Counsel for Ron Williams, Bret Walker SC
The hearing relating to Williams vs the Commonwealth and Others on the matter of Federal funding for the National School Chaplaincy Program was scheduled to finish on Thursday, 8 May, but ran over time.
On Thursday afternoon, a decision was made to extend the hearing through Friday morning to give Williams’ barrister, Bret Walker, a fair chance to reply to the arguments of the Commonwealth solicitor-general and Scripture Union’s QC.
Because of the last-minute change, Ron Williams, Hugh Wilson (Australian Secular Lobby) and Nelson Lau, our ‘team photographer’ were all unable to attend the conclusion to the hearing. A mad scramble to change flights and organise alternative accommodation meant that I was able to stay on.
In court on Friday morning, I took up what Ron humorously described as the ‘Oscar Pistorius’ position directly behind his solicitor. In Ron’s absence I felt obligated to take on his role of bending poor Bilinsky’s ear about the vital points we thought Bret Walker should be putting to the Bench.
“Claude,” I said, “What nobody seems to be asking is, even if there is a need for ‘welfare’ services and ‘values’ in schools, where is the evidence that chaplains are the appropriate method of fulfilling that need?”
Claude just looked at me with studied patience and a little twinkle in his eye that said, “You’ve got the best barrister in the country. Trust him.”
I sat back, notebook in hand, and waited for the show to begin.
Bret Walker looks impressive in his black waistcoat and robe. He has a smooth, calm method of delivery and it’s obvious that he commands the respect and attention of the High Court Justices. This is a summary of his closing argument, begun, briefly, on Thursday afternoon and concluded on Friday morning (although not necessarily provided in the order presented to the Court).
It has proved impossible to do justice to the arguments presented by Walker in a short blog post. For those who are only moderately interested, I have listed the main points in the introduction. For those who want a comprehensive (if not full) account of Walker’s arguments, I have done my best to translate the legalese into plain English and provide some background commentary on the key terms and concepts discussed in the case.
For those who would like to read Walker’s arguments in full, they are available at AustLII, here and here.
Introduction
The arguments which ‘fell from’ the Commonwealth solicitor-general, Mr Gleeson and Scripture Union’s QC, Mr Jackson, said Walker, centre upon a long-running controversy over spending power which has raged ‘at the Bar table’ since Federation.
Not all of the questions relating to the balance of state and federal power have been resolved. But, the basic tenets essential to the Williams case have been dealt with and have been quelled; specifically in Pape and Williams (1).
The need for legislation in order to authorise expenditure from the Commonwealth Revenue Fund was conclusively determined in Pape, Walker reminded the Court.
Reinforced by the decisions in Pape and Williams (1), the Constitution insists that appropriation is ‘legally anterior’ to expenditure and that “[t]here is a very important constitutional and functional difference” between appropriation and actual expenditure.
Appropriation first (earmarking the funds), legislation second (presenting a bill to gain parliamentary approval to withdraw money from the Commonwealth Revenue Fund), then disbursement is the constitutional rule upheld by the High Court in Pape and Williams (1).
Across two High Court cases, Ron Williams has contended that funding for the National School Chaplaincy Program is invalid because the appropriation of nearly half a billion dollars from the Commonwealth Revenue Fund was never supported by legislation.
In simple terms, this means that:
A National School Chaplaincy bill has never been put to the Parliament for discussion and debate.
(Until recently) the program has never been approved by statute.
The documents which dictate the nature of the program and its services are not statutory documents.
Further, the validity of the statute to which the program was hastily attached following the ruling in Williams (1) – Section 32B of the Financial Management and Accountability Act 1997 – is also in question.
In his closing address, Walker made six main arguments:
1) That the issues raised in Williams (2) had already been determined in Pape and Williams (1).
2) That the history of Federation and the Constitution, itself, give no credence to the proposition that the Executive arm of the government is intended to wield an unlimited power to spend and enter into contracts.
3) That the legislation enacted to counter the decision in Williams (1) is invalid because:
a) It grants virtually unlimited power to the Executive, and
b) It is not linked, specifically, to any head of Commonwealth government power (although the programs listed under its auspices may, or may not be).
4) That even if legislation enacted as Section 32B of the Financial Management and Accountability Act 1997 is valid, funding for the National School Chaplaincy Program is invalid because it links to no head of Commonwealth government power; neither the ‘corporations’ nor the ‘benefits to students’ power.
5) That the lack of statutory documentation makes it impossible to determine the benefits or otherwise of the program.
6) That the particular benefits of the program elucidated by the defence, are specifically benefits which the non-statutory documentation proves cannot (other than incidentally) be delivered.
Pape and Williams (2)
The defence argued that Sections 53 and 54 provide the Commonwealth with authority to spend; that appropriation provides sufficient Parliamentary oversight for the disbursement of money to fund executive schemes like the National School Chaplaincy Program. In their view, the passage of a bill is not a necessary prerequisite for this kind of expenditure.
But, said Walker, Sections 53 and 54 are about appropriation not expenditure; they do not negate the need for the Parliamentary debate which takes place during the passage of a bill.
Further, the High Court had supported this reading of the Constitution in both Pape and Williams (1).
Throughout the hearing, the defence took issue with the Court’s ruling in Pape and Williams (1), telling the Justices their arguments in respect to these cases were ‘fundamentally flawed’. But, perhaps not wishing to press their luck too far, neither the Commonwealth nor Scripture Union Queensland called directly for the High Court to overturn their decisions in these two landmark cases.
Mr Jackson QC, representing Scripture Union Queensland contended that the need to legislate does not apply to executive schemes – even those lacking a ‘head of power’.
Perhaps it’s appropriate to pause to provide a little background history here.
When Australia federated in 1901, legislative powers were divided between the Commonwealth and the states. The Constitution sets out the division of these powers.
In the ‘divvying-up’, the Commonwealth got the bulk of the money. This was balanced by limiting the legislative powers of the Commonwealth and giving wider freedom to legislate to the states. To deal with the financial imbalance, a section of the Constitution allows the Commonwealth to provide grants to the states to fund areas (like education and health) which fall under the powers granted, exclusively, to the states.
The subjects on which the Commonwealth can legislate are specified in the Constitution; these are called the ‘heads of power’.
The ‘Executive’ comprises the cabinet and the ministry, led by the Prime Minister. The Australian Constitution sets out, in three separate chapters (although not entirely clearly), the powers allocated to legislative, executive and judicial powers.
Powers allocated to the Executive include the right to enter into certain contracts and commercial arrangements without the sanction of the Parliament. The key role of the executive is set out in Section 61 which explains that the executive power ‘extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.’
In Jackson’s view, the Executive’s freedom to make expenditure and enter into contracts is not bound by the restrictions related to legislating policy. The submission of Scripture Union Queensland is that the executive does not need legislative approval to fund the National School Chaplaincy Program, nor does the program, necessarily, need to be attached to some head of Commonwealth power.
Relying on a literal reading of Sections 81 and 82 of the Constitution, Mr Jackson (for SUQ) argued that, providing Executive expenditure comes under the very broad umbrella of something that is ‘for the purposes of the Commonwealth’ and providing the expenditure has been authorised through appropriation, the disbursement of funds from the Commonwealth Revenue Fund is legal, valid and Constitutional.
This is contrary to the High Court rulings in both Pape or Williams (1).
Asked “Who determines what is ‘for the purposes of the Commonwealth’?”, the defence’s reply was, “The Commonwealth’.
This reading of the Constitution, said Walker, provides the Executive with god-like powers. As soon as they say they have the power, they do. In the defence’s view, they have the power because they say so!
“As soon as it is thought ‘purposes for Commonwealth’ or ‘peace, order and good government of the Commonwealth’ then there is executive power to spend in relation to it.”
Furthermore, Walker reminded the Court, in the defence’s view, it was beyond the power of the High Court to question the Executive’s judgement on what might legitimately be spent under the heading ‘purposes of the Commonwealth’.
The breadth of power advocated by the defence, said Walker “is as wide as one can imagine in a constitution” and is “entirely at odds with what this Court has repeatedly said flows from the federal nature of the nation formed by the people united in the Commonwealth”.
In short, the Constitution was never intended to confer unlimited power upon the Federal government.
“[It] is a limited, and must be, a limited government, with limits to be descried and enforced by this Court.”
Walker acknowledged “the long-held, vociferously proclaimed ambition of the Commonwealth to have … extremely broad Executive power” but insisted such power could not be textually justified by the Constitution.
Couching his words in the excessively courteous language of ‘legalese’, Walker seemed to be saying to the Justices:
“Why are we arguing about this? Your honours have already made a decision and the decision favours Williams. End of story.”
Effectively:
The Constitution therefore Williams wins.
Pape therefore Williams wins.
Williams (1) therefore Williams wins.
The authority of the High Court therefore Williams wins.
It was a simple, yet powerful argument.
The integrity of the Constitution
Speaking in reply to Jackson, Walker began to eviscerate his thesis with logic. Walker pointed out that, if the Constitution was intended to supply the breadth of power claimed by the Commonwealth and SUQ, its framers would have had no need to insert Section 109 (which deals with clashes over concurrent powers) or Section 96 (which allows the Commonwealth to channel funds to the states to fund projects for which the Commonwealth, itself, has no legislative power – e.g. health and education).
If the Executive isn’t bound by the Constitution and can, effectively, spend money on anything then it follows that the Commonwealth prevails on all things – not just those areas where the powers of the Commonwealth and the states overlap. Under this interpretation, Section 109 becomes redundant.
The same applies to Section 96. If the Commonwealth can fund and administer programs for which it has no heads of power, the division of powers between the Commonwealth and the states dissolves and Section 96 has no purpose.
No wonder all six states intervened to support Williams! The argument of the Commonwealth fundamentally changes the balance of power between the Commonwealth and the states in favour of a centralized Commonwealth. This case was not just about chaplaincy, but about the Commonwealth trying to grab powers that have hitherto belonged, exclusively, to the states.
Walker’s logic is hard to fault. He says we can assume that if something is in the Constitution it is there for a purpose. Any legal interpretation (no matter how brilliantly creative) which ignores sections of the Constitution or renders them irrelevant must, by definition, be erroneous. Jackson’s creative reading of the Constitution does both.
Given the history of Federation and the Constitution, it is clear there was always an intention to limit the power of the Commonwealth – otherwise the colonies simply wouldn’t have agreed to federate!
Walker said it would be “remarkable” if, as the counsel for Scripture Union Queensland claimed, “this is a constitution that has said there is this virtually unlimited sea of power to legislate for expenditure …”.
“… the defence’s view, ” he said, “accords to the Executive an almost unlimited power to spend.”
Section 32B
Notwithstanding the defence’s view that neither legislation nor a head of power are necessary to authorise expenditure on the National School Chaplaincy Program, they had to argue a case which assumed the High Court would not agree.
It was, therefore, incumbent upon the defence, to show that the National School Chaplaincy Program is now:
the subject of valid legislation (under Section 32B of the Financial Management and Accountability Act I 1997), and
relates to at least one of two Commonwealth heads of power set out in Section 51 of the Constitution: the ‘corporations’ power which gives the Commonwealth the right to legislate with respect to ‘trading corporations’, and/or the power to legislate for the provision of ‘benefits to students’.
When the High Court ruled in Williams (1) that the Executive does not have the power to spend without legislation, the government introduced an amendment into the Financial Management and Accountability Act (1997). In this amendment, inserted into the FMA as Section 32B, the Parliament delegates authority to the Executive to fund a number of projects and other miscellaneous expenses without the need to legislate for them individually.
During the Williams (2) hearing, it was evident the Justices were acutely aware that Section 32 B was an attempt to override their decision in Williams (1).
Walker rejected the defence’s attempt to justify Section 32B by conjuring up ‘the image of a limping or crippled Commonwealth whose executive power is lacking’ because of the High Court’s judgement in Pape.
He pointed to the “fantastic lack of reality of that submission”.
The Executive power is intended, said Walker, to allow the Executive to do the things that need to be done so that the Constitution can be observed. That power was never intended to allow them to fund programs outside their Constitutional remit. The Executive has not lost power or been weakened as a result of Pape and Williams (1); it has simply been restricted to operating within the parameters set out in the Constitution.
Walker attacked Section 32B on two grounds:
That it is invalid because it grants almost unlimited power to the Executive
That, as a piece of legislation, it is an empty vessel which, of itself, does not attach to any particular head of Commonwealth power.
Limitations
By definition, it seems, a law which gives you carte blanche to do anything you like, can’t be a valid law. If I understood the discussion at the Bar correctly, a law without limits is no law at all.
This is why Mr Gleeson (representing the Commonwealth) was at pains to point out to the Justices that Section 32b of the Financial Management and Accountability Act (1997) does not provide the Executive with unlimited power to spend, because there are at least seven, probably eight ways in which that power is curtailed.
But, said Walker, Gleeson’s argument is constitutionally insupportable:
“The seven [alleged limitations] combined say nothing about why there should be this power and indeed, looked at from the point of view of, “Why would this be urged as some reassurance?”, if anything excites rather allays concern.”
An argument from the defence, for example, there is no compromise of representative democracy in the current system because the Senate can exercise the power of veto over an appropriations bill which contains something they don’t like. This was presented as a ‘limit’ to the Executive power provided in Section 32B.
Walker took particular issue with this:
“The power, as it was put, to request omission or amendment is so different, so remotely unlike the power of amendment [of a bill] that, in our submission, the argument goes nowhere. This is a power to be rebuffed, is another way of putting it.”
Walker pointed out that if the only way the Senate can reject expenditure on a problematic program is to reject an appropriation bill (or, effectively block supply), it brings forth “all the evils of the choice of “bring down the government” by rejecting the Appropriation Act, or allow through a program that the majority of the Senate is against.”
“Then we come to number eight”, said Walker, in a tone suggesting ominous portent.
In their submissions, the defence argued that the “executive power to contract and spend under Section 61 of the Constitution extends to all those matters that are reasonably capable of being seen as of national benefit or concern”.
Ironically, the proposition that the executive can disburse money for anything that falls under this astoundingly broad definition, was offered up as one of the limits which lends validation to Section 32B.
“In many ways,” Walker explained, “it is a self-fulfilling prophecy all at once in one blow when the national Parliament says, ‘We are concerned with X … Why is it of national concern? Because national legislatures say so.’”
It is impossible to imagine, said Walker, that the ‘constraint’ that expenditure must be “of national benefit or concern” imposes any limitation whatsoever; especially when the decision of what is “of national benefit or concern” is made by the government itself and is purported not to be subject to review by the High Court.
The net effect of these so-called ‘limitations’, Walker insisted, is to provide the Executive with “virtually unlimited contracting or expenditure power”.
That is exactly what the Bench argued against in both Pape and Williams (1).
Is it conceivable they will rule differently in a case in which the Commonwealth, backed by Scripture Union, has argued for even greater power?
Heads of Power
Having argued that Section 32B fails as a law because it lacks limits, Walker went on to explain that it also fails because, in and of itself, it is not anchored to any Commonwealth head of power.
Section 32B, said Walker, is a ‘portmanteau template’ – empty of content until, from time to time, the programs to be authorised under its umbrella are added. It is the programs, not the law, which are anchored by the heads of power (and, in the case of the National School Chaplaincy Program, even that may not be so!).
According to Walker, the validity of Section 32B will wax and wane, depending on what items or regulations are applied to it. (I couldn’t help thinking of protons popping in and out of existence in a vacuum).
Further, as Walker would argue next, there being no statutory documentation attached to the programs listed under Section 32B, it is practically impossible to specify, in any Constitutional sense, whether they are attached to a head of power or not.
High Court Ruling on Section 32B?
Justice Kiefel suggested the Justices may be reluctant to rule on the valildity of Section 32B, recognizing that, if the High Court starts messing with it, it would affect, not just the National School Chaplaincy Program, but the 400 odd other programs which have been bundled into it.
Walker was cautious on this subject. He advised the Justices to go no further on 32B than they had to. But, if Williams lost on all other points, he said, it would be critical to the decision of the case for them to determine whether 32B represented ‘excessive delegation’ of power to the Executive.
Why? Because, said Walker, the National School Chaplaincy Program “cannot rise higher than its source, it cannot be authorised by a form of statute which has the defects we have identified.”
Whether or not Section 32B is valid, it seems unlikely that the defence’s argument will succeed without being able to show that its funding is justified under some head of Commonwealth power.
Heads of Power
Corporations Power
Because the Commonwealth is authorised to make contracts with ‘trading corporations’ there was some attempt by the defence to argue that this provides the necessary ‘head of power’ to validate funding for the National School Chaplaincy Program.
But, in Williams (1), Scripture Union Queensland was ruled not to qualify as a trading corporation because SUQ, as an entity, does not exist for the purpose of buying and selling things.
Mr Jackson tried valiantly to argue that SUQ became a trading corporation when it started ‘trading’ with the Federal government, but it didn’t seem to gain much traction with the Justices and Walker did not refer to it in his rebuttal.
Benefits to Students
Instead, Walker focussed on the contention that the National School Chaplaincy Program linked to the Commonwealth head of power to provide ‘benefits to students’ – located in Section 51 (xxiiia) of the Constitution.
To prove this, the defence needs to show that the services offered by chaplains in schools accords with the meaning of the word ‘benefit’ as it is understood in its constitutional sense.
Walker referred dismissively to the ‘motley mixture of material, ultimately literally inconclusive’, which the defence had presented as evidence of the beneficial nature of the National School Chaplaincy Program. (This was the same material Justice Gummow (now retired) had labeled as ‘garbled’ in Williams’ first hearing.)
Because it is non-statutory, if the Justices rule on the basis of this material now, it may well change in the future – with no need for parliamentary approval or review; there is nothing ‘in law’ to anchor the program to its own guidelines.
The dilemma for the Justices is whether to judge the program’s ‘benefit’ from that which is statutory, or whether to ‘drill down’ into the reams of supplementary, but non-statutory material.
Neither approach seems likely to result in a happy ending for the defence.
The argument surrounding Section 51 (xxiiia) does not concern the question of whether the service provided by chaplains is good or bad. The High Court does not exist to make subjective value judgments about policy decisions. This is a question of definition.
The notion that chaplaincy provides ‘benefits to students’ according to the received definition of ‘benefit’ in the Constitution, was rejected in Williams (1), but the argument had been resurrected in Williams (2).
Walker referred to a previous discussion in which Justice Hayne clarified that the general meaning of ‘benefit’ as being ‘anything good’ is not the definition of benefit referred to in the Constitutional sense. As Walker now reminded the Bench:
“… the generalisations that are supplied fit only the illegitimate approach to (xxiiia), that which says benefit is anything with bestows advantage.”
Rather, the ‘benefit’ needs to be something tangible or measurable which specifically relates to the experience of the recipient as ‘a student’. For example, provision of a benefit – in money or kind – for the supply of text books or laptop computers would be considered valid under Section 51 (xxiiia).
This part of the case, said Walker, “raises fundamental questions about constitutional fact finding and permissible material to enable the Court to do so.”
Because the National School Chaplaincy Program, itself, has never been the subject of legislation, the materials which describe it are not statutory documents. The only things about the NSCP which are the subject of legislation are its title and a reference to the ‘outcomes’ document to which it is attached via appropriation. Effectively, in the absence of statutory documents, the Court has been asked to find ‘content in a name’, said Walker.
The Justices, he noted, had been directed to a huge quantity of material but, which, he asked:
“… would enable you to know what is the chaplain doing at my client’s children’s school? Which is after all what the case is about – whether the agreement purporting to authorise that is itself validly authorised by one or other of the statutes in question.”
Why, asked Justice Hayne, should the Justices have to ‘drill down’ any further than the Portfolio Budget Statement (which appears to be the primary statutory document – or at least the one that gives the most (albeit vague and incomplete) account of the nature of the program).
“Ultimately,” Walker replied, “I am saying you should not …”
His purpose, in going beyond the statutory material was to demonstrate to the Justices there was no advantage in doing so.
Walker noted that, as you proceed through the material offered by the defence, starting with the NSCP guidelines (which is where the Commonwealth wants to start) what emerges is that the nature of the services offered by the program is not to be found in the documents offered into evidence but in the individual arrangements between the chaplaincy provider and the school.
The National School Chaplaincy Program Guidelines state explicitly that:
“The nature of the chaplaincy/student welfare services to be provided, including whether they are provided by a school chaplain or secular student welfare worker, is a matter which must be decided by the school, following consultation with the school community.”
As Walker told the High Court Justices:
“It turns out this is a program under which, depending upon specific times and places and people, the nature of the services will alter.”
Because of this, said Walker, the Justices are left with a “will-o’-the-wisp idea of examining something which, it turns out, is not definitively described at all in terms that will enable the constitutional inquiry to be addressed.”
Because the guidelines are subsidiary to individual agreements between the schools and the chaplaincy provider, and subject to restrictions by individual state education departments, it follows that the ‘benefits’ offered may be different at each of the 3,000 (odd) schools in which the program operates. The Justices have no way of knowing if a benefit offered at Darling Heights State School in Toowoomba is offered at a school in the next suburb because the nature of the service offered depends on individual agreements.
Despite being touted as a program which requires Commonwealth funding and administration because of its need for uniformity, it turns out there is no uniformity in the delivery of services for the National School Chaplaincy Program at all.
Instead, the list of services provided by chaplains is vague, nebulous and dependent on local agreements. On the other hand, the program is, quite strongly negatively defined; that is, there are some activities which are specifically and universally prohibited by the guidelines.
For example, said Walker, (having delivered a left hook and now moving in to deliver the knock-out punch):
“… as Justice Crennan identified yesterday … there is an outright prohibition on counselling to found.”
“In our submission, you are left with the following conclusion, that the thing which in the arguments against us was most concretely put as the nature of the service constituting the constitutional benefit – I will call it counselling – it is a familiar expression; it describes an occupational pursuit – that thing which is the only, I will call it, recognisable or solid mode of work or activity that was referred to in address, that is not it. That is not part of it.”
It is true! The Commonwealth solicitor-general and the QC representing Scripture Union Queensland told the Court, almost with tears in their eyes, about the wonderful and necessary work chaplains perform in counselling poor, anguished students prostrate with grief over the loss of a parent, a sibling or a grandparent. Understandably, this grief affects the children’s ability to flourish in their learning environment so the counselling provided by the chaplain provides a vital and necessary benefit to a student in this situation.
But, as Walker definitively showed, counselling is:
Specifically
Prohibited
by the
Program’s Own Guidelines
It’s true that, in some states, chaplains who have counselling qualifications are permitted to counsel students. Crucially, however, in Queensland, the locus of the Williams’ case, even chaplains who are ‘appropriately’ qualified are prohibited by Education Queensland from counselling.
If counselling is the ‘benefit’ supplied to students through the National School Chaplaincy Program, it is a benefit supplied only incidentally in most states, not at all in Queensland, and certainly not at Darling Heights State School, the institution attended by Ron Williams’ children.
Everything that was talked about in terms of the ‘benefits’ of counselling is not done by chaplains but by others, said Walker: “the professional, school appointed, so-called guidance officers.”
But, said Walker, almost gleefully, “… it gets worse!”
“… in our submission, it would be appropriate, having as it were, lifted the covers to see what a mess it is – it is not definitive, in other words, this is not something where you will find a document saying, ‘the National School Chaplaincy and Student Welfare Program is a program for the delivery of the following services to students’.
You will not find that.
You will find that it is a program for funding arrangements which require the services to be provided to be defined and prohibit them from being of a certain kind, and having certain characteristics such as compulsory. They must be voluntary, they must be defined at local level, they must not be counselling – the only one that has really been offered from the Bar table here – and they must not be proselytising.”
Walker was now hammering his point home and Williams’ solicitor, directly in front of me, was leaning back in his chair, grinning broadly.
Walker argued that the two things that might be said to be ‘of benefit’ to students – counselling and the inculcation of [Christian?] values – were the two things specifically and clearly prohibited by the guidelines.
“… once one goes down the track of wellbeing and when one sees that that includes strengthening values, one is entitled to ask what is the material aid in question at all bearing in mind that there is no counselling and no proselytising.”
“By proselytising,” Walker explained:
“I am not talking about the attempted persuasion by people who might be regarded by others as bigots. I am talking about sincere persuasion to matters which are regarded by the persuader as essential to the inculcation of proper values which for many people embrace what is summed up by the expression ‘spiritual’. Why that would be regarded as something that can be provided to students qua students, not by counselling and not by proselytising, questions are constantly raised.”
In other words, how can one inculcate Christian values (and one must suppose that a program specifically initiated to place Christian chaplains into schools was set up with that view in mind) if one is precluded by the guidelines from proselytising (i.e. sharing) those values or counselling – giving advice – about how those values can assist a child to work through a particular problem?
Further, said Walker (going in for ‘the kill’), to qualify as a ‘benefit to students’, the purported ‘benefit’ has to be shown to be specifically ‘for’ students, as a discrete class of people. And yet, he reminded the Justices, “this is a project which constantly says it is for others [the school community] as well as for students. When you add all of that together, it simply cannot fit within (xxiiiA).”
Whether the Justices decide to limit themselves to the statutory material or decide to ‘drill down’ into the supplementary documents, Walker advised them:
“… you will not find specification enabling the constitutional question to be answered favourably. It is for those reasons, in our submission ….there cannot be satisfaction of 51(xxiiia), and the case should – the law should – fail accordingly. May it please the Court.”
As the Justices filed out of the Court and barristers and solicitors shuffled their books and files, Ron’s solicitor, Claude Bilinsky, turned to me and said, “Now, what was it you wanted Mr Walker to argue?”
Call me optimistic, but I can’t see how the Justices can find otherwise but for Williams. To find for the defence is to concede the High Court was wrong in its rulings on Pape and Williams (1) or that the defence succeeded in supporting the contention that a) the NSCP falls under some head of Constitutional power or b) the Executive is not answerable to the Constitution.
I may not be a constitutional lawyer, but I don’t believe either of those arguments were made convincingly over the four day hearing. Judging by the responses and the body language of the Justices, my sense is that these rather desperate attempts to hold back the tide of Williams were in vain.
Judgement is reserved and we do not know when the ruling will be handed down. The last decision took 10 months.
In the meantime, Williams has still not been paid his costs from the first hearing and is now in debt for the costs of his second hearing.
If you agree that Williams has performed a service for all Australians in bringing this matter to the High Court of Australia – not once, but twice – please consider making a donation at his website:
High Court Challenge
All donations go into a solicitors’ trust and are used only for the legitimate payment of legal fees.
Chrys Stevenson
