Hoxton Park Residents' Action Group Inc. v Liverpool City Council

Anglican Church of Australia (Bodies Corporate) Act 1938 (NSW) Associations Incorporation Act 2009 (NSW) Australia Act 1986 (Cth) Commonwealth of Australia Constitution Act (Imp) Constitution Act 1902 (NSW) Education Act 1990 (NSW) Electoral Distribution Act 1947 (WA) LEGISLATION CITED : Environmental Planning and Assessment Act 1979 (NSW) Federal Court of Australia Act 1976 (Cth) Judiciary Act 1903 (Cth) Land and Environment Court Act 1979 (NSW) Local Government Act 1993 (NSW) Roman Catholic Church Trust Property Act 1936 (NSW) Schools Assistance Act 2008 (Cth) Uniform Civil Procedure Rules 2005 (NSW)

Adelaide Company of Jehovah's Witnesses Inc. v Commonwealth (1943) 67 CLR 116 Australian Conservation Foundation Inc. v Commonwealth (1980) 146 CLR 493 Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242 Attorney-General (Vic.); ex rel. Black v Commonwealth (1980) 146 CLR 559 Attorney-General (WA) v Marquet (2003) 217 CLR 545 Brodie v Singleton Shire Council (2001) 206 CLR 512 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Deepcliffe Pty Ltd v Council of the City of Gold Coast (2001) 118 LGERA 117 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Durham Holdings Pty Limited v New South Wales (2001) 205 CLR 399 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gerhardy v Brown (1985) 159 CLR 70 Glew v Shire of Greenough [2006] WASCA 260 Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540 Grace Bible Church v Reedman (1984) 36 SASR 376 Hunter v Canary Wharf Ltd [1997] AC 655 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 Kruger v Commonwealth (1997) 190 CLR 1 CASES CITED : Mobil Oil Australia Pty Limited v Victoria (2002) 211 CLR 1 Munnings v Australian Government Solicitor (1994) 118 ALR 385 Pape v Commissioner of Taxation (2009) 238 CLR 1 R v Fukusato [2003] 1 Qd R 272 R v Gorton [2001] QCA 43 R v MSK and MAK (2004) 61 NSWLR 204 R v Phillips (1970) 125 CLR 93 R v Rimington [2006] 1 AC 459 R v Vorhauer [2002] NSWCCA 483 Ravenor Overseas Inc. v Readhead (1998) 152 ALR 416 Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 Spellson v George (1992) 26 NSWLR 666 Spencer v Commonwealth (2010) 269 ALR 233 Union Steamship Company of Australia Pty Limited v King (1988) 166 CLR 1 Vorhauer v R [2007] NSWCCA 125 Walsh v Ervin [1952] VLR 361 WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 Webster v Lampard (1993) 177 CLR 598 Winterbottom v Lord Derby (1867) LR 2 Exch 316 X (Minors) v Bedfordshire County Council [1995] 2 AC 663

R P Balkin and J L R Davis, Law of Torts (4th ed., 2009), LexisNexis Butterworths, Sydney R Freestone, Urban Nation: Australia's Planning Heritage (2010), CSIRO Publishing, Melbourne TEXTS CITED : L Pearson, Local Government Law in New South Wales (1994), The Federation Press, Sydney W V H Rogers, Winfield and Jolowicz on Torts (16th ed., 2002), Sweet and Maxwell, London P Stein, P Ryan, L Taylor and B J Preston, Local Government Planning and Environment: New South Wales (looseleaf service), LexisNexis Butterworths, Sydney

Hoxton Park Residents' Action Group Inc. (first plaintiff) Marella Harris (second plaintiff) Liverpool City Council (first defendant) PARTIES : Malek Fahd Islamic School Ltd (second defendant) Australian Federation of Islamic Councils Inc. (third defendant) State of New South Wales (fourth defendant) Commonwealth of Australia (fifth defendant)

P E King, A Power (plaintiffs) B DeBuse (first defendant) COUNSEL : M R Pesman (second and third defendants) H El-Hage (fourth defendant) A Markus (solicitor)(fifth defendant)

Robert Balzola and Associates (Legal) Pty Ltd (plaintiffs) Marsdens Law Group (first defendant) SOLICITORS : Goldrick Farrell Mullan Solicitors (second and third defendants) Crown Solicitor's Office (fourth defendant) Australian Government Solicitor (fifth defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Date of Hearing: 28-29 October 2010 Date of Judgment: 12 November 2010

2009/289796 Hoxton Park Residents' Action Group Inc. and anor v Liverpool City Council and ors

JUDGMENT 1 REIN J: These proceedings concern a development approval given by the Liverpool City Council ("the Council"), the first defendant, to the Malek Fahd Islamic School Ltd ("the School"), which wishes to develop land at Hoxton Park, New South Wales. The School is the second defendant. 2 The third defendant is the Australian Federation of Islamic Councils Inc. ("AFIC"), which owns the land in question. AFIC appears to have joined with the School in the application for development approval. 3 The fourth defendant is the State of New South Wales ("the State"). The fifth defendant is the Commonwealth of Australia ("the Commonwealth"). 4 The plaintiffs, the Hoxton Park Residents' Action Group Inc. ("the Association") and its president, Ms Marella Harris, are opposed to the development approval ("DA") granted to the School and AFIC. The plaintiffs oppose the creation of what they refer to as a "faith based educational facility": see paragraph 6 of the Amended Points of Claim. 5 Mr P King of counsel appears with Ms A Power of counsel for the plaintiffs. Mr B DeBuse of counsel appears for the Council, Mr M Pesman of counsel appears for the School and AFIC, Mr H El-Hage of counsel appears for the State, and Mr A Markus, solicitor, appears for the Commonwealth. 6 The proceedings were commenced by way of Summons filed on 22 July 2009 and have had a history of amendments punctuated by notice to, and then joinder of, the State and the Commonwealth (other states were notified pursuant to s 78B of the Judiciary Act 1903 (Cth), but they have declined to intervene). 7 By Notices of Motion, all of the defendants now seek to have the proceedings dismissed generally pursuant to rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") or, alternatively, have the Second Further Amended Summons struck out pursuant to rule 14.28(1) of the UCPR. These rules provide: "13.4(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim 14.28(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court."

The plaintiffs' case 8 The following sections of the Commonwealth of Australia Constitution Act (Imp) ("the Constitution") are said to be relevant to the plaintiffs' case: "106 The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.

107 Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

116 The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

128 This Constitution shall not be altered except in the following manner: The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives. But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives. When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails. And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen's assent. No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law. In this section, Territory means any territory referred to in section one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives." 9 Section 96 of the Constitution was also referred to in argument, and it is in the following terms: "During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit."

10 The case is advanced by the plaintiffs through a Second Further Amended Summons and an Amended Points of Claim. The defendants, in varying degrees, are critical of the pleadings, and I shall later deal with some specific matters pertinent to the Council, the School and AFIC. 11 The plaintiffs' case, as formulated by Mr King (see T23-26), has the following elements: (1) The Commonwealth has (a) by legislation and (b) by the exercise of executive power provided financial assistance to the School. The legislation identified is the Schools Assistance Act 2008 (Cth) , and the executive power exercised is identified as grants to state schools pursuant to intergovernmental agreements, copies of which were provided to the Court and which I shall have marked as Exhibit 2 (the National Education Agreement) and Exhibit 3 (the Intergovernmental Agreement on Federal Financial Relations). The Education Act 1990 (NSW) is also impugned; (2) The provision of funding by the Commonwealth in this manner contravenes s 116 of the Constitution, either directly or indirectly; (3) The Court should give a wide and liberal interpretation to s 116 of the Constitution; (4) The Council has not validly been established and has no properly recognised or lawful existence; (5) The State did not have the ability to delegate to the Council the power to authorise the use of the land for the proposed school, or as paragraph 6 of the Amended Points of Claim puts it, "the project", characterising the project as: "an establishment as and for the purpose of a place of worship within the meaning of the standard provisions for Local Environmental Plans published by the Department of Planning of the Government of the State of New South Wales working draft dated September 2004, and as and for the purpose of the faith based educational facility ['the project'] as part of a national network of that and similar projects"; (6) The State did not have the power to make a law authorising the approval and construction of the proposed school, and it has not had this power since 1901, or alternatively 1986 (the latter date because the Australia Act 1986 (Cth) had the result of making the states subject to the Constitution); (7) The Council did not have the power to consider and approve the DA; and (8) The defendants have infringed, or threaten to infringe, the plaintiffs' property rights, and they have committed the torts of nuisance and negligence. 12 The manner in which the definition of "the project" has been has been framed, with "a place of worship" placed first and the use of the phrase "faith based educational facility", is seemingly designed to emphasise the religious orientation of the proposed school. The Amended Points of Claim contain some other anomalies, including allegations that: (1) there are 17 schools within a three kilometre radius of the site: see paragraph 11; (2) the land lies within the zoning area of the Hoxton Park Airport: see paragraph 9; (3) within Hoxton Park there are no sufficient persons of school age who are adherents to the Islamic religion to support a school, which precludes or inhibits public funding of existing public schools in the area: see particular (d) to paragraph 40; and (4) the plaintiffs are adversely affected by even "the purchase" of the land: see paragraph 1. 13 The plaintiffs, Mr King informed the Court, consider the proposed school to be "a monstrosity" (see T78.43) and say that the whole approval process "was not authorised by any law properly interpreted and applied", but that the agreements and arrangements between the Commonwealth, the State and the Council "have occurred in such a way as to avoid fundamental constitutional and administrative protections": see T78.47-79.3.

Striking out pleadings and dismissing proceedings 14 There was no dispute about the principles which a court should apply in considering motions to strike out pleadings or dismiss proceedings. I summarise these principles as follows: (1) The power to strike out pleadings or dismiss proceedings without a substantive hearing should only be exercised in "plain and obvious" cases, that is, where the plaintiff's case is "so clearly untenable that it cannot possibly succeed": see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130 per Barwick CJ. The Court cannot dismiss an action "once it is appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it": see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J (as his Honour then was); see also Spencer v Commonwealth (2010) 269 ALR 233 at 249-250 per Hayne, Crennan, Kiefel and Bell JJ; (2) Allegations of fact contained in the pleadings and relevant to the causes of action should be assumed to be established for the purpose of testing whether or not the plaintiff's case is arguable. Great caution ought to be taken in the exercise of the power to terminate an action summarily where "the ultimate outcome of the case depends upon the resolution of some disputed issue or issues of fact": see Webster v Lampard (1993) 177 CLR 598 at 603 per Mason CJ, Deane and Dawson JJ, Munnings v Australian Government Solicitor (1994) 118 ALR 385 at 388-389 per Dawson J, and Spellson v George (1992) 26 NSWLR 666 at 678 per Young AJA (as his Honour then was); and (3) The Court is not precluded from hearing argument, "even of an extensive kind", in determining whether or not the plaintiff's case is untenable: see General Steel Industries at 130 per Barwick CJ.

15 Mr King submitted that this case is one of considerable complexity and that this was an additional reason not to dismiss the proceedings. He also submitted that there had been not yet been discovery and no defence had been pleaded and that these were further reasons why the pleadings should not be struck out or the proceedings dismissed. 16 For the purposes of their current applications, neither the State nor the Commonwealth challenged the standing of the plaintiffs to bring these proceedings. Section 116 of the Constitution 17 It is clear that reliance on s 116 of the Constitution looms large in the plaintiffs' case. Mr King identified three elements of the four elements of s 116 as being relevant to the present case, namely that the Commonwealth shall not make any law for: (1) establishing any religion (" the establishment provision "); (2) imposing any religious observance (" the imposition provision "); or (3) prohibiting the free exercise of any religion (" the free exercise provision "). 18 The plaintiffs argued that by providing for funding to the School or similar schools, the Commonwealth legislation offends the establishment provision, the imposition provision and the free exercise provision of s 116 of the Constitution. 19 Mr King: (1) identified the Commonwealth legislation which it is claimed establishes a religion as the Schools Assistance Act ; and (2) identified the religion "established" by that Act as Islam, the School being a school for the benefit of Muslim children, although Mr King described it as "a particular brand of the Muslim faith": see T28.4 and see also paragraph 21(c) of the Amended Points of Claim.

20 It is clear that the plaintiffs' focus is not the provision of funding to religious schools, but rather the provision of funding to Islamic schools: see T28.14-31.8 and T94.6-96.9. This selective approach is itself productive of some obvious errors in analysis relevant to the establishment provision and the imposition provision of s 116. It is also relevant to the free exercise provision, because as Mr Pesman pointed out, acceptance of the plaintiffs' case would permit freedom of religious education for everyone except persons of the Muslim faith: see T129.50-130.8. 21 Mr King identified the particular sections of the Schools Assistance Act which the plaintiffs say contravene s 116 of the Constitution as ss 11(1)-(6), 12, 14, 16 and 167. I set out s 11(1)-(6) since it summarises that Act: "(1) This section is a simplified outline of this Part. (2) Financial assistance to a State for a non-government school, or another non-government body, must not be paid unless there is an agreement between the Commonwealth and the relevant authority of the school or body. (3) The agreement must cover matters including the following: (a) national performance and transparency requirements (see Subdivision B of Division 3); (b) grant acquittal and reporting requirements (see Subdivision C of Division 3); (c) monitoring, evaluation and compliance requirements (see Subdivision D of Division 3). (4) The following additional conditions apply to the grant of financial assistance to a State for a non-government school or another non-government body (see Divisions 2 and 4): (a) in the case of financial assistance for a school - the school must be an approved school; (b) the school or body must be financially viable; (c) the State must pay amounts of assistance to the relevant authority of the school or body as soon as practicable (or within an extended period allowed by the Minister). (5) If a non-government school, or another non-government body, breaches a funding agreement, the Minister may (under the agreement) require the school or body to repay an amount to the Commonwealth. The Minister may also reduce or delay the amount of other payments for the school or body under this Act. (6) If a State fails to pass on an amount of financial assistance to a non-government school, or another non-government body, for which financial assistance is granted under this Act, the Minister may require the State to repay an amount to the Commonwealth." 22 Further, Mr King submitted that ss 5 and 21 of the Education Act contravene s 116 of the Constitution. I set out these sections: "5 The principal objects of this Act are as follows: (a) to set out aspects of the school curriculum, including the minimum curriculum for school registration and the curriculum for School Certificate and Higher School Certificate candidates, (b) to provide for the establishment and operation of government schools, (c) to ensure that only government schools established under this Act or non-government schools registered under this Act operate in New South Wales, (d) to allow children to be educated at home, (e) to provide for the grant of School Certificates and Higher School Certificates and for the accreditation of non-government schools that are competent to present candidates for those certificates. 21(1) The Minister may provide financial assistance or other assistance, or both, in respect of non-government school children. (2) Any financial assistance provided under this section to non-government schools by way of per capita grants is (subject to this section) to be calculated so that the average per capita grant in respect of children attending such schools is a percentage of the average per capita cost to the State of educating children at government schools (as assessed by the Minister). (3) On and from a date notified by proclamation for the purposes of this subsection, that percentage is to be 25 per cent. (4) In assessing the cost of educating a child at a government school, the cost of anything provided for both government and non-government school children is to be excluded. (5) However, any financial assistance provided under this section to non-government schools by way of per capita grants is to be allocated having regard to the needs of such schools, and accordingly the amount of the per capita grant (and the corresponding percentage) in respect of children attending different schools may differ. (6) Any financial assistance under this section to non-government schools may be paid directly to the schools or to an organisation (such as the Catholic Education Commission) for the benefit of the schools. (7) Any financial assistance under this section is to be paid out of money to be provided by Parliament."

The establishment provision 23 None of the provisions of the Commonwealth or State legislation referred above, nor Exhibits 2 or 3, makes any reference to Islam. The only religion specifically mentioned is the Catholic religion: see s 21(6) of the Education Act. No section of any of the legislation identified seeks to establish any religion as the religion of Australia. On its face, and without recourse to authority, the Schools Assistance Act cannot be described as a law for the establishment of Islam as a religion at all, nor, a fortiori, as the religion of Australia. If express reference to a religion in the legislation is not necessary for s 116 of the Constitution to be infringed, and I understand the plaintiffs to so contend, the plaintiffs' argument can be characterised in this way: (1) The Schools Assistance Act gives funding to religious schools, one of which is the School; (2) The religion of the School is Islam; (3) Therefore the Act establishes Islam as a religion. 24 There are four problems with that argument: (1) The Act itself does not give any funding to the School, although it does permit funding to be provided to the various states of Australia, including New South Wales; (2) The Act provides for funding to be given to the State for the purpose of grants to non-government schools which meet certain criteria, and the schools that benefit include, but are not limited to, schools of the Islamic faith and are not limited to schools associated with particular religions; (3) The words "establishing any religion" do not mean assisting a school by providing grants to construct a building or funds for its expenses. The High Court has authoritatively held what "established" means in this context: see the discussion below of Attorney-General (Vic.); ex rel. Black v Commonwealth (1980) 146 CLR 559; and (4) The test to determine whether legislation infringes the establishment provision of s 116 has been authoritatively determined in Black , and the plaintiffs' contentions are inconsistent with that test, as I shall explain below. 25 In relation to the second point above, the plaintiffs eschew any submission that assistance to religious schools (of any denomination other than Islam) establishes each of those religions in contravention of s 116 of the Constitution. It would seem that to assist more than one religion must, by definition, mean that no single religion is "established" within the meaning of s 116. Stephen J described the prohibition in this element of s 16 as "the elevation of one church above all others": see Black at page 610. Further, if the legislation infringes s 116, as the plaintiffs claim, it would be invalid for all purposes: see the passage from Quick and Garran's Annotated Constitution of the Australian Commonwealth cited in Black at pages 608-609 by Stephen J and at page 612 by Mason J (as his Honour then was). 26 In Black, the plaintiffs argued that legislation (very similar to the legislation impugned here) was invalid because it resulted in benefits being provided to non-government schools, particularly "such schools as are conducted by or on behalf of, or associated with, religious bodies" (at 585 per Gibbs J), which it was claimed infringed s 116 of the Constitution. These claims were rejected by six of the seven judges (Murphy J dissenting). Barwick CJ said at page 582 that "establishing a religion involves the entrenchment of a religion as a feature of and identified with the body politic, in this instance, the Commonwealth". His Honour held at page 579 that for a law to infringe s 116 "the establishment of religion must be found to be the object of the making of the law. Further because the whole expression is " for establishing any religion", the law to satisfy the description must have that objective as its express and, as I think, single purpose. Indeed, a law establishing a religion could scarcely do so as an incident of some other and principal objective. In my opinion, a law which establishes a religion will inevitably do so expressly and directly and not, as it were, constructively."

In addition, Barwick CJ said at page 583: "A law which in operation may indirectly enable a church to further the practice of religion is a long way away from a law to establish religion as that language properly understood would require it to be if the law were to be in breach of s. 116. It would not be enough that the law allowed such activity on the part of the owners of the schools. The law must be a law for it, i.e. intended and designed to set up the religion as an institution of the Commonwealth." 27 Gibbs J (as his Honour then was) considered the various possible meanings of "establish" (see pages 594-597) and said at pages 597-598: "The natural meaning of the phrase "establish any religion" is, as it was in 1900, to constitute a particular religion or religious body as a state religion or state church. If that sense is applied to the word in s. 116, there is no inconsistency with, or repugnancy to, the other provisions of the section. On ordinary principles of construction it is the meaning that ought to be given to the words of the section unless sufficient reason is shown for adopting another meaning."

His Honour held that the establishment provision imposed a fetter on legislative power and should not be given a liberal interpretation: see page 603. Gibbs J also said at pages 603-604: "For the reasons I have given, I consider that the words "The Commonwealth shall not make any law for establishing any religion", where they appear in s. 116, mean that the Commonwealth Parliament shall not make any law for conferring on a particular religion or religious body the position of a state (or national) religion or church. It may be a question of degree whether a law is one for establishing a religion. However, on no view of the evidence in the present case can it be said that any of the laws in question infringes s. 116, if that section is given the meaning which I have attributed to it. If it be assumed that in some schools religious and secular teachings are so pervasively intermingled that the giving of aid to the school is an aid to the religion, and if it be further assumed that some religions, which conduct more schools than others, will receive more aid than others, it still does not follow that any religion is established by the legislation. If the administration of the Schools Commission Act 1973 requires that officers of the Commonwealth be closely involved with religious authorities, that also does not mean that the Act establishes any religion. The primary purpose of the challenged legislation is the advancement of education within Australia. That would, no doubt, not be decisive if the legislation had the further purpose of establishing any religion. However, it is impossible to say, on any view of the statutory provisions in question or of the evidence in the case, that the challenged legislation has the purpose or effect of setting up any religion or religious body as a state religion or a state church, even for limited purposes only. None of the laws in question is a law for establishing religion within s. 116."

28 Stephen J held that "establishing", in the context of s 116, meant placing the church or religious body "in the position of a state church" (see page 606) and that the granting of non-discriminatory financial aid to churches or church schools did not infringe the prohibition in s 116: see page 610. 29 Mason J agreed with Wilson J that the establishment provision (see page 612) "forbids the establishment or recognition of a religion (and by this term I would include a branch of a religion or church) as a national institution. Quick and Garran in Annotated Constitution of the Australian Commonwealth say of s. 116 (p. 951): "by the establishment of religion is meant the erection and recognition of a State Church, or the concession of special favours, titles, and advantages to one church which are denied to others." With one qualification, I agree with this statement. The qualification is that to constitute "establishment" of a "religion" the concession to one church of favours, titles and advantages must be of so special a kind that it enables us to say that by virtue of the concession the religion has become established as a national institution, as, for example, by becoming the official religion of the State."

Further, his Honour said at page 616: "It is altogether too much to say that a law which gives financial aid to churches generally, to be expended on education, is a law for establishing religion. The mere provision of financial aid to churches generally, more particularly when that aid is genuinely linked to expenditure on education, falls short of "establishing" a "religion" as we understand the expression. By it we mean the authoritative establishment or recognition by the State of a religion or a church as a national institution." Furthermore, his Honour said at pages 617-618: "The interpretation which I give to the first clause of s. 116 is fatal to the plaintiffs' case to the extent to which it was based on the section. The statutes whose validity the plaintiffs attack provide financial assistance for church schools without differentiation between religions or churches. True it is that very much more aid is given to Roman Catholic schools. This is because the Roman Catholic Church operates a much larger number of schools than other churches or religions. The provision for church schools forms part of a general scheme for the funding of government and non-government schools. Therefore there is simply no basis for saying that the relevant statutes are laws for establishing the Roman Catholic Church as a national institution. There is just as little basis for saying that they are laws for establishing the Christian religion."

30 Wilson J held that "establishment" in s 116 required the "statutory recognition of a religion as a national institution" (see page 653) and "involves the deliberate selection of one to be preferred from among others, resulting in a reciprocal relationship between church and state which confers and imposes rights and duties upon both parties."

His Honour held that the legislation did not have that effect, and therefore the plaintiffs' argument failed. However, Wilson J expressed some further views at page 656: "In my opinion, the summary of the provisions of the States Grants (Schools Assistance) Act 1978 that appears earlier in these reasons clearly reflects a secular legislative purpose, that of upgrading the quality and range of education in primary and secondary government and non-government schools throughout Australia. Even if one accepts the plaintiffs' submissions on the facts, it cannot be said that the primary effect of the legislation is to advance religion. It may be true that in many cases one effect may be to advance religion appreciably, but, even so, such a result is not central to the operation of the legislative scheme. It is an incidental or indirect consequence of the pursuit of the educational purpose. In no case is religion a criterion which attracts a grant. Even the most "religious" of the schools which have received assistance are first and foremost educational institutions which are required to strive for a range and quality of education which is at least comparable to government schools. The amount of time devoted to secular instruction in such schools is necessarily substantial, the cost of which obviously forms the major part of the recurrent expenditure of the school. Similarly, the fact that some school buildings may be used for religious instruction for some periods each week cannot obscure the predominantly secular user reflected in the general balance of the secular purpose to the religious goal. The third of the schedules which appear earlier in these reasons makes it clear that, notwithstanding increased contributions from both Commonwealth and State legislatures, non-government schools are still required to fund a substantial part of their expenditure from private sources."

31 The majority view of the High Court in Black that a law "for establishing any religion" must constitute or recognise that religion as a state religion, state church or national institution is fatal to the argument advanced by the plaintiffs that the establishment provision of s 116 of the Constitution is infringed. As Brennan CJ noted in Ravenor Overseas Inc. v Readhead (1998) 152 ALR 416 at 416, it is fundamental to the due administration of justice that a lower court faithfully follow the decisions of the High Court. The plaintiffs' new arguments on the issue (if any can be discerned) do not put in doubt the High Court's conclusions in Black. 32 I have noted that Barwick CJ thought that the law must have as its sole purpose the establishment of a religion: see page 579. Gibbs J (with whom Aickin J agreed at page 635) spoke of "the purpose or effect" (see page 604), and Wilson J spoke of "the primary effect": see page 656. Stephen J and Mason J did not specifically address this aspect of the test. 33 I should draw attention to an argument that Mr King advanced in relation to the establishment provision. He seemed to contend that because AFIC is a national body and promotes assistance to Muslim schools generally, and not simply the proposed school at Hoxton Park, this made AFIC a national institution. Mr Pesman indicated that AFIC does seek, inter alia, to promote the creation of schools for adherents to the Islamic faith (see T45.34-45), and I shall assume for present purposes that AFIC is a national organisation, as its name implies. The express element of Mr King's argument that AFIC is a national institution (see T80.43) appears to elide into an implied element, namely that because AFIC is a national institution, assistance to the School is national or part of a national scheme. I have already set out paragraph 6 of the Amended Points of Claim, which refers to "a national network of that and similar projects". 34 Mr King did not precisely identify what the relevance of that contention was, but if it is relevant, it can only be so on the basis of an argument that because AFIC is a national organisation, the provision of funding to the School is part of a program of wider assistance of such a nature that Islam thereby is made the national religion of Australia or established as a national institution. Since there can be no dispute that Catholic schools exist throughout Australia, the provision of funding to Catholic schools must be national, and hence if the plaintiffs' argument were correct, it must follow that the Catholic religion thereby is made the official or state religion of Australia or a national institution in contravention of s 116. The plaintiffs do not contend that the impugned legislation establishes the Catholic religion as the official religion of Australia or as a national institution. Such an argument would be nonsensical, as would be a similar argument inserting as the religion any other religion. The argument which is advanced by the plaintiffs (which inserts Islam as the religion) is equally so described. 35 Paragraph 37(a) of the Amended Points of Claim asserts that the legislation has the effect of establishing the Islamic religion "in Hoxton Park", which religion "hitherto had not been established in the community at Hoxton Park". A religion cannot be established as the religion of Australia or as a national institution of the Commonwealth by permitting a school (with a mosque as part of its infrastructure) to be built at Hoxton Park. The fact, if it is a fact, as the plaintiffs assert, that few or no persons of the Muslim faith live in Hoxton Park cannot be relevant to the question of whether s 116 is infringed by the legislation.

The free exercise provision 36 In Kruger v Commonwealth (1997) 190 CLR 1, the plaintiffs brought an action in relation to their detention pursuant to a Northern Territory ordinance in force between 1918 and 1957. One of the grounds of attack on the legislation was that it was a law by which religious observance was curtailed (the plaintiffs not being free to practise their ancestral religion, but forced to conform to the religion of the institutions in which they were placed). The brief summary below deals only with this issue. 37 Brennan CJ, in rejecting the claim that s 116 of the Constitution had been infringed, said at page 40: "none of the impugned laws on its proper construction can be seen as a law for prohibiting the free exercise of a religion, contrary to the pleading in sub-par (vi). To attract invalidity under s 116, a law must have the purpose of achieving an object which s 116 forbids. None of the impugned laws has such a purpose." 38 Dawson J was of the view that s 122 of the Constitution was not restricted by s 116, which disposed of that part of the case, but his Honour indicated that if were he wrong in that conclusion, he would agree with Gummow J: see page 60. 39 Toohey J held that to infringe s 116, the purpose, end or object of the legislation in question may be taken into account in determining whether it is a law of the prohibited character: see page 86. His Honour accepted that more than one purpose may be discerned in a law and that the prohibited end or object need not be the exclusive end or object. His Honour asked whether the impugned legislation had as "a purpose" the prohibition of the free exercise of religion and held that it did not. Toohey J said at page 86: "It may well be that an effect of the Ordinance was to impair, even prohibit the spiritual beliefs and practices of the Aboriginal people in the Northern Territory, though this is something that could only be demonstrated by evidence. But I am unable to discern in the language of the Ordinance such a purpose." 40 Gaudron J indicated that a liberal approach should be taken to interpreting the ambit of the free exercise provision: see pages 130-131. Her Honour rejected the approach of Barwick CJ in Black that to infringe a prohibition in s 116, the law in question must have the prohibited objective as its express and single purpose: see page 133. In addition, her Honour held that the use of the word "for" indicates that "purpose is the criterion and sole criterion selected by s 116 for invalidity": see page 132. Gaudron J said at page 133: "As with the implied freedom of political communication and the implied freedoms of movement and association, a law will not be a law for "prohibiting the free exercise of any religion", notwithstanding that, in terms, it does just that or that it operates directly with that consequence, if it is necessary to attain some overriding public purpose or to satisfy some pressing social need. Nor will it have that purpose if it is a law for some specific purpose unconnected with the free exercise of religion and only incidentally affects that freedom. It is not pleaded in the present case either that the Ordinance was necessary for the protection or preservation of Aboriginal people or that its purpose was a purpose unconnected with the free exercise of religion. The plea is, thus, no answer to the plaintiffs' claim that the Ordinance was invalid by reason that it infringed s 116."

41 Gummow J dealt at pages 160-161 with the plaintiffs' claim that s 116 had been infringed. His Honour referred to Black and stated (at page 160) the question in to be determined in Kruger as "whether the Commonwealth has made a law in order to prohibit the free exercise of any religion, as the end to be achieved. "Purpose" refers not to underlying motive but to the end or object the legislation serves."

His Honour held that there was nothing apparent in the Northern Territory ordinance "which suggests that it aptly is to be characterised as a law made in order to prohibit the free exercise of any such religion, as the objective to be achieved by the implementation of the law": see page 161.

There then follows (at page 161) a passage relied on by Mr King: "In the written submissions, by reference to extrinsic materials, the relevance and admissibility of which would be an issue at trial, the plaintiffs seek to place such a construction upon the 1918 Ordinance. I have referred to the particular nature of the proceeding before the Full Court. This does not permit, by submission, denial of the character with which the legislation otherwise is stamped. It may be that a particular law is disclosed as having a purpose prohibited by s 116 only upon consideration of extraneous matters indicating a concealed means or circuitous device to attain that end, and that it is permissible to apply s 116 in that fashion. But these can only be matters for another day." 42 Although there is some difference in approach, Kruger is authority for the proposition that for a law to infringe the free exercise provision in s 116 of the Constitution, it must have as its end or object the prohibition of the free exercise of a religion. Toohey J and Gaudron J would regard it as sufficient if the impugned law had as one of its ends or objects the prohibition of the free exercise of a religion. 43 The legislation which the plaintiffs challenge does not have as its purpose, end or object, either solely or as one of its ends or objects, directly or indirectly, the prohibition of the free exercise of religion. The approach taken by Toohey J and Gaudron J does not assist the plaintiffs. Indeed, on one view, the legislation encourages religious freedom because it delivers financial assistance to schools that provide education, both secular and religious, for adherents of various faiths.

44 The plaintiffs' claims include the proposition that the impugned legislation has the effect that the free exercise of religion is prohibited "in that the project, when operating, will prohibit the free exercise of other religions and faiths at the said institution or facility" (emphasis added): see paragraph 37(c) of the Amended Points of Claim. Again, on the plaintiff's approach, the Greek Orthodox Church, by establishing the prayers and practices of the Greek Orthodox religion at its churches, must prohibit or preclude the free observance of the Anglican faith or the Baha'i and other faiths in Australia. Adherents of the Catholic faith would no doubt be surprised to learn that by conducting a Mass at St Mary's Cathedral, the Catholic Church thereby prohibits the free observance of Judaism in Australia. To so state the propositions inherent in the plaintiffs' case demonstrates the flaws contained within it, both as to the free exercise provision and the imposition provision, which I shall deal with further below. The imposition provision 45 It was agreed that there have been no cases to date dealing with the imposition provision of s 116 of the Constitution. The defendants pointed out that even in Black, no argument based on the imposition provision was maintained. Mr King drew my attention to what Latham CJ had said in Adelaide Company of Jehovah's Witnesses Inc. v Commonwealth (1943) 67 CLR 116 at 131: "If the guarantee is to have any real significance it must be left to the courts of justice to determine its meaning and to give effect to it by declaring the invalidity of laws which infringe it and by declining to enforce them. The courts will therefore have the responsibility of determining whether a particular law can fairly be regarded as a law to protect the existence of the community, or whether, on the other hand, it is a law "for prohibiting the free exercise of any religion." The word "for" shows that the purpose of the legislation in question may properly be taken into account in determining whether or not it is a law of the prohibited character." 46 I respectfully adopt the proposition that to impose by legislation a requirement that persons must perform or adopt any religious observance when they are of another faith or have no religion is wholly inconsistent with religious freedom, including the freedom to have no religious beliefs: see Jehovah's Witnesses at 123 per Latham CJ and Kruger at 160 per Gummow J. 47 Beyond that, however, there is no substance whatsoever in the plaintiffs' argument for these reasons: (1) The approach taken in Black and Kruger requires the Court to consider whether the impugned law has as its purpose, end or object (or has as one of its purposes, ends or objects, on the approach of Toohey J and Gaudron J in Kruger ) one that is prohibited by s 116, that is, here, imposing any religious observance. I can see no reason in logic or principle why the approach taken in Black and Kruger would not be applied to this element of s 116; (2) The impugned legislation does not expressly or impliedly, directly or indirectly, impose any religious practice on anyone in relation to denominational schools of the Islamic faith or any other faith or in relation to non-denominational schools; (3) No one is required to send their children to the School, and no one is prevented from withdrawing their children from the School. To the extent that children are required to attend the School because their parents have enrolled them, they are in no different a position to any other child at any other school in Australia; (4) A law does not impose any religious observance if it simply assists those of various faiths to educate their children in that faith, whilst providing an education that meets the requirements of the state education authorities; and (5) If the legislation has the effect of assisting a particular religion, this is not sufficient on the approach taken in respect of the establishment provision: see Black at 584 per Barwick CJ, at 604 per Gibbs J, at 616 per Mason J, and at 653 and 656-657 per Wilson J (Aickin J agreeing with Mason J and Wilson J at 635). 48 I do not think that the passage from Jehovah's Witnesses at [45] above assists Mr King's argument. No one is suggesting that this Court cannot determine whether a particular law does or does not infringe s 116 of the Constitution. The point is that here it is clear that the impugned legislation does not infringe s 116. If there was a real argument that the legislation infringed s 116, then indeed it should go to trial, but there is no tenable argument for the reasons that I have outlined. 49 I set out a submission made by Mr King at T109.41-110.4: "In particular, the argument that the first clause of 116 necessarily focuses on the notion of the national institution and therefore being Commonwealth focussed and not on issues of discrimination and difference in treatment, direct or indirect, on the ground of religious observance or prevention of free exercise of religion whether at the local level or the State level or the national level because we ask, what happens if a student does not wish to perform a strict observance and is mistreated as a result? Is the taxpayer funding educational services or mistreating the student or other person on the ground of religion? That sort of issue can arise any day in a local context or a national institution. We submit that none of those provisions were the subject of debate in those cases in that or similar context and there is no proper reason why those arguments are not available both from the text of section 116 and on the authorities." The reference to the hypothetical question "what happens if a student does not wish to perform a strict observance and is mistreated as a result" suffers from three problems: first, it has not been pleaded as a fact; secondly, it cannot be pleaded as a fact; thirdly, it cannot be pertinent to the question of whether the legislation in question infringes s 116. The moral question of whether children of any faith should receive instruction in the faith of their parents and how they are to be dealt with if they do not wish to be so instructed may be an interesting one, but it is not germane to any question that this Court has to determine. Alleged circumvention of section 116 of the Constitution 50 Mr King drew attention to three other High Court decisions: ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140, Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242, and Spencer. He submitted that ICM Agriculture and Arnold demonstrate that the legislative power of the Commonwealth conferred by s 96 of the Constitution to grant financial assistance to the states on such terms as the Commonwealth Parliament thinks fit is subject to constitutional guarantees - in those cases, the restriction in s 51(xxxi) of the Constitution: see T84. He submitted that the two decisions consider the possibility that funding legislation may be invalid because it attempts to circumvent constitutional guarantees and relied on the passage from Gummow J's judgment in Kruger at page 161 (set out at [41] above) to support the extension of the principles enunciated in ICM Agriculture and Arnold from s 51(xxxi) to the proscriptions contained in s 116 of the Constitution: see T104.27-30. 51 In Spencer, the plaintiff brought proceedings against the Commonwealth in the Federal Court. He argued that as a result of New South Wales legislation which imposed restrictions on the clearing of vegetation on his farm, property had been acquired from him other than on just terms and the acquisition had been made in furtherance of agreements between the State and the Commonwealth. He claimed that the Commonwealth laws which authorised those agreements were enacted for the purpose of acquiring property other than on just terms and therefore contravened s 51(xxxi) of the Constitution. The plaintiff argued that the arrangements between the Commonwealth and the State were a scheme or device designed to circumvent the restriction on the Commonwealth's legislative powers contained in s 51(xxxi). 52 Emmett J dismissed the proceedings pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), which permits that Court to give judgment for one party if it is satisfied that the other party has "no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding". The Full Court of the Federal Court rejected Mr Spencer's appeal. The High Court unanimously upheld Mr Spencer's appeal from the Full Court of the Federal Court. 53 The High Court was of the view that Mr Spencer's case raised a factual question as to whether there was any arrangement or understanding between the Commonwealth and the State beyond what appeared in the relevant inter-governmental agreement and applicable legislation, as well as an associated question as to whether there was any constitutional significance in such an arrangement. The latter point had been expressly reserved for future consideration in ICM Agriculture (at 168 per French CJ, Gummow and Crennan JJ), which was handed down after the decision under appeal in Spencer. 54 ICM Agriculture, Arnold and Spencer all consider the question of whether the Commonwealth, by the use of state legislation, has endeavoured to avoid a restriction in the Constitution. That is far removed from the situation in this case. Here, there is Commonwealth legislation enacted, and its purpose is plain. The Schools Assistance Act and the Education Act have the purpose, end or object of providing assistance to non-government schools, subject to various requirements. Since the Commonwealth legislation does not infringe s 116 of the Constitution directly or indirectly, expressly or impliedly, the State legislation cannot contravene s 116, even if the prohibitions contained in s 116 apply to state legislation, which they do not (a matter dealt with below). State legislation and section 116 of the Constitution 55 To the extent that the plaintiffs attack the Education Act as an infringement of s 116 of the Constitution, they face an immediate problem: s 116 does not deal or purport to deal with state legislation. The proscriptions in s 116 are against laws of the Commonwealth: "The Commonwealth shall not make any law for…". 56 Reliance was placed on covering clause 5 of the Constitution (see T111.30-35) to assert that state legislation of any description should be seen as being brought impliedly within the guarantees contained in the Constitution in some general sense, but there is no authority to support this proposition and there is authority at an intermediate Court of Appeal level against it: see Grace Bible Church v Reedman (1984) 36 SASR 376 at 379 per Zelling J, at 385 per White J and at 389 per Millhouse J and R v Gorton [2001] QCA 43; see also Kruger at 124-125 per Gaudron J. 57 Mr King also drew attention to Attorney-General (WA) v Marquet (2003) 217 CLR 545. In Marquet, the High Court held by a majority (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ, Kirby J dissenting) that a Western Australian law that sought to affect electoral boundaries and amend the Electoral Distribution Act 1947 (WA) had not been passed in accordance with the requirements of that Act and was invalid by virtue of s 6 of the Australia Act. Mr King submitted that Marquet demonstrates that the New South Wales Parliament is constrained by s 5 of the Australia Act: see T110.39-111.6. I accept that submission, but it does not assist his argument. The Education Act does not repeal or amend, and is not repugnant to, the Australia Act, the Constitution, or the Statute of Westminster 1931. However, Mr King further submitted that s 5 of the Australia Act has the effect that s 116 of the Constitution "voluntarily by State law applies and those protections apply": see T111.35. In my view, s 5 does not have that effect. It merely recognises that the legislative powers of the states are subject to, and cannot be inconsistent with, the legislative powers given to the Commonwealth by the Constitution.

58 If the inapplicability of s 116 to state legislation were not an insurmountable problem to the plaintiffs' challenge to the Education Act, as I think it is, the same points relevant to the Commonwealth legislation can be made against the plaintiffs' case challenging the state legislation. The state legislation cannot infringe s 116 of the Constitution, and the plaintiffs' argument that it does is untenable for the reasons given earlier.

Delegation of power by the State to the Council 59 At T112.8-44, Mr King referred to what he said was another argument. The first part of that argument, as far as I can discern it, was that the New South Wales Parliament had power with respect to "matters of religion and the establishment of places of religion" and that the State had delegated that power to local councils. This amounted to a submission that local councils should not be permitted to give consent to the construction of a church, temple, mosque or synagogue on a property, because those are matters solely within the authority of State legislation. Mr King referred to the Roman Catholic Church Trust Property Act 1936 (NSW) and the Anglican Church of Australia (Bodies Corporate) Act 1938 (NSW) as examples of the exercise of the New South Wales Parliament's power. The premise that, by granting consent to the construction of a building to be used exclusively as a mosque (or to be used partly as a mosque, as Mr King must say in this case), a local council is thereby legislating or purporting to legislate in connection with religious observance, is absurd. The contention that legislation which permits councils to grant consent to such buildings infringes the Constitution Act 1902 (NSW) ("the State Constitution") is also nonsensical because laws which permit councils to grant development consent are "laws for the peace, welfare, and good government of New South Wales": see s 5 of the State Constitution.

60 On the same page of the transcript, Mr King is recorded as handing up two sections from a book by Professor Freestone (R Freestone, Urban Nation: Australia's Planning Heritage (2010), CSIRO Publishing, Melbourne) which point out that local councils originally did not involve themselves in town planning. These observations are irrelevant to any matter before the Court, and in any event local councils have for many years been involved in urban planning and development through legislation such as the Environmental Planning and Assessment Act 1979 (NSW) ("the EPAA"). Mr King submitted that the Council here was involved in the "giving of land": see T112.42. When I asked him which land, Mr King said (see T112.48-113.1): "A small parcel of what was part of the development, probably an improving project which in truth should have been exercised by State Parliament which improperly gave away their power to what was called the local authority."

If the Council owns land and deems it appropriate for the purpose of a development to permit some portion of it to be sold or transferred, that is a matter within its province and not that of the State Parliament, subject of course to any legislative restrictions. To the extent that the argument is linked to the wider question of whether councils have any legislative existence or power, I deal with that issue below.

The existence of local councils 61 Liverpool City Council, it was agreed, was in existence long before the Local Government Act 1993 (NSW) ("the LGA") was enacted. Section 220(1) and (2) of the LGA changed the status of pre-existing local councils from corporations to a "bodies politic". Mr King submitted that as a consequence of that change, councils ceased to be subject to corporations law. However, s 220(4) of the LGA provides: "(4) A law of the State applies to and in respect of a council in the same way as it applies to and in respect of a body corporate (including a corporation)." 62 Local councils have been given the power to consent to development applications by Division 2 of the EPAA (and see the definitions of "consent authority" and "council" in s 4). 63 Since local councils are created or recognised by the LGA and powers are conferred on them by that Act and other New South Wales legislation, such as the EPAA, the plaintiffs put forward the argument that the New South Wales Parliament had no power to legislate for the creation or recognition of local councils. 64 The plaintiffs' argument has four limbs: (1) The Constitution does not provide for local councils; (2) There was a referendum in 1988 by which the citizens of Australia were asked, but refused, to amend the Constitution to include a proposed s 119A, which was in the following terms: "Each State shall provide for the establishment and continuance of a system of local government, with local government bodies elected in accordance with the laws of the State and empowered to administer, and to make by-laws for, their respective areas in accordance with the laws of the State." This rejection, it was argued, was relevant to construing the constitutional validity of local councils; (3) Sections 106 and 107 of the Constitution preclude the existence of a new tier of government; and (4) Section 128 of the Constitution precludes the existence of a new tier of government. 65 So far as (1) is concerned, it is true that the Constitution says nothing about local councils. It follows that if local councils have a legitimate legislative basis, it does not come from the Constitution. This links to (2), because if there is a legislative basis for local councils, the fact that the referendum rejected the proposal is irrelevant. The failure of the referendum to include a reference to local government in the Constitution has been held to be irrelevant to the legitimacy of the existence of local councils by the New South Wales Court of Criminal Appeal in R v Vorhauer [2002] NSWCCA 483 at [14] per Spigelman CJ (with whom Sully and Kirby JJ agreed) and Vorhauer v R [2007] NSWCCA 125 at [41] per McClellan CJ at CL (with whom Hulme and Rothman JJ agreed); see also Glew v Shire of Greenough [2006] WASCA 260 at [24] per Wheeler JA (with whom Pullin and Buss JJA agreed). If there is no legislative foundation at a state level for local councils, then the result of the referendum will not be needed to attack their existence. 66 So far as ss 106 and 107 of the Constitution are concerned, they are of no assistance to the plaintiffs' argument. Those sections provide that state constitutions continue subject to the Constitution and that the powers of the state parliaments continue unless they are expressly vested in the Commonwealth by the Constitution. Since local councils and the power to create local councils have not been made the exclusive preserve (or even a preserve at all) of the Commonwealth, whatever power the New South Wales legislature has to create local councils and legislate in respect of them remains unaffected: see R v Phillips (1970) 125 CLR 93 at 116 per Windeyer J (approved in Gerhardy v Brown (1985) 159 CLR 70 at 120-121 per Brennan J (as his Honour then was) and R v Fukusato [2003] 1 Qd R 272 at 296 per McMurdo P): "[s 108] is significant as it and ss. 107 and 109 together state the result of the distribution of legislative powers, exclusive and concurrent, between the Commonwealth and the States. Section 107 preserves the legislative competence of State Parliaments in respect of any topic that is not exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State. This is simply an expression of an element that is implicit in any federal system in which defined powers are granted to the central authority and the undefined residue remains with the constituent provinces. Section 107 confirms that as the underlying principle of Australian federalism."

67 So far as s 128 of the Constitution is concerned, this provides that the Constitution can only be amended by a referendum. The plaintiffs asserted that legislation creating or recognising local councils alters the Constitution. The only argument advanced in support of this was based on the fallacy that because the Constitution makes no reference to local councils, there is no scope for local councils in Australia, which ignores the express reservation of powers in the states to enact legislation. 68 This then leaves the question of whether the New South Wales Parliament has the power to enact legislation with respect to local councils. The State Constitution contains the following in s 51: "(1) There shall continue to be a system of local government for the State under which duly elected or duly appointed local government bodies are constituted with responsibilities for acting for the better government of those parts of the State that are from time to time subject to that system of local government. (2) The manner in which local government bodies are constituted and the nature and extent of their powers, authorities, duties and functions shall be as determined by or in accordance with laws of the Legislature. (3) The reference in subsection (2) to laws of the Legislature shall be read as a reference to laws that have been enacted by the Legislature, whether before or after the commencement of this section, and that are for the time being in force. (4) For the purposes of this section, the Western Lands Commissioner, the Lord Howe Island Board, and an administrator with all or any of the functions of a local government body, shall be deemed to be local government bodies." Section 5 of the State Constitution provides: "The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever: Provided that all Bills for appropriating any part of the public revenue, or for imposing any new rate, tax or impost, shall originate in the Legislative Assembly." 69 In 1986, the Commonwealth Parliament enacted the Australia Act. Relevantly, ss 2 and 5 provide: "2 Legislative powers of Parliaments of States (1) It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-territorial operation. (2) It is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in relations with countries outside Australia.

5 Commonwealth Constitution, Constitution Act and Statute of Westminster not affected Sections 2 and 3(2) above: (a) are subject to the Commonwealth of Australia Constitution Act and to the Constitution of the Commonwealth; and (b) do not operate so as to give any force or effect to a provision of an Act of the Parliament of a State that would repeal, amend or be repugnant to this Act, the Commonwealth of Australia Constitution Act, the Constitution of the Commonwealth or the Statute of Westminster 1931 as amended and in force from time to time."

70 The Commonwealth government, by ss 2 and 5 of the Australia Act, recognised that the legislative powers of the state parliaments were, subject to the legislative powers given to the Commonwealth by the Constitution, untrammelled and that the legislative powers of each state parliament includes all legislative powers that the Parliament of the United Kingdom might have exercised before 1986 for the peace, order and good government of that state (subject to a constraint of no present relevance). These provisions not only support the arguments of the State in this case, but also undermine the validity of Mr King's contention that even outside the powers reserved to the Commonwealth, New South Wales should not be seen as having "an unlimited constitution such as that of a sovereign power like Great Britain and/or Australia": see T110.24-26; see also Grace Bible Church at 385, where White J rejected contentions of the kind made here by Mr King.

71 Apart from the fact that the State Constitution does explicitly recognise local councils in s 51 (a fact that the plaintiffs' argument seems to ignore), no legal analysis has been advanced to support the plaintiffs' contention that the creation and recognition of local councils does not fall within the very extensive power granted by s 5 of the State Constitution, a power that has been described as plenary: see Union Steamship Company of Australia Pty Limited v King (1988) 166 CLR 1 at 9 per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ, Durham Holdings Pty Limited v New South Wales (2001) 205 CLR 399 at 408-409 per Gaudron, McHugh, Gummow and Hayne JJ, Mobil Oil Australia Pty Limited v Victoria (2002) 211 CLR 1 at 33 per Gaudron, Gummow and Hayne JJ, and R v MSK and MAK (2004) 61 NSWLR 204 at 212-213 per Mason P (with whom Wood CJ at CL and Barr J agreed). The LGA, particularly ss 220-226, and the EPAA, particularly ss 4, 5, 26 and 76A-79C, establish the legislative framework for the Council and its activities in this case. 72 The only other argument advanced by the plaintiffs against the New South Wales Parliament's ability to create or recognise local councils centred around the fact that s 220(1) of the LGA speaks of a council as a "body politic". The plaintiffs argue that councils are a form of decision-making political institution not recognised by the State Constitution and not permitted to be created. The change from "body corporate" to "body politic" was explained in P Stein, P Ryan, L Taylor and B J Preston, Local Government Planning and Environment: New South Wales (looseleaf service), LexisNexis Butterworths, Sydney at [405,015]: "Until 20 November 2008 a council was a "body corporate" under s 202 of the LG Act as it then was and a "statutory corporation" (s 50 of the Interpretation Act 1987 (NSW)). However, by virtue of the Local Government Amendment (Legal Status) Act 2008, which commenced operation on 20 November 2008, a council became under s 220(1) a "body politic of the State with perpetual succession and the legal capacity and powers of an individual both in and outside the State". The Hon. Tony Kelly in his Second Reading Speech explained that the purpose of the legislation was "to remove the possibility that a council might be characterised as a constitutional corporation and therefore an employer for the purposes of the Commonwealth's Workplace Relations Act. It will ensure that a council cannot be subject to a Federal industrial relations legislation." 73 I do not think that the New South Wales Parliament was precluded from altering the status of councils from "bodies corporate" to "bodies politic", but if, contrary to my view, it was, the consequence would be that that provision would be struck down, not the existence of local councils. Local councils have long been elected bodies: see, for a brief description of the history of local government law in New South Wales, L Pearson, Local Government Law in New South Wales (1994), The Federation Press, Sydney at pages 1-3. 74 The plaintiffs' argument that local councils have no lawful existence is untenable, and the contention built upon that foundation, namely that the Council did not have power to consider and approve the DA, must fail. Other arguments relevant to strike out or dismissal 75 None of the arguments advanced by the plaintiffs depend on the resolution of any disputed issues of fact. The allegation that Commonwealth funding infringes s 116 of the Constitution is a rolled-up allegation that funding has been or will be provided (a fact which can be and is assumed for the purposes of these applications) and that such funding, if established, infringes s 116. The latter allegation is not a question of fact, but an allegation of law and one which I have rejected. 76 Mr King sought to rely on Spencer to support his contention that in cases involving funding legislation and arrangements between the Commonwealth and the states, discovery might yield documents assisting a claim that a constitutional guarantee had been infringed, so the Court should permit this case to proceed to a hearing. Applications for strike out or summary dismissal are generally heard prior to the process of discovery (and interrogatories). In any event, discovery must be in and of some legitimate case sought to be advanced: see WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 at 567 per Brennan J (as his Honour then was), with whom Bowen CJ agreed. I have already explained why, in my view, Spencer has no relevance here.

77 After the hearing of the Notices of Motion, Mr King supplied a further submission in writing (with the agreement of the other parties, I was informed), which I shall set out: "'If the law is not settled but is still developing then it would be inappropriate to decide novel questions on hypothetical facts - X (Minors) v Bedforshire County Council [1995] 2 AC 633 at 740-750', referred to with approval per French J, Beaumont and Finkelstein JJ agreeing, in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [50]." 78 The submission as framed, whilst citing what was said in X (Minors) v Bedfordshire County Council [1995] 2 AC 663 and noting approval of it in Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564, is meaningless. It commences "If the law is not settled but is still developing", but it does not assert that the law here is not settled. I will, however, assume that that is what Mr King is submitting. In my view, the law is settled in relation to the establishment provision of s 116 of the Constitution. It is also settled in relation to the free exercise provision. In my view, there is no substance whatsoever in the plaintiff's argument that the imposition provision has been infringed, but even if there were, the test which was enunciated in Black and Kruger (whether the sole purpose test or the "a purpose" test adopted by Toohey J and Gaudron J) yields the same result. 79 The conclusions in this case are based on the case as pleaded. The absence of discovery is quite irrelevant to a consideration of whether or not the plaintiffs' case is tenable. Contrary to Mr King's arguments, the obviously untenable core of the plaintiffs' case can readily be discerned.

The Council's position 80 The Council criticised the fact that it had been joined and submitted that there was no relief which could be obtained against it. I think that since the plaintiffs assert that the Council, in effect, has no valid existence, it was appropriate that it be joined so that it could be heard. Whether the Council chose to participate was a matter for it, although I doubt that any of the other relief sought is directly relevant to the Council. Nuisance and negligence 81 At one point, Mr King seemed to accept that if the Council had power to approve the DA, then the plaintiffs' cases in nuisance and negligence must fail. However, he subsequently asserted that even if the DA were validly the subject of consent, his clients maintained that the conditions imposed by the DA have not been met and that they were suffering damage as a result of the approval of the DA and the work that has commenced pursuant to the DA. 82 I should draw attention to the fact that the plaintiffs have commenced proceedings in the Land and Environment Court seeking to have the DA set aside on other grounds, which are framed principally as environmental matters: see the affidavit of Ms Janet Catherine Lazzaro sworn 27 October 2010 and its annexures. 83 Mr Pesman launched an attack on paragraphs 1-17 of the Amended Points of Claim, which are directed to his clients. He made four points in relation to the case against his clients, which is a case, first, in nuisance and secondly, in negligence: (1) The plaintiffs have no standing to bring a claim in nuisance. The first plaintiff is an association formed of 1702 residents of Hoxton Park, but the Association itself has no property. It has not been pleaded that the Association does have property, and I think it was accepted that it does not. The second plaintiff does live in Hoxton Park, but Mr Pesman submits that she does not plead any injury, loss or damage as a result of the alleged nuisance particular to her; (2) There is no pleading which sets out the respects in which the School and AFIC have breached provisions of the DA; (3) The Amended Points of Claim are confusing and seem to mix past, present and future matters in an impermissible way, even with the amendment which Mr King was given leave to make on the second day of the hearing; and (4) The claim in negligence is not really a claim in negligence at all, and it is not pleaded in an appropriate manner. 84 Mr King's response to these points was that: (1) both the Association and Ms Harris are proper parties, and the pleading (see paragraphs 16 and 17 of the Amended Points of Claim) refers to damage "beyond that caused to the public generally": see T118-119; (2) Mr King did not respond to this point: see T118-123; (3) Mr King did not respond to this third point: see T119-123; and (4) the pleading was not deficient in relation to negligence and no particulars had been sought: see T123.1-10.

Standing 85 Mr Pesman's points concerning standing are not made in the context of the issues relating to the Constitution or the State Constitution, but rather in the context of the claim in nuisance. Pape v Commissioner of Taxation (2009) 238 CLR 1, which Mr King relied on (see T118.1-15), is therefore irrelevant to this aspect of the case. The issue is one of some importance (see Australian Conservation Foundation Inc. v Commonwealth (1980) 146 CLR 493 and Black at 589 per Gibbs J), but although the second and third defendants in written submissions challenged the plaintiffs' standing on a wider basis, this was not pursued at the hearing. Since I have reached the conclusion that the plaintiffs' challenges to both the School Assistance Act and the Education Act have no prospect of success and should be dismissed, I must now deal with the plaintiffs' claims in nuisance and negligence.

The Association 86 The first plaintiff is a separate legal entity incorporated under the Associations Incorporation Act 2009 (NSW) and it is not the same as the 1702 individuals who are the members of it. The Association does not allege that it owns or leases land in Hoxton Park (or anywhere else, for that matter). The Association can have suffered no injury or damage to an interest in land by anything done by the first, second or third defendants: see R P Balkin and J L R Davis, Law of Torts (4th ed., 2009), LexisNexis Butterworths, Sydney at [14.33] and Hunter v Canary Wharf Ltd [1997] AC 655. It therefore has no standing to bring a claim in nuisance. The claims by the Association must be dismissed on this basis alone. Further, the Association cannot have suffered any loss or damage, which is another reason why its claim cannot succeed. Ms Harris 87 The second plaintiff lives in Hoxton Park. In theory, she could be affected by the construction work directly or as a consequence of the DA granted by the Council. However, there are a number of difficulties in the path of her case. 88 The first problem is that there is no pleading which asserts that the School or AFIC is in breach of conditions contained in the DA. 89 The next significant difficulty is that by virtue of ss 20 and 71 of the Land and Environment Court Act 1979 (NSW), this Court has no jurisdiction to hear such a claim. 90 The third problem is that it has been accepted in England and Australia that an individual (or corporation) cannot sue in his, her or its own name in respect of a nuisance except for particular damage thereby occasioned to him, her or it: see Walsh v Ervin [1952] VLR 361, particularly at pages 368 and 371 per Sholl J (applied in Deepcliffe Pty Ltd v Council of the City of Gold Coast (2001) 118 LGERA 117 at 125 per McMurdo P and at 137 per Williams JA (Helman J agreeing with McMurdo P and Williams JA at 146)); see also W V H Rogers, Winfield and Jolowicz on Torts (16th ed., 2002), Sweet and Maxwell, London at [14.3] (where the point is made that no civil action can be brought by a private individual for public nuisance and private nuisance is firmly rooted in the protection of landholding rights), Winterbottom v Lord Derby (1867) LR 2 Exch 316 at 321-322 per Kelly CB, and Brodie v Singleton Shire Council (2001) 206 CLR 512 at 610 per Hayne J. 91 Paragraphs 13 and 14 of the Amended Points of Claim (as amended by a document handed up in Court on 29 October 2010) are in the following terms: "13. The project provides for the creation and making by the Second and Third Defendants their servants or agents of a public nuisance which has occurred in the Hoxton Park area and in particular the estate area within a one kilometre radius of the project that adversely affects the property, interests and amenity off local residents. Particulars [a] Dust, noise and mud intrusions into the neighbourhood of Hoxton Park, noisy and heavy truck usage of neighbourhood streets and loss of amenity during the construction stage of 7 years; [b] Rerouting, closing off, renaming and making of new streets in the Hoxton Park estate area as part of the project; [c] During the operation of the faith based education establishment and its linked infrastructure, use of the around the clock security personnel, lighting, security cameras and alarms creating intrusive noise, armed guards with dogs, invasion of privacy, and increased disturbance risks in the neighbourhood; [d] Increased medium crime risk not hitherto existing in the neighbourhood, according to the Green Valley Police Report into the project; [e] Increased risk of flooding from the watercourse; [f] Loss of amenity due to the bulk, height and extent of the built project and the loss of access to the public reserve; [g] Significant congestion and intensification of vehicle usage in local streets especially Pacific Palms Circuit otherwise than for passage.

14. As a result of the public nuisance the Plaintiffs and each of them including the residents forming part of the first named Plaintiff have suffered loss and damage, and/or the project is likely to, and threatens to, cause them and each of them further loss and damage beyond that caused to the public generally. Particulars [a] Loss of amenity; [b] Loss of value of property; [c] Loss of privacy and damage to interests in personal security; [d] Disturbance." 92 It will be observed that the allegation in paragraph 14 is that "the Plaintiffs and each of them including the residents forming part of the first named Plaintiff have suffered loss and damage". The juxtaposition of paragraphs 13 and 14 and those words do not make clear at all what loss it is alleged that Ms Harris has suffered, and indeed they suggest that a very large proportion of the residents of Hoxton Park have suffered the same damage. There is no adequate pleading of any special or particular loss by Ms Harris above and beyond that suffered by the other residents of Hoxton Park. 93 The pleading seems to fall between two stools, because if it is case of public nuisance (namely, the obstruction or causing of inconvenience or damage to the public: see R v Rimington [2006] 1 AC 459), it is not able to be brought by the plaintiffs, and if it is a case of private nuisance, the requirement of special damage has not been satisfied.

94 It will be observed that the plaintiffs assert that the grant of planning approval itself creates a nuisance. Use of a site by one person or entity as a school cannot itself and without more create a nuisance, as known to Australian law. 95 I turn now to the claim that the School and AFIC have engaged in a "hazardous activity on the land": see paragraph 15 of the Amended Points of Claim. It is true that the defendants have not sought particulars of this allegation, but none are needed, because the plaintiffs have repeated the particulars to paragraph 13. The particulars to paragraph 13 refer to a number of matters, and most of them could not involve any engagement in a hazardous activity, for example, dust, noise and mud intrusions are not capable of amounting to an activity. "[I]ncreased medium crime risk" is not an activity, nor is "loss of amenity". 96 Further, the tort of negligence is not established by proving that a hazardous activity has been engaged in. It was said in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 558-559 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ: "The fact that a particular substance or a particular activity can be seen to be "inherently" or "of itself" likely to do serious injury or cause serious damage will, of course, ordinarily make characterization as "dangerous" more readily apparent. That fact does not, however, provide a criterion of what is and what is not dangerous for the purpose of determining whether the duty of a person in occupation or control of premises to take care to avoid injury or damage outside the premises is or is not a delegable one. It suffices for that purpose that the combined effect of the magnitude of the foreseeable risk of an accident happening and the magnitude of the foreseeable potential injury or damage if an accident does occur is such that an ordinary person acting reasonably would consider it necessary to exercise special care or to take special precautions in relation to it."

97 Where a substance or process is inherently dangerous, the party which has delegated the task to an independent contractor must ensure that its contractor has taken reasonable care to prevent the accident: see Burnie Port Authority at 560 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ. The duty of care in negligence is not one to ensure a particular result, but to take reasonable care. The second and third defendants' submissions refer to Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330, which emphasises this principle; see also Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540 at 611-612 per Gummow and Hayne JJ. Conclusion 98 In my view, none of the claims brought by the plaintiffs are tenable and the proceedings should be dismissed pursuant to UCPR 13.4(1)(b), since no reasonable cause of action is disclosed. So far as the claim of infringement of the development approval is concerned, there is nothing pleaded to support the allegations, and even if there were, such claims are the province of the Land and Environment Court. 99 It follows that the proceedings should be dismissed in their entirety.

Costs 100 I will hear the parties on the issue of costs.

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