HIGH COURT OF AUSTRALIA
FRENCH CJ,
HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJRONALD WILLIAMS PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA & ORS DEFENDANTS
Williams v Commonwealth of Australia
[2014] HCA 23
19 June 2014
S154/2013
ORDER
The questions in the amended special case dated 1 May 2014 be answered as follows:
Question 1
Was the SUQ Funding Agreement:
(a)as made, and as varied by the First to Fourth Variation Deeds, authorised by Appropriation Act (No 1) 2011-2012 (Cth)?
(b)as varied by the Fifth to Tenth Variation Deeds, authorised by Appropriation Act (No 1) 2012-2013 (Cth)?
(c) as varied by the Eleventh to Fourteenth Variation Deeds, authorised by Appropriation Act (No 1) 2013-2014 (Cth)?
Answer
Unnecessary to answer.
Question 2
If not, are:
(a)s 32B of the Financial Management and Accountability Act 1997 (Cth) (FMA Act);
(b)Part 5AA and Schedule 1AA of the Financial Management and Accountability Regulations 1997 (FMA Regulations); and
(c)item 9 of Schedule 1 to the Financial Framework Legislation Amendment Act (No 3) 2012 (the Financial Framework Amendment Act);
wholly invalid?
Answer
In their operation with respect to the SUQ Funding Agreement (being the Funding Agreement dated 21 December 2011 between the Commonwealth and Scripture Union Queensland, the third defendant, as varied from time to time up to and including a Fourteenth Variation Deed dated 23 January 2014) and with respect to the payments purportedly made under that Funding Agreement in January 2012, June 2012, January 2013 and February 2014, none of s 32B of the Financial Management and Accountability Act 1997 (Cth), Pt 5AA and Sched 1AA of the Financial Management and Accountability Regulations 1997 (Cth) or item 9 of Sched 1 to the Financial Framework Legislation Amendment Act (No 3) 2012 (Cth) is a valid law of the Commonwealth.
Question 3
If not, is the SUQ Funding Agreement, as varied by the First to Fourteenth Variation Deeds, authorised by:
(a)s 32B of the FMA Act; and
(b)Part 5AA of, and item 407.013 of Schedule 1AA to, the FMA Regulations; and
(c)where applicable, Item 9 of Schedule 1 to the Financial Framework Amendment Act?
Answer
No.
Question 4
Was the Commonwealth's entry into, and expenditure of monies under, the SUQ Funding Agreement, as varied by the First to Fourteenth Variation Deeds, supported by the executive power of the Commonwealth?
Answer
No.
Question 5
Does the Plaintiff have standing to challenge the making of:
(a)the January 2012 Payment; and
(b)the June 2012 Payment?
Answer
In the circumstances of this case, and to the extent necessary for the determination of this matter, yes.
Question 6
Was the making of the January 2013 Payment and the February 2014 Payment and, to the extent that the answer to question 5 is "Yes", the January 2012 Payment and the June 2012 Payment, unlawful because it was not authorised by statute and was beyond the executive power of the Commonwealth?
Answer
Yes.
Question 7
What,…
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- AGLC
- Williams v The Commonwealth [No 2] [2014] HCA 23
- Case
- [2014] HCA 23
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court included whether section 32B of the *Financial Management and Accountability Act 1997* (Cth) and associated regulations and amendments provided valid legislative authority for the funding agreement and payments made under it, and whether such expenditure was supported by the executive power of the Commonwealth. Specifically, the Court was asked to determine if the relevant provisions were supported by constitutional heads of power, including section 51(xx) (trading and financial corporations), section 51(xxiiiA) (benefits to students), or section 51(xxxix) (incidental powers). The Court also considered the plaintiff's standing to bring the challenge and the lawfulness of the payments made.
The Court reasoned that providing funds to an organisation to deliver chaplaincy services at a school did not constitute the provision of "benefits to students" within the meaning of section 51(xxiiiA) of the Constitution, as the benefits were not directed to the consequences of being a student. Furthermore, the Court held that the impugned legislative provisions, which authorised the Commonwealth to enter into agreements and make payments for the program, were not laws with respect to trading or financial corporations under section 51(xx), as they did not regulate the corporations themselves but merely provided a mechanism for expenditure. The Court also determined that the executive power of the Commonwealth did not extend to any and every form of expenditure of public moneys, and therefore, the funding agreement and payments were not supported by executive power.
Consequently, the High Court answered the questions posed in the special case. It found that the impugned legislative provisions were not valid in their operation with respect to the SUQ funding agreement and the payments made under it. The Court also concluded that the Commonwealth's entry into and expenditure under the agreement were not supported by the executive power. The Court affirmed the plaintiff's standing and declared the payments unlawful. The final orders directed that the plaintiff be granted such relief and costs as a single Justice deems appropriate, with the defendants ordered to pay the plaintiff's costs of the special case.
Orders
Orders of the court
The questions in the amended special case dated 1 May 2014 be answered as follows:
Question 1
Was the SUQ Funding Agreement:
(a) as made, and as varied by the First to Fourth Variation Deeds, authorised by Appropriation Act (No 1) 2011-2012 (Cth)?
(b) as varied by the Fifth to Tenth Variation Deeds, authorised by Appropriation Act (No 1) 2012-2013 (Cth)?
(c) as varied by the Eleventh to Fourteenth Variation Deeds, authorised by Appropriation Act (No 1) 2013-2014 (Cth)?
Answer
Unnecessary to answer.
Question 2
If not, are:
(a) s 32B of the Financial Management and Accountability Act 1997 (Cth) (FMA Act);
(b) Part 5AA and Schedule 1AA of the Financial Management and Accountability Regulations 1997 (FMA Regulations); and
(c) item 9 of Schedule 1 to the Financial Framework Legislation Amendment Act (No 3) 2012 (the Financial Framework Amendment Act);
wholly invalid?
Answer
In their operation with respect to the SUQ Funding Agreement (being the Funding Agreement dated 21 December 2011 between the Commonwealth and Scripture Union Queensland, the third defendant, as varied from time to time up to and including a Fourteenth Variation Deed dated 23 January 2014) and with respect to the payments purportedly made under that Funding Agreement in January 2012, June 2012, January 2013 and February 2014, none of s 32B of the Financial Management and Accountability Act 1997 (Cth), Pt 5AA and Sched 1AA of the Financial Management and Accountability Regulations 1997 (Cth) or item 9 of Sched 1 to the Financial Framework Legislation Amendment Act (No 3) 2012 (Cth) is a valid law of the Commonwealth.
Question 3
If not, is the SUQ Funding Agreement, as varied by the First to Fourteenth Variation Deeds, authorised by:
(a) s 32B of the FMA Act; and
(b) Part 5AA of, and item 407.013 of Schedule 1AA to, the FMA Regulations; and
(c) where applicable, Item 9 of Schedule 1 to the Financial Framework Amendment Act?
Answer
No.
Question 4
Was the Commonwealth's entry into, and expenditure of monies under, the SUQ Funding Agreement, as varied by the First to Fourteenth Variation Deeds, supported by the executive power of the Commonwealth?
Answer
No.
Question 5
Does the Plaintiff have standing to challenge the making of:
(a) the January 2012 Payment; and
(b) the June 2012 Payment?
Answer
In the circumstances of this case, and to the extent necessary for the determination of this matter, yes.
Question 6
Was the making of the January 2013 Payment and the February 2014 Payment and, to the extent that the answer to question 5 is "Yes", the January 2012 Payment and the June 2012 Payment, unlawful because it was not authorised by statute and was beyond the executive power of the Commonwealth?
Answer
Yes.
Question 7
What, if any, of the relief sought in the Writ of Summons should the Plaintiff be granted?
Answer
The Justice disposing of the proceeding should grant the plaintiff such relief and make such costs orders as appear appropriate in light of the answers given to these questions.
Question 8
What orders should be made in relation to the costs of this Special Case and of the proceedings generally?
Answer
The defendants should pay the plaintiff's costs of the special case. The costs of the proceeding are otherwise in the discretion of the single Justice who makes final orders disposing of the proceeding.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: FRENCH CJ, HAYNE, KIEFEL, BELL AND KEANE JJ, CRENNAN J
Providing money to pay persons to provide such services at a school is not to provide benefits which are directed to the consequences of being a student. It is not a provision of benefits to students within the meaning of s 51(xxiiiA).Trading and financial corporations? SUQ's reliance on s 51(xx) may be dealt with shortly. The impugned provisions seek to provide authority for the Commonwealth to make agreements and payments. For the purposes of considering the argument, it may be assumed that the opposite party to an agreement made for the purposes of the National School Chaplaincy and Student Welfare Program and the recipient of payments made under that program can be, even must be, a trading or financial corporation. A law which gives the Commonwealth the authority to make an agreement or payment of that kind is not a law with respect to trading or financial corporations. The law makes no provision regulating or permitting any act by or on behalf of any corporation. The corporation's capacity to make the agreement and receive and apply the payments is not provided by the impugned provisions. Unlike the law considered in New South Wales v The Commonwealth (Work Choices Case)[25], the law is not one authorising or regulating the activities, functions, relationships or business of constitutional corporations generally or any particular constitutional corporation; it is not one regulating the conduct of those through whom a constitutional corporation acts or those whose conduct is capable of affecting its activities, functions, relationships or business.[25](2006) 229 CLR 1; [2006] HCA 52. It is not necessary to consider whether SUQ is a trading or financial corporation. In particular, it is not necessary to decide whether, as SUQ submitted, the corporation was properly classified as a trading or financial corporation simply because it made agreements with the Commonwealth which obliged it to provide services in return for payment. This question, and larger questions left open in the Work Choices Case about the meaning of "trading or financial corporations formed within the limits of the Commonwealth", are not reached in this case and should not be examined.Appropriation Acts as legislative authority to spend? Commonwealth Appropriation and Supply Acts over many years provided[26] that the Treasurer was "authorized and empowered to issue and apply" the moneys identified in the Act (emphasis added). And s 8 of each of the Appropriation Acts[27] relevant to this case provided that amounts specified in administered items "for an outcome for an Agency may be applied for expenditure for the purpose of contributing to achieving that outcome" (emphasis added). In each of the years for which the relevant Appropriation Acts provided, the National School Chaplaincy and Student Welfare Program[28] was an administered item for an outcome for the relevant department.[26]Williams (No 1) (2012) 248 CLR 156 at 264 [231].[27]Appropriation Act (No 1) 2011‑2012 (Cth), Appropriation Act (No 1) 2012-2013 (Cth) and Appropriation Act (No 1) 2013‑2014 (Cth).[28]In the earliest of the years in issue, the reference was to the National School Chaplaincy Program. Nothing turns on this fact and it is convenient to refer only to the National School Chaplaincy and Student Welfare Program.