News: Qld bikie laws challenge set for lengthy hearing in September

Last week, the High Court held two directions hearings in Kuczborski v The State of Queensland, the long-expected constitutional challenge to multiple laws enacted by the Queensland Parliament in the early hours of 16th October last year as a response to a Gold Coast ‘brawl’ nineteen days earlier. In last Monday’s hearing, Keane J revealed that the High Court hoped to schedule the full hearing in Brisbane in the first week of September. Queensland’s new Solicitor-General, noting that the case would require a day of arguments each by the challenger and Queensland and may attract interventions from many other Attorneys-General, suggested that the hearing would take ‘at least three days’. A four-day hearing would be the second one this year. As I noted last month on the chaplaincy hearing’s fourth day, the two previous four-day matters in the High Court were in 2009 and 2006.

The length of this matter may be less to do with its significance or controversy, and rather is likely due to the number of laws being challenged and the number of grounds. Continue reading

FTZK v Minister for Immigration and Citizenship

The High Court has allowed an appeal against the decision of the Full Federal Court in FTZK. FTZK is an asylum seeker who was accused of involvement in a kidnapping-murder while he was in China, an accusation he claims was motivated by his religious practices. Continue reading

News: Media round-up on Chaplain Case

Sometimes High Court judgments excite a lot of interest not only from lawyers, but from the general public. Williams v Commonwealth [2014] HCA 23 (‘Williams [No 2]’) is one such decision.

The immediate response from the Prime Minister was that the government would try to continue its support of chaplaincy in State schools despite the High Court’s decision. In a comment which was later roundly criticised by many, Coalition backbencher Andrew Laming said that an out-of-touch “alliance of Greens, gays and atheists” had mounted a campaign against chaplaincy culminating in the result of the latest case.

Some saw the case as a ‘Trojan Horse’ for a resurgence of States’ Rights activism, whereas others argued that it was a victory for LGBTIQ youth. Some were concerned about what was going to happen with regard to the funding for chaplains which had already been paid over.

The IPA opined that Williams [No 2] was a win for parliamentary democracy because it reiterated that decisions over how public money should be spent should be made by parliament, not the executive, and that the separation of powers was upheld. With respect, this is overstating the result of Williams [No 2]. Williams [No1] decided that the Commonwealth executive had no power to enter into the funding agreements for chaplaincy with Scripture Union Queensland. The High Court did not decide Williams [No 2] on the basis of parliamentary sovereignty, and as Professor Cheryl Saunders notes, the case ‘does not add a great deal of substance to the conclusions about the ambit of the executive power of the Commonwealth reached in Williams [No 1].’ The judgment did not mention separation of powers. It decided the case on the narrower ground of whether there was any particular head of power which supported the funding in the specific instance of chaplains (it was found that there was no head of power which did support it). As Professor Simon Evans explains here, it hinged around whether there was a ‘benefit to students’. Williams [No 2] simply represents a tightening of our understanding of the legislative heads of power.

Other media commentators were interested in what other programs could be affected by the ruling. Indeed, a perusal of the programs which are covered by Schedule 1AA of the Financial Management and Accountability Regulations 1997 (Cth) makes for interesting reading.


Williams [No 2] Symposium: Thomas Bland on the Plaintiff’s Standing and the Commonwealth’s Attempt to Re-Open Williams [No 1]

By Thomas Bland

Williams [No 2] Case Page

In Williams [No 1], the plaintiff leapt over a procedural hurdle — whether he, as a parent of children who attended a school in which a chaplain was employed pursuant to the National School Chaplaincy Program, had standing to challenge the funding arrangements underlying that program. In Williams [No 2] the Commonwealth defendants, faced with Mr Williams’ second challenge to the funding arrangements, failed to surmount a different hurdle when the Court denied them leave to challenge the correctness of the Court’s decision in Williams [No 1].

In this post, I will briefly examine how the Court in Williams [No 2] dealt with the plaintiff’s standing and the Commonwealth’s ill-fated attempt to have Williams [No 1] overruled, and I will make some observations on the Court’s approach to these issues.

One of the questions reserved for the Full Court in Williams [No 2] was whether the plaintiff had standing to bring the challenge to s 32B of the Financial Management and Accountability Act 1997 (Cth). The Commonwealth conceded in its written submissions that, ‘in light of the position taken by the [intervening States]’, the plaintiff had standing. The Court accepted this concession and answered the question thus: ‘[I]n the circumstances of this case, and to the extent necessary for the determination of this matter, yes’ (at [28]). (The Court explained the reasons for the qualified answer, but they are irrelevant for present purposes.)

The Commonwealth’s concession was doubtless informed by the Court’s holding on the plaintiff’s standing in Williams [No 1]. Given that counsel for the Commonwealth (as discussed further below) went on to challenge the substantive holdings in Williams [No 1], it is perhaps unsurprising that they conceded the standing point. If the Court held that the plaintiff lacked standing, the Commonwealth’s opportunity to have Williams [No 1] overruled would not arise. However, the Court’s holding on standing in Williams [No 1] arguably signals a departure from its previous practice. It is worth considering whether this is so, and if so, what this might mean for future litigants. Continue reading

Williams [No 2] Symposium: Cheryl Saunders on the Executive Power of the Commonwealth after Williams [No 2]

By Professor Cheryl Saunders

Williams [No 2] Case Page

Williams [No 2] does not add a great deal of substance to the conclusions about the ambit of the executive power of the Commonwealth reached in Williams [No 1]. The principal question for the Court was the validity of the legislation that had been enacted in the wake of Williams [No 1], to provide a loose statutory base for the National School Chaplaincy and Student Welfare Program (NSCSWP) and more than 400 other executive spending programs. The reasoning of the Court on the issues raised by this question is dealt with elsewhere in the symposium. In brief, the six sitting Justices, in two separate judgements, rejected arguments that either the benefits to students power (s 51(xxiiiA)) or the corporations power (s 51(xx)) provided a head of power for the legislation in relation to the NSCSWP. The Court did not need to determine whether the covering provisions in the Appropriation Acts provided the necessary legislative base for executive spending programs, because similar questions about a head of power arose: [55]. Nor did it need to reach the more novel question of whether the challenged legislation involved a delegation of legislative power that was so excessive or vague that it transgressed the Constitution in some other way: [36].

The ambit of federal executive power nevertheless was in issue in Williams [No 2], not least because the Commonwealth sought to reopen Williams [No 1] (for this argument, see [59]). In place of the majority holding in Williams [No 1], the Commonwealth argued for an understanding of s 61 that identified minimal limitations on the ability of the Executive to contract and spend: [68]. Alternatively, if the executive power also was limited by subject matter, the Commonwealth argued that federal power to contract and spend ‘extends to all those matters that are reasonably capable as being seen of national benefit or concern; that is, all those matters that befit the national government of the federation, as discerned from the text and structure of the Constitution’: [70]. Had either argument succeeded, the legislation might have been upheld as an exercise of s 51(xxxix) in combination with s 61 or even ss 81 and 83. Indeed, on the basis of the first argument, at least, there would have been no need for legislation at all. Both, however, were rejected, as arguments that, effectively, had been tried and had failed before ([69], [71]). Williams [No 1] was not reopened and the majority holding stands. Continue reading

Williams [No 2] Symposium: Simon Evans on Benefits to Students

By Professor Simon Evans

Williams [No 2] Case Page

The National School Chaplaincy Program (NSCP) was struck down in Williams [No 2] because, the High Court concluded, the Commonwealth legislation that purported to authorise it was not a law with respect to ‘benefits to students’.

Williams [No 2] does not determine the fate of this legislation more generally or of the myriad other programs it was enacted to validate following Williams [No 1].

Nor does it deal a permanently fatal blow to the NSCP. But it does raise serious issues for Commonwealth laws and schemes that deal with students and education. This post is an initial sketch of some of those issues and the questions that will have to be addressed in coming months. Continue reading

Williams [No 2] Symposium: Graeme Hill on Narrowing the Issues

By Graeme Hill, Barrister

Williams [No 2] Case Page

The High Court delivered its judgment in Williams [No 2] only 6 weeks after the hearing, much more quickly than is usual in complex constitutional cases. One reason the Court was able to deliver its judgment so quickly was that the Court carefully narrowed the issues to be dealt with. The Court concentrated on whether the particular item in the Financial Management and Accountability Regulations 1997 (Cth) (FMA Regulations) that referred to the school chaplaincy program was supported by a head of Commonwealth legislative power. The Court’s negative answer to that question meant it was unnecessary to deal with the other arguments raised by the plaintiff.

The Court’s reasoning in this respect is orthodox and, I would suggest, appropriate in this case.

Narrowing the issues
Williams [No 2] considered the validity of the Financial Framework Legislation Amendment Act (No 3) 2012 (Cth) (FFLA Act), which was enacted days after, and in response to, the High Court’s judgment in Williams [No 1]. In outline, the FFLA Act amended the Financial Management and Accountability Act 1997 (Cth) (FMA Act) and FMA Regulations in an attempt to confer statutory authority on the Commonwealth executive to make payments under existing grants and programs, including the school chaplaincy program. Continue reading

Question: When Does a Litigant Want to be a Fiduciary? Answer: When It Involves Tax Law: Howard v Commissioner of Taxation

By Michael Crawford

Howard v Commissioner of Taxation Case Page

Why would a litigant want to be a fiduciary?
The law reports of all common law jurisdictions are replete with cases in which fiduciaries who have obtained a financial gain furiously deny that the gain constitutes an unauthorised benefit or that it was obtained in circumstances in which their duty to their principal was in conflict with their personal interest. It is somewhat of a novelty, however, to come across a case in which a fiduciary implores a court to find that he has obtained a benefit in breach of his obligations and that the fruit of his wrongdoing should thus be held on constructive trust for the benefit of his principal. Yet Howard v Commission of Taxation [2014] HCA 21 is just such a case. And why, one might ask, would a fiduciary urge upon a court such an apparently perverse submission? The answer, perhaps unsurprisingly, is tax law.

The appellant was one of six people who entered into a fiduciary joint venture, the purpose of which was to exploit the investment potential of an underperforming golf course in Victoria. The plan agreed upon was to purchase the course, find a long-term tenant to operate it and then sell the reversion to a third party for a profit. The profit realised from the sale would then be divided six ways. The benefit of this strategy was that it would yield a more or less immediate profit, referred to as a ‘day one’ profit, for the participants. Continue reading

Productive court takes on two new appeals

This past fortnight, the Court heard two constitutional challenges (to NSW’s consorting offence and a Queensland indefinite detention statute) and two potential landmark appeals (on the admissibility of expert evidence and tort liability for defective building), and also published five judgments (including rulings on the validity of the PNG solution, the chaplaincy program and the cap on protection visas). As well, the Court made some quieter rulings, revoking special leave in a technical case about refugee appeals and allowing a criminal appeal about DNA transfer. To cap off its busy fortnight, the Court also took on two new private law appeals from the following decisions of the NSW Court of Appeal: Continue reading

News: Williams No 2 Symposium on Opinions on High

As noted on our case page and in the media, the High Court has ruled that the funding arrangement for the National School Chaplains program is not supported by the Commonwealth’s legislative or executive power and is therefore invalid.

Opinions on High is proud to announce that it will host an online symposium on the Williams [No 2] decision starting next week. Commentators from Melbourne Law School will post their analyses of the Court’s judgments and the implications of the decision. As always, readers will be able to comment and ask follow up questions on each piece. Anonymous comments are permitted provided you supply a valid email address.

Williams v Commonwealth

Thomas Bland, ‘Williams [No 2] Symposium: Thomas Bland on the Plaintiff’s Standing and the Commonwealth’s Attempt to Re-Open Williams [No 1]‘ (25 June 2014).

Cheryl Saunders, ‘Williams [No 2] Symposium: Cheryl Saunders on the Executive Power of the Commonwealth after Williams [No 2]‘ (25 June 2014).

Simon Evans, ‘Williams [No 2] Symposium: Simon Evans on Benefits to Students’ (23 June 2014).

Graeme Hill, ‘Williams [No 2] Symposium: Graeme Hill on Narrowing the Issues’ (23 June 2014).

Jeremy Gans, ‘News: Chaplaincy Hearing Reaches Its Fourth Day’ (9 May 2014).

The High Court has decided the special case arising out of and brought by the same applicant in the recent landmark constitutional law decision, Williams v Commonwealth [2012] HCA 23, and has ruled that the SUQ Funding Agreement is not supported by the legislative or executive power of the Commonwealth.

Both the present challenge and Williams [No 1] revolved around the Commonwealth’s power to enter into an agreement to fund the public company Scripture Union Queensland’s (SUQ) delivery of chaplaincy services to the Darling Heights State Primary School (attended by Mr William’s children). In Williams [No 1], a majority of the Court held that the executive power of the Commonwealth could not support its entry into the agreement with SUQ in order to fund the chaplaincy program because the executive does not have a broad power to enter into contracts or spend public money without the support of legislation (absent another recognised source of power).

This challenge related to the new funding arrangement with SUQ for the renewed and renamed chaplaincy program, funded by a new series of appropriations acts (which also purportedly support the Commonwealth’s entry into the arrangement). Following the decision in Williams No 1, the Commonwealth Parliament inserted s 32B into the Financial Management and Accountability Act 1997 (Cth), which (in conjunction with associated regulations) purports to grant the Commonwealth a general power to make, vary or administer arrangements and grants, where those arrangements or grants are specified in regulations.

The stated case raised eight questions to be answered by the Full Court. The central issues are whether the Commonwealth’s entry into the SUQ funding agreement is authorised by various appropriation acts, and if not, whether s 32B (and its associated regulations) is wholly invalid as going beyond the ambit of the Commonwealth’s executive power, and if not, whether those provisions are supported by a head of legislative power in the Australian Constitution (specifically, ss 51(xxiiiA), 51(xx) or 51(xxxix), operating in conjunction with s 61).

The Court held that the scheme was not supported by s 51(xxiiiA) because the provision of chaplaincy services is not a ‘benefit’ within the meaning of s 51(xxiiiA) in the sense of material aid (as interpreted by the Court in British Medical Association v Commonwealth [1949] HCA 44 or Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth [1987] HCA 6) directly made to students. Payments to be applied as wages to chaplains who are to ‘support the wellbeing’ of students are not ‘benefits’ to students within the meaning of s 51(xxiiiA): at [47]. Nor was it supported by s 51(xx) as the scheme does not regulate or permit any act by or on behalf of a corporation: ‘[t]he corporation’s capacity to make the agreement and receive and apply the payments is not provided by the impugned provisions’ (at [50]). The Court also declined to reopen Williams [No 1] on the basis that the Commonwealth’s submissions here were ‘no more than a repetition of the “broad basis” submissions’ on executive power rejected by the majority in Williams [No 1], and noting that the Commonwealth’s arguments rested on a ‘false assumption’ about the ambit of federal executive power (see at [78]–[83]). Finally, the Court rejected the s 51(xxxix) argument as being contrary to Pape v Commissioner of Taxation [2009] HCA 23 and Williams [No 1]: appropriations do not necessarily bring the expenditures within the power of the Commonwealth. Crennan J agreed with the majority but made a reservation regarding s 51(xxiiiA) noting that it was unnecessary for the Court to come to any conclusions on the wisdom of the scheme (at [101]); instead it was only necessary to find that the scheme did not provide government assistance to or for students as prescribed and identifiable beneficiaries: [102], [110].
Continue reading

Plaintiff S156/2013 v Minister for Immigration and Border Protection

Houston Ash, ‘The High Court Upholds the “PNG Solution”: Plaintiff S156/2013‘ (11 July 2014).

The Full Court has decided the special case in Plaintiff S156/2013 v Minister for Immigration and Border Protection, and has upheld the validity of the challenged legislation and the Minister’s designation of Papua New Guinea as a regional processing country. Continue reading

The Third Part in a Trilogy on the Accusatorial Trial: Lee v The Queen

By Anna Dziedzic

Lee v The Queen Case Page

In the past year, the High Court has handed down three decisions dealing with the relationship between the compulsory examination powers given to various Australian crime commissions and the principles of a fair criminal trial.

In X7 v Australian Crime Commission [2013] HCA 29, a majority of the Court held that the compulsory examination powers given to the Australian Crime Commission did not permit the ACC to examine a person charged with an offence about matters relating to the criminal charges that he or she was facing. A compulsory examination in these circumstances would fundamentally depart from the accusatorial nature of Australia’s criminal justice system. The judges in the majority refused to interpret the Australian Crime Commission Act 2002 (Cth) as working such a fundamental change to common law principles.

In Lee v NSW Crime Commission [2013] HCA 39 (Lee #1) the High Court considered the same issue but in relation to different legislation. In Lee #1 a majority of the Court held that the Criminal Assets Recovery Act 1990 (NSW) did permit a compulsory examination on matters relating to pending criminal charges. In this case, the majority considered that the words of the statute clearly disclosed an intention to abrogate the right to silence while providing adequate safeguards to ensure that any future criminal trial was conducted fairly.

The third and most recent case on this issue was decided last month. Lee v The Queen [2014] HCA 20 (Lee #2) saw the appellants in Lee #1 return to the High Court to appeal their convictions for drug and firearms offences. In a unanimous judgment, the High Court held that the appellants had not received a fair trial because confidential transcripts of their compulsory examinations before the NSW Crime Commission had been given to the Director of Public Prosecutions to assist it to prepare the prosecution’s case. The High Court held that this was a fundamental departure from the requirements of the accusatorial trial and resulted in a miscarriage of justice.

The decision in Lee #2 has been welcomed as a victory for the right to silence. In this post, I suggest that while Lee #2 does uphold the common law principles which guide the role of the prosecution in criminal trials, the case does not fully resolve the questions that arise from the close relationship between the state authorities that investigate crime and those that prosecute it. Continue reading

Howard v Commissioner of Taxation

Michael Crawford, ‘Question: When Does a Litigant Want to be a Fiduciary? Answer: When It Involves Tax Law: Howard v Commissioner of Taxation‘ (23 June 2014).

The High Court has unanimously dismissed an appeal against the decision of the Full Federal Court in Howard v Commissioner of Taxation, which involved three appeals to the Federal Court relating to the appellant’s 2005 and 2006 taxable income. Continue reading

News: Farewell Professor Leslie Zines AO

Leslie Zines, a doyen of Australian constitutional legal academy, education and practice and author of The High Court and the Constitution, died on 31 May 2014.

On behalf of the Opinions on High team I offer our condolences and sympathy to Leslie’s family and share the sadness experienced by all those who got to know Leslie during his life. Leslie’s life was marked by achievement, dedication and generosity. Geoffrey Lindell offered a glimpse of these markers in his 2010 Federal Law Review reflection on his relationship with Leslie.

Leslie’s scholarship focussed on relationships within the federal domain and his personality and personability meant that he readily built relationships within the ANU College of Law, where he dedicated much of his working life. It was there where I met Leslie and shared a law school corridor for five years. This was a time when he was nearing the end of his career at the university and I was starting mine. His reputation as a highly esteemed scholar and intellect, something I had gleaned from his involvement in and writing about the Tasmanian Dam case (which I continue to use in my teaching), preceded him. Despite this, Leslie was accessible, friendly and generous with his wisdom and laughter. That is how I will remember him.

Can Reckless Abuse of Authority Amount to Rape?: Gillard v The Queen

By Dr Dale Smith

Gillard v The Queen Case Page

A man allegedly makes a 17-year-old perform a sexual act on him in the presence of her 16-year-old sister. He is prosecuted on the basis that neither sister consented. One argument that the prosecution puts to the jury is that any consent was negated by the man’s abuse of a position of authority or trust — he was a family friend and had known both girls since they were young.

In Gillard v The Queen [2014] HCA 16, the High Court considered what the prosecution had to prove about the mind of this man in order to convict him of crimes akin to rape. Did he have to know that he was abusing his authority or trust? Or was recklessness about that enough (and, if so, about what)? The High Court’s unanimous answer casts new light on how the Court interprets modern statutes that define sexual offences such as rape.

The alleged abuse of authority
From 1993 until 2000, two sisters spent part of the summer school holidays staying with Michael Gillard at his Canberra home. Gillard knew both sisters, born in the early 1980s, from a young age. He had met their father while serving in the Army and the two men had become friends. It was subsequently alleged that Gillard had committed a number of sexual offences against both girls while they were staying with him in Canberra. Some of the offences were alleged to have been committed against the oldest before she turned 16, while others were alleged to have been committed after both turned 16. At his trial, he was convicted of some, but not all, of the offences that were alleged to have taken place before the older sister turned 16.

At issue in the High Court was his further convictions for four offences alleged to have occurred after both sisters had turned 16, including the incident described above. Continue reading