Wilkie v The Commonwealth

Case [2017] HCA 40

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

Matter No M105/2017

ANDREW DAMIEN WILKIE & ORS   PLAINTIFFS

AND

THE COMMONWEALTH OF AUSTRALIA & ORS               DEFENDANTS

Matter No M106/2017

AUSTRALIAN MARRIAGE EQUALITY LTD &
ANOR   PLAINTIFFS

AND

MINISTER FOR FINANCE MATHIAS CORMANN
& ANOR  DEFENDANTS

Wilkie 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 2017

M105/2017 & 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…

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Wilkie v The Commonwealth [2017] HCA 40
Case
[2017] HCA 40
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the validity of an appropriation of moneys from the Consolidated Revenue Fund to fund a postal survey on same-sex marriage. The plaintiffs, including a Member of Parliament, a Senator, and an elector, sought declarations and injunctions to prevent the expenditure. The dispute centred on the construction and application of section 10 of the *Appropriation Act (No 1) 2017-2018* (Cth), which provided for an "Advance to the Finance Minister," and the validity of a direction issued by the Treasurer to the Australian Statistician under the *Census and Statistics Act 1905* (Cth).

The Court was required to determine whether section 10 of the *Appropriation Act (No 1) 2017-2018* was invalid, and consequently, whether the appropriation for the postal survey was lawful. Specifically, the Court had to consider whether the Finance Minister's determination under section 10 was authorised, whether the Minister had satisfied the statutory preconditions for making such a determination, and whether the expenditure for the postal survey fell within the description of "ordinary annual services of the Government" as contemplated by the Act. Additionally, the Court examined whether the Treasurer's direction to the Australian Statistician exceeded the powers conferred by the *Census and Statistics Act 1905* and its Regulations.

The Court reasoned that the power granted to the Finance Minister under section 10 of the *Appropriation Act (No 1) 2017-2018* was a broad one, allowing for expenditure for urgent needs not provided for or insufficiently provided for. The Court found that the Finance Minister's satisfaction as to the urgent need for expenditure was sufficient to enliven the power, and that the expenditure for the postal survey, while perhaps unusual, was not outside the scope of the Act's appropriation for departmental items. The Court also determined that the Treasurer's direction to the Australian Statistician was within the scope of the *Census and Statistics Act 1905*, as the information sought was statistical in nature.

Ultimately, the High Court dismissed the application, finding that the appropriation was valid. The Court held that the Finance Minister's determination was authorised and that the expenditure was permissible under the Act. The Court also found that the Treasurer's direction was valid. Consequently, the plaintiffs were ordered to pay the costs of the defendants.

Orders

Orders of the court

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 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.

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 (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.

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

The question 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

The plaintiffs should pay the costs of the special case.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
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

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

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