Williams v Commonwealth of Australia & Ors

[2011] HCATrans 185

[2011] HCATrans 185

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

Directions hearing

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE AND PERTH

ON TUESDAY, 26 JULY 2011, AT 11.59 AM

Copyright in the High Court of Australia

____________________

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

MR S.J. GAGELER, SC, Solicitor‑General for the Commonwealth of Australia:   If your Honour pleases, I appear with MR A.J. BUCKLAND for the first, second and third defendants.  (instructed by Australian Government Solicitor)

MR R. MERKEL, QC:   If your Honour pleases, I appear for the fourth defendant.  (instructed by Norton Rose Australia)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If your Honour pleases, I appear on behalf the Attorney intervening.  (instructed by Crown Solicitor (SA))

MR S.G.E. McLEISH, SC, Solicitor‑General for the State of Victoria:   If your Honour pleases, I appear on behalf of the Attorney for Victoria intervening.  (instructed by Victorian Government Solicitor)

MS N.L. SHARP:   May it please the Court, I appear on behalf of the Attorney‑General for New South Wales and I also mention the matter on behalf of the Attorney‑General for Tasmania.  (instructed by Crown Solicitor (NSW) and Solicitor‑General (Tas))

MR G.P. SAMMON:   If it please the Court, I appear on behalf of the Attorney‑General for the State of Queensland.  (instructed by Crown Law)

MR P.D. QUINLAN, SC:   If it please the Court, I appear for the Churches’ Commission on Education Incorporated.  (instructed by Mallesons Stephen Jaques)

MS F.B. SEAWARD:   May it please your Honour, I appear on behalf of the Attorney‑General for Western Australia intervening.  (instructed by State Solicitor (WA))

HIS HONOUR:   Yes, thank you.  Yes, Mr Solicitor.

MR GAGELER:   Your Honour has seen the document we entitled “Submissions”.  It is really an explanation of the paperwork that has been filed over the last few weeks.  Your Honour has seen the proposed order.  There is, I regret to say, one very minor amendment that still needs to be made to the amended special case.  It is just a typographical change.

HIS HONOUR:   I am looking at the document you have prepared headed “Proposed Amendments”.  Can I write it in there or does it go somewhere else?

MR GAGELER:   No.  I am looking at the “Amended Special Case”.

HIS HONOUR:   Yes, I have that.

MR GAGELER:   It is just a cross‑referencing error.  It is at page 8, paragraph 15.5.2, “paragraph 0” should be paragraph 21.

HIS HONOUR:   Thank you.

MR GAGELER:   Subject to that change, the documents as filed are complete from our point of view.

HIS HONOUR:   All right.  You have also filed a proposed order.  Is that acceptable to the plaintiff?

MR NG:   Yes, it is, your Honour.

HIS HONOUR:   And to the fourth defendant?

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   Very well.  If we can look at that for a minute, look at the draft order, I think paragraph 7 might be supplemented a little to assist the Full Court in knowing what has taken place.  Paragraph 7 at the moment reads:

The first, second and third defendants to file a Supplementary Special Case Book incorporating the amended special case and the additional annexures referred to therein –

I would strike out “and”, so it would read then –

referred to therein, the amended pleadings –

I would add –

the submissions by the first, second and third defendants on the directions hearing 26 July 2011 and this order on or before 29 July 2011.

MR GAGELER:   Yes, we will do that.

HIS HONOUR:   Then looking at 8:

Each party and intervener have leave to file and serve amended submissions (in mark‑up) responding to the amendments to the special case, by 29 July 2011.

That seems satisfactory, but I would read it as limited purely to the marking‑up process.

MR GAGELER:   Yes.  There will be some minor striking out.

HIS HONOUR:   Yes, because there are some matters I wanted to raise with I think the plaintiff initially, but probably to the other parties and interveners as well, as to points that might be touched upon succinctly in the oral hand up.  I think the time is too late for a further round of written submission.

MR GAGELER:   Yes.  We may have something to say about the order of address as well, your Honour, something to suggest about that.

HIS HONOUR:   Yes, I was going to ask you about that.  Anyhow, there are some matters I want to put to Mr Ng first.

MR GAGELER:   Yes, your Honour.

HIS HONOUR:   There are five or six points really.  Am I right in thinking that, from your point of view, as to standing, the interventions by Western Australia and Victoria give you support for the executive power points including the trading corporation point and the benefit to students point?

MR NG:   Yes, that is so.

HIS HONOUR:   But you lack any support on the appropriation arguments?

MR NG:   Yes, that is so.

HIS HONOUR:   So standing will be a live issue insofar as there is the appropriation argument?

MR NG:   Quite.  My understanding is that the Attorney‑General for Queensland takes the view that standing is a contestable issue at least in relation to both appropriations and executive power and so that will need to be touched upon, albeit, I suspect, briefly, during the course of oral addresses.

HIS HONOUR:   The second point about appropriations is this.  Just assuming you have the standing and you made your point good, would it not then be open, to put it colloquially, to fix it up by a supplementary appropriation in a more specific form at some later date?

MR NG:   Yes, that might be so, subject to the Court’s conclusions as to the executive power point, yes.

HIS HONOUR:   No, when I say “to fix it up”, I mean for the Parliament to fix it up by a supplementary appropriation at some later date.

MR NG:   Quite, yes.  I was making the point that that is possible subject, of course, to any conclusions that the Court might reach in relation to the executive power point.

HIS HONOUR:   Of course.  All right.  The third point is this.  The submissions which respond to your submissions fix upon executive power to contract.  Would the situation be any different if there was a simple grant?  In other words, is it not the question of spending?

MR NG:   Yes.  The question is ‑ ‑ ‑

HIS HONOUR:   Whether the spending is by a grant or in performance of a contract?

MR NG:   Quite.  That is the manner in which the question has been framed in the plaintiff’s written submissions.  Your Honour will have seen from what has been filed to date on the plaintiff’s side that the focal point of those submissions is the question of the Commonwealth’s power to spend in respect of the National School Chaplaincy Program where ‑ ‑ ‑

HIS HONOUR:   On the assumption that there is an appropriation.

MR NG:   Quite – where the contractual provenance of the obligation so to spend recedes somewhat into the background.

HIS HONOUR:   All right.  You may need to bear that in mind in your oral hand up I think.

MR NG:   Yes, your Honour.

HIS HONOUR:   The fourth point concerns trading corporations and the debate as to whether the fourth defendant is a trading corporation.  There are a number of bodies receiving funds under this scheme I suppose?

MR NG:   That is so.

HIS HONOUR:   Does the same argument apply generally?  Would they have to be looked at one by one?

MR NG:   Your Honour, the plaintiff’s primary argument in relation to trading corporations is that the character of the Commonwealth’s counterparty as a trading corporation would be a matter wholly fortuitous and ultimately unconnected with the subject matter or the terms of each of the contracts by which the scheme is implemented.

HIS HONOUR:   I think Victoria makes that point too.

MR NG:   I beg your pardon, your Honour?

HIS HONOUR:   I think Victoria makes that point in your support.

MR NG:   Yes.  If that is correct, then, in my submission, irrespective of whether any other of these entities providing services is a trading corporation would not determine whether or not a contract equivalent to the one with Scripture Union Queensland is valid because, irrespective of whether they are, the degree of nexus required between the contract and 51(xx) as refracted through section 61 would not be in existence.  If that is incorrect and it is necessary to embark upon an inquiry as to whether or not Scripture Union Queensland is indeed a trading corporation within the meaning of 51(xx), then and, I submit, only then does the question become one which arises in respect of each individual instance.

HIS HONOUR:   All right.  Then the fifth matter concerns this expression “benefits to students and family allowances” and which you have some support from Western Australia and Victoria.

MR NG:   Yes, your Honour

HIS HONOUR:   What I wanted to ask you is, is there not a constitutional fact here as to what is a benefit?  What nature of benefits are we talking about?

MR NG:   On one level that may be a question of constitutional fact, on another level it is a question purely pertaining to construction of 51(xxiiiA).

HIS HONOUR:   Yes, that is right.

MR NG:   It is a debate to some degree which the plaintiff’s submissions bypass by focusing more closely upon the question of whether or not the provision can sufficiently be said to be by the Commonwealth such as to engage 51(xxiiiA).  So my answer to your Honour’s proposition would be that your Honour may be correct ‑ ‑ ‑

HIS HONOUR:   All I am putting to you is you have some allies and they are putting points.

MR NG:   Yes, your Honour.

HIS HONOUR:   You can accept them or reject them, but bear them in mind.  That is all I am counselling you.

MR NG:   Yes.  Your Honour can rest assured that one reason for the manner in which the argument has been framed in the manner in which it has in the plaintiff’s written submissions is that such intricacies may be avoided and ‑ ‑ ‑

HIS HONOUR:   You have to make up your mind what you are going to do about them as Mr Gageler is going to respond on them.

MR NG:   No doubt, yes, and that will be, of course, touched upon in the oral hand up.

HIS HONOUR:   A question may be whether this notion of benefit is broad enough to include any advantage even if not measurable in monetary value or insusceptible of evidentiary evaluation.  In that regard, it might be useful for the interested parties to look at what Lord Simonds said in Gilmour v Coats [1949] AC 426 at 446. It is a case on public benefit and law of charities. He said some notions of religious benefit were simply insusceptible of judicial evaluation and the question is, do those sort of ideas have any intrusion here?

MR NG:   They may do ‑ ‑ ‑

HIS HONOUR:   I am not asking you to answer anything.  I am just flagging points so you do not get them jumping out at you in 10 days time.

MR NG:   Yes, your Honour.

HIS HONOUR:   The second point is, we do not have at the moment a great deal of assistance as to the provenance of this provision in the Constitution, namely, its antecedents, I suspect, in the Beveridge legislation in Britain in 1944 and I think matters to which Sir Owen Dixon was alive in the Pharmaceutical Case.  Lastly, Queensland draws attention to US authorities on Article VI as to the expression “Office”.  We will probably need to know what the response is to that line of authority in the United States both as it existed in 1900 and as it has since been developed.  I do not know what has happened since.  What is the normal length of the oral hand up?

MR NG:   Three pages, your Honour.

HIS HONOUR:   Yes.  We might make it four or five.  Five I think would be more sensible.  All right.  Is there anything any party or present intervener wants to say as to these matters?  What is the position with the proposed intervener?  Mr Quinlan, you have heard what has been said.

MR QUINLAN:   I have, sir.

HIS HONOUR:   Your application will have to be dealt with on the first day of the hearing by the Full Court.  Just tell me at the moment, though, what is the nature of the Churches’ Commission on Education Incorporated?  It is a corporate body, incorporated by guarantee, is it?

MR QUINLAN:   A corporate body incorporated under the Incorporated Associations Act of Western Australia.

HIS HONOUR:   What date is that statute?

MR QUINLAN:   I do not have the statute with me at present, sir, but that will certainly form part of the submissions that we make in relation to the – 1987 my friend from Western Australia – yes, the Associations Incorporation Act 1987 it is incorporated under and it is a body that has been in existence since 1975 and is made up of a number of different member churches and provides the services equivalent to the services provided by the fourth defendant in the present proceedings.

HIS HONOUR:   What other activities, in general terms, does it conduct?

MR QUINLAN:   The activities it conducts include ‑ ‑ ‑

HIS HONOUR:   The reason why I ask you is, Mr Merkel’s client has substantial promotional activities, on one view of it.

MR QUINLAN:   Yes.  The activities it conducts are both education activities and chaplaincy services activities such as those conducted by SUQ.  So it has, for example, education teachers, 450 active education teachers, and 261 ‑ ‑ ‑

HIS HONOUR:   How is it funded?  How does it fund its activities?

MR QUINLAN:   It is funded by way of grant, community donations and contributions, grants and levies including from both the National School Chaplaincy Program and other State government and local government authorities together with recoupment and fees that it charges for various of the services it provides.

HIS HONOUR:   I see.  Very well.  Your application has more chance of success if it demonstrates that you want to put some submissions that otherwise will not be put, I suppose, rather than merely duplicate what is already going to be in the Court.  Do you see what I mean?

MR QUINLAN:   Absolutely, sir.  Our submissions, which are due on Friday, we have endeavoured to confine to only two of the substantive questions in the special case and to respond to specific matters that are not dealt with or are not dealt with to the same degree by the current defendants, including matters that have been raised by the other interveners which have not been addressed necessarily by the defendants thus far in their written submissions.

HIS HONOUR:   Very well.  Thank you.

MR QUINLAN:   Thank you, sir.

HIS HONOUR:   All that remains to be done then is to make the order in the proposed form which was handed up this morning, amended as indicated as to order 7, so that order 7 will read:

The first, second and third defendants to file a Supplementary Special Case Book incorporating the amended special case and the additional annexures referred to therein, the amended pleadings, the submissions by the first, second and third defendants on the directions hearing on 26 July 2011 and this order, on or before 29 July 2011.

I make that order in accordance with the short minutes which I have initialled, dated and placed with the papers.  The amended special case will stand for hearing as presently arranged to commence on Tuesday, 9 August 2011 at 10.15 am.  The Commonwealth Solicitor‑General wanted to say something about order of addresses.

MR GAGELER:   Yes, your Honour.  As your Honour has seen, we are supported by the States on section 116.  We are supported by some of the States on benefits to students and I think we are supported only by one State on section 51(xx), otherwise the States are generally opposed to us.  We thought that the most efficient order of address would be for the plaintiff to go first, to be followed by the States who would say whatever they want to say against us or in support of us, then the defendants in order and then the additional intervener if leave is granted.  That would avoid the necessity to go back to parties for responses.

HIS HONOUR:   Then at the very end of that we may need some further replies as things have developed, I think.

MR GAGELER:   Hopefully not from the States, your Honour.

HIS HONOUR:   Yes.  Just indicate that order again, Mr Solicitor.

MR GAGELER:   Yes.  The plaintiffs, then the intervening States, then the defendants, the first to third defendants and then the fourth defendant, and then the additional intervener if leave is granted.

HIS HONOUR:   But the very first thing will be to deal with that application for additional intervention.

MR GAGELER:   Yes, your Honour.

HIS HONOUR:   Yes, that seems sensible.  Very well then, I make that order.  Is there anything else?

MR MERKEL:   Your Honour, I think with the interveners, what I was hoping that my friend had in mind is that the intervening States would address on the plaintiff’s issues that they support, not enter into the issues which the defendants will address and if they had anything to add to anything to anything the defendants said and the issues they support the defendants, they would then deal with those issues.  I thought there could be a problem if the interveners were, in effect, first cab off the rank on the defendants’ issues, but it is unlikely, one would imagine, that they would have a lot to add on the issues they support the defendants on which.....my learned friend pointed out.

HIS HONOUR:   Yes.  I think we will proceed as the Solicitor‑General indicated.  If it appears the Chief Justice thinks there is some variation necessary on the day, that will take place.  All right.  We will now adjourn.

AT 12.23 PM THE MATTER WAS ADJOURNED