Williams v Commonwealth of Australia

Williams v Commonwealth of Australia - [2012] HCA 23 - HCA 2012 case summary — Zoe

[155]

"School chaplains are already making valuable contributions to the spiritual and emotional wellbeing of school communities across Australia, and the Australian Government has responded to the call that their services be made more broadly available. The [NSCP] aims to support schools and their communities that wish to establish school chaplaincy services or to enhance existing chaplaincy services. It is a voluntary [p]rogramme that will assist schools and their communities to support the spiritual wellbeing of their students. This might include support and guidance about ethics, values, relationships, spirituality and religious issues; the provision of pastoral care; and enhancing engagement with the broader community. Funding of up to $30 million per annum for three years will be available, commencing in the 2007 school year. Government and non-government schools and their communities can apply for up to $20,000 per annum (and a maximum of $60,000 over the life of the [NSCP]) to establish school chaplaincy services or to enhance existing chaplaincy services. [NSCP] funding will be appropriated annually by Parliament and administered by the Department of Education, Science and Training … The nature of chaplaincy services to be provided, including the religious affiliation of the school chaplain, is a matter which needs to be decided by the local school and its community, following broad consultation. However, students will not be obliged to participate, and parents and students will be informed about the availability and the voluntary nature of the chaplaincy services. Access to advice, support and guidance about ethics, values and relationships may already be available at schools through existing services, such as counsellors, youth workers, social workers and psychologists. While the [NSCP] complements these services, there are also clear differences between [the NSCP] and existing services, which include the focus on spiritual and religious advice, support and guidance. It is not the Australian Government's intention that this initiative will in any way diminish or replace existing careers advice and counselling services funded by state and territory governments." (emphasis added) On 21 November 2009, the Prime Minister announced an extension of the NSCP to December 2011, with additional funding of $42 million over the 2010 and 2011 school years.

[326]

"In any case it must be borne in mind that the power conferred by s 96 is confined to granting money and moreover to granting money to governments. It is not a power to make laws with respect to a general subject matter, which for reasons such as I gave in Melbourne Corporation v The Commonwealth, may be taken to fall short of authorising a special attempt to control the exercise of the constitutional powers of the States where there is a connexion with some part of the subject matter of the federal power. The very matter with which the power conferred by s 96 is concerned relates to State finance. Further there is nothing which would enable the making of a coercive law. By coercive law is meant one that demands obedience. As is illustrated by Melbourne Corporation v The Commonwealth, the duty may be imposed, not on the State or its servants, but on others and yet its intended operation may interfere unconstitutionally with the governmental functions of the State in such a way as to take the law outside federal power. But nothing of this sort could be done by a law which in other respects might amount to an exercise of the power conferred by s 96. For the essence of an exercise of that power must be a grant of money or its equivalent and beyond that the legislature can go no further than attaching conditions to the grant. Once it is certain that a law which is either valid under s 96 or not at all does contain a grant of financial assistance to the States, the further inquiry into its validity could not go beyond the admissibility of the terms and conditions that the law may have sought to impose. The grant of money may supply the inducement to comply with the term or condition. But beyond that no law passed under s 96 can go." (emphasis added) Two points of immediate relevance emerge from this understanding of s 96. First, it is an understanding that is not consistent with reading s 51(xxxix) as supporting any and every law that provides for or otherwise controls the expenditure of money lawfully appropriated from the Consolidated Revenue Fund regardless of the purposes for which or circumstances in which the expenditure is to be made. It is an understanding of s 96 that is not consistent with the view of the intersection between s 51(xxxix) and the executive power to spend which underpinned the submissions of the Commonwealth parties because it would leave s 96 no work to do at all: not even to provide (whether only in the first 10 years of Federation or more permanently) for supplementation of State resources "when some special or particular need or occasion arose". All the work done by s 96 could be done by laws made under s 51(xxxix). Section 96 would be superfluous. Yet as Mason J observed of s 96 in the AAP Case:

[379]

"1. WORKING WITH STUDENTS (PREP-7): Being able to talk to/counsel students who are experiencing a range of issues that are impacting on them. This may either be referral from Teacher/s or else the child seeking assistance. Also being visible at Break Times so that children may approach and seek help. 2. READING GROUPS/CLASSROOM ASSISTANCE: Improves knowledge of individual students by observing how they function in the classroom. Invaluable information can be gleaned and observance by students assists the person to build relationships and trust with the students. Children seek the person out as she is seen as a confidante. 3. GIRLS STUFF AND BOYS STUFF: Working with both genders in the Upper School who are experiencing issues at home, display poor self-esteem/friendship skills or need extra care. The program covers self-esteem, appreciation, positive thinking/talking & responsible behaviour. 4. BOYS MENTORING PROGRAM: Overseeing the program for boys who need some extra help in dealing with their emotions (anger/anxiety/fear). Boys to be mentored by a positive male role model who can help them learn to handle their emotions/behaviour. 5. WORKING WITH TEACHERS/STAFF/PARENTS: Ensuring that all stakeholders are able to access the services provided. This involves being available to talk to people about personal issues that may be impacting on them. Having an additional support level available ensures that some minor issues do not become major issues. The existing/future role is a continuation/refinement of the initial discussions that were conducted when the first Chaplain was appointed. This is an evolving role and the various duties undertaken depend entirely on the make-up of the School Community and the range of issues that are affecting them. We are a very multicultural school and this alone brings another dimension to the range of issues that as a School we have to deal with. The role develops as there are concerns that need to be dealt with in an appropriate manner." On or about 7 July 2007, the Department of Education, Science and Training made an offer of funding to the School under the NSCP. On or about 25 July 2007, the School's Principal signed a declaration that the School intended to proceed with the "chaplaincy project". On or about 24 September 2007, the Deputy Principal of the School notified the Department of Education, Science and Training that Ms Christina Putland was to commence as "chaplain" at the School. The notification indicated that she had a Bachelor of Arts (Teaching) degree and formal qualifications in relation to Lifeline telephone counselling. The notification described her as being endorsed by the fourth defendant. The notification did not identify her as being formally ordained or commissioned by a recognised religious institution or endorsed by a religious authority.

[462]

"When moneys are voted to the Queen by Parliament for the purposes declared by the Parliament, it falls within the prerogative to determine whether or not those moneys will be expended for that purpose and how, within the expression of the purpose to which the moneys have been appropriated, the expenditure will be made. Legislation is only needed when Parliament chooses to replace or affect the prerogative powers by legislation which either extends or limits or simply reproduces in the form of executive or other authority the powers previously comprehended within the prerogative. The exercise of the prerogative of expending moneys voted by Parliament does not depend on the existence of legislation on the subject by the Australian Parliament other than the appropriation itself. This exercise of the prerogative is in no different case from other exercises of the prerogative which fall within the powers of the Executive Government of the Commonwealth under s 61 of the Constitution. If legislation were a prerequisite it would follow that the Queen would never be able to exercise the prerogative through the Governor-General acting on the advice of the Executive Council; she would always exercise executive power by authority of the Parliament. This cannot be suggested. It would, if correct, result in an inability of Australia to declare war, make treaties, appoint officers of State and members of the public service of the Commonwealth and do all the multitude of things which still fall within the prerogative, unless there was a general or special sanction of an Act of Parliament." Then he said of the prerogative: "Primarily its exercise is limited to those areas which are expressly made the subject matters of Commonwealth legislative power." That means that while the executive power of the Commonwealth does not generally extend beyond the limits of its legislative power, the executive power does extend up to those limits. Jacobs J then indicated respects in which the executive power of the Commonwealth extends beyond those limits which are immaterial for present purposes. Finally, his Honour said:

[467]

"[I]t would be to commit the fallacy of the undistributed middle to say that if something falls within the legislative competence of the Commonwealth, therefore, by reliance upon that dictum, it falls within the executive power. His Honour did not consider that." The submission assumes that to adopt Gibbs J's statement was to reason syllogistically. That is not so. It is true that Gibbs J said: "We are in no way concerned in the present case to consider … the circumstances in which the Executive may act without statutory sanction." But he was not there denying the Common Assumption. One aspect of the Common Assumption is that it deals with what has been called the "breadth" of the executive power - with how the limits of the executive power fit in with federal considerations. Another aspect of the Common Assumption is that it deals with the "depth" of executive power, which raises questions about when the Executive can, and when it cannot, act without legislative authority. In the sentence just quoted Gibbs J was pointing out that the case did not concern the "depth" of executive power. Questions about the depth of executive power may well require different answers in the circumstances of the Australian Assistance Plan case (which concerned the payment of money to newly created Regional Councils in order to allow them to engage in social planning) from those which arise in relation to entering contracts. But read in context, which context concerned the breadth of executive power, his Honour was proceeding on the basis that there was not much point in marking the line beyond which the Executive could not go unless the line also marked the edge of the area in which it had power to act. Gibbs J did not say that executive incapacity to act existed even within the area his Honour demarcated. In context, Gibbs J's statement that the s 61 grant of executive power is limited in the manner indicated implies that within that limit executive power exists. The same is true of what Barwick CJ, Mason and Jacobs JJ each said.

[494]

"Winterton conceived his neat distinction between the 'breadth' and 'depth' elements of Commonwealth executive power in the maintenance limb; 'breadth' referring to the subject matters in relation to which the Commonwealth executive could operate, 'depth' referring to the precise actions which may be taken in relation to those subject matters. Breadth is defined by reference to the legislative powers of the Commonwealth and is essentially coincident with them: 'the distribution of legislative powers effected by the Constitution itself and the character and status of the Commonwealth as a national government.'" (emphasis in original) What is the alternative to the Common Assumption? After the renversement des alliances, the plaintiff and some interveners contended that the authorities did not say that the executive power of the Commonwealth, vis-à-vis the States, enabled the Commonwealth, in the performance of a contract, to spend money properly appropriated up to the limits of its legislative power, whether or not the expenditure is authorised by statute. They contended rather that Commonwealth executive power was subject to some further limitation. But they never identified clearly what that limitation was and what its source was. The Commonwealth Solicitor-General complained about this in oral argument more than once. The complaint was not addressed in later oral argument, nor in the written submissions filed after the close of oral argument. Of course, the complaint could easily be met by those who departed from the Common Assumption by submitting that the executive power of the Commonwealth does not extend beyond the powers that specific constitutional provisions and Commonwealth statutes give it. That rule would not sit comfortably with the fact that for the first six months of the Commonwealth's existence, the framers tolerated a state of affairs in which Parliament enacted no legislation and the first Commonwealth public servant, R R Garran, exercised a great deal of executive power. But it would be a clear rule. It would satisfy all the demands for representative and responsible government and respect for the Senate made by those opposing the Common Assumption. That, however, was not the submission they made. The closest that those opposing the Common Assumption came to meeting the complaint was the Solicitor-General of the State of Queensland's submission that the executive power of the Commonwealth extends, and extends only, to "all of those things [which] arise implicitly from the creation of the nation by the Act that gave effect to the Commonwealth, and the establishment of the Executive by the terms of the Constitution itself. … [O]ne then looks to the terms of a Commonwealth statute expressly or implicitly, or the terms of the Constitution expressly or implicitly." Heavy work is done in this submission by the thrice invoked adverb "implicitly". What does the submission mean?

[504]

Critics of the Common Assumption appealed to federal considerations by submitting that on the Common Assumption the Executive could bypass the Senate, damage representative and responsible government, and upset the correct balance between the House of Representatives and the Senate. They submitted that if all the Commonwealth Executive needed to act was an Appropriation Act and an unexercised capacity on the part of the legislature to legislate, the Senate's role in government would diminish. That is because Commonwealth legislation, other than appropriation and taxation legislation, requires Senate assent, can be initiated in the Senate and can be amended in the Senate, whereas appropriation and taxation Bills, though they need Senate assent, cannot originate or be amended in the Senate. Bills of that kind can only be returned to the House of Representatives with a request for amendment (s 53 of the Constitution). They submitted that if the Common Assumption were correct, the Executive would be able to avoid legislative scrutiny, and in particular the risk of amendments by the Senate to draft legislation. Those arguments may be answered thus. In practice, and by right, the Senate takes a very active role in controlling and monitoring executive expenditure. It is true that the description given to money appropriated in Appropriation Acts and their accompanying documents is often very brief and general. But Senators are able to seek information and criticise proposals to expend money. Senators can do this through the Senate Estimates Committee, through correspondence with responsible Ministers, through debate on Appropriation Bills, and through the questioning of Ministers who are Senators, or their representatives, in the Senate. Nothing in the Constitution prevents the Senate from returning Bills to which s 53 relates which it dislikes to the House of Representatives for amendment, and, in the last resort, from rejecting them. The Senate is not in the same position as some almost impotent post-Asquithean House of Lords. It cannot be said that the effect of the Common Assumption is to remove the Senate (or the House of Representatives) from the process of sanctioning executive expenditure. And nothing in the Constitution prevents the Senate initiating legislation to control the use by the Executive of its power to spend what has been appropriated. Finally, the Senate, like the House of Representatives, is a platform from which critics of how the executive power has been wielded can build up that corrosive dissatisfaction which eventually leads to a change of government after an election.

[557]

To be a school student involves encountering numerous vicissitudes. Some may be closely connected with studies - worry about success or failure, overwork, a feeling of incomprehension, discontent with teachers. Some may be more connected with the fact of being a young person - horseplay which leads to victimisation, victimisation which leads to bullying, the cruelty of little clans to the outsider, bereavement, hostility between parents, divorce, a lack of personal confidence, the problems of life in a multicultural area. The latter group of vicissitudes may be rendered more acute by the school environment. That a scheme might be devised to benefit persons generally by preventing or ameliorating those woes does not prevent a scheme being devised to benefit school students by preventing or ameliorating those woes. Dixon J did not speak of benefits specifically relating to the "pursuits" of children, but of "needs arising from … particular … pursuits". The vicissitudes in question create "needs arising from special conditions with a recognized incidence in [school] communities". Those vicissitudes also create "needs arising from … particular … pursuits such as that of a student". They often flow from stress referable to the pursuit of studying, the vulnerability of those who study by reason of age, and the risks to which other students expose them. Factors which are closely connected to studying in a narrow sense are almost impossible to separate from factors which affect young people who are students. Since education is compulsory between specific ages, the category "young people within those ages" and the category "students within those ages" are substantially similar, leaving aside those who cannot and those who will not attend school. Victoria's submission would mean that s 51(xxiiiA) would not support legislation authorising the provision of benefits in the form of payments of money to alleviate financial need. Poverty is a characteristic that students (and widows and the unemployed) share with other members of the public.

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