National School Chaplaincy Program still invalid: Williams wins again

In 2012 the High Court in Williams v Commonwealth (No 1) (2012) 248 CLR 156 held that an agreement the Commonwealth Government had made to pay money for the provision of chaplaincy services in schools, and the payments the Commonwealth had made under that agreement, were not supported by the executive power of the Commonwealth under section 61 of the Constitution. Soon after, the Parliament enacted legislation intended to provide legislative authority to make not only the agreement and payments which had been held to have been invalidly made, but also many other agreements and arrangements for the outlay of public money and the payments made or to be made under those agreements or arrangements.

Today, in Williams v Commonwealth (No 2) [2014] HCA 23 the High Court has ruled that this remedial legislation is itself invalid in its operation in relation to the school chaplaincy program.

The Commonwealth sought to defend the legislation, insofar as it related to the School Chaplaincy Program, as a law with respect to the provision of benefits to students under section 51(xxiiiA) of the Constitution.  The Scripture Union of Queensland also sought to defend the legislation as a law with respect to trading and financial corporations, on the grounds that the recipients of the funding were required to be an organization incorporated under Commonwealth or State law.  In addition, the Commonwealth effectively sought to advance arguments it had unsuccessfully advanced in Williams (No 1).

The High Court’s consideration of the validity of the remedial legislation began with an understanding of two earlier decisions.  The first was Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, in which the High Court ruled that sections 81 and 83 of the Constitution did not confer a substantive spending power upon the Commonwealth. The power to spend appropriated moneys must be found elsewhere in the Constitution or in legislation made under it. (the majority of the Court in Pape held that the determination of the Executive Government that there was a need for an immediate fiscal stimulus to the national economy enlivened legislative power under s 51(xxxix) to enact laws supporting the stimulus package as a law incidental to that exercise of the executive power).

The second important decision was Williams (No 1) itself.  That decision confirmed the conclusions in Pape that the appropriation of moneys in accordance with the requirements of sections 81 and 83 of the Constitution did not itself confer a substantive spending power and that the power to spend appropriated moneys must be found elsewhere in the Constitution or in statutes made under it.  It also held that the agreement providing for payments to SUQ was invalid, because it was beyond the executive power of the Commonwealth under section 61 of the Constitution, and that the making of the relevant payments by the Commonwealth to SUQ under that agreement was not supported by the executive power of the Commonwealth under section 61.  Consistent with what had been held in Pape, six members of the Court held that there was no authority in the Constitution or in statutes made under it to spend the moneys appropriated for the purposes of what was then called the National School Chaplaincy Program.

The Court then turned to consider whether the remedial legislation could be supported as a law with respect to the provisions of benefits to students under section 51(xxiiiA) of the Constitution.  The Court held that the use of the term “benefits” in section 51(xxxiiiA) referred to the provision of aid to or for individuals for human wants arising as a consequence of the circumstances identified in the section: being unemployed, needing pharmaceutical items such as drugs or medical appliances, being sick, needing the services of a hospital, or being a student.  In the usual case, the benefits will take the form of material aid to relieve against consequences associated with the identified circumstances. Provision of the benefit will relieve the person to whom it is provided from a cost which that person would otherwise incur. For example, in the case of unemployment and sickness benefits, the aid relieves against the costs of living when the individual’s capacity to work is not or cannot be used. That aid may take the form of payment of money or provision of other material aid against the needs brought on by unemployment or sickness. Pharmaceutical and hospital benefits provide aid for, or by the provision of, the goods and services identified. In the case of benefits to students, the described benefit is material aid provided against the human wants which the student has by reason of being a student.

The majority of the Court held that providing the services of a chaplain or welfare worker was not provision of “benefits” for the purposes of section 51(xxiiiA). Providing those services did not provide material aid to provide for the human wants of students. It did not provide material aid in the form of any service rendered to or for any identified or identifiable student. There is no payment of money by the Commonwealth for or on behalf of any identified or identifiable student. The service provided is not directed to the consequences of being a student. There is no more than the payment of an amount (in this case to an intermediary) to be applied in payment of the wages of a person to “support the wellbeing” of a particular group of children: those who attend an identified school. And the only description of how the “support” is to be given is that it includes “strengthening values, providing pastoral care and enhancing engagement with the broader community”.  While the Court regarded these as desirable ends, the facts that they are to be achieved in the course of the school day does not give them the quality of being benefits to students. 

Crennan J, in separate reasons otherwise agreeing with the majority, held that the National School Chaplaincy and Student Welfare Program was not a scheme for the provision of government assistance by way of the provision of services to, or for, persons who had a personal entitlement to a benefit.  No student was required to be identified as a prescribed recipient or beneficiary entitled to a social security benefit. Payments made to SUQ (or other providers) out of public moneys were not made in respect of government assistance to persons with a personal entitlement to some benefit. Accordingly, the National School Chaplaincy and Student Welfare Program is not a scheme for the provision of “benefits” within the meaning of section 51(xxiiiA).

The argument advanced by SUQ that the remedial legislation was relevantly a law with respect to trading or financial corporations was rejected on the grounds that the remedial legislation did not authorize or regulate the activities, functions, relationships or business of constitutional corporations generally, or any particular constitutional corporation.  Nor did it regulate the conduct of those through whom a constitutional corporation acts, or those whose conduct is capable of affecting its activities, functions, relationships or business.  The mere fact that the recipient of the funds was a constitutional corporation was not sufficient to engage that head of power.

The Commonwealth sought leave to re-open Williams (No 1), which application the High Court rejected.  In doing so, the Court in short form re-affirmed what had been said in Williams No 1.  However, in the course of doing so it made an interesting observation about the extent of Commonwealth Executive Power that will no doubt provide fruitful areas for argument into the future.  This observation was to the effect that there was no proper basis for assuming that he executive power of the Commonwealth should be assumed to be no less than the executive power of the British Executive.  Why, the Court asked rhetorically, should the executive power of the new federal entity created by the Constitution be assumed to have the same ambit, or be exercised in the same way and same circumstances, as the power exercised by the Executive of a unitary state having no written constitution?  The fact that the British Executive had a power to spend and contract without legislative authority did not mean the Commonwealth executive has the same power. 

Accordingly, insofar as it purported to authorize the National School Chaplaincy and Student Welfare Program the remedial legislation was not a valid exercise of Commonwealth legislative power, and neither the entry into the funding agreements nor the expenditure of funds was authorized by the remedial legislation.

High Court rejects challenge to Manus Island

In S156-2013 v Minister for Immigration and Border Protection [2014] HCA 22 the High Court has today rejected a challenge to the provisions of the Migration Act 1956 providing for the designation of regional processing countries, and the particular designation of Papua New Guinea as one such country.

Section 198AB of the Act provides that the Minister may, by legislative instrument, designate that a country is a regional processing country. The only express condition for the exercise of this power is that "the Minister thinks that it is in the national interest to designate the country to be a regional processing country".  In considering that national interest, the Minister must have regard to whether or not the country has given Australia assurances to the effect that they would not be refouled, and that they would provide a system for the making of refugee determinations in accordance with the Refugees Convention.

Section 198AD of the Act provides that unauthorised maritime arrivals ("UMAs") must, as soon as reasonably practicable, be taken from Australia to a designated regional processing country.

The plaintiff arrived in Australia claiming to fear persecution in Iran.  He entered Australia’s Migration Zone by sea at Christmas Island on 23 July 2013.  He was therefore a UMA for the purposes of section 198AD.  While being held on Christmas Island he was informed that he was to be removed to Manus Island.  He was also told that it would take a long time for any refugee claim he might make to be processed; and that, even if he was found to be a refugee, he would never be resettled in Australia.  He was subsequently removed to Manus Island where he has been detained ever since.

The plaintiff challenged the validity of sections 198AB and 198AD of the Act on the grounds that they were not supported by any head of Commonwealth power.  The High Court, in a joint judgment of the six sitting justices (Gageler J having recused himself), rejected this challenge, holding that the provisions were supported by the “aliens” power under section 51(xix) of the Constitution.  The plaintiff had sought to argue that the scheme established by sections 198AB and 198AD went significantly further than merely regulating the entry of aliens to, or providing for their removal from, Australia.  They could not be justified by the purpose of deterrence because they were so extreme in their operation that they were not reasonably appropriate and adapted to that end, and the control that the scheme imposes upon persons after their removal from Australia cannot be said to be appropriate and adapted to that end.  The High Court, however, held that notions of proportionality had no role to play in determining the metes and bounds of the non-purposive power to legislate with respect to aliens.

The plaintiff also sought to challenge the provisions on the grounds that they could not authorize the Executive, in effect, to imprison people in third countries against their will for an indefinite period of time.  However, the court noted that this argument was untenable, as the sections did not in fact provide for imprisonment in third countries.

In addition to the constitutional challenge to the validity of the sections, the plaintiff also challenged the decision of the Minister to designate PNG as a regional processing country.  The plaintiff argued that there were a number of considerations relevant to the Minister's decision to designate PNG as a regional processing country that were not taken into account.  These included: Australia's international law obligations; the need to consult with the UNHCR prior to designation; PNG's international obligations and its domestic law; PNG's capacity to implement its obligations; the framework, if any, for processing refugee claims in PNG; the possibility of indefinite detention; and the conditions in which UMAs would be detained.

The High Court, however, held that section 198AB clearly stated that the only mandatory condition for the exercise of the power was that the Minister was of the opinion that it was in Australia’s national interest to designate PNG as a regional processing country.  It was plain from the text of the section that the Minister was not obliged to take any other consideration into account in determining whether or not to designate a country as a regional processing country. In determining Australia’s national interest, the section enumerated a number of matters that the Minister must have regard to, but otherwise it simply conferred a general discretion as to what matters the Minister may, but was not obliged to, take into consideration determining the the national interest.  Accordingly, there being no obligation on the Minister to have regard to the matters identified by the plaintiff, the failure to take them into consideration did not invalidate the exercise of the power to designate PNG.

This week in the High Court of Australia

This week the High Court will hear argument in three cases.

On Tuesday, 17 June 2014 the Court will hear argument in Pollentine v Bleijie.  This case is a challenge to the Queensland regime for the indefinite detention “during Her Majesty’s pleasure” of persons convicted of sexual offences against children under 17 years of age who are found to be incapable of exercising proper control over their sexual instincts.  The challenge invokes the Kable principle.

On Wednesday, 18 June 2014 the Court will hear an appeal from the NSW Court of Apeal in Brookfield Multiplex Pty Ltd v Owners Corporation Strata Plan 61288.  This case arose out of the construction by Brookfield of a high-rise apartment building on land owned by a company known as Chelsea Apartments Pty Ltd.  The apartments were completed in 1999 and the strata plan for the apartments was registered, creating the Owners Corporation.  In 2008 the Owners Corporation sued Brookfield in negligence for the cost of rectifying defects in the building.  The question that arises is whether or not a duty was owed by Brookfield to the Owners Corporation to take reasonable care in the construction of the building so as to avoid causing the Owners Corporation harm in the form of pure economic loss resulting from latent defects in the common property.

On Thursday, 19 June 2014 the Court will hear argument in Fitzgerald v The Queen.  The appellant in this case was convicted of a number of offences arising from an attack by a large number of men in which one person was killed and another seriously injured.  None of the eyewitnesses to the attack identified the appellant as being present.  His conviction was based upon evidence that his DNA was found on a didgeridoo that had been moved within the house during the attack, along with evidence that he had never previously been to the house.  At issue in the appeal is whether this evidence was sufficient to establish beyond reasonable doubt, that he was one of the attackers.  The South Australian Court of Criminal Appeal held that this hypothesis depended upon the occurrence of a succession of unlikely events.  The appellant’s argument is, in essence, that the Crown had failed to exclude the a reasonable hypothesis consistent with his innocence, namely that the presence of his DNA on the didgeridoo could be explained by secondary transfer from a co-accused. 

Forthcoming judgments in the High Court of Australia

The High Court will deliver three judgments next week.

On Wednesday, 18 June 2014 the High Court will deliver judgment in Plaintiff S156/2013 v Minister for Immigration and Border Protection, in which the plaintiff challenges amendments to the Migration Act 1958 purporting to authorise the removal of Unauthorised Maritime Arrivals to designated regional processing countries (in this particular case, Papua New Guinea).

On Thursday, 19 June 2014 the High Court will deliver judgment in Williams v Commonwealth (No 2), a continuation of the battle between Ronald Williams and the Commonwealth Government over the public funding of school chaplaincy programs. 

On Friday, 20 June 2014 the High Court will deliver judgment in Plaintiff S297/2013 v Minister for Immigration and Border Protection and Plaintiff M150/2013 v Minister for Immigration and Border Protection in which the plaintiffs challenge the power of the executive government to limit the number of Protection Visas that may be issued by imposing an arbitrary cap on those numbers.

The unnecessary reference to judges "as he/she then was"

I have finally got around to writing a piece on one of my pet hates:  the overuse of the phrase “as his/her Honour/Lordship/Ladyship then was”.  This device is a (mostly) meaningless affectation that should be removed from the patois of lawyers.

I say “mostly” because there are a few circumstances where the use of this device is no mere affectation, but serves an important role in identifying a judicial officer who during their term of office comes to be referred to by a title that is divorced from their personal name. 

For example, Sir Rufus Isaacs was the Lord Chief Justice of England from 21 October 1913 until 8 March 1921.  The earliest report of a judgment by Isaacs in the Law Reports appears to be Walters v W H Smith & Son Limited [1914] 1 KB 595 where he was styled “Sir Rufus Isaacs CJ”.  On 9 January 2014 Isaacs was created Baron Reading (on 9 January 1914).  Thereafter, in the Law Reports he was styled “Lord Reading CJ”: see Allen v Great Eastern Railway [1914] 2 KB 243.  On 3 July 1916 Isaacs was made Viscount Reading.  In the Law Reports he was then styled “Viscount Reading CJ”:  see R v Wheeler [1917] 1 KB 283 (there seems to have been a delay between the creation of the viscounty and his re-styling in the Law Reports). On 20 December 1917 Isaacs was made Earl of Reading.  Thereafter, in the Law Reports he was styled “Earl of Reading CJ”: see R v Oxlade [1919] 2 KB 628.

In these circumstances, it makes sense to refer to “Sir Rufus Isaacs CJ (as he then was)” when citing a judgment from the period prior to him being made Baron Reading.  This is because it alerts the reader to the fact that he is no longer known as Isaacs.  But there would seem to be no necessity to refer to “Lord Reading CJ (as he then was)” because the peerage name continued from his barony, through the viscounty, into his earldom (and subsequently a marquessate).  “Lord Reading CJ” is a sufficient identification of the individual who has subsequently attained a higher rank in the peerage.

A contemporary of Isaacs, Sir William Pickford, similarly held judicial office under his personal name before being made a peer with a title which no longer identified the individual (in this case, Baron Sterndale).  Again, it would make sense to cite his earlier judgments by reference to “Pickford LJ (as he then was)” since he subsequently came be known in judicial office as Lord Sterndale MR. Similarly, in 1900 Sir Richard Webster was for a short period Master of the Rolls under the style “Webster MR” before continuing that role under the title Baron Alverstone and, the Law Reports, being styled “Lord Alverstone MR”.

The conferral of a peerage does not necessarily result in a change in identifying name, even for a newly-created peerage.  Thus, Sir Robin Cooke’s elevation to Baron Cooke of Thorndon does not require the use of the device when citing his judgments from the New Zealand Court of Appeal.  Similarly, Sir Kenneth Diplock was, upon his elevation from the Court of Appeal to the House of Lords, created Baron Diplock and again there would seem to be no necessity to refer to “Diplock LJ (as his Lordship then was)” when citing his judgments from the Court of Appeal.

It seems unnecessary to use the device where the person in question has attained a peerage after they have left judicial office.  For example, Sir William Brett was made Viscount Esher upon his retirement from judicial office as Master of the Rolls in 1897.  Unlike Sir Rufus Isaacs, whose judicial career includes judgments under the name Sir Rufus Isaacs as well as Lord/Viscount/Earl of Reading, Sir Willliam Brett’s judicial career was spent entirely under the name Sir William Brett. 

Aside from the instances described above, where the use of the “as he then was” device serves the function of alerting the reader to the fact that the person has subsequently come to be identified by a title instead of their name, the device is unnecessary.  What is the point of referring to “Mason J (as his Honour then was)”?  Nobody is going to be confused about whether the then High Court puisne judge is the same person as the subsequent Chief Justice.  A prompt is not needed to alert the reader to the fact that Sir Anthony was promoted during his tenure on the High Court, and that Mason J is the same person as Mason CJ.  Nor is there a change in the identifying part of the name of the particular individual about which some reminder is needed.  We do not now say “Mason CJ (as his Honour then was)”, even though he is no longer.  It would hardly make sense to cite a judgment of Virginia Bell during her Honour’s tenure on the Supreme Court by saying “Bell J (as her Honour then was)”.

The judicial person held whatever position they held when a judgment was given, and the fact that they no longer hold that position or have subsequently been appointed to a different position is an unnecessary fact about their career progression that requires no reference when citing their judgment.  It only becomes necessary (or at least useful for those unschooled in legal history) where a person’s elevation creates a potential confusion about identity.