Williams v Commonwealth of Australia & Ors

[2011] HCATrans 198

[2011] HCATrans 198

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S307 of 2010

B e t w e e n -

RONALD WILLIAMS

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR SCHOOL EDUCATION, EARLY CHILDHOOD AND YOUTH

Second Defendant

MINISTER FOR FINANCE AND DEREGULATION

Third Defendant

SCRIPTURE UNION QUEENSLAND

Fourth Defendant

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 AUGUST 2011, AT 10.18 AM

Copyright in the High Court of Australia

____________________

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

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with MR G.R. KENNETT, SC and MR S.J. FREE 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 friends, MR G.A. HILL and MR J.A. THOMSON, for the fourth defendant.  (instructed by Norton Rose Australia)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS N.L. SHARP, for the Attorney‑General for New South Wales intervening.  (instructed by Crown Solicitor (NSW))

MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friends, MR G.P. SAMMON and MR G.J.D. DEL VILLAR, for the Attorney‑General for Queensland intervening.  (instructed by Crown Law (Qld))

MR G.L. SEALY, SC, Solicitor‑General for the State of Tasmania:   May it please the Court, I appear with my learned friend, MR S.D. GATES, on behalf of the Attorney‑General of Tasmania intervening.  (instructed by Solicitor‑General for Tasmania)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MR M.J. WAIT, for the Attorney‑General for South Australia intervening.  (instructed by Crown Solicitor (SA))

MR S.G.E. McLEISH, SC, Solicitor‑General for the State of Victoria:   If the Court pleases, I appear with my learned friends, MS R.J. ORR and MR N.M. WOOD, for the Attorney‑General for Victoria intervening.  (instructed by Victorian Government Solicitor)

MR R.M. MITCHELL, SC, Acting Solicitor‑General for the State of Western Australia:  May it please the Court, with my learned friend, MS F.B. SEAWARD, I appear for the Attorney‑General for Western Australia intervening.  (instructed by State Solicitor for Western Australia)

MR P.D. QUINLAN, SC:   May it please the Court, I appear with my learned friend, MS K.E. FOLEY, and we seek leave to intervene in these proceedings on behalf of the Churches’ Commission on Education Incorporated.  (instructed by Mallesons Stephen Jaques)

FRENCH CJ:   As an amicus curiae?

MR QUINLAN:   Yes, your Honour.

FRENCH CJ:   Yes, Mr Quinlan, you will have leave and the opportunity to supplement your written submissions with oral submissions.

MR QUINLAN:   May it please your Honour.

FRENCH CJ:   Mr Walker, before we begin, the parties have indicated a proposed order of address.  It appears that the order of address of the State interveners is simply according to the seniority of the Solicitors‑General.  It might be appropriate for the interveners to give some thought to organising the order of their addresses having regard to the distribution of the arguments, as the positions do differ.  I do not ask for an immediate answer in that respect, but perhaps that is something that could be considered over the luncheon adjournment.

MR WALKER:   May it please the Court.  Your Honours, before embarking on the topics in the order we have outlined in the four‑paged document handed up, could I attempt to sketch the way in which the issues presented in the written submissions, based upon the special case, are, as we put it – that is, in our contentions – capable of producing the relief sought.  At the heart of the case is an activity or policy, to use words that one sees in the various levels of document involved in the case, or to use more ordinary English, a program or scheme, devised and announced by the Executive Government and, subject to the other matters in the case, none the worse for that.

In order for the school chaplaincy scheme to be put into operation there was involved, as you will see in the documents I will be taking you to in detail, co‑operation necessary at the local level of what is called in the documents “school communities” an expression which, on any view of it in context, extends to include teachers and administrative staff, children, their parents and, it would seem also, local residents interested in the welfare of the school and its pupils.

There is also involved, as you will see from the scheme, under the expression “entities”, a possible or potential array of bodies or groups who may be concerned in the possible provision of chaplaincy services to school communities.  The fourth defendant is, of course, the actual one involved in this case.  There is also involved the supervisory provisions that one will find from the suite of documents explicitly linked together – guidelines funding agreement and code of conduct – by which the Commonwealth reserves a power to cease the promised funding and even a power to seek reimbursement of the promised funding in certain events which include breach of requirements concerning what is to be done and what is not to be done by persons involved in the chaplaincy program.

Accordingly, it can be seen that the program being within the jargon and activity or policy, we submit, is one which requires the expenditure of money and the involvement of the Commonwealth in a continuing supervisory role which may include turning the tap of money off or seeking the repayment of money already received.  Thus, there is, first of all, not necessarily logically only first but in the order I am about to present it, there is, first of all the question of whether there has been an appropriation, as required by law, to fund the Program at all.

The law concerning Appropriation Acts, to the extent that they are justiciable in this Court, involves a number of limits or prohibitions on what a party may contend for and simply contending, in bald terms, that a provision of an Appropriation Act for this program is invalid, to use an expression either from administrative law or constitutional law, is beyond our reach. Rather, as your Honours will have seen and we wish to emphasise in relation to the appropriation issue, we say that against the setting of, amongst other things, section 54 of the Constitution, the critical, that is dispositive provisions of the Appropriation Acts in question, fall to be interpreted in the way for which we contend.

It does not produce invalidity, it simply says that they have not appropriated, on their proper understanding, in accordance with the critical framework for all the statutes in question, namely, that they shall deal only with the appropriation for the ordinary annual services of the Government.

It is in that area, as your Honours appreciate, that there is the calling in aid by us of the parliamentary practice of a kind considered by the Court, for example in Combet, concerning how it is that for this critical question of whether the Senate may amend a Bill that category, ordinary annual services, is to be determined.  I stress the whole of our argument is one of interpretation and it is an argument that commences, as I shall show in detail when I come to present this part of my argument, it commences really with the Appropriation Act (No 3) 2006-2007 (Cth). When I come to argue the point I shall start with No 1 in deference to the fourth defendant’s contentions, which I shall seek to anticipate, but we say the story starts with No 3.

If I can highlight, as we see the issues joined in the proceedings in relation to that, our task of persuasion is to show your Honours that what we call the appropriation provision in that statute cannot be interpreted so as to include a program which was new.  If it was new, we say as a matter of interpretation, it was not included in the appropriation provision No 3 which is the additional provision in that year, according to the convention, for the ordinary annual services of the Commonwealth and that would be an end of it.  Alas, we cannot rest at that, because elsewhere in the same statute by the expedients which have become conventional, but are by no means fixed, that your Honours have seen referred to in the written submissions there is precise reference, specific reference to this program, in the manner that we have drawn to attention and with which we have to deal.  I stress, we are not arguing for the invalidity of any such reference that would not avail us.

We are arguing that those provisions are incapable of rising higher than their source and their source is the appropriation of the funds, the provisional reserving of the funds, and in our submission if that has not been done in a way that includes this new program because new programs are not within ordinary annual services, then that is the end of the question.

Obviously enough, if there has once been an appropriation for the Program which has been effectuated, then it will not be possible in later years to say it is a new program.  However, if we are correct in the first step we take for the No 3 Act of 2006‑2007 then the matter will carry through in the way in which we have set out in our submissions.  There is first, an appropriation question which, if we are successful, is enough for what I will call overall success.  I do not mean by that to speak comprehensively of each and every element of the relief sought, to which I will turn separately, but there would be overall success in what I will call the argument as a whole.

If we were to fail in relation to appropriation we then come obviously to the question of the power to spend, and I stress this is a scheme announced by the Executive and devised by executive announcement or fiat and effectuated, if it is being validly effectuated at all, by the classic civil conduct of the Executive, namely entering a contract.  By way of sketching in our argument our response to the various contentions that we have sought to anticipate, there is in our submission, no merit in the proposition, if it is relied upon, implicitly or otherwise, that the Program responds to something which can be the subject only of national response in the way in which, for example, in Pape the perceptions of worldwide international financial strain affecting the country was said to provide, as a constitutional fact, a footing for power in that case.

There is, in our submission, no possible argument and we think not has been assayed, except perhaps between the lines, non possible argument that this is a program, the school chaplaincy program, that is any different from, let me hypothesise, a literacy program or a numeracy program, all of which could of course be said to provide the possibility of benefit or improvement for whoever may thereby be sought to be made literate or numerate.

It could not be said, in our submission, that by reason of the importance of literacy or numeracy and in the absence of a national emergency such as might appear from a terrible deficit in both regards, it could not be said, in our submission, that that would fit what might be regarded as a national only emergency calling for a response, regardless of concurrent straight power, to act in the same area. Neither, of course, can it be said, in our submission, that this is a case where the intersection of the executive power, section 61, with 51(xx), is one which provides the explanation for a program, the contract of which, in relation to which we sue, happens to be with a corporation. There are two reasons for that, one is principled and the other is, we say, factual, or a matter of characterisation.

The principled answer is that there is nothing in the Executive promulgation or, so far as can be seen, from the special case execution of the arrangement which turns to the slightest degree upon the character as a trading corporation – that is the only character that has been raised for consideration – of any entity involved in the arrangements.  That is, in our submission, enough to deal with the notion that because someone may say they are a trading corporation the answer is supplied for the power to spend money on this program.

FRENCH CJ:   Does this rest upon an uncontested assumption or depart from – taken as a point of departure – the uncontested assumption that executive power shadows the heads of legislative power under section 51?

MR WALKER:   It has to be said there is a very large element of that in the exchange of written submissions, yes, your Honour.  However, I do not embrace it in those terms.

FRENCH CJ:   Paragraph 2(a) of your oral outline would seem to suggest that.

MR WALKER:   Yes.  That is not exhaustive of the matter, though, because the way in which we wish to put it is that if there is a head of legislative power then the intersection with the executive power will provide an affirmative answer to the capacity to spend.  In our submission, there is, as well, a category of case such as is illustrated by the combination of the taxation power and the national emergency – that is, something calling for national response – that one sees exemplified in Pape’s Case.  In other words, one will not need in such a case an express head of what I will call legislative competence in order to provide for the capacity of the National Executive to act as the National Executive in a circumstance that calls for national response using, of course, the taxation power largely in the way then that Sir Robert Garran suggested a long time ago.  Obviously, we contest the further reaches of the Garran approach to the question, but, no, we do not confine ourselves to the shadow legislative competence point.

GUMMOW J:   We might need some help as to the foundation of this notion in 2(a).

MR WALKER:   I am so sorry, your Honour?  I just did not hear, I am sorry.

GUMMOW J:   We might need some help as to the roots of this notion in paragraph 2(a).

MR WALKER:   Yes.

GUMMOW J:   There is something of a mantra involved here.

MR WALKER:   There is, your Honour, and I will be addressing that when I come to that part of our argument.

GUMMOW J:   Partly, because there is an inefficient appreciation I think, really, of the range and nature of the heads of power in section 51, as Sir Owen Dixon pointed out with some care in Stenhouse some time ago.

MR WALKER: And, your Honours, in particular, for example, at 51(ii) is a power that does not readily provide for limits when one comes to apply it as the source, intersected with section 61, of the spending power.

GUMMOW J:   The reference in Stenhouse v Coleman to which someone had better pay some attention is in 69 CLR 457 at 471.

MR WALKER:   Your Honours, the contentions which have been raised concerning the power to spend on this program, that is to say in our submission, one can eliminate the notion of a national only response, one can eliminate in this case, for two reasons, the corporations power 51(xx).  I have mentioned the first of the reasons .  The second of the reasons concerns what in our submission is an incapacity to characterise the fourth defendant as in fact a trading corporation whichever way one understands that characterisation to be required to proceed.

We then come to that which is rather specifically evocative of this case in section 51 and that is (xxiiiA) – the power that was added as a response to what was perceived to be a deficiency in Commonwealth power following BMA and in particular in the wording of (xxiiiA).  As your Honours know, this case raises the question of the benefits to students component of that list of what, we submit, are social services, social welfare notions.  In that argument as your Honours have seen from the written submission, we very much take the position that this concerns the power of the Commonwealth to legislate with respect to the provision by the Commonwealth of those things that are then listed in (xxiiiA) and we have sought to tease out what provision by the Commonwealth means by referring to a number of ways – they may not be exhaustive – but they are the principal ways that come to mind by which the Commonwealth may provide benefits.

In the course of doing that, we call in aid the history that produced the legislation calling for the referendum, and that which was placed before the electors for that referendum, in order to show that the understanding in particular of the notion of benefits was one which does include not only the provision of things or money but also the rendering available of something that may be regarded as facilities or services but that in every case the notion of benefits to students is one which must be read more narrowly than simply setting up beneficial programs in which students may be involved such as, for example, an overall educational or schooling system and, that benefits to students ought to be rooted historically and contextually, bearing in mind the other items in (xxiiiA), in the notion of ultimately the several making available or providing to students – that is severally to the students – of something which under the Constitution can be regarded as a benefit. That then leads to the next part of the interpretation of (xxiiiA) that divides the parties and shows some variety among the interveners.

In our submission, the word “benefits” appearing in the Constitution will call for this Court to interpret it. It provides ultimately for not merely the grant of power, but that which is concomitant with a grant of power, namely, a limitation on power. And this is the place in the polity that is this Court is the place, where those limits are policed so there must be an interpretation of benefit. However, the word “benefit” as a matter of ordinary English is one which contains so many obvious invidious and strikingly non‑judicial evaluations that there is, in our submission, added to the historical setting another reason to construe benefits in a way which would dismiss the notion of it fitting a generalised program said to be beneficial in the educational sense and, thus, involving students.

And, in our submission, the very difficulty with rendering justiciable a decision whether a certain course of study, training is a benefit to students or not is a reason why, in our submission, the word should be confined to those things that can be seen to be going to students and severally, and I do not mean universally but severally, in a way which will mostly be answered by the description of either money or goods for which money might otherwise need to be paid or perhaps services for which money might otherwise need to be paid.  The classic example, not confining the class but providing an understanding of the heart the meaning, being subsidies that used to be known as living away from home allowances.

The closer the argument under (xxiiiA) engages with the need for the Commonwealth providing a benefit to students the closer, in our submission, one comes to the area for a chaplaincy program where section 116 comes into potential operation.  If we were to lose the argument under (xxiiiA) because the program is seen as one under which the Commonwealth provides “benefits to students”, then the first thing that can be said is that those who are complying with the requirements of the Commonwealth concerning their qualifications, their activities and their discharge or discharge of their obligations in return for the money, the closer it can be said that they are acting under the Commonwealth, they are certainly acting under powers to do certain things, provided by the scheme and they are certainly acting under the supervision of the Commonwealth.

FRENCH CJ:   Is it right that the content of the services provided in a particular school are defined by that school or by an organisation set up within that school?

MR WALKER:   If defined means given quite specific concrete description then the generality of the funding agreement stipulations, to which I will come, certainly suggests that something like that must be happening in practice for a chaplain to know what to do.

FRENCH CJ:   There is something like that in the State Government procedure, I think, is there not?

MR WALKER:   Yes, and there is, as we know, the parallel State system, with which we are not concerned.

FRENCH CJ:   Yes.

MR WALKER:   Your Honour the Chief Justice asked me whether what the chaplains do is defined by, as it were, the people on the spot and in no legal sense are they defined, they must still answer the description in the funding agreement, the guidelines of the code of conduct.

CRENNAN J:   There is repetition of certain phrases which may or may not have some relevance to the provision of services and what I had in mind is that there is repetition of the phrase “counselling and pastoral support”, that is one phrase that recurs in the material and, the other is “references to spiritual wellbeing”.

MR WALKER:   Yes.  They appear in relation to the chaplaincy service as opposed to the secular alternative in the event that a chaplain is not available.  They seem to be characteristic ‑ ‑ ‑

CRENNAN J:   They seem to be characteristics which keep being mentioned in the context of what is actually provided by the chaplains.

MR WALKER:   Yes, they do.

CRENNAN J:   I am just making that remark in the context of the Chief Justice’s question to you.

MR WALKER:   Yes, quite.  If one is talking about stipulation of what the services are, it is in words such as Justice Crennan has raised with me that one finds a stipulation.  The fact that that involves some generality is not, in our submission, any reason not to see that also as a definition.  There may be questions as to whether certain forms of conduct fit within that definition so as to comply with the stipulation or not but that does not mean that it does not remain, albeit general, a definition of that which is to be done under the arrangement. 

It is in that sense, in our submission, that there arises a question concerning the chaplaincy service which no doubt is integral to the nature of the conduct called for under the arrangements being that which Justice Crennan has drawn to attention in the last questions.

GUMMOW J:   There may be some particular use of the word “chaplain”, may there not?  It is not being used in its Oxford English Dictionary meaning, is it?

MR WALKER:   It would appear to be arguably an extended sense.  One would be cautious about being too categorical about what “chaplain” means as a matter of ordinary English.

GUMMOW J:   Its historical…..is clear enough, is it not?

MR WALKER:   It unquestionably has, ecclesiastically, a number of different meanings which start to diverge in various ways relatively early.  However, as a matter of ordinary English, in our submission, in particular, what I will call a non‑parochial holder of an ecclesiastical pastoral office, classically in the military or in a school, or in a prison, or in a hospital that is institutionally ‑ ‑ ‑

GUMMOW J:   A person who is a cleric of some sort?

MR WALKER:   Your Honour anticipates my next point, non‑parochial, that but sharing with parochial office holders the quality of being in holy orders.

GUMMOW J:   And therefore, historically, entrusted with a task in the Christian tradition of proselytising, I would have thought.

MR WALKER:   May I come to the question of evangelism separately?  Yes, is the answer but that is why one has to be careful about applying well understood ordinary English meanings for chaplain.  The first thing is clear, that this is not a scheme which proclaims its uniquely Christian character.  There is no doubt about that.  I will come to that later.

The second is, and Justice Gummow has, with respect, drawn this to sharp attention early, the second is that there are repeated prohibitions on proselytising, so that whatever chaplain means, there is a degree of tension set up.  Now, our point concerning 116 really comes down to this – and it is highlighted, if anything, by the notion, delicate and full of tension as we submit, of this being a scheme which forbids proselytising but which is nonetheless to provide for spiritual guidance, and by persons who are likely to be clerics.

We submit that if the scheme is particularly justified under (xxiiiA) as the Commonwealth providing benefits to students and if, as is clear from the contract, there are stipulations as to what and how and with what limits or restrictions that is to be imposed, sanctioned by the cessation of the work, the withdrawal of the funding or the reimbursement of moneys received, as it is, then this is, in our submission, so far as the chaplains are concerned, something which can properly be regarded as an office under the Commonwealth within the meaning of section 116.  It is a position.  It is something to which people are appointed.  It has meaning only because of a Commonwealth stipulation.  It is subject to the ongoing supervision of compliance with Commonwealth edict and it is sanctioned by what might be called Commonwealth discipline, mostly, of course, financial. 

The words in section 116 are “any office  . . . under the Commonwealth”, an expression which, in our submission, whatever may differ between the word “office” on the one hand and “position” on the other, is apt to enlarge rather than narrow the scope of positions within the constitutional description of office.  If we are correct in that, then the final question for section 116 – not the final question arising from it but the final question under it – is whether this is an arrangement which amounts to a requirement by the Commonwealth – this second half of section 116 does not require a law but simply a requirement – of a religious test. 

For the reasons we have put, and I shall elaborate in address, this is, in our submission, a case where there plainly is a religious test because one cannot understand religious tests as being confined to the selection of a sole or unique religion or sect within a religion as being either favoured or disfavoured.  In our submission, a religious test is a concept which will include the singling out of one for favour, the singling out of one for disfavour, the singling out of more than one for favour, the singling out of more than one for disfavour and, in our submission, a way in which either of those possibilities may come about will include, classically, the qualification or disqualification of certain persons for holding an office under the Commonwealth. 

In our submission, it is plain to demonstration, particularly when one looks at the threshold requirements for a school community choosing a secular person in this position, it is plain to demonstration that there is a test which has to do with the imprimatur – my word not the arrangements, to paraphrase a number of words to which I will come in detail – of what is called a recognised or accepted religion.  The word “organised” does not appear, but obviously when one looks at other words that do appear in the arrangement such as “ordination”, one sees that there is explicit reference being made, if not exclusively, to the outcome of the organisation of religions.  In our submission, that does emerge as a religious test and thus section 116 has been infringed by this requirement.  It is a requirement, that is, the word “no religious test shall be required”, the word “required” is satisfied by this case because there is a stipulation for the receipt of money by way of a qualification for the person who holds the position that we call an office.

The final question that then arises is thus, if we have failed under 51(xxiiiA) in its intersection with section 61 and it has been held that there is authority for this arrangement to be made on that basis, then we submit, notwithstanding, section 116 prevents it from being effectuated because it involves a religious test. It is possible, or at least it requires consideration as to whether there is a lesser response to the prohibition imposed by section 116, and your Honours will have seen that raised in the relief in particular where the question is raised whether or not the definition of “chaplain”, which involved the religious test provisions, should itself simply be regarded as void so as to remove any requirement. That raises questions, in turn, as to whether that would so eviscerate or transform what was thereby left as to defeat that more modest or reticent approach to an infringement of section 116.

So, your Honours, that is that scheme of contention by which we submit that at a number of levels, first of all at the level as has there been an appropriation, second, is there a power to enter into to this arrangement at all and, third, has that power been exercised in such a way as to infringe the prohibition of section 116, we say leads to the outcomes for which we contend. 

Could I then turn to the matters in more detail in accordance with our outline.  May I say at the outset in relation to standing that the position of Queensland has changed and the Solicitor‑General has encouraged me to tell your Honours that the position of Queensland will now be the position of the fourth defendant in relation to standing and, in our submission, that ‑ ‑ ‑

GUMMOW J:   Mean what?

MR WALKER:   Meaning that there is, by reason of the parental relation and the attendance of the children at the school and the subject matter of the arrangement being services at the school, that there is standing in relation to what I will call current or threatened expenditure and the fourth defendants position being, “But it is too late and you have no standing for matters which are now matters of mere history”.  Queensland’s position which, among other things, drew on the non‑compulsory nature of interaction between a particular pupil and chaplain is no longer relied on.  In our submission, the parental relation of the attendance of the children of the school supplies that which is special and historically in this Court, of course, it stands in stark contrast to what might be said about parents or taxpayers who protested about money going to another school, not the school that they or their children attended. 

It is not coincidental in relation to the special concern of parents in this regard.  That is recited and stipulated the various places to which I will come in the arrangement documents themselves.  Special deference is shown to the preferences and position of parents with respect to their children in relation to this particular area that might be called religious.  It is for those reasons, in our submission, that the critical question in standing, if artificially I can deal with it in the abstract, as it were, focuses in particular on the fact that the present arrangement has now been spent in two senses, that is, the money has all gone over, and it will expire by effluxion of time. 

Obviously, Appropriation Acts have what might be called annual meaning and there are now several of them. In our submission, however, not least because of the significance of a sequence of annual appropriations under section 54 of the Constitution, someone who wishes to maintain that a current Appropriation Act cannot include a particular program under the rubric of ordinary annual services, also has standing to attack anything anterior to that year’s Appropriation Act which is relevant in that person’s argument to the question whether there has been a previous appropriation for the activity, that is, whether it is new or not so as to fall outside the parliamentary understanding of the expression “ordinary annual services”.

Now, that will depend upon the particularities of the case as to how far back the matter extends and, obviously, at ludicrous extents the argument will collapse for a number of different reasons.  In this case, of course, there is no such ludicrous extension back in time.  If our argument involves as it must, interpreting Appropriation Act (No 3) 2006‑2007, then, in our submission, that will be a matter that we can raise in order to express the position legally we take concerning current expenditure at my client’s children’s school.

As well as the past, in our submission, there is standing when Appropriation Acts can be said to have been exhausted by the lapse of the financial year or an agreement has been exhausted by effluxion of its term and payment of all moneys due under it in relation to a program which, so far as the special case reveals, is supposed to continue.  In our submission, both for the appropriations point and for the spending point and for the religious test point, all three matters are matters upon which the mere fact that the current agreement is about to expire does not deprive us of standing to allege that an arrangement in those terms is invalid.

That, in my submission, is more a question of whether there is a justiciable controversy than whether there is, if one can put it in the abstract or separately, standing in my client.  In our submission, there is just as much standing in order to put an argument based upon the current arrangement and its efficacy or validity given the obvious intention that the scheme continue as there would be if there were still payments about to be made under the current agreement.  The standing, in our submission, has not expired because there is no suggestion this is intended to be a one-off.

Could I then move to the position in relation to spending.  I wonder if I could take your Honours, please, first to Pape v Federal Commission of Taxation (2009) 238 CLR 1. Could I pick the matter up in the joint reasons of your Honours Justices Gummow, Crennan and Bell commencing at page 86, paragraph 226. There is there raised, as the setting for considerations that follow:

that very broad proposition concerning the extent of the common weal which was expressed in the United Kingdom constitutional theory in the notion of the public service of the Crown.

I will not read on in detail.  At paragraph 227, reticence, with respect, is expressed concerning being exhaustive about outer limits or categorical about outer limits.  Having noted two negative criteria, neither of which operate in this case, there is then an extended quotation from Justice Brennan of the proposition from which I extract the following:

But s 61 does confer on the Executive Government power ‘to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation’ –

In our submission, what emerges from the need, in the context in which his Honour made that statement, is that this is referring to matters which do not find reflection in express heads of legislative competence in the Constitution otherwise. That is the whole point of that part of Davis.  Then built into that quotation is, of course, its own quotation of the relevant words from what Mr Justice Mason had said in AAP.  Your Honours then continued:

That formulation should be accepted, subject to qualifications which it will be necessary to develop later –

In our submission, those qualifications that appear, and I shall attempt to note the expressions that follow, do not reduce the possibility, therefore, of a power of the Executive to engage in activities, which will include contracting and expenditure to discharge liabilities under contracts, which do not find exact reflection in the legislative competence, specific heads of legislative competence found, for example, in section 51.  However, a warning, with respect, is found or a caution is found in the last sentence of paragraph 228, which continues on to page 88, as follows:

while s 51(xxxix) authorises the Parliament to legislate in aid of the executive power, that does not mean that it may do so in aid of any subject which the Executive Government regards as of national interest and concern.

In our submission, there seems in this case not to be any real issue joined.  No one is submitting, we think, that this is a case that fits within Davis or fits within Pape. Could I then take your Honours on page 89, please, to the passage that starts at paragraph 232? The phrase that we would suggest as being an indication of where one would go when not bound by or not confined to subject matters of legislative competence in the Constitution in the phrase that one finds in the middle of paragraph 232:

necessary to ask whether determining that there is the need for an immediate fiscal stimulus to the national economy, in the circumstances set out above, falls within executive power –

That, in our submission, being the subject matter to which your Honours then turn, is dealt with in a way that shows that it was the peculiar circumstances, not contested and accepted in that case, that enabled the position to emerge clearly that this was a response determined upon by the Government, by the Commonwealth as a response to that which on all hands was accepted to be something that lay only within the executive competence of the Commonwealth to confront.  That is reasoning, which commences immediately in a passage I will not read set out in paragraph 233.

GUMMOW J:   Should we not look also at paragraph 127?

MR WALKER:   Yes.  Could I add as well, 133 in that regard from the Chief Justice’s reasons.

FRENCH CJ:   Where does one find support for the proposition that the Executive has power to engage in activities or enterprises which the Parliament could, as distinct from has, in the exercise of its legislative power authorise or require the executive to undertake?

MR WALKER:   In those bald terms one does not find it.

FRENCH CJ:   I took those terms from your outline.

MR WALKER:   Yes.  Your Honours, there will not be an answer that is expressed in categorical terms in case law.  May I take on notice, however, a better answer and supply it immediately after the adjournment.

FRENCH CJ:   When you do, perhaps you can tell us also whether the first sentence of paragraph 17 of your submissions expresses any narrower proposition said to be common ground about entering into contracts.

MR WALKER:   That is anthropologically an accurate statement, but it needs to more than that, yes, your Honour.

GUMMOW J: You might bear in mind that when looking anything said in the older cases they were cases decided at a time when there was a different view of section 81.

MR WALKER:   Yes.  My reference earlier to Sir Robert Garran’s expansive views was an attempt to recognise that there has been a sea change in that regard; a radical alteration.  The answer is going to partly be found, and I do not wish to anticipate too much,  but the answer is going to partly be found in reasoning about the perceived need as a matter of argument to decide Davis’ Case, for example, or the AAP Case, but Davis’ Case, the way it was decided.  May I simply plant this proposition which will relate to the answer I attempt to give after the break to the Chief Justice and to Justice Gummow in this regard?  Clearly enough there cannot be expenditure because there cannot be conduct by or on behalf of the Commonwealth in breach of the law that is in breach of legislation, that is axiomatic.

The question then arises as to whether the notion that section 61 intersects - to use the metaphor that has been advanced - with heads of legislative competence, raises the notion that there is something tantamount to legislative warrant given by an absence of legislative prohibition in an area which the Constitution itself, without any need for particular statute, shows the Commonwealth is intended to be an actor in future and obviously subject to the way in which its Parliament legislates in that regard and that, in our submission, probably lies towards the bottom of the notion that we have recorded in paragraph 17 as appearing to be something in the nature of common ground.

GUMMOW J:   Just look, for example, at section 51(xix) “naturalisation and aliens”.  That has been construed as involving citizenship laws, has it not?

MR WALKER:   Yes.

GUMMOW J:   Assume in Pape, the Executive decided to pay a sum of money to all persons present in Australia on a particular date, they would either be citizens or non‑citizens, aliens.  Would that be supported on the basis that the executive power was hooked into 51(xix)?  That is the sort of question that has to be considered embracing any broad proposition.

MR WALKER:   Yes, it is.  That is why 51(ii) and its probable great breadth – that is why 51(ii) is, in our submission, an essential matter in seeking to apply the ground for decision in Pape to a case such as the present or to that part of the proposition which I will advance in this case at present.  Obviously, 51(ii), in terms of what might be called “rebate”, no doubt a tendentious expression that presupposes a payment earlier, that notion of rebate under 51(ii) is plainly different, for example, from the argument that Justice Gummow has raised whereby one could say that obviously the universe of persons, natural persons present in the country at any given time will include citizens and those who are not, therefore, why would not 51(xix) support any executive action in relation to everyone, that is, everyone who is a natural person? 

CRENNAN J:   It touches on a very general point, I suppose, which is that the Constitution is in respect of the Federation and also in respect of the nation. Under that latter conception, not every conceivable action is covered.

MR WALKER:   That is our submission ultimately as to a reason why – and that is not really the answer to the question the Chief Justice has asked but it is going to extend from it – the reason why heads of legislative competence do provide some footing in understanding executive power to spend without specific legislative provision for that very expenditure. That is, the Constitution allots a function to the Commonwealth Executive which is to be the National Executive and that has both far reaching consequences, such as are noticed in Davis and Pape, but it also includes matters whether under the rubric of Melbourne Corporation or under particular provisions like section 106, for example, will affect what can be done by the Commonwealth, notwithstanding it protests national imperative to do something.  Section 99 is perhaps one of the most obvious in relation to matters of economics in that regard leaving aside what may be contained in the compendious phrase “any law or regulation of trade”, and similarly section 100.

Now, it is our submission that what the authorities to which I have already drawn attention – that is, AAP, Davis and Pape in the imbedded quotation – what they do show is that there is needed to be a quality of the conduct or the circumstances in which it is proposed to be carried out in order for that head of executive power to spend being available.  That simply cannot on any view of it, in our case, be true in this case. 

Your Honours, could I go back to where I was at page 89 in Pape?  Having noticed that the essential constitutional fact in paragraph 233, paragraph 234, the interpretation question is raised again and, with respect, in accordance with the tradition in the Court, paragraph 234 eschews ultimately, definitive or categorical answers.  The only question in this case is whether anything hitherto descried or built upon principles to be seen from authorities would seem to support spending on the chaplaincy program in the absence of, for example, a specific piece of legislation which would have been amendable by the statute with a standing appropriation which would have been amendable by the Senate.

At page 90 in paragraph 238, the reasoning, as it must, notices that a prohibition has not be infringed and then in paragraph 239, in our submission, the combined quotations from Davis are describing a situation which it could not seriously be maintained was true of a situation shown by this case where, as we know, there is a parallel state chaplaincy program with no suggestion of inadequacy. 

Paragraph 242 at the foot of page 91 again emphasises the fact that the Commonwealth is the only polity with the resources, is a matter which was critical to the authorised expenditure in that case and the last sentence of paragraph 242, in our submission, that which uses the word “example”, is a description of a matter which, whether by qualification or otherwise, represents what we would urge is a proper approach to the use of the accommodation of the executive power and the status as the National Executive of the Commonwealth in order to justify the authorised expenditure in that case.

Your Honours, I can pass quickly, because there does not appear, we think, to be much contest between those at the Bar table over what we have flagged in paragraph 3(b) of our outline concerning section 81. We do not understand that it is said that that provides, via the Appropriation Act, everything that is necessary. Subject then to the question which is fundamental to turning to particular heads of legislative competence in the Constitution, which I will come back to after the luncheon adjournment, could I then turn to those that we have drawn to attention in our outline starting with the one which looms perhaps largest specifically in this case. That is 51(xxiiiA). In paragraph 4 we ‑ ‑ ‑

FRENCH CJ: What is the nature of the exercise here? I suppose this throws up the importance of the premise on which this is all based. Does one, in deciding whether an expenditure under section 61 reflects its intersection with a particular head of power, imagine, as it were, a law which might be made under that head of power conferring authority on the Executive to undertake that expenditure?

MR WALKER:   Your Honours, that would appear to be a denial of the notion of government by law.  It also seems to be a remarkably unstable way to proceed because some imaginations, if we might put it this way, are more florid than others in terms of the kind of laws that might strike at Parliament or members of the two chambers of a Parliament as fitting within a particular head of competence.  This Court obviously is concerned, when it looks at exercises of legislative competence, with concrete examples rather than hypothetical examples.  That is the first part of my response to the Chief Justice’s question. 

The second part is, in principle, if there is a proper way in which one, as everyone at the Bar table seems to be, has regard to heads of legislative competence in their so‑called intersection with section 61, it lies simply in the proposition that literally by definition of the Constitution, those heads of legislative competence describe the kind of polity that the Commonwealth is in this Federation. It is the kind of polity with those capacities to legislate. Having described it in those terms with respect to capacity to legislate, so would run the argument in principle, it is impossible to say that the executive power could be any smaller in extent.

Seen in that way, cases such as Davis, and much more importantly in terms of the gravity of the subject matter, Pape, emerge as cases where there is something about being the National Executive, and I have drawn attention to the particular ways in which that is expressed as a mark of validity or power, which appertain to the Commonwealth and does not appertain to any other entity or source of power in the Federation, let alone obviously States or Territories, who are the only other competitors for the exercise of executive power.

I am conscious that that attempts a form of reasoning as to why one pays any regard to what I will call “unexercised heads of legislative competence” rather than provides supporting authority for that being a positive description of the extent of power under section 61 which, with resort perhaps to section 51(xxxix), provides the authority for authorised expenditure.

GUMMOW J:  To some extent what has been suggested from time to time as to the interrelation between 61 and 51 I think it has been maybe a reaction to some submissions that were too narrow. In the AAP Case (1975) 134 CLR 341, for example, Mr McLeish’s predecessor, the Solicitor for Victoria, submitted that section 61 did not confer an executive power beyond the execution of laws made by the Parliament which is too narrow.

MR WALKER:   Yes.

GUMMOW J:   That then stimulated a response by some justices which may have been too generally expressed.  The result is we are in this unhappy situation.

MR WALKER:   Yes.

GUMMOW J:   That needs some consideration, I think, probably.

MR WALKER:   It does, with respect.  I do wish to gather my thoughts on that point because ‑ ‑ ‑

GUMMOW J:   Yes, I understand that.

MR WALKER: There is, with respect, in a manner not thrown up by differences between those at the Bar table, consideration at a fundamental level of the relation of section 61 to other provisions of the Constitution with other functions, classically section 51, in a way that the case law does not, on my current attempt to summarise it. The case law really does not provide a categorical answer. There certainly is no yes or no. We submit there is no yes or no to be found in the cases to the proposition that we have so airily advanced in our written submission. I do not submit it was done lightly, but I do accept that it is expressed in terms of generality that deserve scrutiny.

HAYNE J:   It is a level of generality that seeks to define the ambit of executive power by the ambit of power of the legislative branch rather than the ambit of action by the legislative branch.

MR WALKER:   Yes.

HAYNE J:   If what was advanced in AAP was too narrow, as would seem to follow from Davis, Pape, et cetera, what is the intermediate position, if any, that is obtained where there is a limit on executive power to spend, exemplified by response to perceived national needs, that stops short of saying the Executive can spend on anything it thinks?  If we were to tend to that end the spectrum that presents an acute question of relationship between the integers of the Commonwealth polity.

MR WALKER: Yes. One of the ways that Justice Hayne described the extreme – namely, section 61 provides a power to spend on anything that the Commonwealth, meaning the Executive, sees as appropriate and there is money from Finance because of a section 81 provision, that would appear to be many bridges too far for anyone to attempt.

If that is read as a taunt, heard as a taunt by my learned friend immediately to my right, so be it, but we think that is not in question in those bald terms. I accept entirely that what I will call, just as a convenient label, the national emergency view of section 61, and I do not wish too much weight to be given to the particular meaning of “emergency”, that is well‑cemented in authority and I have been at pains, perhaps excessively so, to submit that there is absolutely nothing about a chaplaincy program that would fit that head regardless of the extent of deference that might or ought be shown by the Court to executive assessment of national emergencies.

Then I am in the peculiar position of finding myself arguing for a doctrinal basis for considering heads of legislative competence in order to adjudge the availability of executive competence whereas if there was no such general proposition obviously I would be in a more secure position in launching my assault on the lawfulness, using the most general terms I can, of the program. If that arises as a proper way to read the Constitution then so be it. Without too much anticipating before proper thought on what I wish to come back to after the break, it does arise from your Honour’s questions, in our submission, that of the logical possibilities one is, as I have already tried to put it, namely that legislative competence, which includes potential un‑enacted laws, serves a function in relation to section 61 of describing areas of Commonwealth activity expressly contemplated, in this regard to be contrasted with the impliedly contemplated from the nationhood or national emergency matters, expressly contemplated in the case of legislative competence powers as areas of operations for the Commonwealth. There is that possibility.

Another possibility is detracting or ameliorating somewhat the narrowness of Mr Dawson’s submission, nonetheless recognising that the Commonwealth is a polity created by a supreme law and acting through law and by lawful means, that the executive will need at all times to be able to say, either by reference to being the National Executive in national emergency, or by reference an area of conduct in which it must have the powers, as it were, of a natural person in terms of contracting, et cetera, so buying the stationary, or doing something which neither appertains to what natural persons do, buying stationary, nor to what national polities must do, responding to national emergencies, there is a middle category that the national polity may do and the possibility emerges, we think, not supported in the case law, but perhaps on reflection not precluded by it either, the possibility emerges that there is, in that very large middle, a category of activity that will require legislative mandate.

Now, legislative mandate may be given, of course, extremely generally and for a large, if not the most, part of our constitutional history an obvious source of that very general mandate was thought to be section 81. If that is no longer true and if there is nothing that could step into the role of the exploded old notion of section 81, then logically it may follow that all programs such as the chaplaincy program, ought, for reasons which in political terms some may regard as salutary, be the subject of mandate by the people’s representatives – that is, if there should be a statute.

Now, the importance of that in this case, of course, is that the technicalities of an appropriation argument which turn on the non‑technical – that is, truly political question of whether a Senate may amend a Bill – would be entirely to one side if that were the case because the legislation authorising a program would have been through what, I might call, the full mill of Parliament.  By the full mill I mean, of course, at the very least, the capacity of the Senate to amend a Bill.  If that were true, of course, it would also follow in this case that in the absence of any – I will call it enabling legislation – the program is a purported exercise of executive power which lacks any constitutional footing and is, therefore, ineffective.

It would be invalid, accordingly, as would, of course, any purported appropriation for it.  The contract made purportedly pursuant would be invalid.  It would follow that no question of section 116 arose because there would be no office under the Commonwealth.

HEYDON J:   You have got to fish or cut bait, though.  Are you arguing that?

MR WALKER: Your Honour, may I give a monosyllabic answer to that immediately after the adjournment? I wish to reflect on that. It is raised as a possibility by the questions asked of me and it may be that we will argue it, but before I answer yes or no to that I do wish, if I may, have some time to reflect. At the moment, it is difficult in that large middle, as I have described it, for me to suggest to your Honours that there is, as it were, logically or in the nature of the Constitution something that arises by way of subcategories or classifications otherwise than in accordance with whether there is enabling legislation or not.

Your Honours, can I then come back to the task that we had set ourselves, accepting that if there were an intersection between section 61 and a head of legislative power then that would provide a footing for the program?

HAYNE J:   This floats free from any doctrinal basis apparently?  That is left over until after lunch, is it?

MR WALKER:   Yes.  Whether it floats free, I am not answering “yes” to, but certainly I wish to come back to that matter after lunch, may it please, your Honours.  Your Honours, in opening I have already referred to the critical expression in 51(xxiiiA) which, in our submission, did not arise in a vacuum linguistically.  At this point if I may take your Honours please to the British Medical Association Case (1949) 79 CLR 201? This, of course, is – I think I have mistakenly said, this was the occasion of a change of the Constitution – this is a case looking back on the matters. I just wish to take your Honours first to remind you of the way in which the legislation there being considered was devised to operate and one can pick that up at page 230 in the Chief Justice’s reasons where one sees that the Act provided that:

“every person (not being a patient occupying a bed in a public ward in a public hospital) ordinarily resident in the Commonwealth shall be entitled to receive pharmaceutical benefits.”

And then a dispensation as follows –

“a person receiving a pharmaceutical benefit shall not be under any obligation to make any payment therefor to the person supplying the pharmaceutical benefit.”

So we have three personages in this model of a 51(xxiiiA) provision.  One has the Commonwealth.  One has the person receiving a benefit – for ease of reference call it beneficiary.  Then one has a person there described as supplying the pharmaceutical benefit; obviously not the Commonwealth, I will call it the supplier.

Thus, one can have in simplified terms the Commonwealth, through a department, a person being a patient or customer, and a supplier being a pharmacist.  In our submission, it can be seen, therefore, that the benefit in that case is providing the wherewithal for the supplier to be satisfied as to price and the wherewithal for the customer to be discharged as to obligation so as to produce the receipt of ultimately medicine.  The fact that the ‑ ‑ ‑

HAYNE J:   But, in essence, it was money paid in satisfaction of individual need.

MR WALKER:   Yes, quite so.  Now, the history in that regard ‑ ‑ ‑

HAYNE J:   I use the expression “money paid” to evoke the common money count.

MR WALKER:   Yes.  The history in that regard reaches back into the last third or so of the 19th century and is picked up and described by Mr Justice Dixon.  If I can take your Honours, in particular, to page 259 and following.  Having set out the integers of the power in the second full paragraph commencing “In the first place”, his Honour then proceeded:

The word “allowances” seems clearly enough to refer to monetary allowances –

and I interpolate to say we do not understand it has been argued to the contrary –

and of course the word “pensions” denotes money payments.  One of the meanings of the word “endow” is to provide or secure a permanent income for a person or an object.  In the expression “child endowment” the word endowment is used in a corresponding sense with reference to periodical payments in respect of children.

One can interpolate that ordinary English other meanings available for endow would be clearly inappropriate, such as suggesting that a child was endowed with talent.  Continuing the quote, there is a reference to 1929 commission in which, before his elevation to the Bench, Mr Dixon had, of course, played some role by way of submission.  His Honour continues:

Valid or invalid, –

a reference to then recent legal history –

a Federal Child Endowment Act was passed in 1941 (No 8) and the expression was familiar in State legislation.

Then there is the reference to the United Kingdom and –

In the report by Sir William Beveridge on Social Insurance and Allied Services (1942) the expression chosen is “Children’s Allowances”. 

Then his Honour comes to the particular word which we stress does find its place in this list of words that he has already considered, “benefit”.  He says:

KIEFEL J:   It may be that they do not exist for the purpose of direct distribution of gain, unlike many corporations in a commercial sense.

MR MITCHELL:   Yes.  The test we identify does not depend on gain by the members, it may be gain by the corporation itself.  Again, when I come to the historical material, both concepts were engaged.

While I am dealing with the question of authority, can I deal with the St George County Council Case and what Chief Justice Barwick said in that case which appears to have been the genesis of the approach of looking to the activities undertaken by the company whose character is to be determined for the purposes of section 51(xx). We have set out the critical passages at paragraphs 13 to 15 of our written submissions. I do not propose to read those again. We say, with respect, that the Chief Justice’s conclusions were based on two incorrect premises.

The first was that at the time of Federation there was a generally accepted definition of a trading corporation and it was assumed that such a corporation could be identified by its activities.  We say that the history with which I will shortly come demonstrates to the contrary.  The second was to focus on the purpose of the corporations power as including the control of the activities of the corporation without concern with the motives which prompt those activities or the ultimate ends by which the activities hope to achieve. 

We say subsequent decisions of this Court culminating in the Work Choices Case 229 CLR 1 at 114 show the corporations power to be much broader and, indeed, show that there is no reason why a law enacted under section 51(xx) cannot focus on the motives for or the ends sought to be achieved by a corporation’s activities. One can come back to your Honour Justice Heydon’s example of the Australian Competition and Consumer Act which have provisions concerned with conduct engaged in, for example, the purpose of substantially lessening the degree of competition in a market, the purpose for which the activity is undertaken or the results of that activity.

If it is a case that the primary focus of the corporations power can no longer be said to be the regulation of the activities of a trading corporation, the imperative to characterise trading corporations by reference to their activities and without regard to the purpose for which those activities are undertaken is removed.

Your Honour, can I then come to the historical material which is collected in a book of statutory and historical matters.  Our argument takes us to the beginning of the terms of the Companies Act 1862 (UK) which had Australian equivalents in the various colonies by the time of Federation.  One finds that Act under tab 1 at page 1.  At page 434 of the print, one sees that the title of the Act is:

An Act for the Incorporation, Regulation, and Winding‑up of Trading Companies and other Associations.

That reference to trading companies and other associations is repeated in the preamble.  One then finds in section 4 the requirement for certain trading companies to be incorporated.  The first part of the section refers to businesses carried on, or the business of banking.  Then after the semicolon at about point 4 on page 435 it says:

no Company, Association, or Partnership consisting of more than Twenty Persons shall be formed, after the Commencement of this Act, for the Purpose of carrying on any other Business that has for its Object the Acquisition of Gain by the Company, Association, or Partnership, or by the individual Members thereof –

One has both concepts; acquisition of gain by the body that is required to be incorporated and an acquisition of gain by its members –

unless it is registered as a Company under this Act, or is formed –

Elsewhere.  Those, we say, were the trading companies which the 1862 Act required be incorporated.  Other associations could be but need not be incorporated and those were provided for in section 6 of the Act.  The concept of a charitable corporation was dealt with in two provisions of the Act as amended.  Firstly, at section 21 which appears on page 3 of the book of materials at page 440 of the print.  The reference is made to:

No Company formed for the Purpose of promoting Art, Science, Religion, Charity or any other like Object, not involving the Acquisition of Gain by the Company or by the individual Members thereof, shall –

essentially hold more than a certain amount of land.  Secondly, under tab 2, one sees the Companies Act 1867, section 2 of which identifies that as an amending act.  Section 23 of which, on page 5 of the book of materials, page 597 of the print, refers to associations:

formed for the purpose of promoting commerce, art, science, religion, charity, or any other useful object (a), and that it is the

intention of such association to apply the profits, if any, or other income of the association, in promoting its objects, and to prohibit the payment of any dividend to the members of the association –

I pause to say that those provisions are both found in the fourth defendant’s constitution and then –

the Board of Trade may, by licence –

enable it to use its name without the addition of the word “limited”.

By the time of Federation, those provisions were understood as distinguishing between commercial undertakings for the purposes of the gain of the corporation or its members and charitable bodies.  We have set out the relevant passages at paragraphs 27 to 29 of our written submissions In Re Arthur Average (1875) 10 Ch 542 at 546 to 548. That understanding was reflected in the standard textbooks of the late 19th century and we have made reference to those ‑ ‑ ‑

GUMMOW J:   Is this not discussed in Work Choices in some detail?

HAYNE J:   In paragraphs 96 and following, through to 124.

MR MITCHELL:   Yes, your Honour.

HAYNE J:   In no little detail.

MR MITCHELL:   So, your Honours, we say the dichotomy between trading corporations and corporations formed solely for charitable purposes not involving the acquisition of gain was established at Federation and it is in that context to which the reference of trading and financial corporations should be understood.  May it please the Court, those are our submissions.

FRENCH CJ:   I think that might be a convenient time to adjourn.  We will adjourn until 10.15 tomorrow morning.

AT 4.14 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 10 AUGUST 2011