Wednesday, May 7, 2014

This week in the High Court of Australia

There are two cases being heard this week in the High Court of Australia.
The first, which commenced yesterday, is 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.  The first round is summarised in my previous post on the decision in Williams v Commonwealth (No 1).  The effect of that decision was (probably) that once the Commonwealth had appropriated moneys through an Appropriation Act, they could not spend that money without further legislative authority.  Following the decision in Williams (No 1), Parliament amended the Financial Management and Accountability Act 1997 and the Financial Management and Accountability Regulations 1997.  The Act was amended so as to include a new section 32B the effect of which is that if (apart from the section) the Commonwealth does not have power to make, vary or administer an arrangement under which public money is payable by the Commonwealth or a grant of financial assistance, but the arrangement or grant is specified in the regulations (individually or by reference to a class of such arrangements or grants) then the Commonwealth has the power to make, vary or administer the arrangement or grant.  The Regulations were amended so as to specify hundreds of Commonwealth funding programs that were in jeopardy as a result of the decision in Williams (No1), including the schools chaplaincy program.
A number of important issues fall for determination.  The first is the correctness of Williams (No 1) itself.  As will be recalled from my earlier post, the argument that succeeded in the first round was one that arose for the first time during the course of argument, and with limited opportunity for the Commonwealth to respond.  The composition of the Bench has changed (Gummow and Heydon JJ having retired), and one of their replacements (Gageler J) was the Commonwealth Solicitor General at the time and has recused himself from sitting.  The current Solicitor General will face an uphill battle and, if the terse language of the Commonwealth’s written submissions are anything to go by, one hopes he is fully armoured.  The second issue of significance relates to the invalidity of section 32B, essentially on the basis of its breadth and its conferral of discretion (through the regulation-making power) on the Commonwealth Executive to spend money on anything, whether or not it fall within one of the Commonwealth’s enumerated heads of responsibility.  The third issue of significance is the question of whether or not spending on the school chaplaincy program falls within a relevant head of Commonwealth legislative power (in particular placitum 51(xxiiiA)).

Ending the week the High Court will hear Plaintiff S156/2013 v Minister for Immigration and Border Protection, a challenge to the amendments to the Migration Act 1958 purporting to authorise the removal of Unauthorised Maritime Arrivals to designated regional processing countries (ie Nauru and Papua New Guinea).  The plaintiff challenges the amendments on a number of different rounds. One is that the amendments do not fall within the aliens power in the Constitution, because they are not an appropriate and adapted means to the legitimate ends of the aliens power, being the regulation of entry into and removal from Australia of aliens.  This raises an interesting constitutional question about the extent to which (if any) proportionality is relevant to the proper characterisation of a law as falling within a non-purposive power.  They are further challenged on the basis that they exceed the implied limits on Commonwealth legislative power to detain.  Removed persons are in practical terms subject to detention administered by the Commonwealth, with no temporal limitation and with no requirement that they in fact be processed to determine their status as refugees.  The plaintiff also seeks to challenge, by way of judicial review under section 75(v), the designation of Papua New Guinea as a regional processing country.

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