News: Chaplaincy hearing reaches its fourth day

The High Court today heard its fourth day of oral arguments in Ron Williams’s current challenge to the National School Chaplaincy Program. The High Court’s willingness to allow days of argument on major cases sharply contrasts with the United States Supreme Court, which abandoned the practice of lengthy arguments in 1849, and now typically allows just 30 minutes per side and often hears two full cases in a morning. The more relaxed approach in Australia allows arguments to develop and even alter substantially during the course of a hearing. However, that flexibility was itself a matter of controversy in Williams’s previous challenge to the Chaplaincy Program in 2011.

In 2011, the challenger and most of the intervening states started the hearing with the stance that the Commonwealth could spend money on anything that it could legislate on, even if no legislation had been passed. However, as Heydon J noted in a typically florid dissent, Western Australia withdrew that stance prompting a ‘renversement des alliances’  (a reference to the mid-18th Century Diplomatic Revolution) by the balance of the parties, leaving the Court ‘on a darkling plain, swept with confused alarms of struggle and flight, where ignorant armies clash by night – although the parties were more surprised than ignorant.’ Justice Heydon noted that the subsequent arguments ‘betrayed signs of disorganisation’, perhaps in part because the Commonwealth was ‘distracted’ by the commencement of litigation challenging the ‘Malaysian Solution’. Coincidentally, after concluding the argument in the second Chaplaincy challenge this morning, the afternoon will be taken up by oral arguments in a challenge to the ‘Papua New Guinea Solution’.

Four-day arguments before the Court are a rarity in recent decades. The two most recent instances are a 2009 water rights challenge and the 2006 challenge to the federal workplace relations law. Like Williams’s case, both earlier challenges were constitutional ones involving multiple interventions by state parties raising complex questions of federalism. The 2006 and 2009 challenges were unsuccessful, but many predict success for Williams given his earlier success in 2011. A supporter of Williams’s challenge reflects on the oral arguments here.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.