Wilkie v The Commonwealth
[2017] HCA 40
•28 September 2017
HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJMatter No M105/2017
ANDREW DAMIEN WILKIE & ORS PLAINTIFFS
AND
THE COMMONWEALTH OF AUSTRALIA & ORS DEFENDANTS
Matter No M106/2017
AUSTRALIAN MARRIAGE EQUALITY LTD &
ANOR PLAINTIFFSAND
MINISTER FOR FINANCE MATHIAS CORMANN
& ANOR DEFENDANTSWilkie v The Commonwealth
Australian Marriage Equality Ltd v Cormann[2017] HCA 40
Date of Order: 7 September 2017
Date of Publication of Reasons: 28 September 2017M105/2017 & M106/2017
ORDER
Matter No M105/2017
1.Application dismissed.
2.The plaintiffs pay the costs of the first to third defendants.
Matter No M106/2017
Questions 2, 3 and 5 of the Special Case dated 21 August 2017 be amended and the questions stated in the Special Case (as so amended) be answered as follows:
Question 1
Do either of the plaintiffs have standing to seek the relief sought in the Amended Statement of Claim?
Answer
Inappropriate to answer.
Question 2
Is the Advanceto the FinanceMinisterDetermination (No 1 of 2017-2018) (Cth) ("the Determination") invalid by reason that the criterion in s 10(1)(b) of the Appropriation Act (No 1) 2017-2018 (Cth) ("the 2017-2018 Act") was not met such that the Finance Minister's power to issue the Determination was not enlivened?
Answer
No, it is not invalid.
Question 3
(a) Does question 3(b) raise an issue which is justiciable by a court and within the scope of any matter which the Court has authority to decide?
(b) If the answer to question 3(a) is yes, is the Determination invalid by reason that:
(i) on its proper construction, s 10 of the 2017-2018 Act does not authorise the Finance Minister to make a determination, the effect of which is that the 2017-2018 Act takes effect as if Schedule 1 thereto were amended to make provision for expenditure that is outside the ordinary annual services of the Government; and
(ii) the expenditure on the ABS Activity (being the activity described in the Census and Statistics (StatisticalInformation)Direction 2017 (Cth)) is not within the meaning of "ordinary annual services of the Government"?
Answer
(a) The proper construction of s 10 of the 2017-2018 Act is justiciable.
(b) No. Section 10, on its proper construction, did authorise the Finance Minister to make the Determination.
Question 4
If the answer to question 2 or question 3(b) is yes:
(a) does question 4(b) raise an issue which is justiciable by a court and within the scope of any matter which the Court has authority to decide?
(b) if the answer to question 4(a) is yes, would the drawing of money from the Treasury of the Commonwealth for the ABS Activity in reliance on the appropriation for the departmental item for the [Australian Bureau of Statistics] in the 2017-2018 Act be unauthorised by the 2017-2018 Act on the basis that the expenditure is not within the meaning of "ordinary annual services of the Government"?
Answer
Thequestion does not arise.
Question 5
What, if any, relief sought in the Amended Statement of Claim should the plaintiffs be granted?
Answer
None.
Question 6
Who should pay the costs of this special case?
Answer
Theplaintiffs should pay the costs of the special case.
Representation
R Merkel QC and K E Foley with C J Tran for the plaintiffs in M105/2017 (instructed by Public Interest Advocacy Centre)
K M Richardson SC with J S Emmett, G E S Ng and S Palaniappan for the plaintiffs in M106/2017 (instructed by Human Rights Law Centre)
S P Donaghue QC, Solicitor-General of the Commonwealth with M J O'Meara and B K Lim for the first to third defendants in M105/2017, for the first defendant in M106/2017, and for the Attorney-General of the Commonwealth, intervening in M106/2017 (instructed by Australian Government Solicitor)
Submitting appearances for the fourth and fifth defendants in M105/2017 and for the second defendant in M106/2017
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Wilkie v The Commonwealth
Australian Marriage Equality Ltd v CormannConstitutional law (Cth) – Appropriation of moneys from Consolidated Revenue Fund – Construction of Appropriation Act (No 1) 2017-2018 (Cth) – Where Finance Minister made determination under s 10(2) of Appropriation Act (No 1) 2017-2018 (Cth) – Where determination sought to provide funding for postal survey – Whether s 10 of Appropriation Act (No 1) 2017-2018 (Cth) invalid – Whether appropriation for purpose Parliament lawfully determined may be carried out.
Statutes – Construction of Appropriation Act (No 1) 2017-2018 (Cth) – Power of Finance Minister to make determination under s 10(2) of Appropriation Act (No 1) 2017-2018 (Cth) – Whether determination made by Finance Minister authorised by s 10 – Whether Finance Minister satisfied urgent need for expenditure not provided for or insufficiently provided for because expenditure unforeseen – Whether Finance Minister erred in law by conflating satisfaction as to urgent need for expenditure with satisfaction as to expenditure being unforeseen – Whether s 10 limited by description of Appropriation Act (No 1) 2017-2018 (Cth) as Act for ordinary annual services of Government.
Statutes – Delegated legislation – Validity – Whether direction to Australian Statistician exceeded power of Treasurer under s 9(1)(b) of Census and Statistics Act 1905 (Cth) – Whether information to be collected statistical information – Whether information to be collected in relation to matters prescribed in s 13 of Census and Statistics Regulation 2016 (Cth) – Whether Treasurer had power to specify from whom information to be collected – Whether s 7A of Commonwealth Electoral Act 1918 (Cth) gave Australian Electoral Commission authority to assist Australian Bureau of Statistics in implementing direction.
Constitutional law (Cth) – Appropriation of moneys from Consolidated Revenue Fund – Standing to bring action for declarations and injunctions – Whether necessary or appropriate to determine if plaintiffs have standing – Standing of Member of House of Representatives – Standing of Senator – Standing of elector – Standing of incorporated body – Standing of association.
Words and phrases – "Advance to the Finance Minister", "appropriation", "Australian Bureau of Statistics", "Australian Electoral Commission", "Australian Statistician", "Consolidated Revenue Fund", "departmental item", "Electoral Commissioner", "expenditure", "Finance Minister", "ordinary annual services of the Government", "plebiscite", "Treasurer", "unforeseen", "urgent need for expenditure".
Constitution, ss 53, 54, 56, 81, 83.
Appropriation Act (No 1) 2017-2018 (Cth), ss 3, 6, 7, 10, 12, Sched 1.
Audit Act 1901 (Cth), s 36A.
Australian Bureau of Statistics Act 1975 (Cth), s 16A.
Census and Statistics Act 1905 (Cth), s 9.
Census and Statistics Regulation 2016 (Cth), s 13.
Commonwealth Electoral Act 1918 (Cth), ss 7, 7A.
Legislation Act 2003 (Cth), ss 15G, 15H, 15J, 38, 39.
Public Governance, Performance and Accountability Act 2013 (Cth), ss 74, 75.
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ. Two proceedings, each commenced in the original jurisdiction of the High Court on 10 August 2017, challenged the lawfulness of measures taken and proposed to be taken pursuant to statute to implement the decision of the Australian Government, made on 7 August 2017 and announced unconditionally on 9 August 2017, to direct and to fund the conduct of a survey of the views of Australian electors on the question of whether the law should be changed to allow same-sex couples to marry.
The Full Court of the High Court heard the proceedings on 5 and 6 September 2017 and, on 7 September 2017, made orders dismissing one proceeding and giving answers to questions reserved in the other proceeding rejecting the challenge on its merits. These are the reasons for those orders.
These reasons commence with a narrative of the background to the proceedings in the course of which the terms of the relevant statutes are set out. They then describe the proceedings and note an unresolved question of standing before explaining systematically why the challenge in each proceeding failed on its merits.
The proposed plebiscite
The Marriage Act 1961 (Cth) ("the Marriage Act"), enacted by the Commonwealth Parliament under s 51(xxi) of the Constitution, has since 2004[1] defined "marriage" to mean "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life"[2]. The Court made clear in The Commonwealth v Australian Capital Territory[3] that s 51(xxi) of the Constitution is capable of supporting a law defining marriage to include the union of two persons of the same sex.
[1]Section 3 and Sched 1, item 1 of the Marriage Amendment Act 2004 (Cth).
[2]Section 5(1) of the Marriage Act.
[3](2013) 250 CLR 441; [2013] HCA 55.
On 11 August 2015, the then Prime Minister announced that a Liberal and National Party Government would consider holding a plebiscite on same-sex marriage. A Liberal and National Party Government was re-elected at the general election on 2 July 2016.
On 13 September 2016, the Attorney-General and the Special Minister of State jointly announced the intention of the Government for the Australian Electoral Commission ("the AEC"), established under the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act"), to conduct a plebiscite to ask voters whether the law should be changed to allow same-sex couples to marry. The announcement stated that voting would be compulsory, that the outcome would be determined by a simple majority of votes, and that if the plebiscite passed then the Parliament would promptly amend the Marriage Act to enable same-sex couples to marry. The announcement stated that by having the AEC conduct the plebiscite, the Government was "delivering its election commitment to give the community a say on whether same-sex marriage should be legalised". The announcement also stated that the Government had budgeted $170 million to run the plebiscite.
On 14 September 2016, the Plebiscite (Same-Sex Marriage) Bill 2016 ("the 2016 Bill") was introduced into the House of Representatives. The 2016 Bill, if enacted, would have provided for the Governor-General, by writ issued within 120 days after its commencement, to cause a national plebiscite to be conducted by the AEC, in much the same way as a referendum is conducted under the Referendum (Machinery Provisions) Act 1984 (Cth). The 2016 Bill identified the question to be submitted to electors at the plebiscite as: "Should the law be changed to allow same-sex couples to marry?"[4] The 2016 Bill stated that the result of the plebiscite would be in favour of the plebiscite proposal if, disregarding informal ballot-papers, more than 50 per cent of the votes cast in the plebiscite were given in favour of the plebiscite proposal[5]. The 2016 Bill went on to include provision to the effect that the Consolidated Revenue Fund was appropriated for the purposes of "paying or discharging the costs, expenses and other obligations incurred by the Commonwealth in relation to the plebiscite"[6].
[4]Clause 5(2) of the 2016 Bill.
[5]Clause 6 of the 2016 Bill.
[6]Clause 40(a) of the 2016 Bill.
The 2016 Bill was passed by the House of Representatives on 20 October 2016 but was defeated in the Senate on 7 November 2016.
The annual budget
On Tuesday, 9 May 2017, in accordance with conventional timing, the Treasurer presented the annual Commonwealth budget in the course of moving in the House of Representatives that Appropriation Bill (No 1) 2017-2018 ("Appropriation Bill No 1 2017-2018") be read for a second time. Because of production timeframes, including the financial consolidation process, proofing and printing, the last day on which it was practicable to provide for expenditure in Appropriation Bill No 1 2017-2018 was Friday, 5 May 2017.
The Charter of Budget Honesty Act 1998 (Cth) ("the CBH Act") requires that the Treasurer table and publicly release at the time of a budget a fiscal strategy statement[7] together with a budget economic and fiscal outlook report[8]. The fiscal strategy statement is required, amongst other things, to specify the Government's fiscal objectives and targets for the budget year and the following three financial years[9]. The budget economic and fiscal outlook report is required, amongst other things, to contain "a statement of the risks ... that may have a material effect on the fiscal outlook"[10].
[7]Clauses 2(2) and 6 of Sched 1 to the CBH Act.
[8]Clause 10 of Sched 1 to the CBH Act.
[9]Clause 9(1)(d)(i) of Sched 1 to the CBH Act.
[10]Clause 12(1)(e) of Sched 1 to the CBH Act.
At the time of the budget, on 9 May 2017, the Treasurer accordingly tabled and publicly released "Budget Strategy and Outlook Budget Paper No 1 2017-18" ("Budget Paper No 1"), which contained both a fiscal strategy statement and a budget economic and fiscal outlook report. Budget Paper No 1 comprised a number of "Statements", one of which was headed "Statement of Risks".
The Statement of Risks explained that it disclosed, amongst other things, "fiscal risks with a possible impact on the forward estimates greater than $20 million in any one year, or $50 million over the forward estimates period". The Statement of Risks used "possible" in contradistinction to "probable", which it explained as describing items having a "50 per cent or higher chance of occurrence"[11].
[11]Budget Paper No 1 at 9-4, table 1.
Under the heading "Fiscal risks", the Statement of Risks explained[12]:
"Fiscal risks comprise general developments or specific events that may affect the fiscal outlook. Some developments or events raise the possibility of a fiscal impact. In other cases, the likelihood of a fiscal impact may be reasonably certain, but will not be included in the forward estimates because the timing or magnitude is not known."
[12]Budget Paper No 1 at 9-10.
Under the sub-heading "Finance", the Statement of Risks went on to explain[13]:
"The Australian Government remains committed to a plebiscite in relation to same-sex marriage, despite the Senate not supporting the Plebiscite (Same-Sex Marriage) Bill 2016. To this end, the Australian Government will provide $170 million to conduct a same-sex marriage plebiscite as soon as the necessary legislation is enacted by the Parliament."
Appropriation Act (No 1) 2017-2018 (Cth)
[13]Budget Paper No 1 at 9-11.
Appropriation Act (No 1) 2017-2018 (Cth) ("Appropriation Act No 1 2017-2018"), the long title of which is "[a]n Act to appropriate money out of the Consolidated Revenue Fund for the ordinary annual services of the Government, and for related purposes", was in due course enacted. Appropriation Act No 1 2017-2018 is expressed to have commenced on 1 July 2017[14] and to remain in force until the start of 1 July 2020[15].
[14]Section 2 of Appropriation Act No 1 2017-2018.
[15]Section 13 of Appropriation Act No 1 2017-2018.
Schedule 1 to Appropriation Act No 1 2017-2018 specifies "[s]ervices for which money is appropriated". The Schedule does so by setting out, in tabular form listed by Ministerial portfolio, specified dollar amounts in relation to identified "non-corporate entities" under the headings "administered" items and "departmental" items. To each such "item" is ascribed an "outcome".
Section 6 of Appropriation Act No 1 2017-2018 states that the total of the items specified in Sched 1 is $88,751,598,000. There are two notes to s 6, each of which forms part of Appropriation Act No 1 2017-2018[16]. One note states that items in Sched 1 can be adjusted under Pt 3 of Appropriation Act No 1 2017‑2018. The sole section within Pt 3 is s 10. The other note states that ss 74 to 75 of the Public Governance, Performance and Accountability Act 2013 (Cth) ("the PGPA Act") also provide for adjustment of amounts appropriated by Appropriation Act No 1 2017-2018. Those sections will be referred to later in these reasons.
[16]Section 13(1) of the Acts Interpretation Act 1901 (Cth).
Non-corporate entities within the meaning of Appropriation Act No 1 2017-2018 include "non-corporate Commonwealth entit[ies]" within the meaning of the PGPA Act[17]. Non-corporate Commonwealth entities of that description include Departments of State[18] as well as "any body (except a body corporate)" that is prescribed to be a "listed entity"[19]. The PGPA Act states that each such entity has an "accountable authority"[20], who has duties which include governing the entity in a way that promotes the proper use of appropriations for which the entity is responsible[21], and who in the case of a listed entity is the person or group of persons prescribed as the accountable authority of that entity[22].
[17]Section 3 (definition of "non-corporate entity") of Appropriation Act No 1 2017‑2018.
[18]Sections 10(1)(a) and 11(b) of the PGPA Act.
[19]Sections 8 (definition of "listed entity") and 10(1)(c) of the PGPA Act.
[20]Sections 8 (definition of "accountable authority") and 12(1) of the PGPA Act.
[21]Sections 8 (definition of "public resources") and 15(1)(a) of the PGPA Act.
[22]Section 12(2), item 3 of the PGPA Act.
One of the non-corporate entities listed in Sched 1 to Appropriation Act No 1 2017-2018 is the Australian Bureau of Statistics ("the ABS"), established by the Australian Bureau of Statistics Act 1975 (Cth) ("the ABS Act"). The ABS Act provides that the ABS consists of the Australian Statistician and staff engaged or providing services under the Public Service Act 1999 (Cth)[23]. The ABS Act also prescribes that the ABS is a listed entity and that the Australian Statistician is its accountable authority[24].
[23]Section 5(1)-(3) of the ABS Act.
[24]Section 5(5)(a) and (b) of the ABS Act.
In respect of the ABS, Sched 1 to Appropriation Act No 1 2017-2018 sets out the following table:
TREASURY PORTFOLIO
Appropriation (plain figures)—2017‑2018
Actual Available Appropriation (italic figures)—2016‑2017
Departmental Administered Total $'000 $'000 $'000 AUSTRALIAN BUREAU OF STATISTICS Outcome 1 ‑
Decisions on important matters made by governments, business and the broader community are informed by objective, relevant and trusted official statistics produced through the collection and integration of data, its analysis, and the provision of statistical information
348,865 ‑ 348,865 540,765 ‑ 540,765 Total: Australian Bureau of Statistics 348,865 ‑ 348,865 540,765 ‑ 540,765
"Departmental item" is defined in Appropriation Act No 1 2017-2018 to mean "the total amount set out in Schedule 1 in relation to a non-corporate entity under the heading 'Departmental'"[25]. A note to that definition, which also forms part of the Act, states:
"The amounts set out opposite outcomes, under the heading 'Departmental', are 'notional'. They are not part of the item, and do not in any way restrict the scope of the expenditure authorised by the item."
[25]Section 3 of Appropriation Act No 1 2017-2018.
Section 7 of Appropriation Act No 1 2017-2018 provides that "[t]he amount specified in a departmental item for a non-corporate entity may be applied for the departmental expenditure of the entity". "Departmental expenditure" is not defined, but "expenditure" is defined to mean "payments for expenses, acquiring assets, making loans or paying liabilities"[26].
[26]Section 3 of Appropriation Act No 1 2017-2018.
Section 10 of Appropriation Act No 1 2017-2018, which was the central focus of the challenge in each proceeding, is headed "Advance to the Finance Minister". Section 10 provides:
"(1)This section applies if the Finance Minister is satisfied that there is an urgent need for expenditure, in the current year, that is not provided for, or is insufficiently provided for, in Schedule 1:
(a)because of an erroneous omission or understatement; or
(b)because the expenditure was unforeseen until after the last day on which it was practicable to provide for it in the Bill for this Act before that Bill was introduced into the House of Representatives.
(2)This Act 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.
(3)The total of the amounts determined under subsection (2) cannot be more than $295 million.
(4)A determination made under subsection (2) is a legislative instrument, but neither section 42 (disallowance) nor Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 applies to the determination."
Section 12 of Appropriation Act No 1 2017-2018 provides:
"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 2013."
The Government decision
On 8 August 2017, the Finance Minister announced a decision of the Government which had been made in a meeting of Cabinet on 7 August 2017. The Finance Minister's announcement was prefaced by a statement that the Government was "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" and that the Government's preference was "to deliver on that commitment through a compulsory attendance plebiscite" in accordance with the 2016 Bill and "for such a plebiscite to take place on 25 November 2017".
The decision of the Government which the Finance Minister then announced was to re-introduce the 2016 Bill into the Senate and, in the event that the Senate failed again to pass the 2016 Bill, to 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". The Finance Minister indicated that the "voluntary postal plebiscite" would be conducted by the ABS, which would exercise statutory power to request information from electors on the question of whether the law should be changed to allow same-sex couples to marry. The Finance Minister also indicated that an appropriation would be made to the ABS from the Advance to the Finance Minister under Appropriation Act No 1 2017-2018.
On 9 August 2017, the 2016 Bill was sought to be re-introduced into the Senate and was again defeated.
Following that defeat, and consistently with the decision of the Government announced the previous day, the Finance Minister on 9 August 2017 announced that "the Government [was] now pressing ahead with a voluntary postal plebiscite for all Australians". He explained that he had been advised by the Treasurer that the Treasurer would later that day issue a direction to the Australian Statistician asking that the ABS request on a voluntary basis statistical information from all Australians on the electoral roll as to their views on whether or not the law in relation to same-sex marriage should be changed to allow same-sex couples to marry. He stated that, while the ABS, "supported by AEC officers as appropriate", would make relevant announcements, it was anticipated that envelopes would begin to be posted by the ABS from 12 September, that all responses would have to be received by 7 November, and that the result would be announced on 15 November 2017. He also explained that he had himself that day made a determination under s 10 of Appropriation Act No 1 2017-2018 "to provide funding of $122 million to the ABS to enable them to fulfil the Treasurer's direction".
The Finance Minister's Determination
The determination which the Finance Minister made on 9 August 2017 was in the form of an instrument styled "Advance to the Finance Minister Determination (No 1 of 2017-2018)" ("the Finance Determination"). The Finance Determination states:
I, Mathias Hubert Paul Cormann, Minister for Finance, being satisfied of the matters set out in subsection 10(1) of Appropriation Act (No. 1) 2017‑2018 (the Act), make the following determination under subsection 10(2) of the Act:
That the Act have effect as if Schedule 1 of the Act were amended so that the item described in Column 1 of the Table, for the Entity listed in Column 2 of the Table, were increased by the amount listed in Column 3 of the Table.
Table
Column 1 Column 2 Column 3 Item Appropriation Item Entity Amount 1 Appropriation Act (No. 1) 2017‑2018
Departmental item
Australian Bureau of Statistics $122,000,000
By force of s 10(2) of Appropriation Act No 1 2017-2018, that Act has effect as if Sched 1 were amended in accordance with the Finance Determination. The immediate effect of the Finance Determination was thereby to increase the departmental item in relation to the ABS, being the total amount set out in Sched 1 in relation to the ABS under the heading "Departmental", from $348,865,000 to $470,865,000. The result of that increase in the departmental item in relation to the ABS was to increase from $348,865,000 to $470,865,000 the total amount that s 7 permits to be applied for the departmental expenditure of the ABS, which expenditure can include but is not restricted to expenditure on carrying out activities directed to the outcome stated in Sched 1 that "[d]ecisions on important matters made by governments, business and the broader community are informed by objective, relevant and trusted official statistics produced through the collection and integration of data, its analysis, and the provision of statistical information". No argument was put in either proceeding that the activities to be carried out by the ABS to fulfil the Treasurer's direction were incapable of answering the description of activities directed to that broadly stated outcome.
Because a determination made under s 10(2) of Appropriation Act No 1 2017-2018 is declared by s 10(4) of that Act to be a legislative instrument, the Legislation Act 2003 (Cth) ("the Legislation Act") operated to require that the Finance Determination be lodged for registration on the Federal Register of Legislation[27] together with an explanatory statement which was required to be "approved" by the Finance Minister[28], and which was required to "explain the purpose and operation of the instrument"[29]. Once the Finance Determination was lodged, the First Parliamentary Counsel came under a duty to register it[30], the Office of Parliamentary Counsel came under a duty to deliver a copy of it to each House of the Parliament to be laid before each House within six sitting days of that House after the registration[31], and the Office of Parliamentary Counsel came under a further duty to arrange for a copy of the explanatory statement to be delivered to each House of the Parliament also to be laid before each House[32].
[27]Section 15G(1) of the Legislation Act.
[28]Sections 15G(4) and 15J(2)(a) of the Legislation Act.
[29]Section 15J(2)(b) of the Legislation Act.
[30]Section 15H(1)(a) of the Legislation Act.
[31]Section 38(1) of the Legislation Act.
[32]Section 39 of the Legislation Act.
The Finance Determination was accordingly accompanied, when made, by an Explanatory Statement. Under the heading "Purpose of the Determination", the Explanatory Statement stated:
"On 8 August 2017, the Government announced that it will recommit the Plebiscite (Same-Sex Marriage) Bill 2016 to a vote in the Senate and if the Senate does not pass the bill, proceed with a voluntary postal plebiscite for all Australians enrolled on the Commonwealth Electoral Roll conducted by the Australian Bureau of Statistics (ABS).
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.
These government decisions were not made until after the Appropriation Bill (No 1) 2017-2018 was introduced into the House of Representatives on Tuesday, 9 May 2017. These circumstances meet the requirements of section 10 of the Act regarding the expenditure being urgent because it was unforeseen."
Following the commencement of the proceedings, the Finance Minister swore an affidavit, which has been filed and read in each proceeding, in which he explained on oath his reasons for making the Finance Determination.
The Finance Minister explains:
"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 far as I was aware, none of these suggestions involved the Australian Bureau of Statistics (ABS) or the conduct by the ABS of a postal survey on the issue of same-sex marriage. Those suggestions did not then represent Government policy and I had not personally decided to support them."
After referring to the announcement on 8 August 2017 of the decision of the Government made on 7 August 2017, the Finance Minister explains that before 7 August 2017 "it had not been Government policy for the ABS to carry out a survey in relation to whether the law should be changed to allow same sex couples to marry".
The Finance Minister's explanation of his reasons for making the Finance Determination concludes with the following statement:
"When making the Determination I was satisfied that there was an urgent need for the expenditure provided for in the Determination which had not been provided for in the 2017-2018 Act because that expenditure was unforeseen until the last day it was practical to provide for it in the 2017‑2018 Bill before that Bill was introduced into the House of Representatives; that day, being 5 May 2017. 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. I was satisfied that the expenditure was urgent because the Government had, as part of its decision on 7 August 2017 to direct the ABS to conduct a postal survey on same sex marriage, decided that the results of the survey were to be known no later than 15 November 2017."
Importantly, the Finance Minister's evidence is unchallenged by the plaintiffs in either proceeding.
The Treasurer's Direction
The direction of which the Finance Minister had been advised on 9 August 2017 was given by the Treasurer later that day in the form of an instrument styled "Census and Statistics (Statistical Information) Direction 2017" ("the Statistics Direction"), and was amended by the Finance Minister a week later by a further instrument styled "Census and Statistics (Statistical Information) Amendment Direction 2017".
Section 9(1) of the Census and Statistics Act 1905 (Cth) ("the Statistics Act") provides:
"The Statistician:
(a)may from time to time collect such statistical information in relation to the matters prescribed for the purposes of this section as he or she considers appropriate; and
(b)shall, if the Minister so directs by notice in writing, collect such statistical information in relation to the matters so prescribed as is specified in the notice."
Section 13 of the Census and Statistics Regulation 2016 (Cth) ("the Statistics Regulation") prescribes 52 matters for the purposes of s 9 of the Statistics Act by listing them in a table and ascribing to each of them an item number. The prescribed matters include "Births, deaths, marriages and divorces" (item 5), "Law" (item 30) and "Population and the social, economic and demographic characteristics of the population" (item 38).
The Statistics Direction in its original form was, and in its amended form is, expressed to be a direction to the Australian Statistician under s 9(1)(b) of the Statistics Act. It states in material part[33]:
"The Statistician is to collect the following statistical information in relation to matters prescribed for the purposes of section 9 of the Statistics Act (in particular, one or more of items 5, 30 and 38 in the table in regulation 13 of the Census and Statistics Regulation 2016):
(a)statistical information about the proportion of electors who wish to express a view about whether the law should be changed to allow same-sex couples to marry (participating electors);
(b)statistical information about the proportion of participating electors who are in favour of the law being changed to allow same-sex couples to marry;
(c)statistical information about the proportion of participating electors who are against the law being changed to allow same-sex couples to marry."
[33]Section 3(1) of the Statistics Direction.
The Statistics Direction, as amended, goes on to require the "statistical information identified" to be published on or before 15 November 2017[34] and to define as an "elector", subject to immaterial qualifications and exceptions, a person who at the end of 24 August 2017 was an elector or had made a valid application for enrolment as an elector under the Electoral Act[35].
[34]Section 3(3) of the Statistics Direction.
[35]Section 3(4) of the Statistics Direction.
The Australian Statistician and the AEC
As at the end of 24 August 2017, approximately 16 million electors were enrolled under the Electoral Act.
To implement the Statistics Direction, the Australian Statistician proposed to post, or otherwise provide or make available, to all electors as defined in the Statistics Direction a questionnaire seeking their views on the question "Should the law be changed to allow same-sex couples to marry?" and asking for responses to that questionnaire. To do so, it was necessary for the Australian Statistician to seek the assistance of other Commonwealth Departments and agencies and to retain the services of private sector entities.
For that purpose, the ABS entered into arrangements which included an arrangement with the AEC for officers and employees of the AEC to assist the ABS in the implementation of the Statistics Direction, but with the Australian Statistician retaining control over that implementation. In entering into that arrangement, the ABS relied on s 16A of the ABS Act and the AEC relied on s 7A of the Electoral Act.
Section 16A of the ABS Act relevantly provides that the Australian Statistician may arrange with a governmental agency or authority for the services of officers or employees of the agency or authority to be made available to assist in the carrying out of the functions of the Australian Statistician.
Section 7A(1) of the Electoral Act relevantly provides that, subject to presently immaterial limitations, the AEC "may make arrangements for the supply of goods or services to any person or body". Section 7(1)(a) of the Electoral Act provides that, subject again to presently immaterial limitations, the "functions" of the AEC include "to perform functions that are permitted or required to be performed by or under [that] Act".
Proceedings
The first of the two proceedings commenced on 10 August 2017 ("the Wilkie proceeding") was commenced by an application for an order to show cause which was subsequently amended. There were three plaintiffs in the Wilkie proceeding. The first was Mr Andrew Wilkie, who is an independent Member of the House of Representatives and who voted against the 2016 Bill. The second was Ms Felicity Marlowe, who is an elector, who lives with her female partner of 17 years and their three young children, and who is a long term advocate for rainbow families (families in which one or more parent or carer is a lesbian, gay, bisexual, transgender, intersex or queer person). The third was PFLAG Brisbane Inc, an association incorporated under the Associations Incorporation Act 1981 (Q), which is comprised of individuals who are parents and friends of gay and lesbian people, which includes amongst its objects "to support the full human rights and civil rights of people who are lesbian and gay and their families" and which in practice advocates on issues of human rights and equality in law for gay and lesbian people.
The defendants in the Wilkie proceeding were the Commonwealth of Australia, the Finance Minister, the Treasurer, the Australian Statistician and the Electoral Commissioner.
By their amended application for an order to show cause, the plaintiffs in the Wilkie proceeding sought declarations and injunctions directed to each defendant. They also sought writs of prohibition directed to the Australian Statistician, prohibiting him from expending the amount in the Finance Determination and from carrying out the Statistics Direction, and directed to the Electoral Commissioner, prohibiting him from providing goods or services to the Australian Statistician in respect of the Statistics Direction.
The grounds on which the plaintiffs in the Wilkie proceeding sought that relief were: that s 10 of Appropriation Act No 1 2017-2018 is invalid, or alternatively that the Finance Determination was not authorised by that section; that the Statistics Direction was not authorised by s 9(1)(b) of the Statistics Act; and that the AEC was not authorised by s 7A of the Electoral Act to assist the ABS in the implementation of the Statistics Direction. A further ground to the effect that s 9(1)(b) of the Statistics Act exceeded the legislative power of Parliament under s 51(xi) of the Constitution if and to the extent that s 9(1)(b) authorised the Statistics Direction was raised in the amended application but was not pressed at the hearing.
The second of the two proceedings commenced on 10 August 2017 ("the AME proceeding") was commenced by writ of summons accompanied by a statement of claim. There were two plaintiffs in the AME proceeding. The first was Australian Marriage Equality Ltd, which is a company limited by guarantee and a charity registered under the Australian Charities and Not-for-profits Commission Act 2012 (Cth), and which since its formation in 2004 has been advocating for the legalisation of marriage between consenting adults irrespective of gender. The second was Senator Janet Rice, who is a Senator for the State of Victoria and a member of the Australian Greens and who is co-convenor of the Parliamentary Friendship Group for LGBTIQ Australians and the Greens spokesperson for LGBTIQ issues.
The defendants in the AME proceeding were the Finance Minister and the Australian Statistician. The Attorney-General of the Commonwealth intervened under s 78A of the Judiciary Act 1903 (Cth).
By their writ of summons, the plaintiffs in the AME proceeding sought declarations and injunctions directed to both defendants. The sole ground on which they sought that relief was that the Finance Determination was not authorised by s 10 of Appropriation Act No 1 2017-2018. The arguments on which they relied in support of that ground overlapped with, and in some respects went beyond, the arguments of the plaintiffs in the Wilkie proceeding.
On 17 August 2017, Kiefel CJ ordered that the amended application for an order to show cause in the Wilkie proceeding be referred for consideration by the Full Court. Four days later, her Honour ordered by consent that a special case filed by the plaintiffs and the Finance Minister in the AME proceeding also be referred to the Full Court for hearing. The questions of law which the plaintiffs and the Finance Minister by the special case agreed in stating for the opinion of the Full Court, in the form to which they were amended and answered by the Full Court on 7 September 2017, are set out at the conclusion of these reasons.
Standing
Stated as the first question for the opinion of the Full Court in the special case in the AME proceeding and strongly contested by the defendants in the course of the hearing of both the Wilkie proceeding and the AME proceeding was the standing of the plaintiffs or any of them to seek all or any of the relief they claimed. The contest as to standing gave rise to a number of significant issues. Not least of them was the nature and scope of the constitutional writ of prohibition[36], the sufficiency of the interest of a Senator or Member of the House of Representatives in the performance of his or her parliamentary responsibilities to seek declaratory and injunctive relief to prevent an alleged contravention by the Government of s 83 of the Constitution[37], and the relevance to standing to seek the relief claimed of conceptions of public interest[38]. No doubt because of the speed with which the proceedings came to be heard, none of those issues was adequately explored in argument.
[36]Cf R v Wright; Ex parte Waterside Workers' Federation of Australia (1955) 93 CLR 528 at 541-542; [1955] HCA 35; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 101-104 [43]-[45], 140-142 [162]-[166]; [2000] HCA 57.
[37]Cf Combet v The Commonwealth (2005) 224 CLR 494 at 556-557 [97], 620 [308]-[309]; [2005] HCA 61.
[38]Cf Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit FundPty Ltd (1998) 194 CLR 247 at 267 [50]; [1998] HCA 49.
Notwithstanding statements which have linked the need for standing to the need for a "matter" founding jurisdiction[39], the High Court has not in practice insisted on determining standing always as a threshold issue but has treated itself as having discretion in an appropriate case to proceed immediately to an examination of the merits[40]. A notable instance of that occurring in a context not dissimilar to the present was Combet v The Commonwealth[41]. There the Full Court, by majority, answered a question reserved for its opinion to the effect that the plaintiffs had not established a basis for any of the relief they sought, whilst stating that it was unnecessary to answer a preceding question reserved which asked whether the plaintiffs or either of them had standing to seek that relief[42]. No argument was put that the approach taken by the majority in Combet was wrong or was unavailable to be taken in the Wilkie proceeding or the AME proceeding.
[39]Eg Croome v Tasmania (1997) 191 CLR 119 at 126-127; [1997] HCA 5; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at 35 [50]-[51], 68 [152], 98-99 [271]-[273]; [2009] HCA 23.
[40]See Robinson v Western Australian Museum (1977) 138 CLR 283 at 302-303; [1977] HCA 46; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 38; [1981] HCA 50.
[41](2005) 224 CLR 494.
[42](2005) 224 CLR 494 at 625-626, questions (1) and (3). See (2005) 224 CLR 494 at 531 [31], 560 [111].
The merits of the grounds relied on by the plaintiffs in the Wilkie proceeding and the AME proceeding having been fully argued and the Court having unanimously reached the conclusion that those grounds were demonstrably without substance, it was similarly unnecessary to determine whether the plaintiffs in those proceedings or any of them had standing in order to reject their claims for relief. Indeed, the inadequacy of the argument on standing made it inappropriate in the circumstances to address standing.
Leaving standing therefore entirely to one side, and moving directly to the merits of the grounds relied upon by the plaintiffs in each proceeding, it is most efficient to isolate and address the various strands of the plaintiffs' arguments in the course of considering in turn: the validity of s 10 of Appropriation Act No 1 2017-2018, the construction of that section, the validity of the Finance Determination, the validity of the Statistics Direction, and the authority of the AEC to assist the ABS in the implementation of the Statistics Direction.
The validity of s 10 of Appropriation Act No 1 2017-2018
Section 81 of the Constitution provides that "[a]ll revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution". Section 83 provides that "[n]o money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law".
Sections 81 and 83 together give expression to the foundational principle of representative and responsible government "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"[43]. The sections also prescribe the form of the requisite parliamentary authorisation: it must be by "law". They thereby combine to exclude from the scheme of the Constitution "the once popular doctrine that money might become legally available for the service of Government upon the mere votes of supply by the Lower House"[44].
[43]Brown v West (1990) 169 CLR 195 at 205, 208; [1990] HCA 7, quoting Auckland Harbour Board v The King [1924] AC 318 at 326. See also The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 at 449; [1922] HCA 62; The Commonwealth v Colonial Ammunition Co Ltd (1924) 34 CLR 198 at 224; [1924] HCA 5.
[44]Harrison Moore, The Constitution of the Commonwealth of Australia, 2nd ed (1910) at 522-523.
Sections 53, 54 and 56 of the Constitution speak in that context to the manner of enactment of a proposed law for the appropriation of revenue or moneys. Section 56 provides that a proposed law for the appropriation of revenue or moneys "shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor-General to the House in which the proposal originated". Section 53 relevantly provides that a proposed law appropriating revenue or moneys "shall not originate in the Senate" and that the Senate may not amend "proposed laws appropriating revenue or moneys for the ordinary annual services of the Government". Section 54 speaks to the potential for the House of Representatives to take advantage of s 53's limitation on the Senate's power to amend by providing that "[t]he proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation".
Each of ss 53, 54 and 56 of the Constitution is a "procedural provision governing the intra-mural activities of the Parliament" in respect of which "this Court does not interfere". A failure to comply with any one or more of them "is not contemporaneously justiciable and does not give rise to invalidity of the resulting Act when it has been passed by the two Houses of the Parliament and has received the royal assent"[45].
[45]Northern Suburbs General Cemetery Reserve Trust v The Commonwealth (1993) 176 CLR 555 at 578; [1993] HCA 12; Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 482; [1995] HCA 47; Permanent Trustee Australia Ltd v Commissioner of State Revenue (Vict) (2004) 220 CLR 388 at 409 [41]; [2004] HCA 53; Combet v The Commonwealth (2005) 224 CLR 494 at 570 [141].
The procedure set out in ss 53, 54 and 56 for the enactment of a proposed law for the appropriation of revenue or moneys is nevertheless relevant, and important, to understanding the practice of Parliament which provides context for the construction of Appropriation Act No 1 2017-2018. Appropriations by law are in practice either "special appropriations" (one category of special appropriations being "standing appropriations") or "annual appropriations" (pertaining to a fiscal year which runs from 1 July to 30 June)[46].
[46]Wright (ed), House of Representatives Practice, 6th ed (2012) at 423, 428.
Since 1901, Bills for annual appropriations have in practice been introduced by the Treasurer in the House of Representatives, preceded by a message from the Governor-General, in two principal sets: Appropriation Bills Nos 1 and 2 (which, together now with an Appropriation (Parliamentary Departments) Bill (No 1) and accompanying statements, are typically referred to as the "budget") and Appropriation Bills Nos 3 and 4 (which, together now with an Appropriation (Parliamentary Departments) Bill (No 2), are typically referred to as "additional estimates")[47].
[47]Wright (ed), House of Representatives Practice, 6th ed (2012) at 428-430.
Drawing distinctions important for the purposes of ss 53 and 54 of the Constitution, each of Appropriation Bills Nos 1 and 3 was until 1999 typically designated in its long title as a Bill for an Act to appropriate money out of the Consolidated Revenue Fund "for the service of the year ending on 30 June", whereas each of Appropriation Bills Nos 2 and 4 was typically designated in its long title as a Bill for an Act to appropriate money out of the Consolidated Revenue Fund "for certain expenditure". Since 2000, whilst the long titles of Appropriation Bills Nos 2 and 4 have remained the same, the long titles of Appropriation Bills Nos 1 and 3 have explicitly adopted the language of ss 53 and 54 of the Constitution in describing each of them as a Bill for an Act to appropriate money out of the Consolidated Revenue Fund "for the ordinary annual services of the Government".
Since 1994, Appropriation Bills Nos 1 and 2 have been introduced in May[48], eliminating the need for the earlier practice of interim appropriations for the fiscal year commencing 1 July being made through the introduction and enactment of Supply Bills[49]. Appropriation Bills Nos 3 and 4 are now generally introduced between October and February[50]. Additional pairs of Appropriation Bills, in the form of Appropriation Bills Nos 5 and 6, have sometimes been introduced after the enactment of Appropriation Bills Nos 3 and 4 during the same fiscal year but such additional Appropriation Bills are less common[51].
[48]Wright (ed), House of Representatives Practice, 6th ed (2012) at 428 fn 58.
[49]Wright (ed), House of Representatives Practice, 6th ed (2012) at 437.
[50]Wright (ed), House of Representatives Practice, 6th ed (2012) at 428 fn 60.
[51]Wright (ed), House of Representatives Practice, 6th ed (2012) at 436.
Other Appropriation Bills have sometimes been introduced within a fiscal year outside the normal sequence of paired Bills for annual appropriations[52]. The parties have pointed to 16 occasions since 2000 on which Parliament enacted Appropriation Acts which appropriated specific amounts of money for expenditure by Commonwealth entities in addition to amounts appropriated in ordinary annual Appropriation Acts. Some of those Appropriation Acts were designated by their long titles as Acts to appropriate money, or additional money, out of the Consolidated Revenue Fund "for the ordinary annual services of the Government"[53]; some were not[54].
[52]Wright (ed), House of Representatives Practice, 6th ed (2012) at 436.
[53]Eg Appropriation (Tsunami Financial Assistance) Act 2004-2005 (Cth); Appropriation (Drought and Equine Influenza Assistance) Act (No 1) 2007-2008 (Cth).
[54]Eg Appropriation (Economic Security Strategy) Act (No 2) 2008-2009 (Cth); Appropriation (Water Entitlements) Act 2009-2010 (Cth).
Whether a particular appropriation can be characterised as special or annual, and whether or not an annual appropriation is for the ordinary annual services of the Government, that appropriation can only be for a purpose which Parliament has determined. The need for such a determination of purpose is reflected in the language of ss 56 and 81 of the Constitution and is inherent in the nature of an appropriation[55]:
"'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."
[55]Brown v West (1990) 169 CLR 195 at 208 (emphasis added), quoting The State of New South Wales v The Commonwealth (1908) 7 CLR 179 at 200; [1908] HCA 68. See also Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at 44 [79], 72 [176], 104 [292].
Together with the prohibition in s 83 of the Constitution, the requirement for an appropriation to be for a legislatively determined purpose results in an appropriation serving a dual function[56]:
"Not only does it authorize the Crown to withdraw moneys from the Treasury, it 'restrict(s) the expenditure to the particular purpose', as Isaacs and Rich JJ observed in The Commonwealth v Colonial Ammunition Co Ltd."
[56]Brown v West (1990) 169 CLR 195 at 208, quoting Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 392; [1975] HCA 52 (footnote omitted).
"[T]here cannot be appropriations in blank, appropriations for no designated purpose, merely authorizing expenditure with no reference to purpose"[57], just as "[t]here can be no appropriation in gross, authorizing the withdrawal of whatever sum the Executive Government may decide in the exercise of an unfettered discretion"[58]. An appropriation must always be for a purpose identified by the Parliament, albeit that "[i]t is for the Parliament to identify the degree of specificity with which the purpose of an appropriation is identified"[59].
[57]Brown v West (1990) 169 CLR 195 at 208, quoting Attorney-General (Vict) v The Commonwealth (1945) 71 CLR 237 at 253; [1945] HCA 30.
[58]Northern Suburbs General Cemetery Reserve Trust v The Commonwealth (1993) 176 CLR 555 at 582.
[59]Combet v The Commonwealth (2005) 224 CLR 494 at 577 [160].
The plaintiffs in the Wilkie proceeding argued that, in enacting s 10 of Appropriation Act No 1 2017-2018, Parliament transgressed that constitutional limitation, abdicated its legislative responsibility and impermissibly delegated its power of appropriation to the Finance Minister. To appreciate how the argument was put, regard must be had to the history of inclusion within Appropriation Acts No 1 of Advances to the Finance Minister and, before then, of Advances to the Treasurer.
The history starts with the first Act ever enacted by Parliament. Its long title was "[a]n Act to grant and apply out of the Consolidated Revenue Fund [a specified total amount of money] to the service of the period ending [30 June 1901]". Section 1 authorised that specified total amount of money to be "issued and applied" out of the Consolidated Revenue Fund "for the purposes and services expressed in the Schedule to this Act". The Schedule then broke down the specified total into designated "heads" of expenditure arranged by Ministerial portfolio. The last of those heads of expenditure, representing approximately 2 per cent of the specified total, was designated "Advance to Treasurer" and was explained in the Schedule as being "[t]o enable the Treasurer to make Advances to Public Officers, and to Pay Expenses of an unforeseen nature, which will afterwards be submitted for Parliamentary Appropriation". That Act set the pattern of including within the total amount appropriated by each annual Appropriation Act a specific amount designated as the Advance to the Treasurer. The pattern was followed in subsequent years.
In 1906, the Audit Act 1901 (Cth) ("the Audit Act") was amended to include s 36A[60], which provided:
"Expenditure in excess of specific appropriation or not specifically provided for by appropriation may be charged to such heads as the Treasurer may direct provided that the total expenditure so charged in any financial year, after deduction of amounts of repayments and transfers to heads for which specific appropriation exists, shall not exceed the amount appropriated for that year under the head 'Advance to the Treasurer.'"
[60]Section 8 of the Audit Act 1906 (Cth).
Section 36A was accurately described at the time of its introduction as a "bookkeeping matter"[61]. The section provided no authority for the Treasurer to withdraw unappropriated money from the Consolidated Revenue Fund. What it did was to permit the Treasurer to authorise the debiting, to other heads of expenditure, of amounts issued from the Consolidated Revenue Fund under the authority of the Advance to the Treasurer for which provision was routinely made in each annual Appropriation Act.
[61]Australia, House of Representatives, Parliamentary Debates (Hansard), 31 July 1906 at 2068.
Except that s 36A of the Audit Act was amended in 1961 to add "at any time" before "exceed"[62] and in 1979 to replace "Advance to the Treasurer" with "Advance to the Minister for Finance"[63] (following the establishment in 1976 of the office of the Finance Minister and with it the creation of the Department of Finance), the section remained substantively in its original form until the repeal of the Audit Act. The repeal of the Audit Act occurred on the commencement of the Financial Management and Accountability Act 1997 (Cth)[64], as part of the transition to full accrual accounting which was introduced with the budget which led to the enactment of Appropriation Act (No 1) 1999-2000 (Cth) ("Appropriation Act No 1 1999-2000").
[62]Section 9 of the Audit Act 1961 (Cth).
[63]Audit Amendment Act 1979 (Cth).
[64]Audit (Transitional and Miscellaneous) Amendment Act 1997 (Cth).
From 1901, and throughout the period in which s 36A of the Audit Act was in force, the practice was for amounts issued from the Consolidated Revenue Fund under the authority of the Advance to the Treasurer contained in an Appropriation Act No 1 ordinarily to be recouped in the same fiscal year in an Appropriation Act No 3[65].
[65]Australia, Senate Standing Committee on Finance and Government Operations, Advance to the Minister for Finance, Parliamentary Paper No 217/1979, (1979) at 9-10 [1.16]-[1.17].
Until 1957, the practice was to include in what were called "supplementary estimates" amounts issued from the Consolidated Revenue Fund under the authority of the Advance to the Treasurer which had not been so recouped. The supplementary estimates were then enacted as a further appropriation in the next fiscal year. Supplementary estimates were abandoned in 1957, when they were replaced by a requirement for particulars of amounts remaining a charge to the Advance to the Finance Minister to be tabled in the Parliament, where they were available to be examined by the Joint Committee of Public Accounts established under the Public Accounts Committee Act 1951 (Cth)[66].
[66]Australia, Parliament, Joint Committee of Public Accounts, Advance to the Minister for Finance, Report No 289, (1988) at 3 [1.11]-[1.12].
By 1979, the Advance to the Finance Minister had accordingly come routinely to be expressed in the relevant Schedule to an Appropriation Act No 1 as being, relevantly, to enable the Finance Minister "to make advances that will be recovered during the financial year, in respect of expenditure that is expenditure for the ordinary annual services of the Government; and ... to make moneys available for expenditure, being expenditure for the ordinary annual services of the Government ... particulars of which will afterwards be submitted to the Parliament"[67].
[67]Appropriation Act (No 1) 1978-79 (Cth).
The manner in which the Advance to the Finance Minister was expressed in the relevant Schedule to an Appropriation Act No 1 changed in 1981 following the partial adoption in that year by the Government of recommendations made in a report of the Senate Standing Committee on Finance and Government Operations in 1979[68]. To the extent that it is now relevant, the standard expression thereafter became[69]:
[68]Australia, Senate Standing Committee on Finance and Government Operations, Advance to the Minister for Finance, Parliamentary Paper No 217/1979, (1979) at 24-25 [2.27], 31 [3.1(1)].
[69]Eg Sched 3 to the Appropriation Act (No 1) 1987-88 (Cth).
"To enable the Minister for Finance:
(a)to make advances that will be recovered during the financial year, in respect of expenditure that is expenditure for the ordinary annual services of the Government; [and]
(b) to make money available for expenditure:
(i)that the Minister for Finance is satisfied is expenditure that:
(A)is urgently required; and
(B)was unforeseen until after the last day on which it was practicable to include appropriation for that expenditure in the Bill for this Act before the introduction of that Bill into the House of Representatives; and
(ii)particulars of which will afterwards be submitted to the Parliament;
being expenditure for the ordinary annual services of the Government; ..."
With the enactment of Appropriation Act No 1 1999-2000, an Appropriation Act No 1 first took substantially the form now seen in Appropriation Act No 1 2017-2018. What had been "heads" of expenditure in a Schedule to previous Appropriation Acts No 1 were replaced by "items" in a Schedule to Appropriation Act No 1 1999-2000; the total of the items specified in the Schedule was stated in the body of the Act; the Advance to the Finance Minister was taken out of the Schedule and placed in the body of the Act; and the body of the Act concluded with a section which simply stated that "[t]he Consolidated Revenue Fund is appropriated as necessary for the purposes of this Act".
The process of reasoning disclosed by the Finance Minister involved no error of law. The conclusion he reached through that process of reasoning has not been demonstrated to have been beyond the bounds of legal reasonableness.
The validity of the Statistics Direction
The Statistics Direction, it will be recalled, directed the Australian Statistician to collect, in relation to specified matters prescribed in specified items in the table in s 13 of the Statistics Regulation, "statistical information" about the proportion of electors who wish to express a view about whether the law should be changed to allow same-sex couples to marry and about the proportion of those electors who are respectively in favour of and against the law being changed to allow same-sex couples to marry.
The plaintiffs in the Wilkie proceeding argued that the Statistics Direction exceeded the power of the Treasurer under s 9(1)(b) of the Statistics Act, by notice in writing, to direct the Australian Statistician to "collect such statistical information in relation to [prescribed matters] as is specified in the notice", for three main reasons.
First, it was said that the information to be collected did not truly answer the statutory description of statistical information. Next, it was said that the information to be collected was not truly "in relation to" specified matters prescribed in specified items in the table in s 13 of the Statistics Regulation. Lastly, it was said that the power to direct the Australian Statistician to collect such statistical information in relation to prescribed matters as is specified in a notice did not permit the Treasurer to specify from whom the information was to be collected.
The first of those arguments itself had two quite distinct strands. One strand of the argument sought to draw a dichotomy between a "vote" or a "plebiscite", on the one hand, and the collection of "statistical information", on the other. The dichotomy is false. The only legally relevant question is whether the Statistics Direction directed the collection of "statistical information". What it directed might well also be described as a "vote" or a "plebiscite". That, or any other, alternative characterisation is irrelevant to its validity.
The other strand of the first argument was refined in oral submissions to gossamer. That remaining strand sought to confine the reference to "statistical information" in the Statistics Act so as to exclude information about personal opinion or belief. It was not put, nor could it realistically be put, that the exclusion was by reason of some limitation inherent in the term "statistics" as understood in 1905, when the Statistics Act was enacted, or as understood now.
What was argued was that the historical record contains no indication of a colonial practice of collecting information about personal beliefs or opinions, and that the parliamentary debates which preceded the enactment of the Statistics Act reveal a focus on the collection of information about "objective matters". Attention was drawn to the existence within the Statistics Act as enacted of a provision to the effect that "[n]o person shall be liable to any penalty for omitting or refusing to state the religious denomination or sect to which he belongs or adheres"[96]. The current functional equivalent is a provision which excludes criminal liability "in relation to a person's failure to answer a question, or to supply particulars, relating to the person's religious beliefs"[97]. That was the "exception", it was said, which proved the "rule".
[96]Section 21 of the Statistics Act (as enacted).
[97]Section 14(3) of the Statistics Act (as currently in force).
The argument went close to inviting the Court to give effect to a sentiment which was asserted, but by no means demonstrated, to be capable of being inferred to have existed at the time of enactment of the Statistics Act as distinct from giving meaning to its enacted, frequently amended and continuously speaking text. The Court, apparently, was to ignore the fact that the ABS had in practice collected a wide range of data concerning opinions and beliefs in the administration of the Statistics Act since at least the 1960s[98].
[98]See generally Australian Bureau of Statistics, Informing a Nation: The Evolution of the Australian Bureau of Statistics 1905-2005, (2005).
Against the background of the principle of construction, articulated in the year of enactment of the Statistics Act, that statutory language is not lightly to be treated as "superfluous, void or insignificant"[99], the original and continuing existence within the Statistics Act of a statutory exclusion for collection under compulsion of information about religious belief can indeed be treated as an exception which proves a rule. The rule which the exception proves is that information about personal opinion or belief, including information as to the proportion of persons holding a particular opinion or belief, is and always has been "statistical information".
[99]The Commonwealth v Baume (1905) 2 CLR 405 at 414; [1905] HCA 11, quoted in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71]; [1998] HCA 28.
The argument that information about views on whether the law should be changed to allow same-sex couples to marry was not "in relation to" any of the matters prescribed in the items in the table in s 13 of the Statistics Regulation specified in the Statistics Direction was equally untenable. The context of the Statistics Act provides no justification for reading "in relation to" as requiring anything more than the existence of a relationship, whether direct or indirect, between the information to be collected and the subject-matter prescribed[100]. The information to be collected was plainly "in relation to" each of the subject-matters referred to in the items in the table in s 13 of the Statistics Regulation as "marriages", "Law" and "the social … characteristics of the population".
[100]Cf O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 374, 376; [1990] HCA 16.
As to the remaining argument concerning the validity of the Statistics Direction, it is sufficient to state that there is nothing in the subject-matter, scope or purpose of the Treasurer's power of direction under s 9(1)(b) of the Statistics Act to exclude specification of a target population.
The authority of the AEC
The challenge of the plaintiffs in the Wilkie proceeding to the authority of the AEC to assist the ABS in the implementation of the Statistics Direction was founded on the proposition that s 7A of the Electoral Act, in empowering the AEC to make "arrangements for the supply of goods or services", confers a "power" on the AEC which is incapable of being exercised outside the "functions" of the AEC identified in s 7 of the Electoral Act. Those functions, it was said, do not extend to allowing the AEC to have a role in a postal survey.
The distinction between "functions" and "powers", often drawn in Commonwealth legislation, is not rigid and is not rigidly maintained in the Electoral Act. The reconciliation of ss 7 and 7A of the Electoral Act lies in recognising that making and honouring arrangements under s 7A is itself one of the functions of the AEC identified compendiously in s 7(1)(a) of the Electoral Act.
Conclusion
Accordingly, the order in the Wilkie proceeding was to the effect that the amended application for an order to show cause be dismissed with costs, and the order in the AME proceeding was that the questions stated by the special case for the opinion of the Full Court be amended and answered as follows:
1.Do either of the plaintiffs have standing to seek the relief sought in the Amended Statement of Claim?
Answer: Inappropriate to answer.
2.Is the Advance to the Finance Minister Determination (No 1 of 2017-2018) (Cth) ("the Determination") invalid by reason that the criterion in s 10(1)(b) of the Appropriation Act (No 1) 2017-2018 (Cth) ("the 2017-2018 Act") was not met such that the Finance Minister's power to issue the Determination was not enlivened?
Answer: No, it is not invalid.
3.(a) Does question 3(b) raise an issue which is justiciable by a court and within the scope of any matter which the Court has authority to decide?
(b)If the answer to question 3(a) is yes, is the Determination invalid by reason that:
(i)on its proper construction, s 10 of the 2017-2018 Act does not authorise the Finance Minister to make a determination, the effect of which is that the 2017‑2018 Act takes effect as if Schedule 1 thereto were amended to make provision for expenditure that is outside the ordinary annual services of the Government; and
(ii)the expenditure on the ABS Activity (being the activity described in the Census and Statistics (Statistical Information) Direction 2017 (Cth)) is not within the meaning of "ordinary annual services of the Government"?
Answer:
(a)The proper construction of s 10 of the 2017-2018 Act is justiciable.
(b)No. Section 10, on its proper construction, did authorise the Finance Minister to make the Determination.
4. If the answer to question 2 or question 3(b) is yes:
(a)does question 4(b) raise an issue which is justiciable by a court and within the scope of any matter which the Court has authority to decide?
(b)if the answer to question 4(a) is yes, would the drawing of money from the Treasury of the Commonwealth for the ABS Activity in reliance on the appropriation for the departmental item for the [Australian Bureau of Statistics] in the 2017-2018 Act be unauthorised by the 2017-2018 Act on the basis that the expenditure is not within the meaning of "ordinary annual services of the Government"?
Answer: The question does not arise.
5.What, if any, relief sought in the Amended Statement of Claim should the plaintiffs be granted?
Answer: None.
6. Who should pay the costs of this special case?
Answer:The plaintiffs should pay the costs of the special case.
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