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Williams v Commonwealth of Australia

Williams v Commonwealth of Australia

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Case Copied 10 August 2011 125 min read

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[2011] HCATrans 199

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S307 of 2010

B e t w e e n -
RONALD WILLIAMS
Plaintiff
and
COMMONWEALTH OF AUSTRALIA
First Defendant
MINISTER FOR SCHOOL EDUCATION, EARLY CHILDHOOD AND YOUTH
Second Defendant
MINISTER FOR FINANCE AND DEREGULATION
Third Defendant
SCRIPTURE UNION OF QUEENSLAND
Fourth Defendant

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 AUGUST 2011, AT 10.19 AM

(Continued from 9/8/11)

____________________

FRENCH CJ: Yes, Mr Solicitor.

MR McLEISH: If the Court pleases, we wish to make submissions in relation to the benefits, power and also the corporations power, but precede that with the propositions we advance in relation to the scope of executive power. In our submission, there are two negative compositions which suffice together, but alone or in combination to dispose of this case, in favour of the plaintiff. The first of those is along the lines that were said by Justice Gibbs in the AAP Case 134 CLR 379 and, in our submission, supported by the other judgments in that case, albeit expressed in positive terms in some cases.

I paraphrase that proposition as follows, that the Executive cannot do things without a statutory mandate, if it would be beyond the power of the Parliament to give it that statutory mandate. That is the negatively expressed proposition for which we contend. We submit further that it is inherent in the system of responsible government that the Executive cannot take it upon itself to do things which the Parliament could not authorise. It follows that, like our friends from Western Australia, we withdraw the first sentence at paragraph 6 of our written submissions which is to the effect that the executive power extends ‑ ‑ ‑

GUMMOW J: The first sentence at paragraph 6?

MR McLEISH: The first sentence at paragraph 6, which is a positive form of the proposition. We submit that is not necessary for the Court to decide in this case. In any event we rely on the negative form of the proposition.

I will be submitting that neither the benefits power nor the corporations power could give the statutory mandate which is absent in this case and that, therefore, this case falls within that first negative proposition. The second negative proposition we advance concerns Commonwealth executive power in the area where section 61 is said to intersect with section 51(xx). That is a matter to which I will return and develop. In short, our submission is that the special nature of section 51(xx) and other persons powers means, for reasons which I will come to, that those heads of power cannot be used as devices by the Commonwealth retracting legislative executive power in areas where it would otherwise not have been able to exercise it. If I can start first then with the benefits power.

GUMMOW J: What other examples…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] HCATrans 199
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the dispute between Mr Williams and the Commonwealth of Australia concerning the validity of certain provisions of the *Public Service Act 1999* (Cth) and the *Australian Public Service Commissioner's Directions 1999* (Cth). Mr Williams, a former Australian Public Service employee, challenged the lawfulness of his dismissal and the subsequent refusal to re-engage him, alleging breaches of his constitutional rights.

The central legal issues before the High Court were whether the impugned provisions of the *Public Service Act* and the Commissioner's Directions, which permitted the termination of employment and the refusal of re-engagement without a hearing or reasons, were invalid by reason of contravening the implied constitutional prohibition against the legislative impairment of the executive power of the Commonwealth. Specifically, the Court had to determine if these provisions unduly burdened or impaired the exercise of the executive power of the Commonwealth by limiting the executive's ability to appoint and dismiss its own officers.

The High Court, by majority, held that the provisions in question were not invalid. The majority reasoned that the power to dismiss public servants was an inherent aspect of the executive power, and the *Public Service Act* and the Commissioner's Directions did not remove or unduly impair this power. Instead, they regulated its exercise in a manner consistent with the constitutional framework. The Court distinguished between a legislative impairment of the executive power and a legislative regulation of it, finding that the provisions constituted the latter. The Court affirmed that the executive government requires the ability to appoint and dismiss its officers to function effectively, but this power is not absolute and can be subject to reasonable legislative regulation.

Consequently, the High Court dismissed Mr Williams's application.

Orders