Dinner with ‘Darryl’

Before I begin an account of the day’s proceedings I so want to bring you all to dinner with us at the Canberra Club.  It’s a great little ‘RSL’ type club – on a smaller scale – where we’ve had dinner for the last two nights.

After the hearing finished today, Maria Proctor (Humanist  Society of Queensland), Dierk Von Behrens (Google him) and I choofed on over to the ANU to talk to the university’s Extraordinary League of Atheists.  What a great group of young people!

Then, courtesy of Dierk – apparently our limousine driver for the duration – we went back to the Canberra Club to watch the 7.30 Report with the rest of Ron’s support team.

Max Wallace was our host for the evening. He’d arranged for us to have access to a TV and comfy chairs and we sat ourselves down in preparation for a report on the High Court Challenge.

What a day we’d had!  It was such a relief to sit down quietly with a drink and just try to absorb the enormity of the maelstrom we were all caught up in.

At 8.30am this morning Maria and I had a frantic phone call from Ron saying, “Can you get to the High Court early? The 7.30 Report will be there and we need you and Maria to do interviews.”  We rang Dierk – our knight in shining armour – and pleaded with him to pick us up early.  Maria got dressed in 10 minutes flat, and we tore over to the High Court to meet up with the film crew.  After a bit of a confab we nominated Meg Wallace to do the piece to camera but she was called away and ultimately, they collared me.  As we sat at the Canberra Club anxiously awaiting the report I was hoping (not praying) I’d ended up on the cutting room floor.  Thankfully, I had!

When the story began there was a huge cheer then silence – except for Ron who just kept up a running commentary.

“Shhhh! “ I hissed at him, “We want to hear Ron Williams!”

We had no idea what ‘spin’ the 7.30 Report would put on the story, but as we watched it our jaws literally dropped to the floor.  There could not have been a better story if we’d produced it ourselves.  The inclusion of Michael Caton’s endorsement of Ron’s action was the icing on the cake.  Who better to support the little guy who took on the High Court than the little guy who took on the High Court in The Castle!  

When the show was over, there were ‘high fives’ all round and more hugging than was strictly decent.

Dinner after the program was a very happy affair with a real sense of achievement and camaraderie – and a lot of really bad jokes about Ron being involved in a Darryl and Goliath battle.

The Hearing – Day 2

So, now, to court.  The day began with a brief presentation from the last remaining state representative.  Then, the Solicitor General for the Commonwealth took the stand.

It’s a strange thing that we never get to see the faces of the barristers or legal representatives. All we see is the back of their heads!  The Solicitor General for the Commonwealth’s presentation was in stark contrast to the flowing eloquence of Ron’s barrister, Bret Walker. While undoubtedly intellectually brilliant, he speaks in a low staccato which is apt to send you into a torpor (particularly after a wine or two at lunch!). On the other hand, it makes note-taking much easier.

The combination of surprising twists and turns in the legal arguments, combined with the Solicitor-General’s somewhat strange delivery, resulted in a day which can best be described as scintillatingly boring.

But, let’s skip over the boring bit and head straight to the ‘scintillating’.  Here is where it begins to get fascinating. I can’t and won’t pretend to understand all the minutiae of what happened today but I’ll try my best to give you some broad brushstrokes.

The Commonwealth’s representative took the stand and immediately we got the sense that he was somewhat discombobulated.  It appears that, yesterday, the states presented significantly different arguments in their oral presentations than those in their written submissions. Importantly, the changes were not against Ron. Rather, the states seem to have taken Ron’s argument as a starting point and run with it in hot pursuit of their own federalist agendas.

Indeed, my sense of the Commonwealth Solicitor-General is that he felt that the earth was shifting beneath him.  His repeated references to what was the ‘common assumption yesterday’ suggested that the states had pulled a ‘swifty’ which significantly changes how the Commonwealth’s power to spend is defined.

Now, I really can’t say exactly how the states’ arguments changed.  What I can say is that it appears , at some stage yesterday, the states threw an enormous spanner in the works.  Suddenly the whole focus of the case seemed to shift.  Queensland, apparently, backflipped on its original position and decided to move more into line with the other states in supporting Ron.  Moreover, the other five states seem to have changed and expanded their arguments.

The issue under discussion is now much broader and more far-reaching than the original submissions suggested. The case seems to be turning into a major contest over the appropriate limits of executive power. In effect, it’s a power struggle between the states and the Commonwealth and, perhaps, even a power struggle between the Commonwealth and the High Court.

As I understand it, what is at issue is the limitations upon Commonwealth spending.  Neither the states nor the court seem to want the Commonwealth to have too much power to spend money. The Solicitor General for the Commonwealth insists that the executive faces many checks and balances upon appropriation and expenditure.  But the Justices on the bench seemed unconvinced. There appeared to be great concern that the Commonwealth is claiming far more power than it should rightly have, and there was a sense that this power needed to be better defined and curtailed. In short, much of the argument centred upon the concern that (despite protestations to the contrary) the Commonwealth effectively claims it has the untrammelled right to spend money on anything it damn well pleases.

At the heart of the issue is whether, absent any other authority to spend, simply listing an item in a Portfolio Budget Statement and asking Parliament to approve an appropriation for that expenditure,  amounts to valid legislative approval.  It seems that this has been the common assumption – until now.

The Commonwealth argues that even absent all other authority (which they claim they had) the fact that the Parliament and the Senate passed the appropriation of funds for the NSCP amounts to ‘legislation’ allowing it.  The states (and Williams) argue otherwise.

This, apparently, is a huge shift in the understanding of how things are done. Moreover, it has massive implications well beyond the National School Chaplaincy Program.  Indeed, I overheard someone say that this may well be the most important case heard in the High Court for 50 years.

I had a chat to a couple of legal eagles today and even they admitted they were challenged by the complexity of the case now before the court. It is interesting to note that the word ‘chaplaincy’ was barely mentioned in the court today.

Let me try to summarise the problem.

Williams claims that the Commonwealth acted beyond its powers in funding the NSCP.  He says that:

a)      Although the NSCP was included in appropriations, it was under a heading reserved for existing programs. As it was a new, not a continuing, program it was incorrectly categorised and, therefore, invalid.

b)      The Commonwealth cannot claim authority to spend by reference to its right to enter into contracts with trading corporations, because Scripture Union Queensland does not meet the criteria for a trading corporation. But, even if SUQ does turn out to be a trading corporation, the contract is invalid because it does not specify that the contractor must meet that criterion.

c)       The Commonwealth cannot claim authority to spend under their right to grant ‘benefits to students’ because the NSCP provides an intangible benefit which is neither material, financial,  restricted to students, or something which is directly relevant to helping students be (or perform as) students.

The states’ new arguments appear to hinge upon and expand item (a).  They take Williams’ contention one step further.  As I understand it, they  claim that, absent any other valid authority granted by the Constitution or by other means, the simple matter of passing an appropriation (authority to spend money) through the Parliament and the Senate does not amount to ‘legislation’ authorising it.  In other words, an approved appropriation alone is not enough to make expenditure ‘legal’.

Whereas Williams’ argument turns upon the NSCP being incorrectly categorised in appropriations, the states seem to push it further by saying, however categorised, appropriation is not legislation.  At least that’s how I understand it.  Of course, the Commonwealth claims otherwise.

Amusingly, while the Solicitor-General for the Commonwealth conceded that the Senate has repeatedly protested the inclusion of new items under the heading ‘ordinary annual services’ of government, they keep passing the appropriations, so they must be valid – mustn’t they?

The emerging contention appears to be that the Commonwealth should have asked Parliament to pass an act authorising the expenditure on the NSCP.  This never happened.  According to the informal legal opinions I sought today, there is good reason why.  If a government asked the Parliament to pass an act to approve funding for the NSCP it would be wide open to the challenge that government was legislating ‘in respect of religion’ in breach of Section 116.  In other words, it’s a legal snafu.

It is true that the government doesn’t have to pass legislation for everything they spend money on.  However, the accepted test of validity seems to be whether expenditure could have been the subject of legislation. The NSCP appears to be an item which could not have been the subject of  legislation (without breaching Section 116 of the Constitution) and which (if Williams is proven correct) fails to meet other criteria which would deem it valid.

The states now appear to be arguing that, if the Commonwealth fails to prove its authority to fund the NSCP on Constitutional or other grounds, it cannot claim authority to fund it on the basis of an appropriation being passed by Parliament.

Aggravating the problem, and adding to the discomfort of the Commonwealth Solicitor-General, is that numerous other programs and expenditures seem to fall into a similar category to the NSCP.  In short, if the NSCP falls, it will effectively act as a domino, toppling a host of other government programs.

Tomorrow, I believe, the Solicitor-General for the Commonwealth will continue his argument. We will then hear from Scripture Union’s barrister and, finally, the intervention of the Church’s commission.  I’m not familiar with High Court procedure, but I assume that Ron’s barrister will have the right to reply to the arguments made by defendants in the preceding two days.

More 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.