Williams v Commonwealth of Australia

[2011] HCATrans 116

[2011] HCATrans 116

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, CHILDHOOD AND YOUTH

Second Defendant

MINISTER FOR FINANCE AND DEREGULATION

Third Defendant

SCRIPTURE UNION QUEENSLAND

Fourth Defendant

Directions hearing

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY AND MELBOURNE

ON MONDAY, 9 MAY 2011, AT 2.00 PM

Copyright in the High Court of Australia

_________________________

MR G.E.S. NG:   May it please the Court, I appear for the plaintiff.  (instructed by Horowitz & Bilinsky)

MR S.J. FREE:   May it please the Court, I appear for the first, second and third defendants.  (instructed by Australian Government Solicitor)

MR R. MERKEL, QC:   If the Court pleases, I appear with my learned friend, MR J.A. THOMSON, for the fourth defendant.  (instructed by Norton Rose Australia)

HIS HONOUR:   Thank you. 

MR NG:   Your Honour will no doubt have seen in the court file ‑ ‑ ‑

HIS HONOUR:   Yes.  Before you get too deeply into that, can you just give me an  understanding of the framework of the arguments which underpin these materials?  You say, do you, first that there is no effective appropriation?

MR NG:   Yes, that is right, your Honour.  We get to that route by construing the various Appropriation Acts the subject of the questions of the back end of the special case by reference to the contemporary parliamentary practice which, on our case, gives content to the expression “the ordinary annual services of the Government” and it is said for the plaintiff ‑ ‑ ‑

HIS HONOUR:   In section 54?

MR NG:   That is correct, your Honour.

HIS HONOUR:   That branch of your case, does that engage the Parliamentary Privileges Act in some way, the preparation of materials and provision of materials?  I think Mr Free had some reservation about that.

MR NG: It might do. Your Honour will note that in the introduction to the special case the last sentence touches upon the questions of parliamentary privilege. However, the position of the plaintiff, and I do not understand the Commonwealth to see matters differently, is that section 16(2) of the Parliamentary Privileges Act 1987 would permit recourse to records of proceedings in Parliament that have been published by either House or by one of their committees in relation to the interpretation of an Act. The position of the plaintiff is that is precisely the territory in which we find ourselves.

HIS HONOUR:   Wait a minute. It is not just the interpretation of the Act. It is the operation of section 54 of the Constitution, is it not?

MR NG: The proposition put on behalf of the plaintiff is this, your Honour, that having regard to section 54, the relevant Appropriation Act should not be construed ‑ ‑ ‑

HIS HONOUR:   All I am trying to put to you, Mr Ng, is they did not have section 54 of a written constitution in 1688 when the Article 9 of the Bill of Rights was laid down. Do you see what I mean?

MR NG: Quite, but section 16 gives an extended operation to that provision in subsection (1) which presumably would cater for the existence in the current setting of the Constitution. It is said on behalf of the plaintiff that having regard to section 54 of the Constitution, the relevant Appropriation Act should not be construed in a way, or should not readily be construed in a way which would permit, in relation to administered expenses, appropriation of funds for new policies in respect of which no appropriations have been made in the past.  So the question, it is submitted, is one squarely of statutory construction engaging section 16(5).

HIS HONOUR:   Yes, all right.  Is there any different view on your side, Mr Free, about this?

MR FREE:   No, your Honour.

HIS HONOUR:   Thank you.  Yes, all right.  That is the first branch of your argument.  What is the second branch?

MR NG: The second branch of the argument goes to the validity of the funding agreement between Scripture Union Queensland and the Commonwealth. The foundation for this argument is that the executive power of the Commonwealth, insofar as it relates to contracts, should be regarded as, in terms of the range of matters to which it may speak, conterminous with the range of matters in respect of which the Constitution confers legislative power upon the Commonwealth. If that proposition is incorrect, then the second branch of the argument fails altogether. If it be accepted, then there is a contest between the parties as to whether or not the contract, the funding agreement, between the Commonwealth and Scripture Union Queensland can be said to be an agreement which falls within that range of matters to which I had just adverted, that is, the range of matters in respect of which the Executive may contract with other parties.

HIS HONOUR:   Yes.  I think Mr Merkel takes the point, the Scripture Union takes the point, that it is a trading corporation and that, secondly, this is a provision for the benefit of the students.  So there is two heads of power, it is said.

MR NG:   Yes, your Honour.

HIS HONOUR:   That is denied, is it, on your side?

MR NG: On my side it is said that there is – the position of my client in relation to the trading corporation point is that the material in the special case does not establish that SUQ is a trading corporation insofar as the benefits for students limb of the position of the defendants is concerned. Addressing that will necessarily involve construction of section 51, I believe it is, (xxxiA) – I might stand corrected – of the Constitution, and it will be submitted, I am anticipating, that on a proper construction of that placitum the sort of matters covered in the funding agreement do not fall within its ambit.

HIS HONOUR:   But assume you are wrong about that on those factual matters, assume that it were trading corporation and assume this activity were the provision of a benefit to students within 51(xxiiiA).

MR NG:   Again I am anticipating somewhat, your Honour, without the benefit of having fully considered all the interstices of these questions, I would say in relation to trading corporations that there is, in my submission, a question as to whether or not the status of a contracting party with the Commonwealth is a trading corporation is a matter that is too fortuitous to bring the relevant contracts within 51(xx) as transposed into the executive power.  So even if SUQ were a trading corporation, there might remain a question as to whether or not that suffices to render valid the funding agreement between it and the Department of Education, Science and Trading.

HIS HONOUR:   Then there is a question, is there, as to what the word “benefit” means in the phrase “benefits to students”?

MR NG:   Yes.  It might well be, your Honour, that that expression is confined, say, to what may be described as social services payments or may embrace benefits more generally.  I understand that will probably be the arena of contest between the parties at hearing.

HIS HONOUR:   Yes, all right.  So that is the two branches of your argument.  Is there a third branch?

MR NG:   There is a third branch.

HIS HONOUR:   The first branch being appropriation, the second branch being executive power, and the third being?

MR NG:   The third being section 116 and in relation to that it is said, your Honour, that the test for who is eligible to be a school chaplain imposes a religious test upon an office or a public trust under the Commonwealth.

HIS HONOUR:   Annexure 20 I think sets out guidelines and under the heading “School chaplains” it requires recognition, to put it shortly, by the local school and supporting bodies and, secondly, it requires:

formal ordination, commissioning, recognised qualifications or endorsement by a recognised or accepted religious institution or a state/territory government approved chaplaincy service. 

So you want to link that back to the notion of “office” in section 116, is that right?

MR NG:   Quite, yes.

HIS HONOUR:   Is there some debate as to what the word “office” means in section 116?

MR NG:   I would be very surprised, your Honour, if there were not and the reason for that is that no school chaplain, and certainly not the school chaplains engaged by Scripture Union Queensland in relation to the Darling Heights Primary School, are relevantly employees of the Commonwealth.  So there will be debate, I anticipate, as to whether the width of the expression “office” may accommodate that situation or whether it is confined to some sort of arrangement of employment or formal public office.

HIS HONOUR:   All right.  That is the three branches, is it not?

MR NG:   Yes, your Honour.

HIS HONOUR:   I think that the Scripture Union were challenging standing, but there is a proposed amended defence which does not challenge standing in relation to the particular year in which your client has children at the school.  Is that the effect of that, Mr Merkel, of that proposed amendment?

MR MERKEL:   Yes, it is, your Honour.

HIS HONOUR:   Yes, thank you.  Does the Commonwealth challenge standing to any degree?

MR FREE:   Only in the sense of challenging the standing to run a particular type of attack on the appropriation and that is that the Commonwealth challenges the plaintiff’s standing to challenge the making of payments on the ground that they are not authorised by an appropriation.  That is not a proposition which goes to his particular position, vis-à-vis other taxpayers.  It is rather about the amenability to challenge of payments on that ground generally.  That is the only respect in which standing is challenged by the Commonwealth.

HIS HONOUR:   Yes, I see.  That is an area that was left, I think, to one side in Combet, was it not?

MR FREE:   Yes, your Honour.

HIS HONOUR:   The challenge in that case failed on other grounds so we did not have to get into this question of challenging appropriations.

MR FREE:   Yes, that is as we would see it, your Honour.

HIS HONOUR:   All right.  I have the draft amended defence of the Scripture Union and draft proposed timetable.  Is there agreement that that is the appropriate timetable?

MR NG:   On the plaintiff’s side, yes.

HIS HONOUR:   Mr Free, obviously I think so.  You generated it I think.

MR FREE:   Yes, your Honour, it is agreed and there is an additional order proposed, I understand, by the Scripture Union which the Commonwealth agrees with.  That is an additional order to deal with any applications for leave to intervene.  That is not addressed in the orders as set out in my submissions of Friday but it would, if your Honour was minded to make such an order, I think slot in between 8 and 9 and the proposal is that on or before 22 July 2011 any applications for leave to intervene to be filed and served on the parties.

HIS HONOUR:   Yes.  It might be best to leave that a little later for this reason, that the utility of interventions to a degree depends on whether they are going to add anything that is not already there in terms of arguments.

MR FREE:   Yes, your Honour.

HIS HONOUR:   So if they have seen the submissions in their completed form, they can trim their application for intervention accordingly I suppose.  Do you see what I mean?

MR FREE:   Yes, I agree with that, your Honour.

HIS HONOUR:   As to interventions by the Attorneys, is there any indication of that that you have had?

MR FREE:   I think we are aware of Victoria and Queensland notifying their intention to intervene, your Honour, and nothing beyond that.

HIS HONOUR:   In support of the Commonwealth?

MR FREE:   In support of the Commonwealth, yes, your Honour. 

HIS HONOUR:   All right.

MR FREE:   I am sorry.  I have just been corrected, your Honour.  In relation to Victoria, we are not sure of their position, but otherwise in support of the Commonwealth, yes.

HIS HONOUR:   Thank you.  Just pardon me a minute.

MR FREE:   Yes, your Honour.

HIS HONOUR:   At the moment we are proposing to list this for 9, 10 and 11 August 2011.  That may need pushing back these dates a little.  Is there anything more that any of the parties want to say?

MR MERKEL:   Your Honour, we had a concern we had expressed about the form of question 3 at page 35 of the special case.  We had suggested to the parties that the words in parentheses were inappropriate and added nothing but may suggest to the Court that even if the agreement is within the executive power, there was a legal basis for seeking to say it was not authorised by the Appropriation Act.  We have a non‑justiciability in relation to that and it just seemed to us that those words appeared to be inconsistent with some of the submissions we would wish to put and given the Commonwealth’s position on standing, it may be inconsistent with their position and we thought it was inappropriate for a question to be framed in that way and the deletion of those words in no way inhibits the Court in answering the question in any event.  So we had suggested that those words be deleted, but we indicated we would leave that to your Honour and if your Honour was happy with them in, we would not take any objection to it.

HIS HONOUR:   Yes.  Let me just ask Mr Free.  Is there any reason why they have to be there?

MR FREE:   Not for our part, your Honour.  The Commonwealth takes no view either way.

HIS HONOUR:   Right.  What about the plaintiff?

MR NG:   Your Honour, those words had originally been inserted solely for the purpose of providing some clarification in relation to the relationship between questions 2 and 3.  The plaintiff’s position is that if question 2 were answered unfavourably to him, nonetheless question 3 remains live and may provide a basis for the grant of relief.  I appreciate what Mr Merkel says concerning the proposition that those words are surplusage, and in one sense they are, and for my own part I am not wedded to them.

HIS HONOUR:   The Full Court will have available today’s transcript, so the intent will be clear enough I think if they are taken out now.

MR NG:   Yes, your Honour.

HIS HONOUR:   Linguistically they look a bit peculiar.  I do not think you will be shut out of any argument by taking them out. 

MR NG:   Yes, your Honour.

HIS HONOUR:   What I propose is that the Court orders:

1.The fourth defendant have leave to file and serve an amended defence in the form of the draft filed in Court on 9 May 2011.

2.The style of the second defendant be changed to “Minister for School Education, Early Childhood and Youth”.

Who is going to actually have the conduct of the filing?

MR FREE:   I think the Commonwealth will, your Honour.  It is the first, second and third defendants.

HIS HONOUR:   Yes.

3.Upon the first, second and third defendants filing on or before 18 May 2011 the agreed special case signed by the legal representatives of the parties, then:

(a)The special case be referred for the opinion of the Full Court.

(b)The special case book be filed by the first, second and third defendants on or before 27 May 2011.

(c)The plaintiff file and serve his written submissions on or before 24 June 2011.

(d)The defendants file and serve their respective written submissions on or before 11 July 2011.

(e)The plaintiff file and serve any written submissions in reply on or before 18 July 2011.

(f)Any application for intervention, including draft proposed submissions, be filed and served on or before 29 July 2011.

(g)Any interveners file and serve written submissions within seven days of the date on which submissions by the party in support of whom the intervention is to be made are filed.

(h)The plaintiff file written submissions in reply to the submissions of any of the interveners in support of the defendants within seven days of the filing of the interveners’ submissions.

4.Costs of today be costs of the special case.

The Court notes that it presently is proposed that the special case be listed for hearing on 9, 10 and 11 August 2011.  Do you all have a note of that?

MR FREE:   Yes, your Honour.

MR MERKEL:   I was not sure of the date in (e), your Honour, the plaintiff’s reply.

HIS HONOUR:   Date in (e)?

MR MERKEL:   Yes, I think it was the plaintiff’s reply date.

HIS HONOUR:   The plaintiff’s reply, 18 July 2011.

MR MERKEL:   I think that may be intended to be 28 July 2011, would it be, your Honour?  I think the defendants’ submissions were 20 July 2011, so I thought something may have gone wrong with that date.

HIS HONOUR:   No.  The plaintiff files his written submissions on or before 24 June 2011, defendants on or before 11 July 2011.

MR MERKEL:   I am sorry.  I had missed that, your Honour.

HIS HONOUR:   I pushed the date back a bit so that we have enough time to read it all.  Defendants on or before 11 July 2011.  Plaintiff file and serve written submissions in reply on or before 18 July 2011 and then any application for intervention on or before 29 July 2011.

MR MERKEL:   Thank you, your Honour.

HIS HONOUR:   I think I should add an order 5, liberty to apply to a Justice on, what, three days notice?  Something may blow up.

MR NG:   Yes, that is convenient, your Honour.

HIS HONOUR:   Yes.

5.Liberty to apply to a Justice on three days written notice.

Very well.  Thank you, gentlemen.  I will now adjourn.

AT 2.26 PM THE MATTER WAS ADJOURNED