Just Cases | Season 1 | Bonus Episode 1 | Chief Justice, is the same-sex marriage postal vote doomed?

What's the High Court challenge to the marriage equality postal vote all about? In this bonus episode Robert French, former Chief Justice of the High Court of Australia, drops by to explore two very similar cases he decided that provide the basis for the current legal challenge.

Music: 'Has Pluck' by Podington Bear (CC BY-NC 3.0 license)

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Transcript | Just Cases | Season 1 | Bonus Episode | Chief Justice, is the same-sex marriage postal vote doomed?

[00:00:00] James Pattison: Hi, James Patterson here, producer of Just Cases, and welcome to this special bonus episode featuring a discussion between Melissa Castin and Robert French, the recently retired Chief Justice of the High Court. Now, I'm gonna give you a bit of context for this discussion between Melissa Castin and Mr.

[00:00:19] French on September the fifth. The high court will hear a legal challenge to the Australian government's postal vote on same sex marriage. Broadly speaking, opponents of the postal vote are supporters of marriage equality. They say it should be up to our elected representatives to pass a law that legalizes marriage for same sex couples, rather than taking what they see as an unnecessary opinion poll.

[00:00:44] Postal votes tend to favor older demographics who are also the most fervent opponents of marriage equality. Now the postal vote is technically not a vote, rather than being carried out by the Australian Electoral Commission, the $122 million survey is actually being carried out by the Australian Bureau of Statistics.

[00:01:04] Now a technical warning here for this episode. Things are going to get very lawyery and very constitutionally, I swear. Those are two words. Uh, stick with me while I set the scene, the legal basis of the high court challenge. In fact has nothing to do with human rights. Like many of these cases, the parties seek to support their position by identifying a law or a government action that falls foul off the Constitution.

[00:01:33] In the cases currently before the high court, the plaintiffs, the Australian Marriage Equality Organization and others. Arguing that the government lacks the power to spend the 122 million in the way that they've chosen in recent years, the power of the executive arm of government to spend money as it sees fit, has been examined more closely.

[00:01:53] Robert French was the chief justice of the high court from 2008 until 2017, and in that time he presided over a number of cases that dealt with this very issue of executive spending. Your host, Melissa Caston, caught up recently with Mr. French while he was a guest of Monash Law School, as he told Melissa.

[00:02:12] Now remember, we're getting very technical in this episode, so deep breath. Our Constitution allows the parliament to pass a law to spend money for a particular purpose that they define. These laws are called appropriations, and they're able to be worded pretty broadly as Mr. French noted. For years and years, it was enough simply that the appropriation had passed Parliament for it to be held as legal under our

[00:02:38] The Honourable Robert French AC: constitution.

[00:02:40] Then we had a case which came along in 2009, which changed that. We are in the midst of what was called the global financial crisis. Governments around the world were exercised by Australia, had taken part in a whole lot of, you know, international meetings, G 20 and so forth. Um, how do you respond to this global financial crisis and in particular, the crisis of confidence, which itself affects the performance of economies?

[00:03:05] So one of the measures which had been discussed internationally for dealing with this, um, crisis of confidence in economies was something called fiscal stimulus. And that means you try to, um, inject some money into an economy, uh, to, um, get people to spend. And the Commonwealth, uh, government decided that what it would do would be to, um, uh, send out checks.

[00:03:29] Two taxpayers ranging from between, I think about $250 to about 900 odd dollars so that the taxpayers could, um, spend their money, uh, go off and buy a flat TVs or something like that. Mm. Keep the economy bubbling along on a sort of bedrock of, it sounds like

[00:03:45] a good idea.

[00:03:46] Bedrock of confidence. There was a fellow who was a constitutional law academic.

[00:03:51] I know, uh, Brian Pap at the University of New England. And, uh.

[00:03:55] And he'd been waiting for a long time to agitate this issue.

[00:03:57] And, uh, he didn't want the money. He didn't think the government had the power to, uh, uh, hand out money in that way. Uh, I called him later. The, um, man who tried to buy up the hand that tried to feed him.

[00:04:10] Anyway, Brian paid for an action in the high court in which he challenged the validity or the authority of the executive to spend money in this way. Now. How what they'd done is they had, um, they had, there was an appropriation and they had, uh, decided they were gonna rely upon the executive power itself.

[00:04:28] A kind of, um, an element of the executive power, which, uh, has been interpreted as conferring on the government, uh, power to do things, uh, in the national interest. Mm. That sort of loosely expressed nationhood power.

[00:04:41] Professor Melissa Castan: Mm-hmm.

[00:04:41] The Honourable Robert French AC: The limits of which haven't really been explored. And so they said, all right, we're gonna spend this money using the nationhood power.

[00:04:47] But we'll get a law to authorize the expenditure and the law will res, will, will rely upon a provision of the constitution that says you can pass a law which is incidental to the exercise of a power. So it's a kinda little bit of a bootstraps exercise. So you have the, the executive power and, and that we're gonna spend this money and it'll make a law.

[00:05:06] Which will, um, support the expenditure money, the, and that law was called the Tax Bonus Act,

[00:05:11] and that was using section 51, 39 of nine. Exactly right.

[00:05:15] The incidental power, the power to make law is incidental to the exercise of other powers, which might be legislative powers or executive powers. That's right.

[00:05:22] Um, and, uh, anyway, uh, Mr. Pap came and argued the case before the court, and there was, uh, I think every, you know, the, the various, uh, parties appeared before the court. Uh, it was unusual case and, uh, not surprising perhaps, that there hadn't really been. Any real challenge to the spending power of the executive because who wants to change people spending money, uh, on them?

[00:05:47] There's

[00:05:47] been a few old cases in the seventies. That's right. Yeah.

[00:05:49] A p and so forth. Yeah. Uh, the long and the short of it was that Mr. Pap lost his battle, but he won a war.

[00:05:57] Professor Melissa Castan: Mm-hmm.

[00:05:58] The Honourable Robert French AC: We said that there was a component. By majority, there was a component of the executive power, which would support this kind of expenditure, and that the tax bonus act as an incidental, uh, exercise, the incidental power would, would support that.

[00:06:11] Mm-hmm. And that, uh, therefore the expenditure was valid. But in the course of that decision, the court held that the appropriation, uh, legislation upon which they had provisions upon which they had. F relied was not of itself sufficient to authorize the expenditure. That was simply a necessary condition and there was a lot of history of appropriations.

[00:06:35] Mm-hmm. Which was considered by the court in that. So in other words, it wasn't enough to authorize expenditure of public money that you had an appropriation. You had to find some other source of power. Either a statute which was enacted under a Commonwealth head of power or in the executive power itself.

[00:06:52] Something else. Something else. Yeah. It might have been in some cases, for example, you can spend money under section 64 of the Constitution as part of the administration of government departments, obviously. And then there are questions of the power of the, uh, the crown to do things that, uh, sort of legal persons can do.

[00:07:10] Mm-hmm. Like, uh, enter into contracts and so forth. Anyway, that was the, um, that was the upshot of that case. So appropriations was not enough to give you the, um, give the authority to spend the money. You had to have it, but you had to have something more. So then the next, uh, person who wanted to challenge expenditure of government, uh, money was Mr.

[00:07:30] Williams. Mm-hmm. And Mr. Williams had children in a Queensland public school and, uh, in this public school, there was being provided a school chaplaincy program, which was using Commonwealth funding. And the Commonwealth funding was provided pursuant to an agreement entered into between the executive government and the, I think it was Scripture Union, a provider, scripture Union Queensland as a provider.

[00:07:51] And there was no, uh, uh, statutory authority for this. No.

[00:07:56] So it's a strike question of spending Yeah. Under a contract.

[00:08:00] Yeah. And a capacity to do that. That's right. Without legislation. And, and the appropriation didn't get 'em there. But the key question became did they have authority? And, uh, at the, um, at the, uh, early in the early stages of the argument, uh, the court raised with the parties and the Commonwealth was appearing and all the states were appearing.

[00:08:21] The states weren't themselves necessarily opposing Spanish 'cause after all, it was happening with the states, but the states hadn't been really party to the agreement. I might point out just as a diversion, just to clear away something that the Commonwealth does have power. Under section 96 of the Constitution, the Parliament can make laws authorizing the Commonwealth to make conditional grants to the states.

[00:08:43] Mm-hmm. So this could have been funded through a section nine six grant under a law made by the Parliament and then. The money could be on, on

[00:08:51] any terms that things fit. That's

[00:08:53] exactly right. And that's how the Commonwealth has got into a lot of funding in areas where it doesn't actually have leaks to the power

[00:08:58] like roads or

[00:08:59] roads and all sorts of universities, et cetera.

[00:09:03] But this wasn't a section 96 thing. They hadn't used section 96, and no doubt there, there are perhaps political reasons why the Commonwealth sees greater benefit in direct funding.

[00:09:14] Professor Melissa Castan: Mm-hmm.

[00:09:15] The Honourable Robert French AC: Um, so, uh, then. In the early course of the argument, uh, we said to the parties it shouldn't be assumed that the executive power will authorize expenditure on any matter about which the commonwealth could make a law.

[00:09:31] Mm-hmm. Uh, there was an assumption of what was called the common assumption in the reasons that the executive, uh, panel of expenditure. Extended to anything on which the Commonwealth could make a law, even if there weren't a law made for it. Mm-hmm. And we said, no. Uh, that's a, that's an assumption which, uh, we should examine.

[00:09:49] And this led to, uh, the states quickly readjusting their positions because, uh, uh, I think some of the states probably saw this as, um, readdressing and imbalance between the commonwealth themselves, but for whatever reason mm-hmm. Uh, they changed, uh, they, they, um, attacked the common assumption. Uh, this was described by Justice Hayden in his dissenting judgment as a, uh, wrong alese, he said, which, uh, left.

[00:10:16] I think he used the old poetic reference, left the parties like, um. Armies, uh, clashing on a darkling plane. It was a very colorful description of the process that followed. Well,

[00:10:29] you, you might have upset the common assumption, apple cartt.

[00:10:33] And that was the, uh, that was the way that was being put. Anyway, uh, we ended up holding that, um, uh, the, uh, the expenditure could not be or could not be, um, authorized under the executive power.

[00:10:47] Absent legislation, it wasn't enough. That you might be able to fit it under some topic, some topic of, uh, commonwealth legislative power. Mm. Mr. Williams, of course, had brought, uh, as part of his challenge that, uh, this, uh, expenditure offended against the religious freedom provision section 116 of the, um, of the Constitution.

[00:11:09] But that was quickly disposed of that, that argument that didn't get up. So the real focus in the end was on this question of executive spending power. Mm-hmm. So, uh, that was the outcome of that case,

[00:11:21] and then the government had to quickly. Passed, fix it up, pass legislation to cover all the things that they were spending money on that didn't have legislative footing.

[00:11:28] That's right. There are about 400 programs, I think, and there was an ambulatory, the bill, uh, uh, act passed, which, um, effectively, um, uh, employ applied to all, uh, programs, whatever relevant head of power would support them. So it was kind of a, uh, a catchall, uh, any relevant head of power is invoked. So that then, uh, so the, the, um, spending program and the contractual arrangements with the scripture union and so forth, uh, were, uh, continued and, um, then Mr.

[00:12:01] Williams brought, or, or resumed, and then Mr. Williams brought, uh, uh, a second challenge.

[00:12:06] Professor Melissa Castan: Mm-hmm.

[00:12:07] The Honourable Robert French AC: And in that case, uh, we said, well, um. Uh, the act did not help them because there wasn't actually a relevant head of power. Yes. There was argument about whether social services benefit of students power. Pardon?

[00:12:21] But there's

[00:12:21] no head of power to provide chaplain services. Oh, that

[00:12:24] and not as such. No. You'd have to fit it into something else. Something else. Yeah. That's right. Uh, so, um, uh, that was, uh, that was the last case about spending power. Mm. So

[00:12:34] can I just stop you there? This issue has become to the forefront of our intention.

[00:12:39] As the postal survey or, or so-called plebiscite is in the news currently. And, uh, some applicants have gone before the high court to seek a challenge on the Commonwealth's ability to spend money to run this survey.

[00:12:53] Obviously, I'm not gonna express any view on what might happen there, but, um, it appears that, um, I was

[00:12:59] looking forward to your legal advice on the topic.

[00:13:01] Absolutely not.

[00:13:02] Um, it appears that, uh, the argument being put. Yeah. Against expenditure of money on the postal plebiscite is that there is no statutory authority for it. Mm-hmm.

[00:13:14] Of course. Because the statutory authority that would've been for it didn't succeed. Passing parliament last time. The government tried to pass that.

[00:13:21] That's a good point to fill in. So my understanding is, and this is simply based on what I've seen in the, uh, in the newspaper reports, that, uh, reliance is being placed on the legislation. Which, uh, establishes the Australian Bureau of Statistics and its functions, and that the plebiscite is to be characterized as a survey which would be authorized and expenditure on which would be authorized under that legislation.

[00:13:47] Hmm. Now, that may reduce to a question of statutory interpretation. What does the, uh, a BS legislation authorized? Mm, I don't know. There may be that the common author takes some sort of fallback position.

[00:13:57] Professor Melissa Castan: Mm.

[00:13:58] The Honourable Robert French AC: That there's some element of the executive power without. A statutory authority, which would support the expenditure.

[00:14:04] Uh, what will be happening is there will presumably be directions given.

[00:14:08] Professor Melissa Castan: Mm-hmm.

[00:14:08] The Honourable Robert French AC: And there will be, um, submissions filed electronically and they will be available for people to see on the. High court website.

[00:14:14] It's not like on TV where people suddenly rush into court with documents and slam them down on the bar table saying, I've got this smoking gun and it's all gonna change the case.

[00:14:22] I mean, it's all up there on the high court website for us to see exactly right

[00:14:26] and before the case. So people

[00:14:27] like you and I can read this material before we, before the case is actually hurt. That's

[00:14:31] right. And after the case is hurt, within a day or so, you can actually watch the oral argument. Know, and they're from Rivering.

[00:14:37] Oh, it's, yeah. It's, it's wonderful re watching, you know, but I do understand that it's very popular with, uh, students on key cases. That's right. And you get a sense of, um, uh, and of course for the, uh, members of the public who are interested in at least getting a flavor of the argument and, uh, the nature of the process, of the, uh, of the constitutional argument between council and the courts and the, the very interactive questioning process that goes on.

[00:15:03] Because when the court sits. When the court comes into hear this case, it will have read, the members of the court will have read all the written submissions so that I know the detailed arguments being put and what follows is the oral submissions. And in the course of those very interactive stuff, as they tease out, uh, we strengths key, the key issues and so forth,

[00:15:23] key.

[00:15:23] I mean, I think that the high court has been in the news more in the last year and a half than I'd ever, you know, seen before. And it's, yeah, I mean even these cases coming up now with the. The court having to decide about people's, um, dual citizenship section 44

[00:15:37] of the Constitution, you know,

[00:15:38] running into court to have, to have these things determined.

[00:15:41] I mean. Th this is a very busy high court at the moment.

[00:15:44] It certainly is.

[00:15:45] Is it usual for the court to be able to put aside its normal workload and, and hear these urgent applications of these cases would be a fast decision. Certainly has

[00:15:53] happened before, and I know that in urgent cases on previous occasions, I can't give you chapter and verse that we have moved a case outta one list and into a later list because of a, a matter of high urgency.

[00:16:05] I mean, it all depends on, it's a matter of judgment. Um, sometimes, of course. You've gotta make sure that the, uh, parties have had adequate time to put proper submissions. And then it's also not unusual, um, in very urgent cases for the court to give a decision on the spot. Mm. If you've got a clear majority, then publish.

[00:16:23] Professor Melissa Castan: So the answer yes, you can go ahead

[00:16:25] or can't go ahead and

[00:16:26] The Honourable Robert French AC: then publish their reasons later. Yes. Yeah.

[00:16:29] Professor Melissa Castan: Thank you very much Mr. French.

[00:16:30] The Honourable Robert French AC: Okay, my pleasure.

[00:16:34] James Pattison: Just Cases is a production of Monash Law School Music in this episode by Paddington Bear. Be sure to find us online, just cases podcast.com and on Twitter our handle is just Cases show. And if you haven't already subscribed on iTunes and SoundCloud.