Williams v Commonwealth of Australia and Ors

[2014] HCATrans 95

[2014] HCATrans 095

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S154 of 2013

B e t w e e n -

RONALD WILLIAMS

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Respondent

MINISTER FOR EDUCATION

Second Respondent

SCRIPTURE UNION QUEENSLAND

Third Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 MAY 2014, AT 10.00 AM

(Continued from 8/05/14)

Copyright in the High Court of Australia

____________________

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   May it please your Honours.  The holdings in Pape to which I referred in opening the reply yesterday are, in our submission, such as to justify utterly and without need of qualification the accuracy of the last part of the headnote prepared by the editors, to which I draw attention just after halfway down on page 3 of 238 CLR.  The holdings themselves to which we specifically draw attention may be listed as follows; in the Chief Justice’s reasons at page 23 in paragraph 8, proposition 5, and in particular the specific focus for my argument today is the third sentence of proposition 5.  That, in our submission, simply leaves no room for the arguments to which I am now replying.

If I could then go, in the reasons of Justices Gummow, Crennan and Bell, to the passage that starts with paragraph 176 on page 72, and in particular the second last sentence of paragraph 176.  That too leaves no room for the submissions to which I am replying.  In the same reasons, one could also see in paragraph 197 on page 78 an important reference to “the conclusion” in the, with respect, pithy formulation denying to section 81:

the character of a legislative “spending power”. 

I draw to attention, while at that paragraph for purposes of a later part of my reply, to the consequence of the high level of generality that one typically, since Federation indeed, has found in items of appropriation, certainly in Appropriation Acts, and in particular then providing an insufficient textural basis for the determination of issues of constitutional fact. 

There said, in particular, by reference to section 81 and the argument to which I am now addressing reply but I flag that that is going to be very important when it comes to a consideration of what might be called, with respect, a motley mixture of material, ultimately literally inconclusive: not permitting of conclusion, which you find in and annexed to the special case for the purposes of the 51(xxiiiA) determination with which I will be concluding.  The next passage for the question of the authority of Pape standing in the way of the arguments us, could I take your Honours to paragraph 283 in the reasons of Justices Hayne and Kiefel at page 100 and 101.

That also serves a double purpose when I come to the reply in relation to the argument of the dual function served by section 8 of the Appropriation Act (No 1) in this case, put against us by the Commonwealth.  We will of course be drawing to attention the reasoning in paragraph 283 and respectfully adopting and urging it in the somewhat different context of section 8 and its supposed dual function.  In particular, I draw to attention the last sentence of paragraph 283 in that regard.

In the same reasons, could I then go to pages 105 and 106, paragraph 296, where one has, with typographic emphasis, the functional purpose and nature of the appropriation referred to in section 81 required by section 83 and the subject of intramural control in sections 53 and 54, and the subject of a prerequisite of parliamentary practice in section 56.  The parliamentary process permits application.  It does not oblige the application.  That too is a distinction fundamental in constitutional control, including the requirement for the Executive to behave lawfully, that is, subject to law, which is, in our submission, disregarded by the Commonwealth submissions to which I am now replying.

Finally, could I, in the same reasons, take your Honours to page 113, paragraph 320 which, with great respect, in its last three sentences encapsulates the position for which we contend.  Your Honours, however, will gather that, in our submission, it is not for us to persuade this Court today of these matters; it is simply for us to observe that this Court has held these matters.  There is no application with respect to Pape and it is not possible to characterise the Commonwealth arguments about this spending power based on section 81, with or without section 61, with or without 51(xxxix) – it is not possible to characterise those arguments as capable of reconciliation with what inevitably and at the very heart of the reasoning in Pape follows from this Court’s recent decision on those matters.

Can I then, fortified as we would see our position by the authority of the Court in Pape, go to the text of the Constitution to complete what I want to say in reply about the various, that is, the alternative formulations of what I will call the expansive view of a Commonwealth spending power not requiring legislation, let alone being mapped, to use my friend the Solicitor’s metaphor, being mapped by reference to the heads of legislative competence, by reference to the provisions which were called in aid.

We start, of course, with section 81 in the refutation.  That may or not have been an appropriate logical starting point in constructing the theory but in refuting it one goes to 81.  The shorthand of an appropriation power is used for relatively obvious but not very important reasons, that is, in form section 81 creates the Consolidated Revenue Fund and characterises it, that is, devotes it to the purpose of holding all the revenues and moneys, and then the gerundive “to be appropriated”, and there of course in an ordinary unremarkable way is the implied power in due course and as and when thought fit by Parliament to appropriate, there is no difficulty with that.

It is a huge step, however, to move from that unremarkable reading of a power to appropriate by the creation and description of the fund, the Consolidated Revenue Fund in section 81, to a power of executive expenditure once there has been an appropriation.  We know what the purpose of the provisions in Chapter IV which are the heart of this argument are from the 17th century echoes of section 83, and I do not wish to repeat, with respect, matters which this Court has recently and, with great respect, authoritatively expounded in Pape and Williams (No 1) in relation to that.

One then goes, I suppose – again, the logical order might be different for refutation than for creation of this theory – to section 61. As your Honours know, it is not completely clear whether the Commonwealth’s or Mr Jackson’s argument in this regard necessitates resort to section 61 or not. We rather think it must. The first thing, of course, to note is that the word “executive” in the expression “executive power” is no mere cypher. The whole of the arguments against us, with respect, are in danger of omitting the predicative and executive power, executing what; because section 61 speaks, true, in the phrase of extension in a way that one would expect. Executing what? The answer is execution of this Constitution and of the laws of the Commonwealth. There is immediate content of a most important, that is, every day, but perennial and fiscally large zone of expenditure by the Executive laid out by the expression “execution of this Constitution” and the administration by the appointed offices of the Departments of State required by section 64, leading of course to what in the current parlance – and it is only current parlance; it is only practice – of the so‑called departmental items.

There is nothing in the text of section 61 which lends itself to a reading that says that section 61 extends to the expenditure of appropriated funds, to use the expression yielded by the combination of sections 81 and 83, in particular 83. That, in our submission, is an argument that is assuming the conclusion. The question is, can you, simply by sections 81 and 83 on the one hand and section 61 on the other hand, find a power of the Commonwealth Executive to expend any appropriated funds – implicitly, for the purposes specified in the appropriation; explicitly, and with all the room to move that the generality of an appropriation item would thereby bestow, a really remarkable breadth and vagueness of executive power which in our submission is at odds with what one would expect in these institutional framework provisions of the Constitution. It stands in that regard in stark contrast to the position which we submit this Court has plainly established in Pape and applied in Williams (No 1).

We then come, we think, in order to refute the arguments against us, to placitum 51(xxxix) where the word “incidental” is being made to do quite extraordinary work by the arguments against us.  It may be that 51(xxxix) is no real part of the argument against us, that is, it is treated as a facultative, but not necessary element in the theory of Commonwealth spending power to which is attached apparently a contracting power although, with respect, it is not clear because there are passages in the argument against us, both written and in address, which treat 51(xxxix) as an essential staging place. 

In any event, one has to suppose, therefore, that a law apparently not controlling conduct but permitting expenditure including by way of contracting, is going to fall within (xxxix) on the basis that it is a law with respect to matters incidental to the execution of a power - we think that means the so‑called power of appropriation - vested by the Constitution and it must be in the Parliament, because it is perfectly circular if one goes to the government of the Commonwealth and posits that there is a power of expenditure, because this after all is in the course of an argument trying to demonstrate the existence of such a power.

That completes, we think, the available provisions which textually could justify the long‑held, vociferously proclaimed ambition of the Commonwealth to have this extremely broad executive power.  Why do we call it extremely broad?  This is not just jury rhetoric.  We call it extremely broad because it is of the essence of the arguments against us, indeed, presented as essential to respect the differences between your Honours as an arm of government and the legislature, the law‑making or policy function not being for this Court and therefore it says it follows, and it must be honoured, that the purposes of the Commonwealth are no more examinable by this Court than in section 51’s chapeau, the dedication of the legislative power to the “peace, order and good government of the Commonwealth” are justiciable.

Now, of course, neither phrase in either 81 or the chapeau of section 51 is mere decoration, let alone something that the Court is required to ignore, in understanding the structures and institutions created by and regulated by the Constitution but they are not justiciable in the sense that there is no merits determination permitted to this Court, let alone any paramountcy of decision‑making function permitted to this Court about whether a project, program or policy answers that description.

So the breadth appears so soon as it is thought, that is manifested by an appropriation law by one of these usually very vague and aspirational descriptions, so soon as Parliament has the thought, it has the power and whatever it thinks, and this of course is looking forward to my friend, the Solicitor’s eighth limitation so‑called - it is really the apotheosis of the breadth, it is not a limitation at all - but as soon as it is thought purposes for Commonwealth or “peace, order and good government of the Commonwealth” then there is executive power to spend in relation to it.

In our submission, the breadth is as wide as one can imagine in a constitution.  It is entirely at odds with what this Court has repeatedly said flows from the federal nature of the nation formed by the people united in the Commonwealth, covering clause 3, that is, it is a limited, and must be, a limited government, with limits to be descried and enforced by this Court.

We then come to those provisions of the Constitution which regulate the way in which laws of a kind referred to in section 81 and required by section 83 may be enacted. The fact that these are regulations of intra‑mural relations and therefore have an effect, a fundamental effect, on so‑called parliamentary practice does not make them any less a law. They are not to be treated as written out of the Constitution and they do appear and, in our submission, when one starts with section 56 one would be surprised to find that that is a requirement which is necessary for the step which legislatively authorises any expenditure as opposed to the appropriation which is legally anterior to expenditure. There is a very important constitutional and functional difference between the appropriation expenditure, and I repeat again our reference to paragraph 283 in the reasons of Justices Hayne and Kiefel in Pape. 

The same can be seen of course in the critical provisions of sections 53 and 54, which I need not dwell on, they have been so often drawn to attention in this argument.  They are about appropriation.  They are certainly not about the ordinary and full debate in relation to powers to contract, powers to spend, which are outside the subject matter of the limitations on Senate participation in section 53 and section 54. 

While on section 53 may I remind your Honours of its second‑last paragraph, “The Senate may at any stage”.  That was the subject of emphatic submissions on behalf of the Commonwealth to the effect that this answers matters that have been raised in a number of the reasons to which we have made reference, particularly in Pape and in Williams (No 1), concerning the difference to be observed between appropriation and the authorising of expenditure of appropriated funds.  The power, as it was put, to request omission or amendment is so different, so remotely unlike the power of amendment that, in our submission, the argument goes nowhere.  This is a power to be rebuffed, is another way of putting it.

That is the significance of section 54, because upon rebuff, unless you had an anti‑tacking provision, all the evils of the choice of “bring down the government” by rejecting the Appropriation Act, or allow through a program that the majority of the Senate is against.  Allow through it going ahead.  Whereas, the position which, with respect, this Court has so clearly established and which we contend is the law and makes sense of the parliamentary control of expenditure, permits the appropriation to go through because it is only the appropriation, section 54, for the ordinary annual services, that without which the Commonwealth cannot continue, leaving for another day according to an ordinary legislative exercise the question whether the expenditure, the contracting and everything ancillary and incidental to the project for which the funds have been appropriated to be debated, voted and fought, including by amendments.

It is for those reasons, in our submission, that when one simply goes to the text of the Constitution, and the political science and history underlying it, for all the reasons that appear in the judgments to which I have already made sufficient reference, the arguments to which I am now replying simply cannot stand. They are fundamentally at odds with the heart of the matter.

Against that background, then, I next turn to the way in which this extremely broad view of a Commonwealth expenditure power, derived in some way from sections 81 and 83, was defended or promoted by my learned friend the Solicitor.  I am here replying in particular to that part of the argument in address which picked up our learned friend’s written submissions, paragraphs 128 and following.  If I can use the labels that you will recall from my friend’s address, these are the seven limitations to which in due course I am going to come to, what became called, perhaps facetiously, number eight,

Now, the first thing to be said about all of them is that they not supply in what might be called a recognisable manner of constitutional argument, they do not supply reasons why the text of the Constitution and its purpose, and the nature of the endeavour which is to find out the powers of the distributed organs of the Commonwealth, they do not explain why it should be so. Rather, all of them appear, and were pretty much described in address as being, forms of reassurance that this would not be an over‑mighty executive, were the Commonwealth’s arguments adopted, that no doubt that is why it is called “limitations”. So, the Commonwealth will have all this robust vigour but it will have some shackles. A very odd way of describing the Executive, as if it is a pre‑existing power that was somehow cabined in by the Constitution, rather than, of course, something which was created by, with all its attributes, the Constitution, which does not limit it but simply defines it.

Now, your Honours, we would say this I think of all of the seven that they are in varying degrees banal truisms about what must be the case in a constitutional government, that is, it is bound by law.  So take the first of them.  The first so‑called limitation, a reassurance that not much ought to be feared from the Commonwealth theory, is that the Executive will not start legislating.  It is extraordinary, in our submission, that the thought could even occur.  It is not reassuring for it to be raised explicitly as an item of argument in favour of a theory of the Commonwealth Executive power.

The second one is in much the same guise.  The Executive will not bind the legislature or, for that matter, this Court as this Court is responsible for the operation of law.  Then the third one is section 83.  So, do not worry about this breadth of power; section 83 exists.  Of course it exits.  That is not a reason that there should be no requirement for parliamentary sanction, that is, control of expenditure.

The fourth one is perhaps the high point of it being remarkable to be offered as a reassurance. On behalf of the Executive the Solicitor‑General tells the Court it has volunteered that Parliament can control the Executive which, with respect, some of our forebears fought to establish in the 17th century. The fifth one is an attribute of responsible government which again is simply not to be doubted. No one thought that there was any spectre of a dictatorial viceroy. The sixth one is, as it were, recognising not only that we are a federation, but there is in our Constitution, among other things, section 106 ‑ goes nowhere either.

The seventh one recognises the authority of Henderson, which again is an attribute of the rule of law and the subjection of everyone including artificial persons including the polities to the law.  The seven combined say nothing about why there should be this power and indeed, looked at from the point of view of why would this be urged as some reassurance, if anything excites rather allays concern.

Then we come to number eight which is the only one that resembles the form of argumentation that you see canvassed by the range of all non‑binding views in AAP, a spectrum presented by those six, as it happens, sets of reasons, none of which binds by reason of AAP, but which have provided, as it were, an intellectual smorgasbord.

To a degree adapted, to a degree adapted we think from Justice Jacobs but query – and there are earlier provenances that can be traced, it does not matter – what is offered is this virtually non‑justiciable criterion of what may rationally be supposed to be of “national benefit or concern”.  Now, I have already drawn to attention the non‑justiciable phrases in the chapeau to section 51 and in section 81.  There is also, of course, what falls out, as Mr Jackson, with respect, correctly pointed out, from the nature of the covering clauses.  This is a polity which consists of people united in the Commonwealth named the Commonwealth of Australia, they are people of the original States.

It is almost impossible without imagining fantastic and non‑useful scenarios to see how a national Parliament elected in the fashion required by the Constitution for the people united in the Commonwealth could have any limit on what might be regarded, might have a rational connection, of being of national benefit or concern, and this Court, in order to retain its character and guard its integrity as the judicial power, would certainly not be accepting any invitations to disagree with an assessment of whether a problem, a circumstance or an exigency is such as to give rise to any possible rational connection as being of national benefit or concern.

In many ways it is a self‑fulfilling prophecy all at once in one blow when the national Parliament says, we are concerned with X. At that point one would have thought because the peoples’ judgment in choosing their representatives obviously is fundamental that it is thereby of national concern. Why is it of national concern: because national legislatures say so. Now, it is for those reasons, in our submission, that number 8, far from being a limitation, is just an elegant variation without any textual support in the Constitution, and without any canonical authority at all of this virtually unlimited contracting or expenditure power.

Now, standing in contrast to that is the understanding of the matter which can be seen to have been the object of the decision producing the ratio in Pape.  Of course, your Honours in the majority in Pape took different approaches, there are two different approaches, and the difference between the approaches is that the plurality saw that what I am going to call, if I may use shorthand, the emergency aspect of the executive power inherent in or to be implied from the executive being a national executive power, whereas Justices Hayne and Kiefel, doubting the sufficient solidity of an emergency as being a criterion of constitutional validity, looked for a head of legislative power and pro tanto found it.

Both approaches have as their point of departure that there must be something other than the existence of an executive government and an appropriation.  Both passed over the possibility which, upon repeated scrutiny becomes more difficult to understand, of simply going from sections 81 and 83 on the one hand to section 51(xxxix) on the other hand.  It is for those reasons, in our submission, that that part of the Commonwealth argument which, as it were, was presented as the reasons constitutionally why the power should be as the defendants say, the so‑called seven limitations, the so‑called eighth limitation, are neither what they were presented as, nor do they supply any argument in favour.

Nothing in our argument, nothing in our argument detracts to the slightest degree from the proposition that the heads of legislative competence of the Commonwealth through its Parliament exhaustively imposes a limit on what may be done in terms of contracting and expenditure by the Commonwealth using the executive power referred to in section 61.  I have already referred to the very large field of endeavour supplied by the terms of section 61 as they attach to section 64.  There is what has been labelled, perhaps not completely informatively, the nationhood power.  I do not mean to trivialise it when I say “flags and anthems; celebrations”.  There are obviously other matters against the head of power - defence.  There needs to be the war prerogative always understood, lest we become ‑ ‑ ‑

CRENNAN J:   Is that an exception you accept in relation to the generality of the proposition you just put?

MR WALKER:   Yes, and I should say these are not exceptions.  I am saying these are aspects of executive power, because we do not say you start and finish with the heads of legislative competence.  Of course you do not.  That must be part of it ‑ ‑ ‑

CRENNAN J:   Well, a simple example would be the salaries of ministers under section 66.

MR WALKER:   Exactly, and as Mr Jackson so delicately put it, the salaries of other important officers of the Commonwealth. But 64 is huge. That covers a great deal of spending. It was understood. Hence, one has the requirement or the recognition showing the nicety of the matter, the punctilios of the matter that one sees in the second paragraph of section 83. This is not a Commonwealth Government that was never going to be able to get off the ground, or was going to depend upon charitable donation. Just for running the place, for the first little gap the Constitution provided so there is no question that section 61 attached to that. As I say, there is nationhood. It established, we respectfully submit, and we do not need to pursue this, that something in the nature of what I am going to call “emergency”, no doubt that is going to be the subject of future decision, refinement.

There are, of course, all the matters of expenditure, some of which might involve contracts, many of which will not, expressly referred to in the Constitution, such as Justice Crennan just drew to attention, and then one simply asks of the program so‑called in this case, the funding agreement is the one solid thing that one has, as to whether it can fit within any of those non‑legislative, non‑statutory occasions or permissions to expend ‑ ‑ ‑

CRENNAN J: Well, of course, 66 on one view, it is nothing to do with the heads of power, but the Constitution is ‑ ‑ ‑

MR WALKER: Yes, yes. Of course, it is to be recalled that the executive power is, of course, the execution of the Constitution, things that need to be done so that the Constitution can be observed. That includes paying Ministers. Now, before I depart, however, from this topic and the Constitution, I need to complete this part of my reply by reference to three other provisions of the Constitution. This is not logically necessary, but we raise it to answer what I will call argument of inconvenience or argument of insufficient capacity, the image of a limping or crippled Commonwealth whose executive power is lacking, if what this Court has already held in Pape were the law.

Quite apart from what, in our submission, is the fantastic lack of reality of that submission, we need to draw to attention exactly what it was that those who made the Constitution ‑ I submit that that should be conceived of as more or less the same people who were united by it, or by its covering Act – what they thought about matters – to use the Commonwealth’s argumentative phrase – of “evident national benefit or concern”.

Section 96 is the obvious one.  How could it be anything other than of national benefit or concern, particularly concern, that a State, one of the original States, was going broke, or did not have enough money to do what decency required the united people to want for the inhabitants of one of the States.  They united people of the States.  Section 96 grant is, of course, by definition, something deemed by Parliament to be of national benefit or concern – it would not be enacted otherwise.  There are no private interests involved here.

So, plainly, this is a Constitution which contemplated that there would need to be the capacity to give assistance to States who have a broader subject matter of legislative competence, in other words, it was not to be found interstitially in the manner that the Commonwealth contends, using sections 81 and 83. The same, of course, can be said, in a rather more specific fashion, about sections 51(xxxvii) and (xxxviii).

BELL J: Before you come to those, can I just, while you are on section 96 inquire if that submission which directs attention to the provisions of the Constitution at the time of its enactment deals with Mr Jackson’s submission that one can, as it were, put 96 to one side because of course Parliament might otherwise provide?

MR WALKER:   Yes.  The short answer is that the use I make of it, which is that it reflects an understanding that such a power was a salutary thing, a good thing for a national Parliament to have, that would be true whether it was inexorably limited to 10 years or whether, as rather it says, it was certainly going to be there for 10 years and thereafter would continue unless Parliament voted to deprive itself of this power to do good.  I do not mean by the last comment to be advancing the cynical view that those with powers are not often observed to give them up.  That is not the point, that is not the point.

The point is that it is there, the otherwise provision - we try to turn Mr Jackson’s arguments on its head as follows - the otherwise provides would be to remove a power from Parliament. Were that not so, of course, Mr Jackson would be arguing in a perfectly circular fashion, assuming his own conclusion. Would it make a difference if there was such a law passed by Parliament, getting rid of section 96? Of course it would make a difference. There would be an inability to do what section 96 had hitherto authorised and it is the fact of the existence of that power that makes good our proposition that this is not a Constitution that provides for a capacity by simple appropriation, high level, aspirational goal named in it, thereafter for the Commonwealth to contract and spend, free of any other limitation.

Now, your Honours, I should have observed of section 96 as is just as explicit in 37 and 38, that a hallmark of this in a federal Constitution, a really significant aspect of these three powers, as refuting the idea of a general Commonwealth power to contract and expend, is that the States play a necessary role in the carrying out of projects pursuant to the invocation of any of those three powers, that is, the assistance cannot be compelled assistance under section 96 and there is an explicit requirement for State parliamentary participation, no mere acquiescence by an executive, whatever that may mean, as was suggested a day ago.

HAYNE J:   Just on the 96 point, do I understand you to say that the otherwise provision by the Parliament in respect of 96 would, if the Commonwealth arguments are right, and if SUQ arguments are right, be of no consequence?

MR WALKER:   Exactly - which is an argument that assumes the conclusion. They say that there is a power that subsumes everything that section 96 can do, therefore, if you get rid of section 96, so what, the power still exists and that, in our submission, is an inappropriate, we would go so far as to say, an unacceptable way to see the carpentered provisions of the Constitution.

Your Honours, can I next come to the way in which section 8 of the Appropriation Act was employed?  Why do I come to it in this order?  Why first?  Because the premise of 32B is that there is no power.  So, if section 8 supplies the power to enter this agreement and to spend money pursuant to it, 32B will never come into the picture, could not come in the picture.  Now, the argument about section 8 involves the notion that in this No 1 Act, ordinary annual services, a dual function is being served.  It is appreciated, of course, by those arguing for the Commonwealth that that raises questions, to put it mildly, about section 54.

I will come back to the way in which that was dealt with in a moment, but the first question of course is, is the dual function to be seen from sections 7, 8 and 16, or for that matter, from those provisions in their full context?  We submit that the answer is of course, no.  I conceded in‑chief that the English phrase “may be applied” for such and such expenditure, which is to be found in sections 7 and 8 could mean, depending upon context, permission to spend.  “May” is very apt to do just that.  But, it is to be borne in mind that this is certainly an Appropriate Act and that permission to spend is, of course, an established way of describing the nature of an appropriation, it does not compel it to be and it does not authorise the conduct.

But, you are permitted because section 83 says, no expenditure – no drawing without appropriation, for the first and simplest textual answer is, this is language of appropriation.  Now, it must be language of appropriation because it is the phrase which is to be found in an Act which is avowedly appropriation.  Now, the answer offered against us in that regard is, no, section 16 does that, but that is not true, because section 16 does not do what an appropriation must do, which is to talk of sums and purposes. 

It is not appropriated, not earmarked, unless you can see the creature with the notch in the ear.  Which creature, and for what?  Section 16 does no such thing.  True, it contains what might be called the statutory factitive verb that does the thing it says, it appropriates, no doubt it does that, but in order to actually answer the description in 83, as referred to in 81, you have to go to find what are – is necessary for the purposes of this Act.

To do that, of course, you must go to 7 and 8 and the items which are called up by it.  So there is a second way, just textually, without even having to resort to 54, of reading 7 and 8 as obviously necessary for the appropriation, part of the appropriation.  You cannot read 7 and 8 in isolation.

FRENCH CJ:   You say they give content to the term as necessary‑ ‑ ‑ 

MR WALKER:   Yes.

FRENCH CJ:   ‑ ‑ ‑ for the purposes of this Act?

MR WALKER:   Thereby accomplish an appropriation, because otherwise section 16 has not done anything.  It is for those reasons that one can dismiss entirely the ingenious notion that Appropriation Act (No 1) is the enabling legislation for the plethora of aspirations and projects, some of which are even more generally expressed than the one in question in this case, to be found in the various outcomes.

Then, of course, we come to section 54.  Section 54 was dealt with by a Commonwealth submission that this Court should not think about it because it is not justiciable.  But this Court has thought about 81 frequently.  Northern Suburbs Case included obvious propositions about 81, 83, 54 and 55. It is plain that to say “not justiciable” is not to require this Court to read the Constitution as if it was blank paper opposite those numerals. That is just silly, with respect.

“Not justiciable” means, and only means, that there is no judicial remedy for non‑compliance.  It does not mean that non‑compliance is unimportant and it does not mean that the Houses in whose hands the sanctions and, for that matter, whose duty it is to comply, would not be assisted by such observations as may time to time be germane to decision of this Court about cases which either would threaten or have been non‑compliant with any of those provisions.

FRENCH CJ:   Is this really an argument that goes to not so much constructional choice as characterisation of the legal effect of 7 and 8?

MR WALKER:   Yes.  There is nothing in the text of 7 and 8, given what I have said about 16, that compels the conclusion that the function that certainly everyone concedes has happened – appropriation ‑ has been accomplished unlawfully, or that any function other than the function to be gathered from the provisions of 16 and the title of the Act is accomplishing.  It is for those reasons, in our submission, that the Court should decline the siren song that non‑justiciable matters are matters that the Court cannot think about or take in to account either for constructional choices or for functional characterisation of what statutes are doing.

The point is contrary to the established practice of this Court.  One considers Brown v West ‑ I will not need to take you to it, I will just give you the reference, 169 CLR 211 – where this Court used the nature of parliamentary practice, in that case the custom of not including new programs in (No 1) Act, in order to understand the legislation in question. Just as non‑justiciable, this Court does not find and enforce parliamentary practice; indeed, this Court simply observes from time to time that that is for the Houses and it changes.

But time and time again – Brown v West is just a very good example – the Court uses what is established as a matter of constitutional fact about parliamentary practice in order to carry out this Court’s role of characterising.  It would be extraordinary if it was proper to look at parliamentary practice in Brown v West, but not to look at section 54 in this case.  The parliamentary practice in Brown v West was the parliamentary practice erected by dint of, among other events as the accord of 65, erected in order to permit observance of 54.  As I say, this argument flies in the face of established technique in this Court.

HAYNE J:   Just before you depart from the question of construction of sections 7 and 8, do you accept that those provisions are to be construed in the light of the practice of the Parliament in connection with appropriations as it has developed from 1901 forward?

MR WALKER:   Yes.  We call that in aid, yes.

HAYNE J:   If you go to the 1901 volume, Act No 1 was a consolidated revenue fund act.  It was in the nature of a Supply Act as understood under previously existing practice.

MR WALKER:   Yes.

HAYNE J:   In truth, there was no Appropriation Act until one assented to on 10 October 1902, and that Appropriation Act is set out, of course rather differently from the current forms of act ‑ ‑ ‑

MR WALKER:   One can read it, for a start.

CRENNAN J:   I will not ask you what you mean by “read”, Mr Walker.

HAYNE J:   I could not begin to imagine what you are referring to, Mr Walker, but it is to be observed that the word “appropriation” or its cognates appears only in the title and the preamble.  All that the Act provides for is there shall and may be issued and applied for or towards making good the supply, et cetera.

MR WALKER:   Yes.

HAYNE J:   The point ultimately I put to you is this, that the construction of the Appropriation Acts cannot take place on a blank slate, can it?

MR WALKER:   Quite, absolutely.  It may be – and I do not mean this disrespectfully at all – this Court will always lag; that is, will always be in danger of applying the latest information properly available to this Court about parliamentary practice to something which, in hindsight, turns out to be departing from it.  That is a risk that the Houses of Parliament take in terms of their practice.  If they change practice less than explicitly, the risk is that that will not be able to be taken into account by this Court.  We, with respect, do take the position that Justice Hayne has just inquired about. 

May I complete this part of the reply by then turning to the one other way in which the matter was urged against us – that is, that there is no breach of 54 by doing something which is merely incidental to appropriation.  Now, I will call this the Permanent Trustee point, in deference to the citation against us, of the passage that is found in 220 CLR 419 in paragraphs 68 and 69 of the reasons of the Court in that case and by reference to Re Dymond, as your Honours will recall, the provisions for the assessment, collection and recovery – assessment, collection and recovery of tax were provisions which dealt with the impositions of taxation.  This, obviously, is an argument about 55.

Now, when one thinks as a taxpayer about what tax is and what it feels like, the assessment, collection and recovery are, of course, incidental to – indeed, one may say they comprise the imposition of taxation.  That is how close the matters were in that case.  How on earth, we ask, rhetorically, can that be true of what Justice Crennan has called, and what this Court has held to be, the conceptually different matters of appropriation and authority to expend?  Your Honours will find that in the decision in Williams (No 1) 248 CLR 354 at paragraph 531:

statutory authority for executive action (including spending) is distinct conceptually from the appropriation –

Now, that is the paragraph to which reference is made in the argument to which I am replying as authority for the dual function.  It is no such thing, as that paragraph is concerned with the possibilities in a special Appropriation Act.  In our submission, that is enough to show that given section 54, given this Appropriation Act (No 1) for the ordinary annual services, your Honours should reject the argument that section 8 could possibly have provided legislative authority for the contracting and expenditure.

Could I then come briefly to reply in relation to 32B?  It does appear that in large measure, not completely I fear, but in large measure the position of the defendants with respect to 32B is that it will be authorised as valid legislation of the Commonwealth Parliament if, and to the extent that there is a head of legislative power to justify the specified arrangement or program.

Now, I say that may not be exhaustive of the possibilities because we think that 51(xxxix) is still somehow floating around, but that would only be on some contrived and, we submit, impossible basis, that it is a matter incidental to the execution of the power of Parliament to legislate to have this kind of portmanteau template on the shelf to pick up executive programs from time to time.  That has never been proposed.  We do not actually think it is beforehand, I do not actually think that is what is being argued, it certainly should be rejected.

Now, but for the circumstance, I think it is unusual, that the regulation which specified was it – was amended, was created, promulgated, by the very statute that introduced 32B, but for that circumstance surely the following would be true:  that if it be the case that 32B is within power only if and then only to the extent that a specified arrangement or program falls within a head of legislative competence of the Commonwealth then upon 32 being enacted, and before any such regulation has been made, it is impossible to know what possible head of power could be engaged. 

Now, that does not mean that, as it were, the case adjourns part heard to await a regulation.  It means that at the instant that matters, that is, the enactment of the legislation, the question asked, what power, is answered, none.  To put it another way, it is not a law because it does not actually do the kind of things that Chief Justice Latham says you look for in a law.  It has not done anything.  We would offer this as a figure of speech, it is an incomplete template.

HAYNE J:   Well, what is the point of considering the template if it were incomplete when it is not?

MR WALKER:   The point is that by reason of section 3(2), and this may not be an answer but it is what I offer as the answer to your Honour’s question, the regulation that was made by the amending Act that enacted 32B is susceptible of repeal as well as amendment by regulation, and it is for those reasons, in our submission, that one would say of 32B that it would appear then that it is a law which will come in and out of power depending upon the content from time to time of these regulations.

HAYNE J:   No, you have just mashed together two separate questions, have you not; one, a question of construction and two, a question of power.

MR WALKER:   I hope not mashed together but my submission involves both, yes.  It construes 32B as ‑ ‑ ‑

HAYNE J:   How do you construe it initially?  You construe it to the ambit of federal legislative power, do you not?

MR WALKER:   My point is that but for what happened, that is the insertion of a regulation, that ‑ ‑ ‑

HAYNE J:   If things were different, things would be different.

MR WALKER:   I am trying to test the ‑ ‑ ‑

CRENNAN J:   What about the Court’s established approach to constitutional cases which is to decide what is presented by the case?

MR WALKER:   Quite.  It is our submission that this supports our position that this is not a law of the Parliament because it has delegated everything, which happens to include the capacity for this to be constitutional or not, to the Executive.

HAYNE J:   Sorry.  What is the proposition – 32B?

MR WALKER:   32B is not a law of the Commonwealth Parliament because it has delegated the supply of the essential nexus with a head of legislative power to the Executive.  In other words, it is only upon a regulation being made or continuing to be in force that engages one or more of the heads of legislative competence that 32B can be seen to have valid operation or not.

KIEFEL J:   But you can say that of any regulation, could you not? 

MR WALKER:   Quite, and so, it would come in and out of ‑ ‑ ‑

KIEFEL J:   But any delegation of regulation‑making power in a way is delegating the ability to create something which connects with a head of power.

MR WALKER:   Yes ‑ ‑ ‑

KIEFEL J:   Well, hopefully it would.  That is the test of validity.

MR WALKER:   Yes.  It is because 32B does not say anything about the content of any program or arrangement that it stands ‑ ‑ ‑

KIEFEL J:   You mean it does not provide a standard by which the regulation is to be made.

MR WALKER:   That is right.  That is right.

KIEFEL J:   But it stands apart.  It gives entirely to the Executive the choice ‑ ‑ ‑

HAYNE J:   No, it does not.  Section 65 is the regulation‑making power. True?

MR WALKER:   Yes, your Honour.

HAYNE J:   Section 65 is to be construed in the context of the Act as a whole?

MR WALKER:   Yes.

HAYNE J:   Section 65 is to be construed as within power, not beyond constitutional power.

MR WALKER:   I am sorry.  I misunderstood what your Honour was putting to me.

HAYNE J:   No, no, no.  This is a separate point.  Do you accept that 65 is to be construed as within constitutional power, not beyond?

MR WALKER:   Yes, yes, your Honour.

HAYNE J:   Section 65 must be construed, must it not, as permitting the specification of matters within power and not going beyond that ‑ ‑ ‑

MR WALKER:   Yes, yes.

HAYNE J:    ‑ ‑ ‑ and that is consistent with reading 32B.

MR WALKER:   Yes.   

HAYNE J:   So, where is the argument?

MR WALKER:   Within power, within power, within one of these heads, it is still the choice of content is totally the Executives.

HAYNE J:   All the work in that proposition is done by the word “totally”.  It is propounding a notion of unconfined joy ‑ ‑ ‑

MR WALKER:   This part of my argument, your Honour, is accepting that no regulation can be made which does not engage a head of legislative power.  Accepting that, within the head of legislative power, however, the choice of what arrangement, the choice of what program, will be the subject of authorised expenditure or giving effect to, is entirely for the Executive.

HAYNE J:   That is so under the Banking Act where regulations are permitted and the way that banks are regulated ‑ ‑ ‑

MR WALKER:   No, your Honour.

HAYNE J:   ‑ ‑ ‑ by regulation, is a choice for the Executive.

MR WALKER:   No, no.  I am not saying the content of the regulation cannot be for the delegate.  That is what delegated legislation is, but the law making entirely, that is, there is nothing within the Act of which 32B forms part that sets, as the Banking Act certainly does, the purposes and topics about which there can be regulation.

CRENNAN J:   But this Act is about the proper use and management of public money.

MR WALKER:   Yes.

CRENNAN J:   Section 32B is directed to that object or purpose, is it not?

MR WALKER:   Without any doubt, yes.  It is designed ‑ ‑ ‑

HAYNE J:   That is the only purpose and topic of the Act, is it not?

MR WALKER:   Quite so.  It was designed overtly to deal with the decision in (No 1), yes.

FRENCH CJ:   So it is a conditional grant of power, the conditions being in relation to making of arrangements, grants of financial assistance and the like ‑ ‑ ‑

MR WALKER:   Specified, yes.

FRENCH CJ:    ‑ ‑ ‑ the conditions being absence of any existing conferral of power, and the second condition being that the arrangement or grant is specified, et cetera ‑ ‑ ‑

MR WALKER:   Yes.

FRENCH CJ:    ‑ ‑ ‑ and that, by implication, that it is within some head of power, either legislative or directly derived from ‑ ‑ ‑

MR WALKER:   Yes, yes, yes.

FRENCH CJ:   Yes.

KIEFEL J:   But does your proposition come to this, that the power given to make the regulation must itself identify the connection to the head of power?

MR WALKER:   My first proposition is without that, the statute would be, as it were, in blank or in gross in terms of its validity under the Constitution. That has precluded me by reason of the circumstances that there was specification at one stroke with the making of 32B. But it is an introduction to the way in which to see how 32B operates. Section 32B does not supply any means in itself of knowing whether it is valid. You have got to go to the specification. It will be valid pro tanto if ‑ ‑ ‑

KIEFEL J:   I am just trying to understand what is missing on your argument.  Is it because 32B is missing subject matter and purpose by which the connection could be made?

MR WALKER:   Yes, and it would be valid if there is a specification of something within a head of power, and there can only be specification within a head of power.  If it is outside a head of power, it will not be a valid specification.  All of that is accepted but for this further objection we make to its form, namely that by that device which is utterly different, we say, from the ordinary regulation‑making power and its exercise under a statute like the Banking Act.  By that device, the entire selection of that which is to be permitted or prohibited or regulated is left to the Executive with no indication of subject matter at all.  All you are told is from the universe of possibilities which the heads of legislative competence bestow, you may specify arrangements or programs.  That is our reply to the reliance upon 32B.

KEANE J:   Mr Walker, that is really an argument about separation of powers rather than no law, is it not?

MR WALKER:   Yes, it is, excessive delegation.  That is the excessive delegation point, yes it is, your Honour.

HAYNE J:   Now, the 32B argument must take account of the fact that 32B forms a part of a general regulation in the FMA Act of application and accounting for public moneys?

MR WALKER:   Yes.

HAYNE J:   Section 32B’s purpose, its avowed purpose, is to provide legislative authority where otherwise wanting for the expenditure of public funds.

MR WALKER:   Quite, and that is the – I am sorry.

HAYNE J:   Do you accept the proposition I think put to Mr Jackson yesterday that, on their true construction, neither 32B nor 65, the regulation‑making power, extends beyond those expenditures and agreements which may be validly authorised by a law of the Parliament.

MR WALKER:   Yes.  But within that universe can be anything, and that is the excessive delegation.  That is our point.

FRENCH CJ:   You would draw a distinction because there is a grant of power in relation to the expenditures between 32B and a machinery provision of ambulatory application, for example, audit provisions and the like, which confer power on some public official to do something in respect of any spending program of the Commonwealth, for example.

MR WALKER:   Yes, yes, quite so.

HAYNE J:   Thus, under the audit provisions, if you had a provision which said that the Commonwealth Auditor General may audit the affairs of any agency now specified or hereafter to be specified in regulation, what would be the difference between a provision of that kind and 32B?

MR WALKER:   That is a provision where Parliament knows that what it is doing is ensuring that there are audit powers exercisable for a category to which there will be new entrants in the future, as well as retirements, set by reference to a criterion that the Parliament has selected – Commonwealth agencies, or agencies or entities contracting with the Commonwealth.

HAYNE J:   My example was left very deliberately vague as any organisation or agency now specified or hereafter to be specified ‑ ‑ ‑

MR WALKER:   I am sorry, your Honour ‑ ‑ ‑

HAYNE J:   ‑ ‑ ‑ that is, leaving this textual generality.

MR WALKER:   I am sorry, I misunderstood what “organisation or agency” would mean, I was assuming governmental.

HAYNE J:   What I am suggesting to you is why do you not make the same assumption about 32B.

MR WALKER:   The equivalent of the governmental, or the permitted category here, is not supplied by either 32B or the subject matter of this idea of arrangements or programs because it is assuming, as the interpretation exercise requires, to be within power – that is, a head of legislative power – it is utterly at large, and only for the Executive to determine, therefore, whether it is in power or not.

CRENNAN J:   You are not debating the power of the Commonwealth Parliament to legislate for the proper use and management of public money.  Why then is it not within the purview of Parliament’s powers to design provisions, the object or purpose of which, is to ensure that there is authority in relation to, as it is put, making an arrangement – so, entering a contract – and “administer” picks up giving effect to, so authorising the making of a contract or the spending of public money pursuant to any of the legislative powers under section 51.

MR WALKER:   It is obviously salutatory that the Commonwealth proceed to ensure that conduct is authorised rather than unauthorised, is the first part of my answer.  The second part is ‑ ‑ ‑

CRENNAN J:   But, I am asking a question about power.

MR WALKER:   Yes.  The second part is:  can it be done in this portmanteau blank fashion?  Now, we are either right or wrong on that.  We submit, no, this is an example – it would be the first – of excessive legislative delegation.

CRENNAN J:   Well, if you take drawing rights, drawing rights divisions may apply in all sorts of contexts.  If you look at 27(2) for example, the drawing rights:

If a law requires the payment of an amount of public money and there is an available appropriation –

then the provisions follow as to what may be done.  Now, does not ‑ ‑ ‑

MR WALKER:   That is just – I am so sorry.

CRENNAN J:   But, there is no requirement, is there, for particular laws to be specified or for drawing rights to be tied to heads of legislative power, anything of that kind?

MR WALKER:   No, quite.  The big difference though is that that is directed simply to the financial control, the regularity of the country’s accounts.  Section 32B transcends the regularity of accounts; it provides power to act that would not otherwise exist.  That is the difference.

KEANE J:   It is not just about spending money.

MR WALKER:   No.

KEANE J:   It is actually about ‑ ‑ ‑

MR WALKER:   Give effect to programs.

KEANE J:   Right.  It is actually about the Commonwealth being involved in activities, part of which or an aspect of which is the payment of moneys.

MR WALKER:   That is right.

KEANE J:   So, it is not just a law about spending money?

MR WALKER:   Quite so.

BELL J:   In circumstances in which the Framework Legislation Amendment Act contained the regulation and the programs, given your acknowledgement that you ask us to determine a question that, in circumstances in which this Court has not previously determined that there is excessive delegation, why would we do it in this case?

MR WALKER:   Because if one gets to 32B and we are correct on the point that this is excessive delegation – legislative delegation, then it would be critical to decision of the case.

BELL J:   Why would it be critical to a decision ‑ ‑ ‑

MR WALKER:   Only if we lose on everything else.

BELL J:   I am sorry?

MR WALKER:   Only if we lose on everything else, of course.

BELL J:   Yes, but why critical respecting the program that is the subject of challenge?

MR WALKER:   Because, in our submission, it cannot rise higher than its source, it cannot be authorised by a form of statute which has the defects we have identified.  However, I appreciate, with great respect, that for those which were inserted by the amending Act there may be, as it were, this grandfathered immunity from that excessive delegation argument.  I do, with respect, accept that that is another ramification of that circumstance.

KIEFEL J:   The effect of this Court going further than may not be necessary in this case to determine the wide question of validity of section 32B would have an effect on a large number of programs which we ‑ ‑ ‑

MR WALKER:   Your Honours, I do not wish to any degree to urge that you decide more than has to be decided, and I accept that that may have ramifications for this part of the argument as well.  It rather depends whether one reaches it or whether it is necessary.

FRENCH CJ:   Mr Walker, the notion of this operating as an overbroad delegation to some extent linked to the use of the regulation‑making process to satisfy the conditions of the conferral of power.  Would it make any difference to your argument if the arrangements, or grants, or programs mentioned in (1)(b) were – if the condition was satisfied by their promulgation in a gazette notice, for example?

MR WALKER:   No, or in a letter from the Prime Minister.

FRENCH CJ:   Yes.  So it still amounts to, in substance, a delegation.

MR WALKER:   Yes, yes, quite.  The delegation can be excessive, indeed probably will be all the more obviously excessive if it is not found in a disallowable instrument, for example.  Now, this was not disallowable – the ones that were put in by the amending Act, but they were amendable or repealable by regulation.  That completes what I want to say on that issue.  Can I move then, to the last matter, which is the question raised, or the questions raised by reliance upon 51(xxiiiA), in reply, so as simply to clarify the position.

May I say compendiously, that with great respect, we adopt and urge as the correct analysis of this Court’s prior decisions the approach taken by Justices Hayne and Kiefel, respectively, in their separate reasons in (No 1).  That is the first thing.  The second thing is this, as a general remark, that this part of the case raises fundamental questions about constitutional fact finding and permissible material to enable the Court to do so.  We submit that if one is, as one must, looking either under section 8 to an outcome or under section 32B to item 407.013 that the entirety of the argument against us turns, in effect, on suggesting there is content in a name that can then be traced through appropriately, that is, by recognised and acceptable judicial technique, from the materials in the special case book, so as to supply an answer to the question, is this within the meaning of the provision a program for the provision of, or which is the provision of, benefit to students.

Your Honours have seen a number – or have been taken, in writing, to all, but in address have been shown a number, not quite exhaustively, of the documents which, starting with the name, as a matter of fact, query constitutional fact but certainly as a matter of fact would enable you to know what is the chaplain doing at my client’s children’s school?  Which is after all what the case is about – whether the agreement purporting to authorise that is itself validly authorised by one or other of the statutes in question.

CRENNAN J:   What about Mr Gleeson’s point?  I do not wish to interrupt you or take you off track, but as I understood his point it was that the student welfare program is mentioned in the item and therefore, in a sense, as I understood the arguments, incorporated by reference, as it were.

MR WALKER:   That is right.  That is what I mean by the name.  It starts with the name.

CRENNAN J:   That is what you mean by the name.

MR WALKER:   NSCSWP, there it is.  Now, we know the name has changed over the history, well, that does not matter relevantly.  Your Honour, the first problem is as a matter of constitutional fact, and this is a constitutional fact, you need to know what is it that is authorised by 407.013 and is what is happening under the funding agreement at the school within it in order to know whether there is a constitutional objection to what is being done.

HAYNE J:   Well, is it a constitutional objection to what is being done?  Is it a constitutional objection to a law?

MR WALKER:   It is a constitutional objection to a law purporting to authorise things to be done including the expenditure of money, yes.

FRENCH CJ:   Are we talking about a constitutional fact in the first instance?  When we look at the words “National School Chaplaincy and Student Welfare Program” we can take it that Parliament is talking about something, not just blowing words into the air.

MR WALKER:   No, quite.

FRENCH CJ:   Is that then a question of construction, legislative fact in a sense, before one gets to the question of how it relates to the power?

MR WALKER:   Yes, and the endeavour then parallels, it gets picked up again when the constitutional inquiry starts, yes.  So, in a sense, we start with a familiar enough non‑alarming idea of incorporation by reference.  Here is something expressed in such a way as to get an acronym that sounds like it is something identifiable with content that will then permit, in due course, not only an understanding of what the statute does, but then an understanding of whether what the statute does is within constitutional power.

Our point to be made good by the references I am about to take your Honours to in the special case material is that as you proceed through the material, starting with the guidelines, and that is where the Commonwealth wants to start, that is, once they move away from the statutes themselves, then what emerges is that the nature of the, what is called services, and this a case about whether services constitute constitutional benefit, is not to be found in those documents but is to be found in the ultimate arrangement with a school.

Along the way there are general provisions, including preclusionary or prohibition provisions in relation to the nature of the services that are highly informative of what cannot be urged to bring this program within (xxiiiA) and, in a nutshell, it is not just as Justice Crennan identified yesterday that there is a qualified prohibition on counselling, it is that there is an outright prohibition on counselling to found. 

This emerges because when one goes through the sequence of documents that are to be found from the defendants severally and from the Queensland Government in the special case material the specification of the nature of the services is driven down to the individual local level, no doubt in recognition of the idea of a school community and what it is, and the voluntarism that is said to characterise this whole program.

In our submission, you are left with the following conclusion, that the thing which in the arguments against us was most concretely put as the nature of the service constituting the constitutional benefit – I will call it counselling – it is a familiar expression; it describes an occupational pursuit – that thing which is the only, I will call it, recognisable or solid mode of work or activity that was referred to in address, that is not it.  That is not part of it.

There is a lot else that is not part of it ‑ religious instruction, proselytising, et cetera – and it is for those, in our submission, that at the legislative fact stage, to adopt the Chief Justice’s phrase, and also doubling back for the constitutional fact stage, the material most apt to be gone to in order to understand the content of NSCSWP in item 407.013, or the name of the program to be found opposite Outcome 2 for section 8 purposes, you are immediately by that driven off to a receding set of promulgated standards, none of which ultimately enables this Court to provide an affirmative answer to the question this is a program for the provision of benefit to students.

HAYNE J:   Can I understand better what your submission is?  Do you say it is permissible to go beyond what is written in item 407.013?  In particular, do you say it is permissible to go from the item to the portfolio budget statement which relates to the appropriation?  Do you say it is permissible to go beyond those matters and at each level what is your submission about the legal principle that is being applied to allow you to take each of the steps?

MR WALKER:   In short, the answer is the inquiry is as to the content in terms which enables one ultimately to answer the constitutional question of what is called the NSCSWP.  So, simply stated, what can one look to, to understand that content?  The simple description of what one can look to is anything which – anything which – of its nature and given either its status as agreed fact or permissible inferences from it as, say, a document or narrative, will enable the factual inquiry as to the content of NSCSWP to be ascertained.

HAYNE J:   Well, that is a rather remarkable piece of statutory construction that is being undertaken.

MR WALKER:   Your Honour, that then leads to this next point and, in our submission, that really means, and you can see it has come to fruition in this very case – it really means that we are left with the will‑o’‑the‑wisp idea of examining something which it turns out is not definitively described at all in terms that will enable the constitutional inquiry to be addressed.  That, in our submission, is why (xxiiiA) cannot apply, because whatever the NSCSWP is, it is (a) not definitively described; and (b) nowhere described in terms that enable the constitutional inquiry to be supplied. 

It turns out this is a program under which, depending upon specific times and places and people, the nature of the services will alter.  There are some things which are constantly prohibited, counselling and proselytising, but what actually ‑ ‑ ‑

CRENNAN J:   Are there any legal consequences for the prohibitions?

MR WALKER:   It means that you negatively know something about the services, it is not counselling.  Now, that is significant in this case because really counselling is what was offered as the nature of the service but rendered it a benefit to students.

FRENCH CJ:   You would say that, if confined to the text, that is, the designation and the objective ‑ ‑ ‑

MR WALKER:   You would not know.

FRENCH CJ:   There is not enough for characterisation.

MR WALKER:   Exactly, and if you ‑ ‑ ‑

FRENCH CJ:   If you look beyond that, there is not enough for characterisation.

MR WALKER:   In this case, it gets worse, but then that raises the question that Justice Hayne has asked, what actually is being done here in a court of law?  I said, well, it is a factual inquiry.  There is a reference and a document and whether the document is a deed, a will, a statute, there is a reference, the Court will do its best to try and give meaning to it ‑ ‑ ‑

CRENNAN J:   On one view, what we are asked to do is to examine a policy document, nothing in relation to the statute itself.

MR WALKER:   Exactly, and in our submission, it would be appropriate, having as it were, lifted the covers to see what a mess it is - it is not definitive, in other words, this is not something where you will find a document saying, “the National School Chaplaincy and Student Welfare Program is a program for the delivery of the following services to students”.  You will not find that.  You will find that it is a program for funding arrangements which require the services to be provided to be defined and prohibit them from being of a certain kind, and having certain characteristics such as compulsory.  They must be voluntary, they must be defined at local level, they must not be counselling – the only one that has really been offered from the Bar table here – and they must not be proselytising.

HAYNE J:   Why should one not look at least to the portfolio budget statement?

MR WALKER:   Well, you should.  I am sorry, when I talked about the statute, I intended to incorporate that ‑ ‑ ‑

CRENNAN J:   Included that.

MR WALKER:   ‑ ‑ ‑because the statute actually refers to it.  So, whether your section 8, which is portfolio budget statement, or section 32B, and then, because of the appropriation, it would be relevant to go back to the Appropriation Act, not because section 8 is being relied upon, but because it is a parliamentary record of what is understood to be the program.  The answer is, not only is there no reason why you should not, that is, in fact, the true starting position. 

For the reasons I have put, once one goes further, in the familiar way of saying what is this thing with this title, as soon as you get to the point of seeing that it is ambulatory in nature, that is, flexible according to future decision making by other people, different times and places, then, in our submission, the Court can and should say there is nothing to be learned there because it tells me that these things may change from time to time.  That will not define for me this program.  I come back to what I have got and I say, I cannot tell you that this is a benefit to students.  It may or may not be, therefore, it is not within power.

HAYNE J:   Well, whether or not that is a void for vagueness argument may be left aside.

MR WALKER:   We do not put it ‑ ‑ ‑

HAYNE J:   Let us look for a moment at the PBS.

MR WALKER:   Yes.

HAYNE J:   It is at the core book page 530.

MR WALKER:   Yes.

HAYNE J:   We know from that it is expenditure, voluntary, program that assists, support wellbeing; several specifications of wellbeing are not exhaustively provided.

MR WALKER:   That is right. 

HAYNE J:   Now, on that, if one stops the inquiry at that point are you not then confronted with whether (xxiiiA) is to be construed in the fashion urged by the Solicitor as being ‑ ‑ ‑

MR WALKER:   General advantage, anything of advantage.

HAYNE J:   ‑ ‑ ‑ general advantage or the providing tools and I ‑ ‑ ‑

MR WALKER:   Yes, you are.

HAYNE J:   ‑ ‑ ‑ unduly compress an elaborated argument in those ways or provision of material, advantage in money or money’s worth.

MR WALKER:   That is right.  Yes, is the answer and we say ‑ ‑ ‑

HAYNE J:   So, other than the forensic advantages that each side seeks to derive by drilling down into various documents and as you say, well, counselling is the only example they have given and you cannot do that, I understand forensic power of that, but why have we to go beyond this and why should we?

MR WALKER:   Ultimately, I am saying you should not but in order to show why you should not, and I do not want to take the time of the Court, and I am very content if I may, simply to give you the references in the book ‑ ‑ ‑

FRENCH CJ:   Is this really a proposition?  If you do, the answer is the same.

MR WALKER:   Yes, and I ‑ ‑ ‑

FRENCH CJ:   It is not informed by some legal principle all about being able to go into those things.

MR WALKER:   Ultimately, there is, in our submission, here a need to be able to find in the statute, in the statute, enough to be able to perform the constitutional measurement.  Now, in the statue we of course include proper incorporated references and as Justice Hayne has pointed out, in any event, the statute, whichever statue you are using, will lead you to the Appropriation Act which attempted some identification.  Our point is that that identification is far too general to enable it to be fitted within the authoritatively determined concept of benefits to students and that I apprehend is the point that Justice Hayne has been raising with me and I do not wish to obviously resist the proposition that the generalisations that are supplied fit only the illegitimate approach to (xxiiiA), that which says benefit is anything with bestows advantage.

As it happens – and this is not just a forensic flourish – but as it happens, it is well pointed in this case by the repeated expression “wellbeing”; difficult to think of a word more apt to convey the general advantage notion of benefit which this Court has held is not the proper approach.  We do not apprehend the Commonwealth actually is saying that those authorities should be reopened and that “benefit” should simply be given its broadest possible English interpretation.

We adopt and urge what has been said both in reported cases, to which adequate reference has already been made, and during argument raised for consideration of counsel from the Bench to the effect that, were that so, then this bland‑looking phrase permits the provision of programs of extremely far‑reaching import.  Students will benefit qua students, as my learned friend accepts, from being fed.  Well, it is not only at compulsory school lunches that that is true, breakfast is probably even more important.  But it will not just be that.  It will be anything which would be of benefit.

I am not saying that school lunches or breakfasts for poor students are not capable of being supplied under (xxiiiA) but, in our submission, once one goes down the track of wellbeing and when one sees that that includes strengthening values, one is entitled to ask what is the material aid in question at all bearing in mind that there is no counselling and no proselytising. 

By proselytising, I am not talking about the attempted persuasion by people who might be regarded by others as bigots.  I am talking about sincere persuasion to matters which are regarded by the persuader as essential to the inculcation of proper values which for many people embrace what is summed up by the expression “spiritual”.  Why that would be regarded as something that can be provided to students qua students, not by counselling and not by proselytising, questions are constantly raised.

The answer to Justice Hayne’s, if I may say so, with respect, understandable reluctance to go into this net of cross‑references is that when one goes to it specificity recedes at every level.  The clearest thing you get are the negatives and that leaves you with the statutory language at the core of which is this idea of wellbeing or values, none of which could fit within the previously understood conception of benefits to students, perfectly general, and of course, it makes sense then of the fact that this is a project which constantly says it is for others as well as for students.  When you add all of that together, it simply cannot fit within (xxiiiA).

Your Honours, may I then, without actually taking you to it, give you these references for what, as I say, emerges if you go off to the first non‑statutory source which is the guidelines and then get driven down in the way that guidelines require?

Of course, you start with Outcome 2, you go to the PBS, you compare that with the language in item 407.013, then you go to the guidelines and in the core book you will find that starting at page 144.  Can I draw to attention the breadth of the definition of “school community”, which is to be found in some of the descriptions?  You will find that in 184.  The description of the services that you will find at 144, 146, 149, 150, 151, 153, 191, 194 are matters which show that specification of the service depends upon the outcome of decision making by others.  In particular, in the funding agreement itself, which you will find in the core book at page 239, clause 30 subjects the permitted scope of service to compliance with requirements of State government.  Then when you go to volume 1 of the special casebook, not the core but volume 1, the Queensland policy, which you will find in that volume, pages 260 relevantly, 263 and 264, specifies in unqualified terms that it is not a counselling service.

The Queensland agreement, which is required which you will find in the same volume at 318 and following, in clause 2, makes that prohibition – sorry, refers you off, ultimately, to the schedule found at page 333, for description of the service.  Items 7 and 8 of which are instructive, and 8 makes it crystal clear that everything that was talked about in terms of

counselling is to be done by others – the professional, school appointed, so‑called guidance officers.  In that fashion, plus the notion that these services can and will alter, as headmasters from time to time require ‑ ‑ ‑

CRENNAN J:   There is a definition of counselling to be found at 183 in the core special case book.

MR WALKER:   Yes.  It is for those reasons, in our submission, that whether as we submit is the proper course one is confined to what the statute says and legitimate material which will actually supply definition of an apparent incorporated reference, or whether you engage in the ultimately, utterly unrewarding exercise of tracing through what has happened, you will not find specification enabling the constitutional question to be answered favourably.  It is for those reasons, in our submission, that whether it is section 8 or whether it is section 32B, there cannot be satisfaction of 51(xxiiiA), and the case should – the law should fail accordingly.  May it please the Court.

FRENCH CJ:   Thank you Mr Walker.  The Court will reserve its decision. 

Before adjourning I note that this is the last occasion on which Mr Sealy, Solicitor‑General for Tasmania, will appear, and I wish him well. 

The Court adjourns until 2pm.

AT 11.50 AM THE MATTER WAS ADJOURNED