Andrew Damien Wilkie and Others(Plaintiffs) v The Commonwealth of Australia and Others

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Kiefel CJ,Bell,Gageler,Keane,Nettle,Gordon,Edelman JJ.
• Judgment Date: 28 September 2017
• Neutral Citation: [2017] HCA 40
• Docket Number: M105/2017 & M106/2017
• Date: 28 September 2017

[2017] HCA 40

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon AND Edelman JJ

M105/2017 & M106/2017

Andrew Damien Wilkie & Ors

Plaintiffs

and

The Commonwealth of Australia & Ors

Defendants

Australian Marriage Equality Ltd & Anor

Plaintiffs

and

Minister for Finance Mathias Cormann & Anor

Defendants

Representation

R Merkel QC and K E Foley with C J Tran for the plaintiffs in M105/2017 (instructed by Public Interest Advocacy Centre)

K M Richardson SC with J S Emmett, G E S Ng and S Palaniappan for the plaintiffs in M106/2017 (instructed by Human Rights Law Centre)

S P Donaghue QC, Solicitor-General of the Commonwealth with M J O'Meara and B K Lim for the first to third defendants in M105/2017, for the first defendant in M106/2017, and for the Attorney-General of the Commonwealth, intervening in M106/2017 (instructed by Australian Government Solicitor)

Submitting appearances for the fourth and fifth defendants in M105/2017 and for the second defendant in M106/2017

Constitution, ss 53, 54, 56, 81, 83.

Appropriation Act (No 1) 2017–2018 (Cth), ss 3, 6, 7, 10, 12, Sched 1.

Audit Act 1901 (Cth), s 36A.

Australian Bureau of Statistics Act 1975 (Cth), s 16A.

Census and Statistics Act 1905 (Cth), s 9.

Census and Statistics Regulation 2016 (Cth), s 13.

Commonwealth Electoral Act 1918 (Cth), ss 7, 7A.

Legislation Act 2003 (Cth), ss 15G, 15H, 15J, 38, 39.

Public Governance, Performance and Accountability Act 2013 (Cth), ss 74, 75.

Constitutional law (Cth) — Appropriation of moneys from Consolidated Revenue Fund — Construction of Appropriation Act (No 1) 2017 — 2018 (Cth) — Where Finance Minister made determination under s 10(2) of Appropriation Act (No 1) 2017 — 2018 (Cth) — Where determination sought to provide funding for postal survey — Whether s 10 of Appropriation Act (No 1) 2017 — 2018 (Cth) invalid — Whether appropriation for purpose Parliament lawfully determined may be carried out.

Statutes — Construction of Appropriation Act (No 1) 2017 — 2018 (Cth) — Power of Finance Minister to make determination under s 10(2) of Appropriation Act (No 1) 2017 — 2018 (Cth) — Whether determination made by Finance Minister authorised by s 10 — Whether Finance Minister satisfied urgent need for expenditure not provided for or insufficiently provided for because expenditure unforeseen — Whether Finance Minister erred in law by conflating satisfaction as to urgent need for expenditure with satisfaction as to expenditure being unforeseen — Whether s 10 limited by description of Appropriation Act (No 1) 2017 — 2018 (Cth) as Act for ordinary annual services of Government.

Statutes — Delegated legislation — Validity — Whether direction to Australian Statistician exceeded power of Treasurer under s 9(1)(b) of Census and Statistics Act 1905 (Cth) — Whether information to be collected statistical information — Whether information to be collected in relation to matters prescribed in s 13 of Census and Statistics Regulation 2016 (Cth) — Whether Treasurer had power to specify from whom information to be collected — Whether s 7A of Commonwealth Electoral Act 1918 (Cth) gave Australian Electoral Commission authority to assist Australian Bureau of Statistics in implementing direction.

Constitutional law (Cth) — Appropriation of moneys from Consolidated Revenue Fund — Standing to bring action for declarations and injunctions — Whether necessary or appropriate to determine if plaintiffs have standing — Standing of Member of House of Representatives — Standing of Senator — Standing of elector — Standing of incorporated body — Standing of association.

Words and phrases — “Advance to the Finance Minister”, “appropriation”, “Australian Bureau of Statistics”, “Australian Electoral Commission”, “Australian Statistician”, “Consolidated Revenue Fund”, “departmental item”, “Electoral Commissioner”, “expenditure”, “Finance Minister”, “ordinary annual services of the Government”, “plebiscite”, “Treasurer”, “unforeseen”, “urgent need for expenditure”.

ORDER

Matter No M105/2017

• 1. Application dismissed.

• 2. The plaintiffs pay the costs of the first to third defendants.

Matter No M106/2017

Questions 2, 3 and 5 of the Special Case dated 21 August 2017 be amended and the questions stated in the Special Case (as so amended) be answered as follows:

Question 1

Do either of the plaintiffs have standing to seek the relief sought in the Amended Statement of Claim?

Answer

Inappropriate to answer.

Question 2

Is the Advance to the Finance Minister Determination (No 1 of 2017–2018) (Cth) (“the Determination”) invalid by reason that the criterion in s 10(1)(b) of the Appropriation Act (No 1) 2017–2018 (Cth) (“the 2017–2018 Act”) was not met such that the Finance Minister's power to issue the Determination was not enlivened?

Answer

No, it is not invalid.

Question 3

• (a) Does question 3(b) raise an issue which is justiciable by a court and within the scope of any matter which the Court has authority to decide?

• (b) If the answer to question 3(a) is yes, is the Determination invalid by reason that:

  • (i) on its proper construction, s 10 of the 2017–2018 Act does not authorise the Finance Minister to make a determination, the effect of which is that the 2017–2018 Act takes effect as if Schedule 1 thereto were amended to make provision for expenditure that is outside the ordinary annual services of the Government; and

  • (ii) the expenditure on the ABS Activity (being the activity described in the Census and Statistics (Statistical Information) Direction 2017 (Cth)) is not within the meaning of “ordinary annual services of the Government”?

Answer

• (a) The proper construction of s 10 of the 2017–2018 Act is justiciable.

• (b) No. Section 10, on its proper construction, did authorise the Finance Minister to make the Determination.

Question 4

If the answer to question 2 or question 3(b) is yes:

• (a) does question 4(b) raise an issue which is justiciable by a court and within the scope of any matter which the Court has authority to decide?

• (b) if the answer to question 4(a) is yes, would the drawing of money from the Treasury of the Commonwealth for the ABS Activity in reliance on the appropriation for the departmental item for the [Australian Bureau of Statistics] in the 2017–2018 Act be unauthorised by the 2017–2018 Act on the basis that the expenditure is not within the meaning of “ordinary annual services of the Government”?

Answer

The question does not arise.

Question 5

What, if any, relief sought in the Amended Statement of Claim should the plaintiffs be granted?

Answer

None.

Question 6

Who should pay the costs of this special case?

Answer

The plaintiffs should pay the costs of the special case.

1 Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon AND Edelman JJ. Two proceedings, each commenced in the original jurisdiction of the High Court on 10 August 2017, challenged the lawfulness of measures taken and proposed to be taken pursuant to statute to implement the decision of the Australian Government, made on 7 August 2017 and announced unconditionally on 9 August 2017, to direct and to fund the conduct of a survey of the views of Australian electors on the question of whether the law should be changed to allow same-sex couples to marry.

2 The Full Court of the High Court heard the proceedings on 5 and 6 September 2017 and, on 7 September 2017, made orders dismissing one proceeding and giving answers to questions reserved in the other proceeding rejecting the challenge on its merits. These are the reasons for those orders.

3 These reasons commence with a narrative of the background to the proceedings in the course of which the terms of the relevant statutes are set out. They then describe the proceedings and note an unresolved question of standing before explaining systematically why the challenge in each proceeding failed on its merits.

The proposed plebiscite

4 The Marriage Act 1961 (Cth) (“the Marriage Act”), enacted by the Commonwealth Parliament under s 51(xxi) of the Constitution, has since 2004 1 defined “marriage” to mean “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life” 2. The Court made clear in The Commonwealth v Australian Capital Territory3 that s 51(xxi) of the Constitution is capable of supporting a law defining marriage to include the union of two persons of the same sex.

5 On 11 August 2015, the then Prime Minister announced that a Liberal and National Party Government would consider holding a plebiscite on same-sex

marriage. A Liberal and National Party Government was re-elected at the general election on 2 July 2016.

6 On 13 September 2016, the Attorney-General and the Special Minister of State jointly announced the intention of the Government for the Australian Electoral Commission (“the AEC”), established under the Commonwealth Electoral Act 1918 (Cth) (“the Electoral Act”), to conduct a plebiscite to ask voters whether the law should be changed to allow same-sex couples to marry. The announcement stated that voting would be compulsory, that the outcome would be determined by a simple majority of votes, and that if the plebiscite passed then the Parliament would promptly amend the Marriage Act to enable same-sex couples to marry. The announcement stated that by having the AEC conduct the plebiscite, the Government was “delivering its election commitment to give the community a say on whether same-sex marriage should be legalised”. The announcement also stated that the Government had budgeted $170 million to run the plebiscite.

7 On 14 September 2016, the Plebiscite (Same-Sex Marriage) Bill 2016 (“the 2016 Bill”) was introduced into the House of Representatives. The 2016 Bill, if enacted, would have provided for the Governor-General, by writ issued within 120 days after its commencement, to cause a...