Williams v Commonwealth

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Hayne,Kiefel,Bell,Keane JJ.,Crennan J.
• Judgment Date: 19 June 2014
• Neutral Citation: [2014] HCA 23
• Date: 19 June 2014
• Docket Number: S154/2013

[2014] HCA 23

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ

S154/2013

Ronald Williams

Plaintiff

and

Commonwealth of Australia & Ors

Defendants

Representation

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

J T Gleeson SC, Solicitor-General of the Commonwealth and S P Donaghue QC with G M Aitken and N J Owens for the first and second defendants (instructed by Australian Government Solicitor)

D F Jackson QC with J A Thomson SC and E M Heenan for the third defendant (instructed by Norton Rose Fulbright Australia)

Interveners

M G Sexton SC, Solicitor-General for the State of New South Wales and J K Kirk SC with A M Mitchelmore for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))

G L Sealy SC, Solicitor-General of the State of Tasmania with S K Kay for the Attorney-General of the State of Tasmania, intervening (instructed by Director of Public Prosecutions (Tas))

M G Hinton QC, Solicitor-General for the State of South Australia with C Jacobi and D F O'Leary for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))

S G E McLeish SC, Solicitor-General for the State of Victoria with N M Wood for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)

G R Donaldson SC, Solicitor-General for the State of Western Australia with F B Seaward for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))

P J Dunning QC, Solicitor-General of the State of Queensland with G J D del Villar for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))

Constitution, ss 51(xx), 51(xxiiiA), 51(xxxix), 61.

Acts Interpretation Act 1901 (Cth), s 15A.

Financial Framework Legislation Amendment Act (No 3) 2012 (Cth), Sched 1, item 9.

Financial Management and Accountability Act 1997 (Cth), s 32B.

Financial Management and Accountability Regulations 1997 (Cth), Pt 5AA, Sched 1AA.

Williams v Commonwealth of Australia

Constitutional law (Cth) — Powers of Commonwealth Parliament — Commonwealth entered into funding agreement with private service provider for provision of chaplaincy services at state school — Funding agreement made under National School Chaplaincy and Student Welfare Program — Commonwealth paid money under funding agreement — Section 32B of Financial Management and Accountability Act 1997 (Cth) empowered Commonwealth to make, vary or administer arrangements, for purposes of specified programs, under which public money payable by Commonwealth — National School Chaplaincy and Student Welfare Program specified program for purposes of s 32B — Whether s 32B in its relevant operation supported by s 51(xx), (xxiiiA) or (xxxix) of Constitution.

Constitutional law (Cth) — Executive power of Commonwealth — Executive power to spend and contract — Whether entry into and expenditure under funding agreement supported by executive power of Commonwealth.

Constitutional law (Cth) — Reopening of previous decisions.

Words and phrases — ‘appropriation’, ‘benefits to students’, ‘executive power of the Commonwealth’.

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, 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.

1 French CJ, Hayne, Kiefel, Bell and Keane JJ. In 2012, this Court held 1 that an agreement the Commonwealth had made to pay money for 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 s 61 of the Constitution. Soon after the Court published its decision, the Parliament enacted legislation evidently 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.

2 Is the remedial legislation valid?

3 These reasons will show that the remedial legislation is not valid in its relevant operation.

The earlier litigation

4 In December 2010, Ronald Williams brought a proceeding in this Court, against the Commonwealth and others, challenging the payment of money by the Commonwealth to Scripture Union Queensland (‘SUQ’) for SUQ to provide chaplaincy services at the state school Mr Williams' four children attended in Queensland.

5 Mr Williams failed 2 in one branch of his argument — that the payments were prohibited by s 116 of the Constitution — but succeeded in his claims that the funding agreement made between SUQ and the Commonwealth, and the payments made under that agreement, were not supported by the executive power of the Commonwealth. Accordingly, in June 2012, this Court answered questions stated by the parties to Williams (No 1) in the form of a special case by rejecting the claim based on s 116, but otherwise in the sense sought by Mr Williams.

6 Within days of the Court ordering that the questions stated in the special case in Williams (No 1) should be answered in this way, the Parliament enacted the Financial Framework Legislation Amendment Act (No 3) 2012 (Cth) (‘the FFLA Act’). The FFLA Act amended the Financial Management and Accountability Act 1997 (Cth) (‘the FMA Act’) and the Financial Management and Accountability Regulations 1997 (Cth) (‘the FMA Regulations’) in ways evidently intended to provide legislative support not only for the making of agreements and payments of the kind which were in issue in Williams (No 1) but also for the making of many other arrangements and grants.

This litigation

7 Mr Williams has brought a fresh proceeding in this Court against the Commonwealth, the relevant Minister and SUQ, challenging the validity of certain provisions of the FMA Act and FMA Regulations (inserted by the FFLA Act). He challenges the validity of those provisions both generally, and in their particular operation with respect to the payment of money by the Commonwealth to SUQ, in accordance with a funding agreement made with SUQ, for SUQ to provide chaplaincy services at the state school Mr Williams' four children continue to attend.

8 The funding agreement need not be described in any detail. It has been varied several times, but nothing turns on the details of those variations. Both the agreement and the payments made under it are said to be made under the ‘National School Chaplaincy and Student Welfare...