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.

In Williams [No 1], the Attorneys-General for Victoria and Western Australia intervened in the case pursuant to s 78A of the Judiciary Act 1903 (Cth) and supported the plaintiff’s arguments regarding the Commonwealth Executive’s power to spend. Gummow and Bell JJ noted that those States would have standing in their own rights to challenge the payments. Thus, they held, ‘the questions of standing may be put to one side’ (at [112]). French CJ, Hayne J, Crennan J and Kiefel J agreed (at [9], [168], [475] and [557], respectively).

During argument in Williams [No 1], the Solicitor-General for the Commonwealth (Stephen Gageler SC) conceded that the plaintiff had the requisite ‘special interest’ to challenge the payments made to his children’s school during the years in which they attended, but not to challenge the appropriations that allocated funding for the chaplaincy program ore generally. Gummow J suggested that, once the States have intervened and become parties, to the extent that they support the plaintiff, the issue of the plaintiff’s standing may be put aside. To this, the Solicitor-General submitted:

For the States to intervene there must be a matter. The States intervene in the matter. They do not create the matter or expand the matter by their intervention. That is really the scope of section 78A of the Judiciary Act. The short answer to your Honour’s question is no. The presence of the States does not change the scope of the matter before the Court.

In his judgment, Heydon J provisionally agreed with this submission (at [326]).

Commentators have suggested that the holding on standing in Williams [No 1] (which was applied in Williams [No 2]) is potentially at odds with the Court’s previous approach to standing, which emphasised the relationship between standing and the requirement of a federal ‘matter’ to ground the jurisdiction of the Court: see Gabrielle Appleby and Stephen McDonald, ‘Looking at the Executive Power through the High Court’s New Spectacles’ (2013) 35 Sydney Law Review 253, 259–60; Shipra Chordia, Andrew Lynch and George Williams, ‘Williams v Commonwealth: Commonwealth Execuitve Power and Australian Federalism’ (2013) 37 Melbourne University Law Review 189, 194–6. The authors suggest that Williams [No 1] signals a liberal approach to standing that ‘appears to have the potential dramatically to increase constitutional litigation if applied generally’ (Appleby and McDonald at 260).

I want to propose a different (and perhaps simpler) explanation for the Court’s approach to standing in the Williams cases. It was accepted (by the Court in both cases, and in Williams [No 2] by all parties) that the plaintiff had a sufficient interest to challenge the payments made to his children’s school while they were students there. There was an extant matter in respect of that issue. I think it is arguable that, provided that there is some kind of matter between the initial parties, the interveners can expand the matter by intervening and raising new arguments.

Section 78A of the Judiciary Act 1903 (Cth) permits the various Attorneys-General to ‘intervene in proceedings before the High Court … that relate to a matter arising under the Constitution’ (emphasis added). I emphasise that the interveners do not enter the matter, but rather the proceedings in respect of it. Once the plaintiff in Williams had instituted proceedings and a matter had thereby arisen, the Attorneys had a right to intervene. Interveners have all the rights and liabilities of a party to a case, including to appeal or to be subject to a costs order: Judiciary Act 1903 (Cth) s 78A(3); see also Attorney-General (Cth) v Alinta Ltd [2008] HCA 2 at [65]–[67] (Hayne J).

Given that interveners are, for practical purposes, treated as parties, there is nothing to stop them from raising issues that the primary parties to the case have not. For example, an intervener who entered the proceedings in the intermediate court could put on a notice of contention on appeal to the High Court. In the same way, there is nothing to prevent an intervener from raising issues in the case that the plaintiff could not in circumstances where the intervener has standing that the plaintiff lacks. By so doing, the ‘matter’ would expand to include the issues raised as between the interveners and the opposing parties.

Though the plaintiff in Williams [No 1] may not have had standing with respect to all aspects of the matter, it would arguably be procedurally unfair to permit the interveners to make submissions on the ‘expanded’ aspects of the matter but to prevent the plaintiff from doing the same. And, as the Court reaffirmed in Pape v Commissioner of Taxation [2009] HCA 23, standing is ‘subsumed’ within the concept of a matter. The question of the plaintiff’s standing could rightly, therefore, be set to one side: there was a matter in all necessary respects.

In summary, in my view (and with respect), the Solicitor-General’s submission in Williams [No 1] was half right and half wrong. Interveners cannot create a matter where there is none; indeed, where there is no matter, there is no proceeding that relates to a matter in which to intervene. Interveners can, however, expand the scope of a matter once they are joined as parties. Viewed this way, the Court’s approach to standing in the Williams cases has less potential to open up the floodgates to constitutional litigation than may otherwise be thought.

Application to reopen Williams [No 1]
The Commonwealth’s submissions in Williams [No 2] in support of its application to reopen Williams [No 1] followed the familiar framework set out in John v Commissioner of Taxation [1989] HCA 5 at [49]–[55]. The Commonwealth argued, in summary:

  1. The principle underlying Williams [No 1] was not carefully worked out in a significant succession of cases. Rather, it was a radical departure from the hitherto ‘common assumption’.
  2. Because the challenge to the ‘common assumption’ arose during the course of argument, the Court received insufficient argument or evidence of constitutional facts on what became the ultimate issue.
  3. The four Justices constituting the majority did not reach their decisions on the same grounds. The Court now has an opportunity to make a clear statement on an important issue.
  4. The result in Williams [No 1] caused practical inconvenience without corresponding benefits.

The Court addressed each of these submissions in order:

  1. Williams [No 1] depended on the premises set out in Pape, and to that extent, Williams [No 1] arguably did not establish new principle. But, even if Williams [No 1] did not apply principles carefully worked out in a significant succession of cases, this would only show that the Court should not be ‘especially reluctant’ to reopen it. It would not, by itself, provide reason to reopen a recent decision of six Justices (at [60]).
  2. The argument in Williams [No 1] was not procedurally unfair. The Commonwealth could not point to a relevant decision or principle of law that was not before the Court during argument. Further, the constitutional facts said to be missing were probably not relevant (at [61]–[62]).
  3. The Court in Williams [No 1] decided the issues before it. That the decision ‘may not provide the Commonwealth with an answer to every question that may be asked about Commonwealth expenditure powers’ does not point to a need to reopen it. Why these observations point to a need to reopen Williams [No 1] was inexplicable (at [64]).
  4. The point about inconvenience really boiled down to the fact that the Commonwealth wished the decision in Williams [No 1] had been different, and they sought another opportunity to argue for their view (at [65]).

Needless to say, the Court refused the application to reopen Williams [No 1]. In so doing, the Court noted that ‘[r]efusal of that application entails rejection of so much of the arguments’ advanced by the Commonwealth in order to overturn Williams [No 2]. The Court proceeded to give reasons for rejecting the Commonwealth’s substantive arguments (although it did not elaborate on Williams [No 1] itself, nor seek to reconcile the reasons of the majority Justices). In light of this, the utility of the leave requirement might be questioned. Does Williams [No 2] shed any light on the Court’s approach to reopening and overruling its decisions? I want to (tentatively) suggest that the Court’s approach to this issue is internally inconsistent.

Implicit in the Court’s approach is the (rather obvious) proposition that the Court will likely overrule a previous case where they are persuaded that it is wrong. History shows that the Court is sometimes prepared at least to revisit a previous case in order to settle controversy about its principles or application. (For example, Jones v The Queen [1997] HCA 56, although not an application to overturn the case, settled different expressions of the test for an unreasonable jury verdict expressed in M v The Queen [1994] HCA 63.) So why, then, is there a procedural requirement to apply for permission to reopen a case? Where, as here, the Court heard full argument on the point and proceeded to write reasons, what is the purpose of the procedural gateway when the result of the leave application and the case will ultimately turn on the substance of the arguments advanced?

It may be that the leave requirement serves to screen out unmeritorious attempts to re-litigate cases. However, such attempts are usually screened out at the special leave stage (though not always: see, eg, Clarke v Commissioner of Taxation [2009] HCATrans 43). It also allows a responding party some notice. Another justification is that it guides the Court itself when there has been a change of composition of the Bench between the cases — the newly constituted Court should not seek to disturb a previous judgment unless it both meets the John criteria and is wrong in substance (a proposition which is consistent with the reasoning and result in the Second Territory Senators Case: Queensland v Commonwealth [1977] HCA 60). Justice Hayne referred to this principle in refusing to reopen Al-Kateb v Godwin [2004] HCA 37 in Plaintiff M76-2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53 at [125], stating that the change in composition of the Bench ‘is not reason enough to revisit the decision’. Though Gummow J and Heydon J were replaced by Gageler J and Keane J after Williams [No 1], this was unlikely to affect Williams [No 2] given the majority in the former and the fact that Gageler J did not sit on the latter.

At its essence, the leave requirement is simply provides certainty around the Court’s decisions. This, however, sits in tension with the generally accepted proposition that the doctrine of precedent applies less strictly to constitutional law.

Does the fact that the Court in Williams [No 2] continued to address the Commonwealth’s arguments despite refusing leave shift the emphasis towards the substance of the contested case?

In my view, the Court’s reasons on the first and third points are inconsistent. The statement that the Court should not be ‘especially reluctant’ to reopen a recent decision that laid down a new principle serves to reaffirm the current understanding that certainty of outcome is given less weight where a principle is not worked out over a succession of cases. However, the Court’s reasoning on the third point in light of this is difficult. The Court rejected the submission that Williams [No 1] should be reopened because it ‘did not give a single and comprehensive answer to when and why Commonwealth spending needs statutory authorisation’. Essentially, by avoiding the ‘why’ question, the Court let go an opportunity to start a succession of cases by which to work out and solidify the principles. The first criterion is directed in part towards protecting against disturbances to principles that have been clarified and settled over time. Where there are no settled principles because the first case in the line only decided the facts before it in a way that left questions open, and those questions were open because of differences between the Justices, shouldn’t this provide ample justification to reopen the case in order to reassess and possibly reconcile those differences?

This apparent inconsistency can, of course, be explained on the basis that the Commonwealth’s submissions were so unpersuasive that they would not have dug into the reasoning in Williams [No 1] sufficiently to warrant the Court attempting to restate a principle and seek a single clear justification for it. In other words, this was not an appropriate case to be the second instance in a line of cases that work out a principle.

AGLC3 Citation: Thomas Bland, ‘Williams [No 2] Symposium: Thomas Bland on the Plaintiff’s Standing and the Commonwealth’s Attempt to Re-Open Williams [No 1]’ on Opinions on High (25 June 2014) <https://blogs.unimelb.edu.au/opinionsonhigh/2014/06/25/bland-williams/>.

Thomas Bland is a graduate of the Melbourne JD and former Editor of the Melbourne University Law Review.

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About Thomas Bland

Thomas Bland is a Law Graduate at Allens. He holds a Juris Doctor from Melbourne Law School and a degree in music performance from Adelaide University. He was Associate to the Hon Chief Justice Riley at the Supreme Court of the Northern Territory in 2013, an Editor of the Melbourne University Law Review in 2012–13 and Editorial Assistant for the Australian Association of Constitutional Law Newsletter in 2011–12. He is interested in public law, statutory interpretation, commercial law and criminal law.