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: . 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: .
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 ). 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: . 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’: . 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 (, ). Williams [No 1] was not reopened and the majority holding stands. Continue reading →
By Laureate Professor Cheryl Saunders AO
The latest proposal to amend the Commonwealth Constitution to ‘recognise’ local government may go down in history as one of the most inept attempts at constitutional change in Australia. Insofar as it has an indirect link to the decisions of the High Court in Pape v Commissioner of Taxation  HCA 23 and Williams v Commonwealth  HCA 23 it merits a post on Opinions on High. In any event, there are lessons to be drawn from the history of this proposal, as a guide to the formulation and conduct of future referendum proposals.
Constitution Alteration (Local Government) 2013 (Cth) passed both Houses of the Commonwealth Parliament on 24 June 2013. The impetus for it derived from a long-held desire on the part of local government to be recognised in the Commonwealth Constitution as the third arm of Australian government. This project is fraught because recognition almost inevitably involves substantive change of some kind in the operation of the Australian federation, in which the relations between the other two arms of government already is under strain. A proposal cast in terms of symbolic recognition was rejected at referendum in 1988. An earlier proposal to establish a direct financial relationship between the Commonwealth and local government was rejected in 1974 (see here). Continue reading →
By Laureate Professor Cheryl Saunders AO
Condon v Pompano Pty Ltd Case Page
Condon v Pompano Pty Ltd  HCA 7 is the latest in a line of cases invoking the Kable principle to challenge atypical judicial processes mandated by State Parliaments for the purposes of crime control. In issue this time was the Criminal Organisation Act 2009 (Qld). The High Court challenge was brought by the Finks Motorcycle Club and Pompano Pty Ltd (said to be linked to the Finks’ Gold Coast ‘chapter’), bodies that the Queensland police claim are involved in organised crime.
In three of the earlier cases, organised crime control laws had been held to be incompatible with the maintenance of the integrity of State courts; a federal constitutional requirement since 1996, when the High Court struck down a statute permitting the NSW Supreme Court to order the continued detention of a particular soon-to-be-released prisoner, Geoffrey Wayne Kable (International Finance Trust Co Ltd v New South Wales Crime Commission  HCA 49; South Australia v Totani  HCA 39; Wainohu v New South Wales  HCA 24).
In another two earlier cases the laws had been construed so as to preserve their validity (Gypsy Jokers Motorcycle Club Inc v Commissioner of Police  HCA 4; K-Generation Pty Ltd v Liquor Licensing Court  HCA 4). The result was a messy jurisprudence, in which different judges relied on different features of the challenged legislation to draw what sometimes appeared to be fine lines between what was acceptable and what was not.
In Pompano a High Court of six Justices unanimously upheld the validity of the Queensland Act, with some important variations in their reasons. The case offers some insights into the significance of procedural fairness as a defining characteristic of a court. For the moment, however, given differences in emphases amongst the six judges, the scope of the Kable principle remains as indeterminate as ever, exacerbating the inevitable difficulty of predicting its application in practice. Continue reading →