After the filibuster from ‘Mr Solicitor’ – the solicitor-general for the Commonwealth – on Day 2, we looked forward to hearing Williams’ counsel, Bret Walker SC, take to the bar again on Day 3. But, we were disappointed. The Defence clung doggedly to the bar leaving Walker only a few minutes at the end of the day to commence his closing argument.

There was a brief break in proceedings as the Justices discussed what should be done and it was decided to reconvene today – throwing our travel plans into chaos.

Back at Williams HQ there was a flurry as the three of us explored the possibility of changing flights, extending accommodation, and postponing our various post-Williams obligations.  It just wasn’t possible for Ron and Hugh for various reasons. So, in the wee hours of this morning, with great reluctance, Williams and Wilson headed for the airport leaving me here to represent ‘the team’.

This blog post reports on yesterday’s proceedings. I shall blog about Mr Walker’s closing arguments for – but sadly, largely in the absence of – Williams tomorrow.

Yesterday morning, Mr Gleeson for the Commonwealth continued his argument. This time, his attentions turned to Section 51 xxiiiA of the Constitution; the section which provides a ‘head of power’ to the Federal government to provide funds ‘for the benefit of students’.

The problem for the Commonwealth is that ‘benefit’ is not defined broadly, but within certain parameters that, in Williams (1) were thought not to encompass the rather intangible ‘benefits’ of providing spiritual succor to a ‘school community’. Student housing, text books, school lunches, computers – this is the kind of beneficence authorised by xxiiiA ; not prayers and proselytising.

“Once you inject metaphor, you distract attention from the text,” he rebuked the solicitor-general at one point, resting his chin on his hand and rocking backwards and forwards in his chair.

But, “why not chaplains?” the solicitor-general insisted. Why differentiate between material tools and equipment that assist children with their learning and the provision of ‘tools and equipment’ to help them deal with their emotional and psychological needs? Surely this too would benefit children in their learning environment?

Well, perhaps. But the point which never seems to be discussed by anyone is whether the remedy applied to the identified need is appropriate. If one identified a need for psychological and welfare support for students and the government decided that the ‘fix’ was to issue each and every state school child with their very own pogo stick, there may well be a discussion about whether the provision of pogo sticks qualified as a benefit, given they were unlikely to do very much to address the identified need. Pogo sticks would be a response but not a benefit. 

It seems to me that an appropriate response, if there is an identified need for psychological and welfare services in schools (and, let us hasten to add that no credible, unbiased academic research has been done on this subject), the appropriate response is to provide university qualified psychologists and youth workers not chaplains who may or may not have a Cert IV in Pastoral Care and come laden with a religious agenda.

Chaplaincy, justice Hayne observed in his typically dry manner, seems to provide only ‘amorphous kinds of advantage’.

Ron, Hugh and I had to restrain ourselves from standing up and cheering.

Mr Gleeson tried valiantly in his attempt to convince Justice Hayne that the provision of chaplaincy services was analogous to providing school lunches.

Hayne was not buying it, telling Gleeson he had made a quantum leap “from free lunch to a radically separate program, Mr Solicitor”.

Gleeson continued regardless, challenging Haynes’ judgement on this issue in Williams (1) and insisting that Haynes understanding of the ‘Alexandra Hospital’ issue was flawed.

Hayne responded by rocking furiously in his chair.

There are two distinct meanings of ‘benefit’, Hayne explained to Gleeson with studied patience. The first encompasses the general sense of ‘anything good’. The other is captured in the term ‘going on ‘the benefit’. This alludes to payments in money or ‘money’s worth’ to or on behalf of persons identified in the relevant heads of power (in this case, ‘students’). The second meaning is that which needs to be satisfied in order to claim that chaplaincy provides a ‘benefit to students’ under the Constitution.

Gleeson argued that there is a ‘middle category’ which Hayne was missing.

Justice French was not convinced, telling Gleeson that his definition of ‘benefit’ made an ‘evaluative judgement’.

We noted that Gleeson was making a point of discussing the role of ‘secular welfare workers’ and shying away from using the ‘c’ word; chaplains.

Justice Crennan returned to her earlier argument that all of this should have been thrashed out in a Parliamentary debate over a National School Chaplaincy bill.

It would be easier to understand, she said, if there was a ‘Chaplains Act’. As it stands, the ‘statutory documents’ defining the purpose of the program and the role of chaplains are scarce and vague. Really, all that has been passed into ‘statute’ is the name of the program and a vague descripition of its purpose. The ‘guidelines’ document is ancillary and can be changed at any time. It is not bound by statute. Further, it does not contain the kind of precise language necessary for the judges to make an informed decision on whether or not chaplains provide a ‘benefit to students’ in the Constitutional sense.

“If there were a statute,” Crennan told Gleeson, “the force of what you say would be different.”

Throughout his argument about the ‘benefit’ bestowed upon students by the chaplaincy program, Gleeson focused heavily on the need to supply grief counseling to children who may have lost a parent, sibling or grandparent.

Crennan was skeptical.

“You are putting to us this is about counseling services?”

“Yes.”

“Isn’t this about more than counseling services?”

She would return to this subject after lunch, pointing out then that having consulted the ‘guidelines’ she discovered (as we already knew) that, unless chaplains happened to have appropriate counseling qualifications, they were not allowed to ‘counsel’ at all.

What Crennan did not mention is that, in Queensland, chaplains are not permitted to counsel students – regardless of their qualifications.

Hugh Wilson (Australian Secular Lobby) told me that he had once asked the director of the National School Chaplaincy Program (who has been sitting next to him in court) what they meant by an ‘appropriate’ counseling qualification.  A Cert IV, a degree?

“Appropriate means appropriate” he was told repeatedly.

That reflects the lack of specificity of language which surrounds this whole sorry mess of a program.

Hayne was also dubious about the apparent need for the Justices to look at non-statutory documents in order to make a determination.

“To understand validity, one must go to these non-statutory documents,” he complained, “But how does one identify the program as a matter of principle?”

Justice French worried that the concept of ‘benefits’ they were being asked to embrace was likely to remove the ‘limit of the concept’.

Having tried his level best to convince the Justices their judgement on Section 51 xxxiiiA in Williams (1) was wrong, Gleeson concluded his argument.

Stephen Donaghue QC, also representing the Commonwealth, took Gleeson’s place at the bar. What ensued was an interminably long dissertation on why Section 32B of the Financial Amendment Act is valid and, by extension, validates expenditure on the National School Chaplaincy Program.

However, Donaghue conceded that he would be making an argument that the NSCP is valid, with or without S 32B in case ‘S 32B falls over’ – an admission that caused some amusement on the bench.

At the heart of Donaghue’s argument was that appropriation is sufficient to authorise expenditure, without the need of supporting legislation. As discussed throughout this case, that contention flies in the face of the judgement in Pape.

Donaghue seemed to have no more success in his attempt to convince Hayne than his ‘learned associate’ Mr Gleeson. At one point, Hayne responded to an assertion by Donaghue, “That is an exercise in self-levitation, is it not?”

The problem for the Defence is that they keep arguing against former judgements by members of the bench.

Justice French reminded Donaghue that, despite the advent of Section 32B, the National School Chaplaincy Program was not supported by any head of power.

“It depends ….” said Donaghue, not even sounding fully convinced himself.

The thrust of Donaghue’s argument seemed to be that as long as Parliament was happy to accept funding for the National School Chaplaincy Program, the High Court had no reason to question it.

The question is, of course, whether Parliament had the opportunity to look at the program in detail.

The Defence suggests that this is not the issue. Parliament could have rejected the appropriation (by calling for its deletion and presentation as a separate Bill, or asking for an amendment of the Portfolio Budget Statement which included it, but they did not.  This would be a theme extended by counsel for Scripture Union Queensland, Mr David Jackson QC.

Donaghue tried to argue that the National School Chaplaincy Program was valid because the Constitution gives the Executive the power to make contracts with ‘trading corporations’. Again, this was something that was knocked on the head in Williams (1) as Scripture Union Queensland was deemed not to fit the description of a ‘trading corporation’. This is contested by the Defence.

“Are you saying,” said Justice French, “that any contract with a trading corporation is valid because it is with a trading corporation?”

“Yes,” said Donaghue.

French looked doubtful.

Donaghue challenged the idea that the powers of the Federal government and the states were divided by some kind of non-permeable barrier. There is not, he suggested, a line dividing what can be funded by the Commonwealth and what can be funded by the States. Instead, he contended, the Constitution allows concurrent powers as long as the subject of the funding is something that the Commonwealth ‘may properly’ deal with. This begs the question, “Is a chaplaincy program which appears not to fall under any head of Commonwealth power something that the Commonwealth ‘may properly’ spend nearly half a billion taxpayers’ dollars on?”

The question, said Justice Hayne, is whether the Commonwealth can make any payment on any account for any reason to any trading corporation whatsoever.

I couldn’t see the High Court agreeing to that proposition.

To the amusement of the court, Donaghue conceded that his argument represented a ‘proposition of some breadth’.

Following Donaghue, Mr David Jackson QC took the stand for Scripture Union Queensland. Jackson is impressive. If Central Casting were to look for someone to play him in a movie, they could not go past the late Bud Tingwell who played the QC in The Castle. Jackson looks and sounds eerily like Tingwell. This is not a man to make light of. His legal knowledge is obviously encyclopedic and it was obvious that he commanded the respect of the bench.

Hugh Wilson told me that in early discussions about taking the chaplaincy matter to the High Court, Jackson’s name had been raised as a possibly suitable counsel to represent Williams. In my opinion, Bret Walker SC was a better choice, having both gravitas and charisma, but SUQ made a very wise choice in selecting Jackson.

S 32b, said Jackson, is justified. He then proceeded to make a surprising and very novel argument. In Jackson’s view, the Constitutional restraints upon legislation do not apply to Executive expenditure. That is not to say there are no limitations on the Executive’s ability to spend the taxpayers’ money on whatever they damn well please, but those limits seemed, to me at least, to be mightily broad, vague and permeable.

The contention seems to be that the Constitution is written in ‘chapters’ or ‘parts’ and that, therefore, one should not assume the limitations outlined in one part necessarily apply to the subject matter discussed in another part.

The idea that you have to have a ‘head of power’ to enact legislation comes under one section of the Constitution. The discussion of ‘Executive power’ comes under another. It seemed to be Jackson’s contention then, that the Executive was authorised to expend money with, or without the support of a legislative ‘head of power’.

There is no reason, said Jackson, why the Commonwealth’s ability to spend money should be limited by its power to legislate.

Jackson was dismissive of the argument that the states had ‘rights’ that were protected by the division of powers outlined in the Constitution.

You can “beat the drum of states rights” all you like, he said, but Sections 106-108, Section 109 and Section 55 of the Constitution Act all recognise the superior position of the Commonwealth. Further, he said, the history of Federation shows that, in Federating, the states agreed to hand over their major source of revenue (customs and excise) to the Commonwealth. This suggests it was expected the Commonwealth would fund major projects that the states could not otherwise afford.

In Jackson’s view, the Executive is fully authorised to make any payment (without legislation) on items that are ‘for the purposes of the Commonwealth’. Further, it is for the Executive, not the High Court, to determine what those purposes are. The parameters of the term “for the purposes of the Commonwealth”, said Jackson, are ‘not justiciable’. It is for Parliament to determine whether expenditure fits within that definition; not the court’s.

Justice Hayne asked if Jackson was arguing for broader powers for the Executive than were allowed in the AAP case.

“I think I may [be],” said Jackson (with a hint of amusement).

We broke for lunch with Jackson having made quite an ambitious argument that the power of the Commonwealth is not limited by its legislative power.

After lunch, Jackson made what I thought was one of the most audacious statements of the entire case. He suggested that the Executive not only had the power to spend without the need to legislate but that the limitation on that power – that expenditure must be ‘for the purposes of the Commonwealth’ – should be determined by the Parliament, not the court. That it was not ‘justiciable’ . In other words, whatever Parliament decides is ‘for the purposes of the Commonwealth’ is. And the court cannot rule otherwise. That seems to me to be no limit at all!

Generally speaking, said Jackson, the government is better placed to judge the needs of the Commonwealth than the court.

The limitation and the power of the States, argued Jackson, is retained because the Senate has the power to reject an appropriation bill.

Justice Hayne was doubtful.

Jackson, undeterred, went on to argue that the power of the Commonwealth may extend beyond the Constitution. That Section 32B of the financial Management Act is valid even if it authorises expenditure on subjects not covered by a Constitutional head of power.

Justice Crennan said she had considered the possibility that the National School Chaplaincy Program may constitute a ‘benefit to students’ – one of the ‘heads of power’ which would validate the expenditure.

It has been argued, she said, that counselling services may ‘help’ – i.e. be of benefit to students. But, said Crennan, she couldn’t help noticing in the NSCP guidelines that …. Ron and I realised where this was going and beat out a quiet drum roll on our notebooks …. counselling is listed as an something that chaplains should not do. Exactly!!!!

“Could I first avoid the question then try to answer it?” said Jackson, clearly stalemated.

“Do you venture any summary of the meets and bounds of the program?” asked Crennan.

“Both the solicitor-general and yourself have mentioned grief counselling services …”

There is a great deal of ‘explication’ in the guidelines, said Crennan, but what use is the court to make of it?

Her point was that the language in this non-statutory document is vague and inexact and, at times, contradicts itself.

Chaplains, for example, are urged to offer ‘spiritual guidance’ but are prohibited from using ‘theological language’.

Jackson turned next to the argument that expenditure on the NSCP is valid because the Executive is empowered to make contracts with trading corporations. This had already been thrashed out in Williams (1) where it was decided that Scripture Union Queensland did not meet the definition of a trading corporation.

Corporations do not need to be typical commercial entities, argued Jackson. His extraordinary argument was that SUQ and other funding recipients somehow ‘become’ or transfigure into trading corporations by virtue of entering into a contract with the government. It seemed to me this was arguing for almost a miraculous transformation as turning water into wine – or a sow’s ear into a silk purse, perhaps?

This would mean that the definition ‘trading corporation’ meant anyone with whom the government does business!

Jackson had made some huge ambit claims for almost unlimited Executive spending power unrestrained by either the Constitution and beyond the jurisdiction of the High Court.

It was clear that the QC commanded the respect of the bench but my sense was that this concept of unprecedented spending power would not sit well with the Justices in their commitment to protect the Constitution and ensure that the government works within its limits.

Arguments from the defence had, again, taken nearly the whole day. The hearing was due to end today and Williams’ counsel, Bret Walker SC had not yet had a chance to reply.

With barely 15 minutes remaining, he was asked how long he needed.

At least an hour or more, he replied.

The judges retired briefly to discuss what should be done.

It was decided to allow Walker to speak for the remaining few minutes and extend the hearing to the next day.

Ron, Hugh and I looked at each other with alarm. We were booked to fly out of Canberra on 6.30am flights!!!

Ultimately, for various reasons, Williams and Wilson were unable to change their plans. It was decided that I should stay on and represent ‘the team’, taking up, as Ron described it in a perfect South African accent, the ‘Oscar Pistorius’ position behind his solicitors in the front row of the court.

Tomorrow, I’ll report on Walker’s closing argument.

Chrys Stevenson