Williams v The Commonwealth

Case [2012] HCA 23

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

RONALD WILLIAMS  PLAINTIFF

AND

COMMONWEALTH OF AUSTRALIA & ORS   DEFENDANTS

Williams v Commonwealth of Australia [2012] HCA 23
20 June 2012
S307/2010

ORDER

The questions stated in the Amended Special Case dated 26 July 2011 be answered as follows:

Question 1

Does the plaintiff have standing to challenge:

(a)        the validity of the Darling Heights Funding Agreement?

(b)the drawing of money from the Consolidated Revenue Fund for the purpose of making payments pursuant to the Darling Heights Funding Agreement during the following financial years:

(i)         2007-2008;

(ii)        2008-2009;

(iii)      2009-2010;

(iv)       2010-2011;

(v)        2011-2012?

(c)the making of payments by the Commonwealth to Scripture Union Queensland pursuant to the Darling Heights Funding Agreement during the following financial years:

(i)         2007-2008;

(ii)        2008-2009;

(iii)      2009-2010;

(iv)       2010-2011;

(v)        2011-2012?

Answer

(a)Yes.

(b)Unnecessary to answer.

(c)Yes.

Question 2

If the answer to Question 1(a) is Yes, is the Darling Heights Funding Agreement invalid, in whole or in part, by reason that the Darling Heights Funding Agreement is:

(a)beyond the executive power of the Commonwealth under s 61 of the Constitution?

(b)prohibited by s 116 of the Constitution?

Answer

(a)        Yes.

(b)        No.

Question 3

To the extent that the answer to Question 1(b) is Yes, was or is the drawing of money from the Consolidated Revenue Fund for the purpose of making payments under the Darling Heights Funding Agreement authorised by:

(a)        the 2007-2008 Appropriation Act?

(b)        the 2008-2009 Appropriation Act?

(c)        the 2009-2010 Appropriation Act?

(d)        the 2010-2011 Appropriation Act?

(e)        the 2011-2012 Appropriation Act?

Answer

Unnecessary to answer.

Question 4

To the extent that the answer to Question 1(c) is Yes, was or is the making of the relevant payments by the Commonwealth to Scripture Union Queensland pursuant to the Darling Heights Funding Agreement unlawful by reason that the making of the payments was or is:

(a)beyond the executive power of the Commonwealth under s 61 of the Constitution?

(b)prohibited by s 116 of the Constitution?

Answer

(a)The making of the payments was not supported by the executive power of the Commonwealth under s 61 of the Constitution.

(b)No.

Question 5

If the answer to any part of Question 2 is Yes, the answer to any part of Question 3 is No, or the answer to any part of Question 4 is Yes, what, if any, of the relief sought in the statement of claim should the plaintiff be granted?

Answer

The Justice disposing of the action should grant the plaintiff such declaratory relief and make such costs orders as appear appropriate in the light of the answers to Questions 1-4 and 6.

Question 6

Who should pay the costs of this special case?

Answer

The first, second and third defendants.

Representation

B W Walker SC with G E S Ng for the plaintiff (instructed by Horowitz & Bilinsky)

S J Gageler SC, Solicitor-General of the Commonwealth with G R Kennett SC and S J Free for…

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Details
AGLC
Williams v The Commonwealth [2012] HCA 23
Case
[2012] HCA 23
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a special case brought by a plaintiff challenging the validity of a funding agreement between the Commonwealth and a private service provider for the provision of chaplaincy services at a state school. The dispute concerned the executive power of the Commonwealth under section 61 of the Constitution, the authorisation of appropriations from the Consolidated Revenue Fund, and the prohibition of religious tests under section 116 of the Constitution. The plaintiff, whose children attended the school, sought to challenge the funding agreement and the subsequent payments made to the service provider.

The central legal issues before the Court were whether the plaintiff possessed standing to challenge the funding agreement and the payments made under it, whether the funding agreement was invalid as being beyond the executive power of the Commonwealth or prohibited by section 116 of the Constitution, and whether the payments made to the service provider were unlawful for similar reasons. The Court was also asked to consider whether the drawing of money from the Consolidated Revenue Fund for these payments was authorised by the relevant Appropriation Acts.

The Court determined that the plaintiff had standing to challenge the funding agreement and the payments made pursuant to it. However, it found that the funding agreement itself was not invalid as being beyond the executive power of the Commonwealth, nor was it prohibited by section 116 of the Constitution, as the chaplains did not hold an "office under the Commonwealth." Crucially, the Court held that the making of payments by the Commonwealth to the service provider was not supported by the executive power of the Commonwealth under section 61 of the Constitution. The Court also deemed it unnecessary to answer questions relating to the authorisation of appropriations from the Consolidated Revenue Fund. The Court ordered that the plaintiff be granted such declaratory relief and costs orders as appeared appropriate in light of its findings.

Orders

Orders of the court

The questions stated in the Amended Special Case dated 26 July 2011 be answered as follows:

Question 1

Does the plaintiff have standing to challenge: (a) the validity of the Darling Heights Funding Agreement? (b) the drawing of money from the Consolidated Revenue Fund for the purpose of making payments pursuant to the Darling Heights Funding Agreement during the following financial years: (i) 2007-2008;(ii) 2008-2009;(iii) 2009-2010; (iv) 2010-2011;(v) 2011-2012? (c) the making of payments by the Commonwealth to Scripture Union Queensland pursuant to the Darling Heights Funding Agreement during the following financial years:(i) 2007-2008;(ii) 2008-2009;(iii) 2009-2010;(iv) 2010-2011;(v) 2011-2012?

Answer (a) Yes. (b) Unnecessary to answer. (c) Yes.

Question 2

If the answer to Question 1(a) is Yes, is the Darling Heights Funding Agreement invalid, in whole or in part, by reason that the Darling Heights Funding Agreement is: (a) beyond the executive power of the Commonwealth under s 61 of the Constitution? (b) prohibited by s 116 of the Constitution?

Answer (a) Yes. (b) No.

Question 3

To the extent that the answer to Question 1(b) is Yes, was or is the drawing of money from the Consolidated Revenue Fund for the purpose of making payments under the Darling Heights Funding Agreement authorised by: (a) the 2007-2008 Appropriation Act? (b) the 2008-2009 Appropriation Act? (c) the 2009-2010 Appropriation Act? (d) the 2010-2011 Appropriation Act? (e) the 2011-2012 Appropriation Act? Answer Unnecessary to answer.

Question 4

To the extent that the answer to Question 1(c) is Yes, was or is the making of the relevant payments by the Commonwealth to Scripture Union Queensland pursuant to the Darling Heights Funding Agreement unlawful by reason that the making of the payments was or is: (a) beyond the executive power of the Commonwealth under s 61 of the Constitution? (b) prohibited by s 116 of the Constitution?

Answer (a) The making of the payments was not supported by the executive power of the Commonwealth under s 61 of the Constitution. (b) No.

Question 5

If the answer to any part of Question 2 is Yes, the answer to any part of Question 3 is No, or the answer to any part of Question 4 is Yes, what, if any, of the relief sought in the statement of claim should the plaintiff be granted? Answer. The Justice disposing of the action should grant the plaintiff such declaratory relief and make such costs orders as appear appropriate in the light of the answers to Questions 1-4 and 6.

Question 6

Who should pay the costs of this special case? Answer The first, second and third defendants.

Background

Background to the litigation

A number of questions were posed for determination by the amended special case. Question 1 was whether the plaintiff had standing to challenge the DHF Agreement and, for each of the financial years from 2007-2008 to 2011‑2012 inclusive, the drawing of money from the CRF and the payments by the Commonwealth to SUQ. For the reasons given by Gummow and Bell JJ[6], I agree that the plaintiff had the requisite standing to support his challenge to the DHF Agreement and the payments made under it. I agree that it is unnecessary to answer the question relating to the drawing of money from the CRF for the purpose of making payments under the agreement. On the basis that the plaintiff had the requisite standing, the remaining questions were: [6]Reasons of Gummow and Bell JJ at [112].2.is the DHF Agreement invalid, in whole or in part, by reason that the DHF Agreement is: (a)beyond the executive power of the Commonwealth under s 61 of the Constitution?(b) prohibited by s 116 of the Constitution?3.is the drawing of money from the CRF for the purpose of making payments under the DHF Agreement authorised by: (a) the 2007-2008 Appropriation Act?(b) the 2008-2009 Appropriation Act?(c) the 2009-2010 Appropriation Act?(d) the 2010-2011 Appropriation Act?(e) the 2011-2012 Appropriation Act? 4.was or is the making of the relevant payments by the Commonwealth to SUQ pursuant to the DHF Agreement unlawful by reason that the making of the payments was or is: (a)beyond the executive power of the Commonwealth under s 61 of the Constitution?(b) prohibited by s 116 of the Constitution?I agree, again for the reasons given by Gummow and Bell JJ, that neither the DHF Agreement nor the payments made under it were prohibited by s 116 of the Constitution[7]. The only limb of that provision relevant to this case was that which prohibits the Commonwealth from requiring any religious test "as a qualification for any office … under the Commonwealth." The persons providing chaplaincy services under the DHF Agreement did not hold offices under the Commonwealth. Questions 5 and 6 related to the relief sought, dependent upon the answers to questions 2, 3 and 4, and who should pay the costs of the special case.[7]Reasons of Gummow and Bell JJ at [107]-[110].Factual background On 29 October 2006, Prime Minister Howard announced the introduction of the NSCP for the provision of chaplaincy services in schools. The initial level of funding announced was $90 million over a three year period. That level of funding was increased in 2007 to $165 million over three years. Prime Minister Rudd announced an extension of the NSCP in November 2009. That extension involved additional funding of $42 million over the 2010 and 2011 school years. Following Prime Minister Howard's announcement the Department of Education, Science and Training ("DEST") issued NSCP Guidelines. The guidelines were administrative in nature. They did not have statutory force. Revised guidelines were issued on 19 January 2007. Responsibility for the administration of the NSCP was brought under the Department of Education, Employment and Workplace Relations ("DEEWR") on 3 December 2007[8]. Further revised guidelines were issued on 1 July 2008 and 16 February 2010. From July 2008 DEEWR made funds available under the NSCP for the provision of secular pastoral care workers in accordance with a Secular Service Providers Policy ("SSP Policy"). Where a school seeking funding under the NSCP had been unable to locate a suitable chaplain, it was given a copy of the SSP Policy. [8]By operation of an Administrative Arrangements Order.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ

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Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ

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