Williams v Commonwealth of Australia

• Jurisdiction: Australia Federal only
• Judge: French CJ,Gummow,Bell JJ,Hayne J.,Heydon J.,Crennan J.,Kiefel J.
• Judgment Date: 20 June 2012
• Neutral Citation: [2012] HCA 23,2012-0620 HCA A
• Court: High Court
• Docket Number: S307/2010
• Date: 20 June 2012

Ronald Williams

Plaintiff

and

Commonwealth of Australia & Ors

Defendants

[2012] HCA 23

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

S307/2010

HIGH COURT OF AUSTRALIA

Williams v Commonwealth of Australia

Constitutional law — Executive power of Commonwealth — Commonwealth entered funding agreement with private service provider for provision of chaplaincy services at State school (‘Funding Agreement’) — Funding Agreement made pursuant to National School Chaplaincy Program — Whether executive power of Commonwealth extends to matters in respect of which Parliament may legislate — Whether s 61 of Constitution or s 44(1) of Financial Management and Accountability Act 1997 (Cth) (‘FMA Act’) source of power to enter Funding Agreement — Whether s 61 of Constitution or s 44(1) of FMA Act source of power to pay service provider.

Constitutional law — Powers of Commonwealth Parliament — Whether law providing for payments in circumstances identical to Funding Agreement would be law with respect to s 51(xx) of Constitution — Whether law providing for payments in circumstances identical to Funding Agreement would be law with respect to s 51(xxiiiA) of Constitution.

Constitutional law — Freedom of religion — Prohibition on religious tests as qualification for any office under Commonwealth — Under Funding Agreement, ‘school chaplain’ to provide services — Whether ‘school chaplain’ holds office under Commonwealth — Whether Funding Agreement or payments to service provider prohibited by s 116 of Constitution.

Constitutional law — Appropriations of moneys from Consolidated Revenue Fund — Commonwealth paid appropriated moneys to service provider pursuant to Funding Agreement — Whether Appropriation Acts authorised appropriations of moneys for purpose of payments under Funding Agreement.

Constitutional law — Standing — Plaintiff's children attended State school party to Funding Agreement — Whether plaintiff has standing to challenge validity of Funding Agreement — Whether plaintiff has standing to challenge validity of appropriations to pay moneys pursuant to Funding Agreement — Whether plaintiff has standing to challenge validity of payments to service provider.

Words and phrases — ‘appropriation’, ‘benefits to students’, ‘capacity to contract’, ‘execution and maintenance of this Constitution’, ‘executive power of the Commonwealth’, ‘office under the Commonwealth’, ‘ordinary and wellrecognised functions’, ‘religious test’.

Constitution, ss 51(xx), 51(xxiiiA), 61, 64, 81, 96 and 116.

Financial Management and Accountability Act 1997 (Cth), s 44(1).

Representation

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

S J Gageler SC, Solicitor-General of the Commonwealth with G R Kennett SC and S J Free for the first, second and third defendants (instructed by Australian Government Solicitor)

R Merkel QC with G A Hill and J A Thomson for the fourth defendant (instructed by Norton Rose Australia)

Interveners

M G Sexton SC, Solicitor-General for the State of New South Wales with N L Sharp intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))

W Sofronoff QC, Solicitor-General of the State of Queensland with G P Sammon and G J D del Villar intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Law (Qld))

G L Sealy SC, Solicitor-General of the State of Tasmania with S D Gates intervening on behalf of the Attorney-General of the State of Tasmania (instructed by Solicitor-General of the State of Tasmania)

M G Hinton QC, Solicitor-General for the State of South Australia with M J Wait intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor (SA))

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

R M Mitchell SC, Acting Solicitor-General for the State of Western Australia with F B Seaward intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor (WA))

P D Quinlan SC with K E Foley appearing as amicus curiae on behalf of the Churches' Commission on Education Incorporated (instructed by Mallesons Stephen Jaques)

The questions stated in the Amended Special Case dated 26 July 2011 be answered as follows:

Question 1

Does the plaintiff have standing to challenge:

(a) the validity of the Darling Heights Funding Agreement?

(b) the drawing of money from the Consolidated Revenue Fund for the purpose of making payments pursuant to the Darling Heights Funding Agreement during the following financial years:

• (i) 2007–2008;

• (ii) 2008–2009;

• (iii) 2009–2010;

• (iv) 2010–2011;

• (v) 2011–2012?

(c) the making of payments by the Commonwealth to Scripture Union Queensland pursuant to the Darling Heights Funding Agreement during the following financial years:

• (i) 2007–2008;

• (ii) 2008–2009;

• (iii) 2009–2010;

• (iv) 2010–2011;

• (v) 2011–2012?

Answer

(a) Yes.

(b) Unnecessary to answer.

(c) Yes.

Question 2

If the answer to Question 1(a) is Yes, is the Darling Heights Funding Agreement invalid, in whole or in part, by reason that the Darling Heights Funding Agreement is:

(a) beyond the executive power of the Commonwealth under s 61 of the Constitution?

(b) prohibited by s 116 of the Constitution?

Answer

(a) Yes.

(b) No.

Question 3

To the extent that the answer to Question 1(b) is Yes, was or is the drawing of money from the Consolidated Revenue Fund for the purpose of making payments under the Darling Heights Funding Agreement authorised by:

(a) the 2007–2008 Appropriation Act?

(b) the 2008–2009 Appropriation Act?

(c) the 2009–2010 Appropriation Act?

(d) the 2010–2011 Appropriation Act?

(e) the 2011–2012 Appropriation Act?

Answer

Unnecessary to answer.

Question 4

To the extent that the answer to Question 1(c) is Yes, was or is the making of the relevant payments by the Commonwealth to Scripture Union Queensland pursuant to the Darling Heights Funding Agreement unlawful by reason that the making of the payments was or is:

(a) beyond the executive power of the Commonwealth under s 61 of the Constitution?

(b) prohibited by s 116 of the Constitution?

Answer

(a) The making of the payments was not supported by the executive power of the Commonwealth under s 61 of the Constitution.

(b) No.

Question 5

If the answer to any part of Question 2 is Yes, the answer to any part of Question 3 is No, or the answer to any part of Question 4 is Yes, what, if any, of the relief sought in the statement of claim should the plaintiff be granted?

Answer

The Justice disposing of the action should grant the plaintiff such declaratory relief and make such costs orders as appear appropriate in the light of the answers to Questions 1–4 and 6.

Question 6

Who should pay the costs of this special case?

Answer

The first, second and third defendants.

French CJ

Introduction

1 In 1901, one of the principal architects of the Commonwealth Constitution, Andrew Inglis Clark, said of what he called ‘a truly federal government’ 1:

‘Its essential and distinctive feature is the preservation of the separate existence and corporate life of each of the component States of the commonwealth, concurrently with the enforcement of all federal laws uniformly in every State as effectually and as unrestrictedly as if the federal government alone possessed legislative and executive power within the territory of each State.’

In this case, that essential and distinctive feature requires consideration of the observation of Alfred Deakin, another of the architects of the Commonwealth Constitution and the first Attorney-General of the Commonwealth, that 2:

‘As a general rule, wherever the executive power of the Commonwealth extends, that of the States is correspondingly reduced.’

In particular, this case requires consideration of the executive power of the Commonwealth, absent power conferred by or derived from an Act of the Parliament, to enter into contracts and expend public money.

2 The plaintiff, Ronald Williams, calls into question the validity of a contract made by the Commonwealth with a private service provider, and expenditure under that contract, for the delivery of ‘chaplaincy services’ into schools operated by the Queensland State Government. His claim concerns the provision of such services in the Darling Heights State School in Queensland, at which his children are students. Although the expenditure is said by the Commonwealth to have met the necessary condition of a parliamentary appropriation for each year in which it has been made, no Act of Parliament has conferred power on the Commonwealth to contract and expend public money in this way. The Commonwealth relies upon the executive power under s 61 of the Constitution. That section provides:

‘The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.’

The extent to which the executive power authorises the Commonwealth to make contracts and spend public money pursuant to them is raised in these proceedings partly because, as this Court has recently held 3 contrary to a long-standing assumption, parliamentary appropriation is not a source of spending power 4.

3 Initially there was another common assumption underpinning the written submissions in this case that, subject to the requirements of the Constitution relating to appropriations, the Commonwealth Executive can expend public moneys on any subject matter falling within a head of Commonwealth legislative power. The unanimity of that assumption did not...