Williams v Commonwealth of Australia & Ors [2011] HCATrans 75

[2011] HCATrans 75

[2011] HCATrans 075

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

AT SYDNEY ON FRIDAY, 25 MARCH 2011, AT 9.30 AM

Copyright in the High Court of Australia

__________________

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

MR S.J. GAGELER, SC, Solicitor‑General for the Commonwealth of Australia:   If the Court pleases, I appear with MR G.R. KENNETT, SC for the first to third defendants.  (instructed by Australian Government Solicitor)

MR J.A. THOMSON:   May it please the Court, I appear for the fourth defendant.  (instructed by Norton Rose Australia)

HIS HONOUR:   Yes, Mr Walker.

MR WALKER:   Your Honour has, I think, seen the material according to which we have come so far but not as far as needs to be come.

HIS HONOUR:   Yes.

MR WALKER:   Your Honour has also seen submissions for directions from my learned friend, the Solicitor‑General, in which may I draw your attention, particularly to 4.2 on the second page of the document.  That records correspondence which your Honour has seen as per the attached copy by which we raised what we call background facts concerning practices, some parliamentary, some to a degree outside the chambers, in relation to legislation to secure the ordinary annual services of the government funding.  The situation between the parties is then, with great respect, well captured by the next two sentences of the submission that you see.  First of all, there is by no means agreement that such material is either necessary or useful.  We would contend affirmatively for both of those, but we accept the Commonwealth may have a position, provisional at the moment ‑ ‑ ‑

HIS HONOUR:   That could be reflected in the draft.

MR WALKER:   Exactly.  The parties agree on that entirely, and then the next sentence, with great respect, captures a helpful and appropriate approach by the Commonwealth which we have confidence will result in an appropriate document.  It is then a matter really for my friend as to how long that will take.

HIS HONOUR:   Yes.  Well, let me ask Mr Thomson.  What is the position about the trading corporation point?

MR THOMSON:   Well, we are hopeful that there ‑ ‑ ‑

HIS HONOUR:   The section 51(xx) point.

MR THOMSON:   Yes, we are hopeful that the relevant material can be stated in a special case.  Based on what has happened so far we think that that is quite possible.

HIS HONOUR:   Yes, it should not be too difficult.

MR THOMSON:   No, that is right.

HIS HONOUR:   All right.  Will that – I do not suppose we know yet whether that conclusion then itself will be controversial.

MR GAGELER:   The fact of Scripture Union being a trading corporation.

HIS HONOUR:   Yes.

MR GAGELER:   That would be a matter for my friend, really.

MR WALKER:   Your Honour, there is nothing really I can say until I see what Mr Thomson produces.

HIS HONOUR:   Yes, I understand that.

MR WALKER:   Your Honour’s prediction may well be correct, with respect.

HIS HONOUR:   Now, with respect to the questions – question 4 and the draft ‑ ‑ ‑

MR GAGELER:   Your Honour, the formulation of these questions proved somewhat difficult.

HIS HONOUR:   Yes, I can see that.  I just flag the point that is entertaining me a little bit.  Question 4 really engages the Financial Management and Accountability Act, does it not, as to the drawings?

MR GAGELER:   Or section 83 of the Constitution, depending on how you see it.

HIS HONOUR:   Yes.

MR GAGELER:   But the question on either approach would boil down to the construction of the Appropriation Acts.

HIS HONOUR:   Yes.

MR GAGELER:   There may be a better way of formulating the question, your Honour.

HIS HONOUR:   Section 27 says:

A drawing right has no effect to the extent that it claims to authorise the application of public money in a way that is not authorised by an appropriation.

So that folds into the immediate constitutional question, I suppose.

MR GAGELER:   Well, it takes you straight to the question of the proper construction of the Appropriation Act.

HIS HONOUR:   Yes.  I just have this matter in mind, having regard to the treatment of it in Combet 224 CLR 494 at 570 and following.

MR GAGELER: Section 83, your Honour will recall, says:

No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.

HIS HONOUR:   Yes.

MR GAGELER:   So it may be one or the other or both.

HIS HONOUR:   Yes, all right.  Now, the other thing I wanted to ask – are you and the fourth defendant completely ad idem as to the grounds being put forward to support the ‑ ‑ ‑

MR GAGELER:   The fourth defendant may take a broader standing point than we take.

HIS HONOUR:   That is what I wondered, yes.

MR GAGELER:   We do not challenge the standing of the plaintiff to allege or obtain relief in respect of the invalidity of the agreement between the Commonwealth and Scripture Union, nor, with respect, to the payment of funds by the Commonwealth to Scripture Union in respect of chaplaincy services at the school where the plaintiff’s child is.

HIS HONOUR:   Right.

MR GAGELER:   Scripture Union, I think, takes a broader standing point and that is in paragraph 10 of the defence of the fourth defendant and it appears to go the entirety of the claim.

HIS HONOUR:   Yes, all right.

MR GAGELER:   But beyond that there may be slight differences of approach, but we are in substantial agreement.

HIS HONOUR:   It may have some significance for dividing up the argument, I suppose, eventually.

MR GAGELER:   Yes, it might.

HIS HONOUR:   For the presentation of argument, I mean.  Now, the Registrar has had an intimation from – if I can put it that way – the Attorneys for Queensland and Victoria that they are, or may be, intervening.  Do you know any more about that?

MR GAGELER:   Not beyond that.  I do not think that means that the other Attorneys will not be intervening at this stage.

HIS HONOUR:   Right.  That has an impact on the listing as well.

MR GAGELER:   Yes.

HIS HONOUR:   All right.  Now, in paragraph 6 of your helpful submissions as to what is to happen, there are dates selected there of 6 and 13 May.

MR GAGELER:   Well, 6 May is just a realistic estimate based on lengthy experience in negotiating special cases, your Honour.

HIS HONOUR:   Yes.

MR GAGELER:   And 13 May is entirely up to your Honour.

HIS HONOUR:   It would be a good thing if this could be got ready for hearing in the August sittings, so May seems sensible - 13 May, however, is a special leave day.  The last thing one wants to be doing is dealing with this case on that day.  Monday, the 9th, but it would have to be in Canberra – it can be by video link if – you will probably be in Canberra.

MR GAGELER:   I will be in Canberra anyway.

HIS HONOUR:   And the other parties can appear by video link at ‑ ‑ ‑

MR WALKER:   Thank you, your Honour.

HIS HONOUR:   It does not require the attendance of senior counsel, really.  We like to hear from junior counsel, actually, from time to time.  Noon, on Monday the 9th, or would some later time on that day be better?

MR GAGELER:   Noon is suitable for everyone.

HIS HONOUR:   Should the date of 6 May be left as it is for the filing?  I would think so.

MR WALKER:   Yes, your Honour.

HIS HONOUR:   The order made this morning is that the first, second and third defendants file and serve any special case that has been agreed on or before 6 May 2011 and that the matter be listed for further directions before me in Canberra on Monday, 9 May at noon.  Costs of today are reserved.  Is there anything else?  We will now adjourn.

AT 9.41 AM THE MATTER WAS ADJOURNED