a) and (b) are subordinating conjunctions which subordinate the following clauses so as to control the Minister’s satisfaction, or as the Chief Justice puts it more accurately to provide the reason for its satisfaction.

MS RICHARDSON:   We have put the reasons, we say, extensively in writing as to why we say the jurisdictional fact is the preferred construction but I will move on to the second construction which is that it is a matter for satisfaction of the Minister.  We say, for the same reasons, that if “unforeseen” is a matter of satisfaction for the Minister that then – the concept of “unforeseen” cannot be given the expansive scope that the Commonwealth would give it. 

In terms of the evident purpose of the 2017 Act section 10, in particular, the evident purpose of the annual Appropriation Acts is to, in effect, flush out what expenditure is needed by the Executive in order that it will be approved during the parliamentary oversight process, that is, that if the Executive wants approval for spending initiatives and also ordinary activities it needs to firm up or crystallise proposals and seek approval for them. 

So, an example is if the Executive has expenditure in contemplation but does not firm up the proposal or is unable to crystallise the proposal at the time it has other options in terms of funding the – we say here a new policy measure, for example, they could put up a special appropriation Bill and have that passed.  That could be done this week.  It could have been done in the week when the Finance Minister made the advance. 

As the House of Representatives Practice 6th Edition records the purpose of additional estimates, that is, the No 3 and No 4 Acts that come each year, is to meet requirements that had arisen since the passage of the No 1 and No 2 Bills.  So we say that what has happened here is that the government has a requirement that has arisen since the No 1 or 2 Bills and there is another pathway that it could adopt if it chose.

GAGELER J:   Has No 3 Act been enacted?

MS RICHARDSON:   I will have that checked.  My understanding is no.  I will have that checked.  In terms of the text of section 10, why we say even if the matter is – if the question of “unforeseen” is a matter for the satisfaction of the Minister, we say the Commonwealth and the Minister formulates what must have been unforeseen with an absurd and unwarranted degree of precision and the level of precision that they put on “unforeseen” has the effect of giving the section a very expansive scope. 

So, what the Commonwealth and the Minister say is what must have been unforeseen is that Cabinet would make a decision on 7 August 2017 that the ABS should conduct a voluntary postal plebiscite.  That was the thing that was “unforeseen”.  We say that is contrary to the text of section 10 because section 10 fixes upon expenditure.  Section 10 in respect of the unforeseen criterion does not fix upon government decisions and it does not fix upon particular agencies but, rather, its expenditure. 

In our submission, the fact that section 10 focuses not on the particular part of the Commonwealth, a body within the Commonwealth that might bear the cost of expenditure, is consistent with the fact that all of the non‑corporate bodies in Schedule 1 of the No 1 Act are part of the Commonwealth in any event.  They have no separate legal personality.  So it is erroneous, in our submission, to focus, as the Minister has done, unduly on the particular body that might bear the expenditure.

So, in our submission, the question is what did Parliament intend when conferring the discretion in section 10 on the Minister to cause an appropriation, that is, did Parliament intend that a proposal or a policy could be in contemplation and then the Executive defers the decision as to which body will bear the cost of implementing that proposal, or it defers some other aspect of the proposal until after the budget bills are enacted.  Then at the moment the government decides to fix upon a particular body or fix upon the final details of the policy, that is, here on 7 August, at that moment it becomes foreseen, or up and to that point it has been unforeseen.

We say in respect of the focus on particular bodies within Schedule 1, it is erroneous for the additional reason we have set out in our reply, that the Public Governance and Performance Accountability Act 2013 expressly provides a transfer power that would be potentially relevant here whereby the AEC is a non‑corporate Commonwealth entity, the ABS is also a non‑corporate Commonwealth entity.

So, for example, if there is a line item where an amount of money is appropriated to one body – for example, the AEC – and then later there is a change in plan then in fact, no, another entity is going to deliver this proposal or bear the expenditure, the Finance Minister has the power under section 75 of the Public Governance Act to simply switch around the pots of money.

So the power in 75 obviously does not allow the Finance Minister to increase the total amount of appropriation but it allows the money to be switched from one to another.  So the Public Governance Act in that respect confers flexibility on the Finance Minister so there is not this rigidity in terms of changes in proposals whereby one part of the Commonwealth will deliver it rather than another.

We note in section 12 of the 2017 Act that it expressly records that the Consolidated Revenue Fund is appropriated as necessary for the purposes of this Act, including the operation of this Act as affected by the Public Governance Performance and Accountability Act.  So it is not just a question of reading two Commonwealth Acts and wondering how they fit together.  The 2017 Act expressly recognises that its operation, including the purposes for which appropriations are made, will be affected by that Act.

EDELMAN J:   Ms Richardson, does the word in 14(1)(a) “erroneous” qualify both the omission and the understatement?

MS RICHARDSON:   In section 10(1)(a), your Honour?

EDELMAN J:   Section 10(1)(a), yes.

MS RICHARDSON:   We say it does not matter for our case.  On one view an answer as to why it might qualify both, for example, that is erroneous omission and erroneous understatement is - if understatement were a freestanding criterion it would create an incentive for people to deliberately understate amounts which would thwart the purpose of flushing out real expenditure that should be approved.

EDELMAN J:   But if there is a change in circumstances which leads to an understatement, would that not fall within (1)(a)?

MS RICHARDSON:   It certainly could fall within 1(a).

EDELMAN J:   Even though that would not strictly then have been an error.

MS RICHARDSON:   There are various matters.  They might have been understated.  They were thought to be correct at the time but with the benefit of hindsight they reflected understatement and examples - although these are not in the case book, the Finance Minister has listed on the website examples of where the advance has been used and an example is increased numbers of illegal maritime arrivals and so higher processing costs and so there has been in effect an understatement of how much is needed to deal with that particular line item.

EDELMAN J:   If understatements then can give rise to the application of section 10(1)(a) where the understatement has arisen because of changed circumstances, why would not those changed circumstances include, for example, new policies and if they did include new policies why would not foreseeability then include new policies?

MS RICHARDSON:   In our submission, the preferable construction of 10(1)(a) is that “erroneous” does qualify “understatement” for the reason I have stated which is that otherwise there would be an incentive to deliberately understate amounts to be expended by the Executive but, in our submission, the first answer to the new policy example of your Honour is that we say that an advance in the No 1 Act for ordinary annual services would never extend to a discretionary causing appropriations of new policies by the Minister in any event.

NETTLE J:   What if there were a change in defence policy because of changing circumstances in South East Asia giving rise to a rapid need for new weapons or some such thing?  Would that not be covered then?

MS RICHARDSON:   If that was an expenditure that met the description of “ordinary annual services”, it would be covered by the advance, if it otherwise met the criteria.

NETTLE J:   But it would be covered by understatement, would it not?  It would not be erroneous.  Everyone was right at the time to think that they would not need these weapons or ammunition or whatever it might be, but suddenly by reason of changing circumstances the policy needs to change.

MS RICHARDSON:   We accept that the advance could be used in certain circumstances.  Firstly, we would say if it amounts to a new policy it would not be included within the advance in the No 1 Act.  If the amounts reflected ordinary annual services of the Department of Defence – which your Honour’s example sounds like it is – then we would say that would be within the terms of the advance.  We do not challenge the advance per se in terms of its validity.

NETTLE J:   What I am driving at is that, on the example I give you, the change in policy is what produces the understatement.  The change in policy is to acquire more sophisticated weapons or a greater number of them because suddenly circumstances have changed.  That was not foreseen at the time that the Appropriation Act was run through.

MS RICHARDSON:   Our primary construction of 10(1)(a) is that “erroneous” does qualify “understatement” for the reason that if it did not departments could deliberately understate the expenditure they need and then, in effect, go to the Minister and say, “We have understated it; can we have an advance?”  The example your Honour gives is if, for example, the reason why additional defence funding is needed because the expenditure was unforeseen – for example, it is a conflict offshore, it is unforeseen – but the money that is being given still meets the description of ordinary annual services for the Department of Defence, then we say that that would be within the advance.

KIEFEL CJ:   So does much of this come down to what you call policy?

MS RICHARDSON:   No, your Honour.  We say that it does not turn on policy, it turns on the criterion here in section 10(1)(b), which is what does “unforeseen” mean and what is the expenditure that was unforeseen?  I will be taking the Court to facts that show that even if it is a question of satisfaction for the Minister, firstly he asked himself the wrong question as to what it was that had to be unforeseen.

KIEFEL CJ:   When you said that it is expenditure that must be unforeseen I thought you had excluded policy.  You exclude it altogether.

MS RICHARDSON:   We say ‑ ‑ ‑ 

KIEFEL CJ:   So changes in policy cannot be the subject of section 10, as I understood you to say.

MS RICHARDSON:   We say there is an overarching limitation on this power which comes from the long title of the Act, which is that the Minister may only advance expenditure that meets the description of ordinary annual services of the relevant department for which it is being advanced.

KIEFEL CJ:   So it is that approach which gives the exclusion of policy?

MS RICHARDSON:   Yes. 

KIEFEL CJ:   Are you saying that the long title mandates the reading of section 10 by reference to it?

MS RICHARDSON:   Yes.  We say that it controls the entire Act as to purposes for which moneys are appropriated under that Act. 

KIEFEL CJ:   The long title cannot be read as referable to constitutional subject matter?

MS RICHARDSON:   We say that that is part of it, but under the Acts Interpretation Act it is also part of the Act and it indicates the purpose for which the moneys are appropriated.  I will come back to this in the later part of my argument but in short we say that the criteria in section 10(1) are just the circumstances that enliven the power, they are not a purpose for which the money is appropriated, so there is a requirement to imply ordinary annual services of government as being a limitation on the scope of the power.

GAGELER J:   Ms Richardson, I am just not quite sure where we are at in your argument.  You are addressing question 2 in the special case?

MS RICHARDSON:   Yes, your Honour.

GAGELER J:   I had not understood your argument as to question 2 to rely on some limitation derived from the long title to the Act. 

MS RICHARDSON:   The limitation derived from the long title is in question 3.  I was dealing with the answer to Justice Nettle’s question in terms of defence policy.  I would say that that example was affected by both aspects:  firstly, was the expenditure unforeseen; and, secondly, was it for the ordinary annual services?  We accept that that is part of question 3 rather than question 2.

GAGELER J:   I am really just trying to understand your argument as to question 2.  Is it essential to your construction or is it part of the argument that you advance in relation to the word “unforeseen” that that has to be limited by reference to the long title?

MS RICHARDSON:   We say it is not essential to question 2.  It is part of our case in relation to section 3 and we rely on it as an aspect of construction in relation to 2 but it is not essential to question 2.

GAGELER J:   Can you state in positive form what you say “unforeseen” means?

MS RICHARDSON:   “Unforeseen” means? 

GAGELER J:   Yes.

MS RICHARDSON:   Yes, your Honour.  The definitions that we gave in our submissions in‑chief at paragraph 63 certainly from a dictionary perspective it means “not anticipated or predicted”, “not predicted; unexpected” and “not expected or planned”.  So we say in relation to the facts of this case that the question for the satisfaction of the Minister is whether expenditure on a voluntary postal plebiscite was unforeseen as at 5 May.

GAGELER J:   According to that dictionary definition?

MS RICHARDSON:   “Unforeseen” meaning not in contemplation and not anticipated.

GAGELER J:   That is pretty hard to say that it was in contemplation or was anticipated if we accept, as we must, the Finance Minister’s evidence.

MS RICHARDSON:   Well, in my submission, I will be taking the Court to that evidence and we say that when one starts with a question of what is the correct question to which the Minister should have addressed himself it is apparent that he has addressed himself to the wrong question.

GORDON J:   Is that because you are directed to the question - the body rather than the expenditure?  Are we back to that argument?

MS RICHARDSON:   Yes, that is part of it.  In effect, I will come to the affidavit, but he has focused on government decisions and the body that will deliver the expenditure as opposed to the expenditure itself.

NETTLE J:   It is for a different thing, is that not the reason he is saying – previously the policy had been to have a vote and that has not worked because the Senate would not approve it so they adopted a new policy of having a postal survey?

MS RICHARDSON:   We say no on the evidence that the Finance Minister was clear including prior to the decision on 7 August that the policy was to give the Australian people a say on the question of same‑sex marriage by a plebiscite and I will be taking the Court to multiple references in the special case book that show that the policy, it was not just a policy of compulsory plebiscite or not at all. 

I might turn straight to the factual matters, if I may, to make that good.  So we say firstly we rely on the fact in paragraph 39 of the Commonwealth’s submissions in M105 where the Commonwealth has accepted that the Finance Minister’s state of satisfaction is examinable by the courts and that if the Minister misconceived the matters of which he must be satisfied that that would be a basis for glaring error, and secondly, that if the Minister could not reasonably have reached the state of satisfaction required.  We rely on the authorities cited by the Commonwealth in the M105 submissions at footnote 31 for that proposition which they accept is common ground.

The first matter I would like to ask the Court to go to is the affidavit of Finance Minister Cormann.  If the Court would not mind turning to page 305 of the special case book and if the Court would go to paragraph 8 and there the Minister sets out:

From about March 2017 to August 2017 I was aware of suggestions from Ministerial colleagues of alternative means by which the Government’s policy of conducting a plebiscite on the issue of whether the law should be changed to allow same‑sex couples to marry might be pursued.

So, in our submission, this is significant because the way Minister Cormann is framing the issue is that there is a policy of conducting a plebiscite.  It is not a policy of a compulsory plebiscite or nothing at all.  The way in which he framed the policy as at, relevantly here, March 2017; relevantly being prior to 5 May when the Bill could have been introduced to the House of Representatives.

NETTLE J:   But is not that plebiscite referring back to paragraph 7, the:

compulsory attendance plebiscite to be conducted by the AEC.

MS RICHARDSON:   No, your Honour, in my submission, because the next line goes on to say, it is:

alternative means by which the Government’s policy of conducting a plebiscite . . . might be pursued.

So, he is accepting that there is a policy of conducting a plebiscite and there are alternative means by which it must be pursued.  So, in the context here, in March 2017, this is after the period in which the Senate has voted down the Plebiscite Bill first in November of last year, he is accepting that the policy of the government was there is a policy to have a plebiscite and they are now considering options of alternative means by which it might be pursued.

Now, the natural inference there is, in circumstances where the Senate has voted down a compulsory plebiscite and being one of the means by which this policy might be pursued, they are now looking at alternative means.  If the Court would go forward to paragraph 13 and the part of that paragraph on page 307 at about line 8, the sentence starts:

I was satisfied that the expenditure was not provided for in that Bill because, at the time that Bill was introduced, it was not the Government’s policy that the ABS should conduct a postal survey on the issue of same sex marriage, and I did not foresee the Government’s decision on 7 August 2017 that the ABS should conduct such a survey.

So, we say that it is plain that the Minister has defined what must be unforeseen narrowly and erroneously, that is, he is focused on the particular body that might incur the expenditure, that is the ABS, rather than, if we go back to paragraph 8, various means:

by which the Government’s policy . . . might be pursued.

KIEFEL CJ:   Are you saying that the Minister must be taken to have understood that the AEC as an entity might have an expenditure in the nature of a plebiscite but that the thing that was not foreseen was that the ABS might be required to expend money.

MS RICHARDSON:   We say separately on the materials is a natural inference that the body that was being contemplated was the AEC, but we say we do not have to prove as part of our case in relation to the Minister’s satisfaction that in fact the entity that was contemplated was the AEC.

KIEFEL CJ:   But would it not nevertheless be correct from the Minister’s perspective to say that the expenditure which was unforeseen was expenditure in relation to the ABS?

MS RICHARDSON:   No, in my submission for the reasons we have given before, it is erroneous to focus on a particular body that might expend the money because section 10 does not talk about which body in Schedule 10 might need expenditure.  It talks about the expenditure and ‑ ‑ ‑

KIEFEL CJ:   But it can only be expenditure by one of the bodies in Schedule 1, can it not?  Otherwise you are into the area of difficulty that Mr Merkel was pressing on us this morning where the determination under section 10 alters either the entity or the purposes for which the expenditures could be made.

MS RICHARDSON:   It does, except I do note that the explanatory memorandum to section 10 records that the scope of the advance is that the Minister can either increase the amount of an existing item, add in a new item or a new outcome.  Now, whether that is the correct construction, certainly the explanatory memorandum suggests that the scope of the discretion is very broad and it does suggest that it might extend beyond an entity that already has a line item in Schedule 1.

EDELMAN J:   Does this submission depend upon the Court accepting your earlier submission that the change in the format of section 14(1) in 1997/1998 changed what the Minister had to be satisfied as to?

MS RICHARDSON:   No, that submission was only going to the question of is the unforeseen criterion a jurisdictional fact or not.

EDELMAN J:   So, if that is the case, then why would not the Finance Minister’s satisfaction also potentially carry with it the ability to characterise within reasonable bounds the content of what it is that must be unforeseen?

MS RICHARDSON:   Well, we say in respect of that, firstly, the criterion that the legislature has fixed is expenditure and “expenditure” is a defined term and it takes you back to section 3.  Expenditure is, in effect, different types of payments, so it is focusing on money which of course reflects the evident purpose of an Appropriations Act which is that if the Executive needs money that it will be proposed by the Executive during the appropriations process and subject to parliamentary approval.  So that it fixes upon expenditure, which is a defined term, not bodies and not government decisions and that reflects the evident purpose of the Act which is, we say, to- otherwise it allows as ‑ ‑ ‑

EDELMAN J:   But it cannot be expenditure in a complete vacuum.  It must be expenditure for something or by someone that has to be unforseen.  As I understood the real dispute is just the level at which you characterise the expenditure.

MS RICHARDSON:   Well, we say in circumstances where this Act is expressly affected by the terms of the Public Governance, Performance and Accountability Act, which allows for transfers of money between different bodies, that it would be erroneous to focus on which body, being a non‑corporate entity that is already part of the Commonwealth, is going to expend the money.  But rather the criterion that has been chosen is expenditure, which is a defined term, which drives you back to the definition and requires you to focus on expenditure, which also achieves the purpose – we say the evident purpose – of the Act, which is that if moneys are sought by the Executive for approval they should be put up to the Parliament and approved.  They should be exposed. 

In relation to the next factual matter that we rely on, if the Court would go to the explanatory statement in the special case book, 250.  This is the statement given by the Finance Minister on the day he made his decision on 9 August.  If the Court would go to, starting at about line 21, the paragraph starting:

As the Senate has not passed the Plebiscite (Same‑Sex Marriage) Bill 2016, funding is being made available to the ABS to undertake the voluntary postal plebiscite.  The Government has also announced that the final result of the voluntary postal plebiscite is to be known no later than 15 November 2017.

The next part is important:

These government decisions were not made until after the Appropriation Bill . . . These circumstances meet the requirements –

and it goes on.  So we say the language in the opening part of that paragraph, “These government decisions” buttresses the material in the Minister’s affidavit, that he has focused on government decisions as opposed to expenditure.  Section 10 does not say that the Finance Minister has a power to cause an appropriation if a government decision was unforeseen.

KIEFEL CJ:   But it is invariably government decisions that lead to expenditure.

MS RICHARDSON:   Well, in my submission, not necessarily, your Honour.  There are various examples of this advance being used in its, we say, orthodox scope where they are in response to external factors such as severe adverse weather events impacting on particular government departments, or a flu pandemic, or an offshore conflict, for example.  Matters of that nature where the government truly is responding to something that is out of its control.  So it is not necessarily the case that it is driven by a government policy at all, to the contrary.

GAGELER J:   This submission really comes down to saying that expenditure can only be unforeseen within the meaning of section 10 if it is caused or brought about by something external to government.  Is that right?

MS RICHARDSON:   We do not put it that narrowly, your Honour.  We do not put it that narrowly.  When one looks at the examples of when it has been used, one can see that that is the orthodox territory and when it is used but we do not say that is an outer limit of the power.  We say on the facts here this expenditure does not meet the state of being not unforeseen as at the 5th.  If I may go back, I have some additional factual references to make that good.

So in the explanatory statement, again the Finance Minister focuses on government decisions to which we say is the wrong criterion in the Act.  We say that because the Minister has focused on which agency being a non‑corporate entity within Schedule 1 would bear the cost of an alternative means to delivering a plebiscite or the date upon which a Cabinet decision might be made that he has addressed himself to the wrong question.  He has misunderstood the nature of the opinion that he has to form.  So we say that is enough to impugn the determination.

We put it on an additional basis which is that if the Minister had have addressed himself to the correct opinion that he had to form under section 10 – that is, whether the expenditure on the plebiscite was unforeseen or not, regardless of which body would incur it, it is apparent that no decision‑maker in the shoes of the Minister acting reasonably could have reached that state of satisfaction.

So the first factual matter I would like to take the Court to for that proposition is, if the Court has the plaintiffs’ submissions in M106, starting at paragraph 4, and I will just do this in shorthand by reference to the description in the submissions because there is no dispute as to these factual matters. 

GORDON J:   Could you give me that reference again, please?

MS RICHARDSON:   Sorry, your Honour, paragraph 4 of the plaintiff’s submissions in‑chief.

GORDON J:   Thank you.

MS RICHARDSON:   So there we record that as at 24 August the Finance Minister described the election promise as that it “would conduct a plebiscite, that we would put this before the Australian people for the Australian people to resolve”.  I will take the Court to each of these references but I will just ask the Court to keep this language in mind because when the Finance Minister ultimately makes his decision on the 9th, this is exactly what he is saying he is doing, “I am delivering on a commitment to give the Australian people a say through a plebiscite”.  So it is the same expenditure that is being, in effect, in contemplation throughout.

BELL J:   The same expenditure that is the subject of the contingent liability in relation to the AEC that was included in the budget papers but that in the events when the Senate refused to pass the legislation again necessitated the change that led to the August decisions.

MS RICHARDSON:   That was – well, it was voted down again, yes, your Honour. 

BELL J:   The point I am raising with you, Ms Richardson, is we are looking at the Finance Minister’s satisfaction of something under a scheme that is a rational scheme.  The budget papers are prepared in circumstances where a contingent liability is recognised in favour of the plebiscite on the basis that it would be conducted by the AEC.  In the events that occur, after 5 May 2017, that cannot take place, it is in that context that the Finance Minister turns his attention to the expenditure or funding of a different creature, namely a postal survey. 

MS RICHARDSON:   Well, we say, what – I will do that in two ways.  Firstly, we say, the financial risk recognised in the budget paper is in relation to a compulsory plebiscite, it is $170 million.  That is separate.  What I am speaking of is the matter that the Minister deposed to in paragraph 8 that as at March that ministerial colleagues were looking at alternative means of pursuing the government’s policy of a plebiscite - so it is not just a plebiscite on compulsory – a compulsory plebiscite.  So as at March the compulsory version of the plebiscite has been voted down by the Senate and Minister Cormann deposes that his ministerial colleagues were considering alternative means of delivering the policy, the government’s policy of a plebiscite. 

So the language I am taking the Court to now is showing the way this has been described throughout, that it is not just this on/off switch of a compulsory plebiscite or not at all but rather it reflects what the Minister said in his affidavit.  There is a policy to have a plebiscite of some sort, that is, to give the Australian people a say. 

We see that in paragraph 4 of the submissions, a quote from the Minister in August of last year that the election promise that it “would conduct a plebiscite” and “we would put this before the Australian people” and then in paragraph 5, this “commitment to the Australian people” and the notion that the Government would “give the Australian people the opportunity to pass judgment on this issue” and then we see at footnote 2, that is an interview from Minister Cormann.  Then, footnote 3, we cite a multitude of examples both before and after the compulsory plebiscite is voted down by the Senate in November of last year.

GORDON J:   My problem with this factual analysis is the point Justice Bell raised with you and that is in a sense this is interesting but irrelevant when you have a budget paper which accompanies the very Act which we are talking about which says we are putting you on notice that there is going to be another amount of 170 million for a very different vehicle.  What are we to do, just ignore that, ignore that was the decision and expectation at that time?

MS RICHARDSON:   Well, no, in my submission, what is being addressed is the criterion in section 1(b) which is was the expenditure unforeseen as at 5 May and in this scenario it is not the expenditure on the compulsory plebiscite, it is expenditure on a plebiscite which is an alternative means of the government’s policy on a plebiscite which is how Minister Cormann describes it in paragraph 8.  He himself puts it as the fact they were considering alternative means by which the government’s policy of conducting a plebiscite might be pursued.  So, we say - I will come back to develop that fact a little later, your Honour.

NETTLE J:   He does say that but he also says they did not include a postal survey.  Last two lines of page 179 ‑ ‑ ‑

MS RICHARDSON:    That is – it did not include the conduct by the ABS of a postal survey.  Firstly, in relation to the language of postal survey, when Minister Cormann made the decision to advance the $120 million he did not call it a postal survey.  He said in the explanatory statement at page 250:

funding is being made available to the ABS to undertake the voluntary postal plebiscite.

NETTLE J:   Yes.

MS RICHARDSON:   So he was not calling it a survey.  He accepted that what he was doing ‑ ‑ ‑

NETTLE J:   I know about all that but his sworn affidavit said that the options under consideration did not include a postal survey and it has not been contradicted.

MS RICHARDSON:   But we say that firstly when the Minister said in his explanatory statement what the expenditure was for, which is obviously a key part of his decision in the chapeau to section 10(1), there must be a need for expenditure, the expenditure he described that he was advancing the money for was for a voluntary postal plebiscite.  That is the expenditure, in my submission.  Then what I am seeking to do is match up the fact that expenditure on a plebiscite other than a compulsory plebiscite was expressly in contemplation in March and that the Minister ‑ ‑ ‑

NETTLE J:   That may be so, but the one thing which is plain beyond peradventure is that at that time until 8 August the options under consideration did not include a postal survey.  That is what he says.

MS RICHARDSON:   Well, we say that falls into the erroneous category of focusing on the entity that will deliver - is focusing on that it would be by the ABS and ‑ ‑ ‑

NETTLE J:   No, I am sorry, not concentrating on the entity to deliver; I am concentrating on the activity to be conducted, namely, a postal survey.

MS RICHARDSON:   Well, in my submission, the Minister has said in his explanatory statement that the activity that will be conducted is a voluntary postal plebiscite, and I will take the Court to other ‑ ‑ ‑

NETTLE J:   It matters not.

MS RICHARDSON:   ‑ ‑ ‑ instances on this day where he describes what is happening as being a voluntary postal plebiscite and not a postal survey.  So it is clear at the time that the Minister was clear in his mind when he made the decision that in terms of the criterion under section 10 of making – there was a need for expenditure, expenditure was for a voluntary postal plebiscite.  Just returning to the factual references in the submissions, then in paragraph 5 in footnote 4 we have the Finance Minister where he is asked what if:

“there is no other avenue then if this doesn’t succeed in the Parliament?”

He replies:

“[o]ur commitment to the Australian people is what we will deliver on.”

Then in paragraph 10, on 16 February 2017 – of course this is after November of last year where the compulsory plebiscite has been voted down, the Finance Minister stated that: 

“Our policy is to give the Australian people the opportunity to have their say at a plebiscite.  That remains our policy… our policy remains to have a plebiscite first”.

The next matter we would seek to rely on factually in terms of proving the Minister’s state of satisfaction is that if the Court would return to paragraph 8 of the Minister’s affidavit at page 305, the Minister is accepting that he knew as early as March of this year that his ministerial colleagues were considering these alternative means by which the policy of having a plebiscite might be pursued.

Now, in my submission, it is important that he knew what they were considering was a plebiscite because a plebiscite - and there is no dispute in this matter – the plebiscite has a particular meaning in common parlance, that is, it is a vote or an expression of views by all qualified electors in relation to some issue. 

So the fact that he knew a plebiscite was being contemplated, an alternative means of plebiscite was being contemplated, means that the creature he must have had in contemplation was a means by which 16 million people on the electoral roll, by which their views might be sought.  So the Minister must be taken to have known that the expenditure involved in the alternative means that his ministerial colleagues were contemplating would be considerable.

KIEFEL CJ:   Does it follow from that that the Minister should be taken to have had in contemplation that a contingency should be allowed for the ABS to conduct a postal survey?

MS RICHARDSON:   We say there are two alternatives.  If they had not come to a final landing on that policy decision, such that it was firm enough to put in an Appropriation Act, well then it does not go in an Appropriation Act.  It goes in an additional estimates Act, in a No 4 Act later in the year because it is a matter that has arisen after the budget bill process is complete.

We say the evident purpose of the annual Appropriations Act is to flush out what executive spending is needed so that it may be approved by the Senate, so it is incumbent upon the Executive to, in effect, firm up and crystallise its policies if they want them to be approved as part of the budget bill process in May.  If they are unable to do that, they have the option of doing it later in the year.

The last point I was making is that we know that a compulsory plebiscite costs about $170 million because that was the figure in the budget paper.  Because the Minister knew his colleagues were contemplating an alternative means of plebiscite – perhaps it might be cheaper, perhaps not, it does not matter – the Minister would be taken to know that the alternative means that they were contemplating must involve significant expenditure because what they were contemplating was a plebiscite, which involves canvassing 16 million people. 

GAGELER J:   If the Minister had seen that as a real risk at the time of the budget being delivered, would you not expect, in accordance with the Charter of Budget Responsibility Act, to see a note in the budget papers to that effect in the same way as you see the 170 million mentioned?

MS RICHARDSON:   If it were that level of a risk we would expect to see it, but if it were just at the level that the alternative means of a plebiscite were in contemplation and were being discussed, it is unlikely to be the level that it is required to be disclosed as a financial risk.  But in my submission, that is not the criterion on which section 10 turns in terms of “unforeseen”. 

It is a very high bar, in our submission, that the expenditure must be unforeseen, because the evident purpose of it, in our submission, is if people in the Executive are thinking about it and talking about it, they are required to firm up the policy and reveal it, that it is something about which authorisation is sought included in the Act.  But if they are not yet at that stage in the policy process, it can be approved later on in an additional estimates Act.

On the other factual matters, I would ask the Court to go to special case book 244.  The Court will see there this is a media release by Senator Cormann.  The Court will see at the front of this special case that it is an agreed fact between the parties that each of these media releases and so on were released by the Finance Minister. 

The first thing I would draw the Court’s attention to is at line 19, the date is 8 August, so relevantly in the chronology this is the day before Finance Minister Cormann makes his decision to issue the advance.  It is the day after Cabinet has made a decision that, in effect, they will put the 2016 Plebiscite Bill up to the Senate another time, and if that is voted down then this proposal for a voluntary postal plebiscite to be conducted by the ABS will go ahead.  In my submission, the headline of the media release is important:

COMMITTMENT TO A NATIONAL PLEBISCITE ON SAME SEX MARRAIGE

Then it records:

The Turnbull Government is committed to deliver on its pre‑election promise to give the Australian people a say on whether or not the law should be changed to allow same‑sex couples to marry.

Our preference is to deliver on that commitment through a compulsory attendance plebiscite as per the –

2016 bill:

and for such a plebiscite to take place on 25 November 2017.

Then he goes on to say:

Today I’m giving notice of a motion in the Senate to give the Senate the opportunity again to support a full compulsory plebiscite on those terms this week.

If the Senate again fails to pass this Bill for a compulsory attendance plebiscite, the Government will proceed with a voluntary postal plebiscite for all Australians enrolled on the Commonwealth Electoral Roll with final results known no later than 15 November 2017.

So, in my submission, what this statement from the Finance Minister is saying is – he is referring in effect to the alternative means that he referred to in paragraph 8 of the affidavit – that is, that the government is exploring alternative means by which its policy of conducting a plebiscite on the issue of same‑sex marriage might be delivered and it is in effect setting up the alternative means. 

Their preference is for a full compulsory plebiscite but, “If we cannot have that, we will proceed with a voluntary postal plebiscite”.  That dovetails into the heading of the media release, which is that they have a commitment to a national plebiscite – that is, there is a commitment to do it whether it is compulsory or not.  The government is in effect saying either way it achieves the pre‑election commitment of a policy on same‑sex marriage.  We would prefer a full compulsory one but, if not, we will have a voluntary postal one”.  We say that is important because it is the day before he reaches his state of satisfaction on the 9th as to what matters must have been in his contemplation.

GAGELER J:   He is saying in his affidavit it is also the day after the Cabinet meeting and up until then the postal survey conducted by the Australian Bureau of Statistics was not on the table, so far as he was aware.

MS RICHARDSON:   We say, using the language he is using here, the option of ABS delivering a voluntary postal plebiscite was not on the table until the Cabinet decision of the 7th.  That is his evidence.  But what we say is that it is not the government decision that needs to be unforeseen or the body that will deliver or incur the expenditure that must be unforeseen.  It is the expenditure. 

What I am seeking to make good is that the expenditure for which he made the advance available, which he describes in his explanatory statement as “funding for a voluntary postal plebiscite” is one of the alternative means that was in contemplation back in March.

The next document I would like to take the Court to is - I have already taken the Court to the explanatory statement in 250 and the fact that, at line 25, the Minister is focusing on government decisions not being made, that is the relevant criterion, that it is unforeseen as opposed to expenditure.

The next matter I would take the Court to is special case book, 262.  In my submission this is a very significant document.  It is dated 9 August, which is the day that the Minister signs the advance into effect.  The Court will see at about line 55 it is clear the temporal context is that he has already signed the advance at the point at which he is writing and releasing this document at page 262. 

The Court sees at line 17 the date is 9 August.  This is a document – it is an agreed fact that it was released by Finance Minister Cormann.  In my submission the heading is significant:  “Next Steps For A National Plebiscite On Same-Sex Marriage”.  Of course, the context in which this document is being released by the Minister is that the compulsory Plebiscite Bill 2016 has been voted down again, at lunchtime on the 9th, and then the Minister is recording that that has happened and he is now signing into effect the advance for $120 million. 

The way he is framing what he is doing is heading:  “Next Steps For A National Plebiscite On Same‑Sex Marriage”.  So he is, in effect, saying, as he foreshadowed he would the previous day, that notwithstanding the compulsory method of delivering the government policy on a plebiscite has been voted down, they are taking next steps for a national plebiscite.  So, again, focusing on the expenditure as to what he is making available, it is expenditure for a national plebiscite on same‑sex marriage.  Then, at about line20, it says:

The Turnbull Government is committed to deliver on its pre‑election promise to give the Australian people a say on whether or not the law should be changed to allow same‑sex couples to marry.

So, again, this is the language that is echoing what Finance Minister Cormann was saying back in February, and at various points where I took the Court, where he has been describing his policy from the outset, that the commitment that is being delivered on is to give the Australian people a say on same‑sex marriage via a plebiscite.  So this is the expenditure that he is funding under the advance.  The next paragraph says:

While the Government is disappointed that the Senate refused to pass the Plebiscite (Same‑Sex Marriage) Bill 2016, the Government is now pressing ahead with a voluntary postal plebiscite for all Australians.

Of course, the fact that it is pressing ahead dovetails into the heading of this document which is “Next Steps For A National Plebiscite”.  So the next step is the voluntary postal plebiscite.  The Minister himself is characterising what he is doing – and this is on the day he has formed his state of satisfaction as to why he finds himself satisfied of this criterion, he is making money available for a national plebiscite and that it is a way that they are delivering on their pre‑election promise.

So we say what that means is that when one looks at the expenditure that was in contemplation in as early as March 2017, as described by the Minister in his affidavit at paragraph 8 – that is, he knew the policy of conducting a plebiscite by alternative means was something in contemplation by his ministerial colleagues, that this is expenditure on an alternative way of delivering that policy and that it is apparent on the 9th that that is exactly what he was doing. 

So the expenditure matches.  It is not a question of well, this is a different creature, this is a postal vote, something different is happening.  It is exactly the same thing, in my submission.  The fact that they had not yet landed on that it might be the ABS is not the relevant opinion about which the Minister must form a view under section 10(1)(b). 

So we say that if the Minister had have turned his mind to the question or the opinion he was required to form under section 10 and directed himself to the correct opinion, that is, to focus on the expenditure, it is apparent that no decision‑maker in the shoes of the Minister, acting reasonably, could have reached that view.

KIEFEL CJ:   Are we moving to question 3 then?

MS RICHARDSON:   Yes, your Honour.  In relation to question 3, we say the purpose limitation that we contend for, that is, the ordinary annual services of government limitations in section 10, avoids the constitutional infirmity that my learned friend, Mr Merkel, points to in the M105 case, that is that the long title of the 2017 Act provides a firm basis for construing section 10 in the manner we contend and it also gives a purpose for which the moneys may be appropriated thus avoiding the problem identified by Mr Merkel of a power to cause an appropriation blank.

KIEFEL CJ:   Can Schedule 1 be drawn upon in relation to purposes?

MS RICHARDSON:   Sorry, your Honour. 

KIEFEL CJ:   Can Schedule 1 be drawn upon in relation to the purposes of the Act – departmental expenditure, perhaps?

MS RICHARDSON:   No.  In my submission the entire Act, including every expenditure in the schedule must all be for ordinary annual services because that is what the Act provides for and I note in that respect that the explanatory memorandum to the Bill records that appropriations for ordinary annual services of government must be contained in a separate Bill by reason of sections 53 and 54 and that other annual appropriations that are not ordinary annual services are in the No 2 Bill or the Parliamentary Departments Bill.  The explanatory memorandum to the No 2 Bill reflects exactly the same split, that is that appropriations for ordinary annual services are in the No 1 Act and others are in the No 2 Act or the Parliamentary Departments Act.

NETTLE J:   Does that mean that you can look at the schedule to derive an indication of what the Parliament considered to be in the ordinary annual services of government?

MS RICHARDSON:   The Court will see when it goes to the schedule that there is not a lot of detail about what is in there.  The first thing to note about the schedule is – and I will come to this later – but the outcomes in the schedule do not control departmental items.  They only control administered items. 

The other thing to say about the detail in Schedule 1 is that the Act specifically says that the portfolio budget statements give additional detail about what is in Schedule 1, but section 8 makes clear that the portfolio statements are only relevant to administered items.  So it does not tell you what departmental items are for.

NETTLE J:   So the answer is no, you cannot get any indication out of the schedule as to what ‑ ‑ ‑

MS RICHARDSON:   Not in respect of departmental items.

NETTLE J:   And otherwise?

MS RICHARDSON:   I might take that question on notice, if I may, your Honour.  One thing that the Commonwealth pointed to in its written submissions – it was not taken up in writing but it was a suggestion that the long title also referred to “and for related purposes”.  So there was a suggestion in writing the fact that “related purposes” were referred to in the long title that somehow that might mean that section 10 would allow an appropriation to be cause for a matter that was not within the ordinary annual services of government.

We say in relation to that that that does not have that effect and that there are various other related purposes in the Act – that is, that there are various clauses within this Act that do not in themselves cause appropriation.  So, for example, section 5 is a mechanics provision about notional transactions between non‑corporate entities; section 9, again, is a mechanics provision about what to do with corporate entity items; section 11 is a section dealing with crediting accounts; section 13 talks about repeal.  So there are obviously other related purposes, it does not mean that section 10 should be read as being exercisable for any purpose whatsoever. 

Next, we say in terms of section 10, that the criterion in section 10(1) that enliven the power, relevantly here “urgent need” and “unforeseen”, are not the purpose for which the money may be appropriated.  It is not the purpose relevantly in the sense spoken about in Brown v West and the AAP Case and so on.  Rather, they are just the criterion enlivening the power, and so separately, in order for this power to be valid, it needs to be read as subject to the limitation that it may only be exercised if the expenditure is for the ordinary annual services of government as reflected in the long title.

So we say it is not the case that the Finance Minister may exercise the section 10 power for any purpose whatsoever, so long as the criteria in subsection (1) are met.  But if that were the construction put on section 10, that it would effectively amount to a power to appropriate for any purpose at all would be an appropriation in blank. 

Next, I would like to take the Court to the decision of this Court in Brown v West (1990) 169 CLR 195. That is at tab 42 of the bundle in volume 2. If the Court would please go to page 208, and the Court will see at about point 3 of the page the Court in Brown v West is referring to Chief Justice Latham in the Pharmaceutical Benefits Case that:

“ . . . there cannot be appropriations in blank, appropriations for no designated purpose, merely authorizing expenditure with no reference to purpose.”

Then, at point 8 of the page, the Court approves of the analysis of Justice Mason in the AAP Case, again referring to the fact that “An Appropriation Act” – this is at point 9 of the page:

has a twofold purpose.  It has a negative as well as a positive effect.  Not only does it authorize the Crown to withdraw moneys from the Treasury, it ‘restrict(s) the expenditure to the particular purpose’ –

So, in our submission, for section 10 to be within power it needs to be read as subject to the purpose in the long title of the Act.  In terms of justiciability, we say that Brown v West demonstrates the existence of a justiciable controversy here. The factual question was posed by the Court at page 209 and if the Court would turn to point 3 of the page, it starts in the middle of the paragraph:

here, the appropriation in Supply Act (No. 1) 1989‑1990 on which the defendants rely expresses the purposes for which the money may be expended in a very broad terms and the question is whether those purposes include the supplementing of the entitlement to a postage allowance determined by the Tribunal.

So, we say, it is apparent there that the High Court is addressing itself to that factual question as to what is – well, firstly, as a question of construction, what is the purpose for which the Supply Act appropriates money and then, secondly, the Court goes on to address itself as to whether the expenditure in issue in this case, being a postage allowance, met that description.

So, if the Court would next go to page 211 and then at about point 2 of the page the Court quotes the Supply Act which was the relevant Appropriation Act there under consideration and it:

limited the purposes of the appropriation it made.

Then, the quote from section 3(2) is set out.  So, the effect of that purpose limitation was, in effect, that moneys may only be appropriated if they are for a purpose of a kind that money is, in effect, previously been provided for in the preceding years Acts.  So, it required the Court to turn its mind as a factual matter ‑ well, is this postage allowance the sort of expenditure for which an appropriation has ever been sought or granted?  We see at point 4 of the page, the Court goes on to answer that question:

There is nothing in the pleadings to suggest that, prior to August 1989, the Government had ever sought or had ever been granted an appropriation either to provide a postage allowance to members of the Parliament or to supplement a postage allowance determined by the Tribunal.

So, we say, that analysis applies here and that is what we are asking the Court to do here which is that the limitation that exists here is what is in the long title and then the factual question is, is there anything in the pleadings or the special case book to suggest that the government has ever sought or been granted an appropriation to fund a voluntary plebiscite of 16 million people, and we say it is apparent from the materials in the special case that are voluminous that no such appropriation has ever been sought or granted.  I will come back to the factual aspects of the postal plebiscite in this case.

GAGELER J:   Ms Richardson, I just do not know how you read the language of section 3(2) of the Supply Act (No. 1) 1989‑1990 into the long title of this Act.

MS RICHARDSON:   We say here the relevant purpose was in section 3.  This Act did not have a long title.  This was a Supply Act so it was an interim Act to be followed by an Appropriation Act. 

GAGELER J:   This is when, I may have it wrong, but the budgets were in August and you needed the Supply Act to get you up to budget time, now the budgets are in May, we do not have Supply Acts any more.  Why are we looking at this?

MS RICHARDSON:   Well, it is only to show that the inquiry we are asking this – we are facing a challenge of justiciability in relation to this matter ‑ ‑ ‑

GAGELER J:   I see.

MS RICHARDSON:   ‑ ‑ ‑ to show that this matter was squarely – this type of analysis was seen to be justiciable in Brown v West, that is, for the Court to inquire what is the limitation in the Appropriation Act that is a legal prohibition in law for which appropriations may be made? Section 83 says appropriations may only be made in law, and then they answered the factual question. So the Acts are different in the sense of our limitation comes from the long title of the Act.

GAGELER J:   Well, the long title draws language from section 54.

MS RICHARDSON:   Yes, your Honour.

GAGELER J:   Section 54 is not justiciable, I think you accept?

MS RICHARDSON:   We accept that.

GAGELER J:   So somehow you read something into the long title that is ‑ and then it becomes justiciable.  What are you reading into the long title and how do you get there?

MS RICHARDSON:   Well, we say from the long title and also from the explanatory memorandum to the No 1 Act and the No 2 Act that the parliamentary intention in relation to the No 1 Act is that it only appropriates moneys for the ordinary annual services of government.

GAGELER J:   I follow that, but are you relying on the compact and parliamentary practice as to how the Houses of Parliament have ‑ ‑ ‑

MS RICHARDSON:   That is the second part of our case, but it is not a necessary part of our case, your Honour, because Parliament has chosen itself to – and it is made plain by the explanatory memorandum – include appropriations for ordinary annual services of government in the No 1 Act, and that appears on the Act itself, so we say it is a matter of orthodox statutory construction.  That is the first way we put our case.

The second way we put our case is that as a matter of parliamentary practice, which is also what the Court considered in Brown v West, is that as a matter of parliamentary practice, because section 10 here is in a No 1 Act, and this of course reflects the explanatory memorandum, it is only appropriating moneys for ordinary annual services.  So, the Court in Brown v West referred to parliamentary practice at about point 6 of the page on page 211.  It starts with the paragraph:

To predicate of the Supply Act (No. 1) 1989‑1990 that it contained 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). It can therefore be taken that, not only by reason of s. 3(2) but also as a matter of parliamentary practice, the Supply Act (No. 1) 1989‑1990 was not intended to include an appropriation for new policies.

So that is the second way we put our case, that because section 10 is found in a No 1 Act, that it was not intended to allow for appropriations for new policies, which we say this plainly is.

GAGELER J:   But parliamentary practice in 1990 is rather different in this respect from parliamentary practice now.  Are you relying on anything more than that statement that appears in Brown v West, or are we meant to take into ‑ ‑ ‑

MS RICHARDSON:   No, I will come to later aspects of parliamentary practice because I accept, your Honour, it changed after 1999 with the introduction of accruals and so on, so I will come to the changes in parliamentary practice.  So, in respect of parliamentary practices since Brown v West, if the Court would please turn to the back of the special case book to page 728, and this is a resolution of the Senate on 22 June 2010 which sets out on page 728 subsection (2) of the resolution and says:

appropriations for expenditure on:

. . . 

(e)      new policies not previously authorised by special legislation;

. . . 

are not appropriations for the ordinary annual services of the Government ‑

and it goes on.  Now, the Commonwealth has referred to what ‑ it is in effect a dispute between Executive and a Senate about the prospect that the Executive’s position is that administered items that fall within an existing outcome can be included in a No 1 Act for ordinary annual services.

If I go back a step, your Honour Justice Gageler talked about the changes to the compact since 1990.  Page 728, which is the Senate resolution of 22 June 2010, we say is the latest statement of that compact.

GAGELER J:   It is a statement by one side.

MS RICHARDSON:   Yes.

GAGELER J:   What is the latest statement on the other side?

MS RICHARDSON:   I am coming to that, your Honour.  If your Honour would turn to page 732, this is Finance Minister Cormann saying, at about line 50:

A key aspect of the arrangements was set out in correspondence on 10 February 1999 by the then Minister for Finance and Administration . . . The attached overview of the Compact explained that new administered expenses that fall within an existing outcome would be included in Bill No. 1.  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.

This is why we have said in writing that the Court does not need to resolve this dispute between the Executive and the Senate as to what may go in the No. 1 Bill because the relevant territory of dispute here is whether or not administered expenses that fall within an existing outcome may go in a No. 1 Bill.

The determination made by Finance Minister Cormann on 9 August was for a departmental item; it was not for an administered expense.  So this area of dispute in fact does not need to be determined in the facts of this case in circumstances where Minister Cormann has chosen and it is clear when one goes back to the determination that the increase in $122 million was to a departmental item and not to an administered expense.

I note the time, so I will move on quickly.  In relation to question 3(b)(2) ‑ that is, we say, the expenditure on a voluntary postal plebiscite is not for the ordinary annual services of government.  We say that the relevant point in time that this must be considered is when Minister Cormann was about to exercise the power under section 10.  It is at that point that the power is constrained as to whether or not it is for ordinary annual services or not and it is not correct to frame the question, as the Commonwealth has, to think about it after the determination has occurred and after the departmental item has been increased and then to ask oneself:  is this a departmental item?

GORDON J:   That is the approach adopted, is it not, in one way by Chief Justice Gleeson in Combet, is to ask for a legal question as to whether or not there is an appropriation that covers it?  That is the way he deals with it, that very approach.

MS RICHARDSON:   I might have to deal with that in reply, your Honour, but what we seek to focus on is the point at which the power is being exercised, the expenditure here for a plebiscite must meet the description of ordinary annual services and we say it does not.  The factual matters that we have set out in our written submissions in‑chief at paragraphs 103 to 109 are not disputed by the Commonwealth. 

So, it is essentially common ground, as we understand it, that what – well, it must be common ground that in substance, if not form, what the ABS has been directed to do is conduct a plebiscite because that is what the Minister himself described as the reason why he was giving the funding, so that is certainly the basis upon which he was acting.

I have already taken the Court to the factual references that show that the holding of a plebiscite, not just a compulsory plebiscite by it, there was a national commitment to holding a plebiscite, be it compulsory or otherwise and that that has been a longstanding policy of the government, both before and after the Senate voted the matter down, so we say this a new policy that has never been implemented nor previously the subject of a special appropriation.

But in terms of the factual matters, there is no dispute between the parties that the activity the ABS is being asked to conduct is unprecedented in Australian history, in the sense that it involves seeking the views of 16 million people on the electoral roll, and when one goes to the special case the parties have agreed facts on the types of surveys that the ABS has conducted, and plainly as part of negotiating the special case, the Commonwealth has put up the best examples it could find in terms of expansive surveys being carried out by the ABS.

The largest survey they could point to ‑ this is set out in the special case at paragraph 61 – is a poll of 60,000 people in February 1974 in relation to the National Anthem Poll.  This is at special case book 74.  These bear close reading, in my submission, because this shows you, in my submission, the outer limit of what is ordinary annual services of the ABS, and the numbers of people that are surveyed we see are 14,000, 20,000, 10,000 and so on, and the high point is 60,000.  So, seeking the views of 60,000 people represents about 0.3 of one per cent of a plebiscite.

So, we say this is not a marginal case of thinking about whether this is ordinary or it is kind of like things that have been done before.  It is common ground, it seems, that nothing like this has ever been done before.  The other matters we would draw the Court’s attention to is that it is common ground between the parties that the ABS has never asked people for their views about whether the law should be changed.  They were unable to point to a single instance of that.

We see that at paragraph 70 of the special case on page 79.  They were unable to identify a single instance where the ABS has asked people for their views about changing the law.  Paragraph 71 recounts that with the Census, it is only the views of households as a whole that are sought whereas here, it is going beyond the Census in reach in the sense of all 16 million people on the rolls, views will be solicited.  So, we say on the facts that it is clear this is outside the ordinary annual services.  We also note in this respect that the only three instances in Australia of a plebiscite being held have all been the subject of special legislation.

So, we note that the Commonwealth says in response to our argument about ordinary annual services, well, the ABS through the direction of the Australian Statistician can, as a matter of statutory power, carry out the postal plebiscite under the Census and Statistics Act and therefore what they are doing here must be ordinary annual services, but we say the fact that if it be true that the carrying out of this plebiscite is authorised, that is not to the point.  Various government entities are authorised to carry out various activities; some are ordinary annual services and some involve other services that are not ordinary, for example, implementing new policy.

So, in our submission, the very concept of ordinary annual services contemplates that there are some things that bodies ordinarily do and there are other things that they may lawfully do but which fall into a different category and we say this voluntary postal plebiscite is in the other category.

So, the next thing we say in relation to whether or not this is ordinary annual services – and we have pointed to this in our submissions in writing at paragraphs 106 to 107 – is that the sequence of decisions and the Cabinet decision of the 7th, in particular, here show that what is happening is not ordinary annual services.  So, firstly, an aspect is that the Minister made the determination to make the money available before the statistics direction had even been issued.  That is a small part of it.  But it just shows the level of predetermination and control arising out of the Cabinet decision of the 7th. 

The advance made by the Minister and the statistics direction made by the Treasurer, it was, in effect, predetermined by Cabinet decision on the 7th, that if the Senate voted down the compulsory Plebiscite Bill on the 9th which, of course – and we have quoted this in our writing – various Ministers had gone on the record saying that, in effect, there was no chance it would pass the Senate.  So, it was clear that they were moving directly to this approach of coordinated statistics direction and advance, and the advance and the decision to have the ABS conduct this voluntary postal plebiscite made on the 7th was made in the knowledge that the ABS departmental items were insufficient and we see that from the explanatory statement at page 250, at line 38.

So, Minister Cormann records the fact that they knew – this is at line 38 – that the ABS departmental appropriations were insufficient for the activity.  So, they are making this coordinated decision on the 7th, knowing that the money of the ABS would be insufficient and, therefore, that there would need to be these coordinated decisions.

The other aspect that we rely on to show this is not ordinary annual services is that the government was making a decision to issue a statistics direction and an advance by the Minister knowing that the ABS would be asked to conduct a plebiscite which was a form of the government’s policy that had been knocked back by the Senate twice.  So, we rely on all of those factors to show that the decision of the Minister on the 9th to advance the $122 million was not expenditure for the ordinary annual services of government.

I note the time so I may move directly – I will just note – in relation to question 4(b).  So, the submissions I have just been making are, in effect, attacking the determination by which the departmental item for the ABS was increased by $122 million.  What question 4(b) is addressed to is, effectively, the existing departmental item – that was the original appropriation of $348 million.  So, the relevance of this is if, for example, we were to succeed in validating the determination, then it would be open without our attack on question 4(b) and assuming that the attacks in 105 do not succeed ‑ ‑ ‑

KIEFEL CJ:   To draw upon what is otherwise provided as a ‑ ‑ ‑

MS RICHARDSON:   Sorry, your Honour?

KIEFEL CJ:   To draw upon what is otherwise provided as a departmental expense.

MS RICHARDSON:   Yes, your Honour, just to use the departmental item.  So that then becomes a question of resource allocation.  For example, the ABS might say, down tools, we are not doing a single other thing that we would otherwise be doing and we will just do the postal plebiscite and run our funds dry and then we will get to the end of the year and we will not have done anything else but we will have done the postal plebiscite.

So, question 4(b) is attacking that and saying that the Australian Statistician, under his control of the ABS, may not draw upon the existing departmental item to undertake the voluntary postal plebiscite.  So, the short point is that the departmental item in the 2017 Act is also subject to the overriding limitation on the entire Act that it may only be for ordinary annual services.  And, for the reasons we have already given, the plebiscite is not within that purpose.  So, we repeat what we have already said as to why a voluntary postal plebiscite is not within that purpose.

Now, in respect of the departmental item and so on, what we say in relation to that is that – well, firstly, we say the analysis ends there.  The departmental item is subject to the same limitation, the plebiscite is not for that purpose, therefore, for the same reasons question 4(b) should be answered next – should be answered yes.  If we need to go further, we point to other matters to show that an appropriation for a departmental item cannot be relied on to fund the voluntary postal plebiscite.

The plurality in Combet recounted, at paragraph 135, that the purposes of the Act there included the purpose of appropriating a sum of money for departmental expenditure of one of the agencies.  Then if the Court goes to section 7 of the 2017 Act we see it provides:

The amount specified in a departmental item for a non‑corporate entity may be applied for the departmental expenditure of the entity.

So we say that this achieves the twofold purpose referred to by Justice Mason in the AAP Case and proved in Brown v West; that is, it authorises or earmarks withdrawal of money from the Treasury but it also restricts its expenditure to a particular purpose.  So that begs the question:  what is the departmental expenditure of an entity?  That is a composite phrase that is not defined in the Act.  “Expenditure” is defined in section 3.  “Departmental” is not defined, but “departmental” is in effect in contrast to “administered”.  So for non‑corporate entities in the Act they either have departmental items or administered items.

So in relation to what “departmental expenditure” means, as we have set out in writing, we say, based on parliamentary practice, that that means, in effect, what before the adoption of accruals were referred to as running costs; that is, salaries, administrative expenses and operating expenses.  The explanatory memorandum to the No 1 Bill – I will not take the Court to it – says in paragraph 13:

Departmental items involve costs over which a non‑corporate entity has control.

We say the ABS has no control over expenditure in relation to carrying out a plebiscite.  It also says in paragraph 13 that departmental items are typically employee expenses and operational expenses and acquisition of assets under $10 million. 

I have already referred to the letter from Minister Cormann at special case book 732, where he himself accepts that:

amounts appropriated for departmental expenses . . . were equivalent to the previous concept of running costs ‑

We say likewise, that the departmental item in the 2000 Act is the equivalent of the former running cost items and that plainly expenditure on the plebiscite is not a running cost of the ABS.  Noting the time, I refer to paragraphs 15 to 17 of our reply as further matters that support that view. 

The last point I would make in relation to Combet is that the plurality made clear that outcomes listed in the schedule do not control departmental items.  We say outcomes in the schedule do not tell you ‑ and in fact the language in 130 of Combet is that it cannot assist with what a departmental item is.

NETTLE J:   Can it assist at all in ordinary annual services of government?

MS RICHARDSON:   Can I deal with that in reply, your Honour?  I will take that question on notice.

NETTLE J:   Yes, certainly.

MS RICHARDSON:   Thank you.  In relation to standing, I note the time and I repeat the matters put by my learned friend, Mr Merkel.  We would say Senator Rice in particular has a special interest.  We say this case falls to be determined under the Onus v Alcoa case because we are not challenging the appropriation, we are seeking merely to challenge unlawful executive action.  We say that she has standing for the reasons expressed by Justices McHugh and Kirby in Combet, but we go further and say that, as a senator, she has an interest in a greater degree.  As a member of the upper house, the way she puts her case here is that her role as a senator in the upper house has been bypassed by the Finance Minister’s use of the advance to the Finance Minister.

So we say that her interest is related to the relief we seek and if I could just give the Court some factual references without going to it, we say that the particular nature of her interest is acute here because there is an implicit acceptance by the Commonwealth at paragraph 80 of its submissions that the Senate has been bypassed, where they say, well, our only concern seems to be that the Senate has been bypassed.  That is a central concern of Senator Rice.  At page 244 of the special case, if I could just take the Court to one of these references to make the point.  In the fourth paragraph there that starts at about line 35, it starts:

If the Senate again fails to pass this Bill for a compulsory attendance plebiscite, the Government will proceed with a voluntary postal plebiscite –

So we say that there was a plan which was decided upon in the Cabinet decision meeting made on the 7th was that if the compulsory plebiscite, it would be put up to the Senate if it failed and it would take in writing quoted Ministers of the government noting that they would never get things through the Upper House, so it was a fait accompli that that would happen, that thereafter they would proceed with a voluntary postal plebiscite. 

Another example, we say, of the knowledge, in effect, that the Senate was being bypassed is in the explanatory statement at 250 which also notes that, in effect, the compulsory Bill has been put up to the Senate and that has been thwarted and so we are moving on with this other aspect of the policy.  The other example is in the affidavit of Minister Cormann at paragraph 10, where he makes it plain that government announced its intention to reintroduce the compulsory Plebiscite Bill into the Senate and if the Senate again rejected it it would proceed the way it has, and the way it proceeded in Minister Cormann’s words was “I am going to fund a voluntary postal plebiscite”. 

So we say Senator Rice has a particular interest which is related to the relief which is related to her role in the Senate being bypassed.  If I may just, we refer to the analysis in the Bateman’s Bay Case at 38 and following in relation to the fact that in the modern context the fiat from an Attorney‑General cannot be relied upon to secure standing in cases like this, and we have referred in footnote 65 of our main submissions to the fact that every State and Territory in Australia has very similar advance to a Finance Minister which gives this type of discretion to the Treasurer or some other member of Cabinet.

Now, we noted in‑chief that it would be surprising if any of those Attorneys‑General would want to intervene in a case like this where we are seeking to restrain or put limits on the scope of a discretion that they themselves have.  So we adopt the analysis in Bateman’s Bay that the older English analysis of relying on the fiat or the interests of an Attorney‑General to cure standing in these cases should not be a constraint in the modern context.

In that respect, we made a request of every Attorney‑General in Australia that they grant us a fiat to deal with any standing challenge by the Commonwealth and every State and Territory in Australia bar two has refused that request.  The two that we have not heard from are Queensland and Western Australia but as of lunchtime today when this affidavit was sworn the Attorneys‑General of those States have not indicated one way or the other. 

So we were going to deal with this by way of an agreed fact but the course that I have agreed with my learned friend, Mr Donoghue, is that we will hand up an affidavit proving that we have sought a fiat from every Attorney‑General and it has not been given, and we rely on Bateman’s Bay, the analysis in that respect.  May it please the Court.

KIEFEL CJ:   The Court can receive those later.  Are they your submissions – are they the conclusion of your submissions?

MS RICHARDSON:   In relation to relief, I have already said in the outline, given the urgency of this matter we would be content with answers to the questions in the stated case this week and then we respectfully submit that the matter could go over to a single Judge in terms of determining the ultimate final relief.  May it please the Court.

KIEFEL CJ:   Yes, thank you, Ms Richardson.  The Court adjourns until 9.45 am for pronouncement of orders and otherwise until 10.15 tomorrow.

AT 4.20 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 6 SEPTEMBER 2017