Pre-Hearing – Outside the Court

We (Maria Proctor, President of the Humanist Society of Queensland and I) arrived early at the High Court of Australia for day one of Ron Williams’ hearing.  Ron and Hugh Wilson were already on site together with a film crew documenting Ron’s journey through the legal process. It was great to meet up with Felix Bloomfield from the Australian National University’s ‘League of Extraordinary Atheists’ and, before we knew what was happening, we’d all been roped into commenting ‘on camera’ about our interest in the case.

As we walked into the High Court, TV crews converged on Ron and Tim Mander from Scripture Union Queensland.

Sportsmanlike, Ron made a point of approaching Tim to shake his hand.  A great gesture.

In the High Court

At the court, we handed in our mobile phones (no electronic equipment allowed) and were briefly instructed on court etiquette.  That involves bowing on entering and leaving the court.  The court staff were friendly but efficient and it was clear they took their roles in preserving the dignity of the court very seriously.

I expected a court loaded to the gunnels with Christian supporters, but, although the hearing was well attended by the public, there was no rent-a-crowd evident from either side. I was surprised at how close to the ‘action’ we were able to sit – we were just one row back from the army of black-clad and bewigged legal teams busily shuffling papers and conversing in whispered tones before the imposing High Court bench.  I counted about 30 lawyers and barristers in all.  It really brought home what a huge case this is.

Tim Mander sat right in front of Maria Proctor (Queensland Humanist Society) and me so, cheekily,  we made it a point to say a cheery, “Hello Tim!”  He seemed quite surprised.

The Hearing Begins

As the starting time for the hearing approached,  seven ‘tip staff’, young lawyers who work as associates (assistants) to the High Court Justices filed in and took up their places behind the bench.  The court fell silent as we waited for the judges to arrive.  The sombre faces of the ‘tip staff’ and the respectful silence seemed to signal the gravity of the occasion.  The matters about to be heard were of national importance.

The clerk stood at the front of the court and intoned, “Silence!  All stand!  The High Court of Australia is now in session.  God save the Queen.”  The Justices filed in and we bowed to them before taking our seats.

The session began with introductions from barristers for the plaintiff (Ron), the defendants (the Commonwealth, Peter Garrett, Penny Wong, and Scripture Union Queensland) and the six states’ representatives.  A representative from the Churches Commission sought , and was granted, leave to intervene in the case.

Next, Ron’s barrister, Bret Walker took the stand.  What followed was a tour-de-force two and a half hour presentation on the specifics of Ron’s case. It was truly gob-smackingly brilliant. Barristers of this calibre get paid an enormous amount of money, and Walker showed why. He was knowledgeable, articulate and, amazingly, rarely spoke in ‘legalese’.  I had fully expected to be befuddled by technical arguments – and I was from time to time – but largely, Walker’s presentation was made in terms very accessible to the general public.

Walker’s tone was quiet, but authoritative.  I was enormously impressed that, when he was questioned by the High Court Justices, he didn’t leap in to provide an answer. Indeed, he was often silent for some time while he considered the question and then, would either answer carefully or ask permission to give the matter further consideration and return later with a reply.  There was a real sense that he was weighing up every word for its possible implications on the case – and yet that did not stop the easy flow of his argument.

Walker began by ‘sketching out’ the issues presented in the written submissions.  Later in the afternoon he would ‘flesh out’ this arguments with more technical references to statutes, case law and Constitutional clauses that left me floundering.  I am not a lawyer, and, like most people untrained in the law, there is only so much I can grasp.  What follows is my understanding of the matters discussed, but it comes with the warning that I speak as an ordinary member of the public with the all the limits of legal knowledge that implies.

Williams’ Case

The National School Chaplaincy Program (NSCP), Walker explained, required both the expenditure of money by the Commonwealth and its involvement in a continuing supervisory role.   ‘The story’, he said, began with the No. 3 appropriation of funds for 2006-2007.  At issue, said Walker, is that the appropriation provision in that statute cannot be interpreted to include the NSCP, which was a new program and, therefore, not eligible for inclusion in the ‘ordinary [or ongoing] annual services’ of government.  He was later to explain that as a new program at the time of this statute, it was not eligible for inclusion in a category reserved for existing and ongoing services or programs.

Walker then invoked what I like to think of as the ‘house of cards’ argument.  That is, if the NSCP was not properly approved by parliament in 2006-2007 then all future inclusions of this item in appropriations as an ‘ongoing’ [or previously approved] expense are invalid.

If, said Walker, the court found that Williams’ argument on this matter was correct, that was sufficient for the ‘overall success’ of his argument.  But, if Williams fails to convince the court on this matter, there arises the question of the executive’s [Federal government’s] ‘power to spend’.  The NSCP, Walker argued, is a program that is no different to, say, a literacy or numeracy program. While it may be important, it cannot be said that it is a matter of national emergency calling for a national response.

Neither, said Walker, is this a case of the Commonwealth entering into (as it is legally permitted to do) a contract with a trading corporation.  Firstly, there is nothing in the contract between the Commonwealth and Scripture Union Queensland (SUQ), that sets out any stipulation that the contractor should be a trading corporation and, indeed said Walker, there is an ‘incapacity’ to characterise SUQ as a trading corporation.

Walker moved, next, to the argument that Section 51 (xxiia) of the Constitution allows the Commonwealth to spend money for the purpose of providing ‘benefits to students’.  This was a clause that was added to the Constitution following a referendum. Walker argued that the ‘benefits’ provision must be read ‘narrowly’ and that the definition of ‘benefits to students’ must be rooted in both the section’s history [how it was presented and explained to the public in the referendum] and its Constitutional context.  In this sense, said Walker,  ‘benefits to students’ only authorises expenditure where a benefit is provided to individual students (not students ‘in general’) and which provides, directly or indirectly, a measure of financial relief.  (As an example, Walker cited living away from home allowances paid by the Federal government to eligible university students.)

The Kicker

Now, let’s summarise.  At this point, Walker had presented three key arguments to the court.

1.  That the appropriation of funds for the NSCP was invalid.
2.  That the government lacked executive power to make the expenditure because SUQ is not a trading corporation. Further, even if it is determined that SUQ is a trading corporation, the contract between the Commonwealth and SUQ makes no stipulation to that effect. In other words, Walker was later to argue, if SUQ does turn out to be a trading corporation that is more by accident than design in terms of the NSCP contract.
3. That the government cannot claim authorisation to spend by reference to the ‘benefits to students’ provision in Section 51, because the NSCP does not meet the criteria of a ‘benefit’ when this provision is examined in the context of its historical roots and Constitutional context.

And then came the kicker.  If the High Court rules that Williams’ contentions are incorrect on all three issues above, then his fourth contention that chaplains are ‘officers under the Commonwealth’ has been proven. In this event, Section 116, which forbids a religious test for ‘officers under the Commonwealth’, can be invoked.  If the Commonwealth is providing a ‘benefit to students’ and the reserves the right to impose sanctions if the terms of the contract and guidelines are breached,  then chaplains are only appointed because of an edict or sanction by the Commonwealth and are clearly working under its supervision.  In this sense, they must be defined as ‘officers under the Commonwealth’.

Walker went on to argue that the threshold requirements for the appointment of a secular pastoral worker clearly show that persons with a religious affiliation are favoured under the NSCP guidelines.

It was a coup de grace worthy of a courtroom drama – only this was a real courtroom.

Of course, whether the court accepts Walker’s logic remains to be seen.

Standing

Issues relating to standing were covered next.  Ron’s case, said Walker, was quite different to a parent with children at a public school protesting about funding for a private school.  Ron’s ‘special’ standing hinges on the fact that his complaint relates directly to expenditure for activities at the school his children attend.  Walker dismissed the ‘horse has bolted’ argument that Ron had no right to seek ‘relief’ for expenditure which had already been made and for which no current contract for further expenditure is in place.  There is no suggestion, said Walker, that the annual funding for chaplaincy at Darling Heights State School is a ‘one-off’ or that it is not expected to continue.

After the hearing I had the opportunity to chat with someone who has much more legal knowledge than me. While not purporting to give a legal opinion, they said, conversationally, that the ‘standing’ argument appears to be dissipating.  Whether that is an accurate assessment, I guess, remains to be seen.

Power to Spend

More detailed arguments were then made with regard to the Commonwealth’s ‘power[authority] to spend’ and case law (precedents) which might clarify the areas in which the Federal government may or may not allocate funds. I have no shame in admitting that many of these were beyond my grasp.

Inevitably, the issue of whether the Commonwealth should be funding a program which is not of national importance, and which is well within the competence of the states to administer, was raised.  Another issue – again one quite beyond me – was based on the argument that, while the Commonwealth does not necessarily have to pass legislation in order to enter contracts for expenditure, such expenditure is limited to items for which legislation could be made.  Could the government have passed special legislation for expenditure on the NSCP? There appears to be some doubt but, sadly, I’m unable to elaborate – the ‘legalese’ kicked it around this point, leaving me floundering!

Light Relief

Providing some light relief during Walker’s legal tour-de-force was the often humorous interactions between the barrister and the High Court Justices.  At one point,  Justice Hayne even referred to Sir Humphrey Appleby and the Archbishop of Canterbury!  The Justices frequently questioned Walker and challenged his arguments, but he took it calmly and good humour.  Throughout the hearing, groups of school children drifted in and out of the court.  I had to smile as their arrival was accompanied by the strong aroma of eucalyptus and menthol.  Apparently, primary school children in Canberra are universally anointed with Vicks Vaporub for the duration of winter!

One of the most interesting arguments related to the role of chaplains (to provide spiritual guidance) and the preference for people with a religious affiliation.  There was some amusement when the court mused upon the difficulty of defining ‘spirituality’.  The vagueness of the NSCP guidelines were also the subject of some raised eyebrows from the bench.  Schools, they were told, cannot appoint a secular pastoral worker unless they have failed to find a suitable person with a religious affiliation. There was some speculation as to what would happen if an over-zealous bureaucrat decided to tell a school they just hadn’t tried hard enough!

Lunch

After two and a half hours on his feet, Walker must have been relieved when a lunch break was called.  Ron and his supporters adjourned to a building across the road for lunch.  Here, Max and Meg Wallace and I took the opportunity to have an interesting chat about separation of church and state, and by what method it might best be achieved.

The Hearing Resumes

Back in court, Walker responded to questions that had been asked but not answered. Most of these seemed to relate to case law and precedent.  Reading through my notes, I can understand why ‘off the cuff’ replies were not provided!  Much of the afternoon’s discussion centred upon the limits of executive power and how that power might be defined in a way which does not make the business of government unworkable or inflexible but, equally, does not give the executive the untrammelled right to spend money on anything they see fit.  What was sought, said one of the justices, is some definitive sense of ‘that large middle ground’.

There was also some discussion about how one might distinguish between areas which do and don’t require legislation in order for expenditure to be valid.  Should there have been legislation in respect of the NSCP?  Certainly, says Walker, no such legislation exists.

Semantics

Around this point, Justice Hayne became quite grumpy about Walker’s continued focus on issues pertaining to the ‘contract’ between the Commonwealth and SUQ.

Trying to redirect Walkers’ arguments he interjected, “My focus, is more on the issue of spending money.”

Sadly, Walker’s next exposition related directly to the terms of the contract between the Commonwealth and SUQ.  With a smile in his voice, Walker insisted that he was not trying to be ‘provocative’ and suggested that rather than referring to the ‘terms of contract’ he might, instead, speak of the ‘terms under which the money was spent’.  A nice example of court room semantics, I thought.

Day One Concludes

Walker concluded by expanding on the arguments made during his earlier presentation to the bench.  I expect that these are issues which will arise, again, when the defendants present their arguments so I won’t go into them now except to mention one item that may be of interest to my readers.

There was considerable discussion about the definition of a ‘trading company’, how that term was understood by those who drafted the Constitution, and how, historically, a ‘trading company’ is defined legally in order to distinguish mercantile entities from charitable organisations.  It seemed quite amusing to me that Scripture Union which undoubtedly claims to be a charitable organisation because of its role in ‘advancing religion’ is now placed in the position of having to argue that it is, in fact, not a charity but a trading corporation!  It occurred to me that this might jeopardise SUQ’s tax free status but, sadly, on seeking a legal opinion after the hearing, I was informed that despite the way in which SUQ may be defined in terms of this case, it will have no effect upon its standing as a bona fide charitable institution.

The hearing ended with the representative for Western Australia speaking on the issue of the Commonwealth’s power to spend.  In short,  he presented a strong argument in support of Ron’s contention that the Commonwealth acted contrary to the Constitution in funding the NSCP.  The other states will present their cases tomorrow.

Chrys Stevenson

Posts in this High Court Challenge Series (in order):

High Court Challenge: We Arrive in Canberra

High Court Challenge: Last Man Standing?

High Court Challenge – Day 1: The Hearing Begins

High Court Challenge  – Day 2: Scintillating Boredom

High Court Challenge – Day3 (a):  Terrible Consequences

High Court Challenge – Day 3 (b): The ‘Master’ Speaks

If you support Ron Williams’ High Court Challenge, please consider making a donation at the High Court Challenge website. Support for Williams has been overwhelming, but legal fees are still outstanding.  Ron, his wife and their six children should not have to bear the full brunt of the outstanding amount.