By Benjamin Saunders

Williams [No 2] Case Page

This post makes some additional comments about the Court’s reasoning with respect to executive power (the subject of an earlier post by Cheryl Saunders (no relation to the author)) and also briefly discusses the Commonwealth waiving debts owed to it as a consequence of the Court’s finding of invalidity.

Executive power, British and Australian
I do not disagree with the opinions expressed by Cheryl Saunders in her earlier post, that ‘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]’. However, I wish to make some additional observations, namely that the Court in Williams [No 2] reached its decision about the scope of executive power in an unusual way. Continue reading →

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.

Standing
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 →

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 →

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 →

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 →