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High Court of Australia Transcripts |
Last Updated: 3 August 2005
IN THE HIGH COURT OF AUSTRALIA
Office of the
Registry
Sydney No S359 of 2005
B e t w e e n -
GREG COMBET
First Plaintiff
NICOLA ROXON MP
Second Plaintiff
and
COMMONWEALTH OF AUSTRALIA
First Defendant
THE HONOURABLE KEVIN ANDREWS MP
Second Defendant
SENATOR THE HONOURABLE NICHOLAS MINCHIN
Third Defendant
Summons
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 29 JULY 2005, AT 9.34 AM
Copyright in the High Court of Australia
__________________
MR S.J. GAGELER, SC: If the Court pleases, I
appear with MR J.K. KIRK for the plaintiffs.
(instructed by Maurice Blackburn Cashman)
MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: If your Honour pleases, I appear with my learned friend, MS K.J. GRAHAM, for the defendants. (instructed by Australian Government Solicitor)
HIS HONOUR: Now, Mr Gageler, you move on both affidavits of Mr Joshua Bornstein that have been sworn?
MR GAGELER: Yes, I do, your Honour.
HIS HONOUR: They are affidavits of, I think, 27 July and 28 July which I have read. Do you have any objection to them, Mr Solicitor? Do you wish to cross-examine Mr Bornstein?
MR BENNETT: No, your Honour.
HIS HONOUR: Do you have any other evidence, Mr Gageler?
MR GAGELER: No, your Honour.
HIS HONOUR: Do you have any evidence, Mr Solicitor?
MR BENNETT: Yes, your Honour.
HIS HONOUR: Is that Mr Brian Edmond Quade?
MR BENNETT: Yes, your Honour, of 28 July 2005.
HIS HONOUR: Yes. Do you object to that material, Mr Gageler?
MR GAGELER: Your Honour, I have not seen that material.
MR BENNETT: It was served, I thought, last night, or this morning. I am not sure - - -
HIS HONOUR: It is quite thick, but I have a spare copy.
MR GAGELER: I am being given a copy now, if your Honour will just excuse me for a moment. No, your Honour.
HIS HONOUR: Very well, and you do not want to cross-examine him?
MR GAGELER: No, your Honour.
HIS HONOUR: Those three affidavits are read and the exhibits referred to in them will be exhibits under those markings in the application.
MR BENNETT: Your Honour, there is one other matter. I have some documents but it may be simpler if we do it by notification. Your Honour, it is agreed that the date of the last federal election was 9 October 2004, if that might be noted.
HIS HONOUR: That is a very interesting thing, but why is it relevant?
MR BENNETT: It is of very peripheral relevance, your Honour. This is not pre-election advertising, that is all. The other matter, which may be relevant to the balance of convenience, is that the date that Parliament will next sit is 9 August.
HIS HONOUR: Do you know when it last sat?
MR BENNETT: 23 June, I am told, your Honour.
HIS HONOUR: Mr Gageler, I have read submissions filed on behalf of the plaintiffs and those filed – have you a copy of the ones filed by the defendants?
MR GAGELER: Yes, I have, your Honour.
HIS HONOUR: I am in your hands as to how to proceed.
MR GAGELER: Yes, your Honour, can I indicate that what we principally seek, and your Honour would have seen this from the written submissions, and what appears not to be opposed, is an urgent final hearing. If an urgent final hearing were available within a relatively short time, that would, of course, be a factor affecting the balance of convenience and we would not be pressing for an interlocutory injunction.
HIS HONOUR: I think I can just flatly say that there is no chance of a final hearing next week or the week after. I can say nothing beyond that and perhaps I can also say I am prepared to make an order for expedition of the final hearing but it is not really in my hands as to what happens after that.
MR GAGELER: Yes. In those circumstances we - - -
HIS HONOUR: So therefore you press for the interlocutory - - -
MR GAGELER: We press for the interlocutory injunction, yes. Your Honour, the interlocutory injunction is sought to restrain, under section 75(v) of the Constitution, executive action which is alleged to be in breach of the Constitution itself, sections 81 and 83, and of the particular provisions of the Financial Management and Accountability Act which deal with the withdrawal and expenditure of public moneys, sections 26 and 27.
There appears to be no contest as to the facts upon which the plaintiffs principally rely and that is that the defendants are in the process of drawing and expending from the Treasury of the Commonwealth some $20 million of public funds for the purpose of an advertising campaign which is aimed at promoting a legislative package which is yet to be enacted and is yet even to be introduced into the Parliament. For that, they rely exclusively on a one line appropriation in Appropriation Act (No 1) which was for the first time clearly identified in their written submissions of yesterday.
If
your Honour goes to their written submissions of yesterday,
paragraph 14, your Honour sees the identification of the line item
“appropriation” there, by reference to the words:
Higher productivity, higher pay workplaces.
Exactly where
that appears in the Appropriation Act I will come to in a moment but the contest
on the merits is whether, as a matter
of construction, in the light of the
constitutional setting, in the light of parliamentary practice and in the light
of the extrinsic
materials which are properly to be taken into account, that one
line item appropriation does the job. If your Honour would permit
me,
perhaps, I hope without undue repetition of anything that is written, to go to
those three matters of context.
The constitutional setting,
your Honour, is most immediately section 83 of the Constitution which
in terms prohibits money being:
drawn from the Treasury of the Commonwealth except under appropriation made by law.
That must be read with section 81 of the
Constitution, which requires an appropriation of money to be for a purpose
determined by law, authority of this Court establishing that the purpose
determined by law under section 81 has the dual effect of authorising a
withdrawal of funds from the Treasury or the |Consolidated Revenue Fund for that
purpose and,
more significantly, restricting expenditure to that purpose
identified by law. One also needs to take account of section 54 of the
Constitution, which provides that:
[A] proposed law which appropriates revenue or moneys for the ordinary annual services of the government shall deal only with –
the appropriation of moneys for the
ordinary annual services of government. Now, we do not say that what
constitutes the “ordinary
annual services of the government” is a
judiciable issue. We accept and embrace the orthodox position that that is a
matter
entirely for the Parliament. But accepting and embracing that position,
we point to a very clear and a very long standing parliamentary
practice that
expenditure on new policies which are yet to receive legislative endorsement is
not treated as expenditure for the
“ordinary annual services of the
government”. That is, it is not ordinary if it is new. From that, we
say, that it
is as a matter of statutory construction not to be expected that
Parliament would insert in an Act appropriating expenditure for
the ordinary
annual services of government expenditure on a new policy in the absence of
clear statutory language, that is, expenditure
on the promotion or the
implementation of such a policy.
The practice to which we point is one that your Honour sees in Odgers’ Australian Senate Practice which we have given your Honour in volume 1 of the plaintiffs’ bundle of legislation and extrinsic materials behind tab F, and it is referred to as the Compact of 1965. It is referred to at page 563 of the bundle, page 283 of Odgers. Then, without going back to the detail of what was agreed between the Senate and the government in 1965, one sees at page 563 the reaffirmation of that compact in 1976 and the resolution - - -
HIS HONOUR: Who exactly was this compact between? You just said the Senate and the government.
MR GAGELER: The Senate and the government, yes.
HIS HONOUR: Not the Senate and the House of Representatives?
MR GAGELER:
Effectively it is the same thing but I think it is properly the Senate and
the Executive Government. It is resolution (2)(e) that
your Honour
should note, in particular:
That appropriations for expenditure on . . .
(e) new policies not previously authorised by special legislation,
are not appropriations for the ordinary annual services of the Government -
and your Honour will see at the bottom of the same page a
reference to an adjustment to that Compact in 1999, the adjustment being
recorded over the page, page 284 and (ii) of what is there states:
all appropriation items for continuing activities for which appropriations have been made in the past be regarded as part of ordinary annual services –
that in itself being a reaffirmation of the basic principle that appropriations for new items of expenditure are not to be regarded as part of the ordinary annual services of government.
If your Honour also
then goes to volume 2, tab H, what your Honour sees is one of the
four budget papers which was tabled with the
Bill for Appropriation Act
(No 1) and Appropriation Act (No 2) here and at
page 953 in the middle of the page, indeed in the context of a fairly
useful description of the overall constitutional
setting, your Honour will
see in the middle of the page in the paragraph beginning “In order to
settle the question”
a reference to the compact of 1965 to which I have
taken your Honour, and at page 955 a reference to Appropriation
Bill (No 1) providing for “matters that are considered to be the
ordinary annual services of the government” and at page 956
Appropriation Bill (No 2) is said to provide:
appropriations for matters that, under the ‘Compact of 1965’, are not the ordinary annual services of government.
So very much the framing of the relevant legislation is in the context of the compact of 1965 and, in our respectful submission, its interpretation is to be consistent with that compact in the absence of clear language to the contrary.
Before I go to the legislation could I take
your Honour to Brown v West 169 CLR 195 which is the authority upon
which we principally rely and which receives scant attention in our learned
friend’s response.
Without going to the detail of that case can I draw
your Honour’s attention to the salient passages. At page 205 in the
middle
of the page there is a statement that:
The constitutional principle “that no money can be taken out of the consolidated Fund into which the revenues of the Sate have been paid, excepting under a distinct authorization from Parliament itself” . . . is entrenched in our Constitution by ss 81 and 83:
At about point 9 of the page it is said:
It is by ss 81 and 83 that our Constitution assures to the people the effective control of the public purse –
At page 207 there is reference to sections 53 and 54
of the Constitution and to the practice of Appropriation Act (No 1)
dealing with ordinary annual services and Appropriation Act (No 2)
dealing with other matters. At page 208 it is said at about point 2
that:
An appropriation, whether annual or standing, must designate the purpose or purposes for which the moneys appropriated might be expended.
And at point 9 of the page in the quotation from
Justice Mason in the AAP Case your Honour will see the
concluding remark that:
Not only does it authorise the Crown to withdraw moneys from the Treasury, it ‘restrict(s) the expenditure to the particular purpose’ –
The particular question in the case is that which is identified
at page 209 and your Honour will see at about point 3 of the page
after the semicolon:
Here, the appropriation in Supply Act (No 1) –
the equivalent of Appropriation Act (No 1) -
on which the defendants rely expresses the purposes for which the money may be expended in very broad terms and the question is whether those purposes include the supplementing of the entitlement to a postage allowance –
That question is then answered at page 211. It is said at
about point 5 of the page:
To predicate of the Supply Act (No 1) 1989-1990 that it contained an appropriation for the purpose of supplementing the postal allowance would be to find in it an appropriation for the funding of a new policy which, by parliamentary practice, would be found only in a bill for special legislation or, at the least, in Appropriation Bill (No 2). It can therefore be taken that . . . as a matter of parliamentary practice, the Supply Act (No 1) 1989-1990 was not intended to include an appropriation for new policies.
So we rely upon that as demonstrating the significance for the interpretation of an Appropriation Act of parliamentary practice and we rely upon the particular parliamentary practice that was there identified and we also invoke and particularly draw your Honour’s attention to the significance which the Court placed upon the appropriation mechanism as ensuring to the Parliament, and through it to the people, the effective control of the public purse and as restricting the expenditure of funds to the particular purpose identified by Parliament.
If I could then take your Honour to Appropriation Act (No 1) which we have given your Honour in volume 1 at tab B. Appropriation Act (No 1), as your Honour sees from its long title at page 4, is “An Act to appropriate money . . . for the ordinary annual services of the Government”, and the particular line item upon which the defendants rely your Honour will find at page 79. It is in Schedule 1 which is headed “Services for which money is appropriated” and it is that described as outcome 2. We are here looking at the appropriation in respect of the Employment and Workplace Relations Portfolio and it is “Outcome 2 - Higher productivity, higher pay workplaces”. That is, in our respectful submission, an expression of an objective purpose. Contrary to the defendant’s submissions, it is not expressed to turn on the satisfaction or impression of any member of the executive as to what may achieve that outcome. It is an outcome expressed as objective terms. It is an outcome that, in our submission, within the scheme of the legislation is given detailed content by the portfolio budget papers. It is not left, as it were, at large.
It is given detailed content by the portfolio budget papers
through the operation of section 4 of the Appropriation Act
(No 1) which your Honour has at page 6. This is a provision
which, again in our respectful submission, is given insufficient attention
in
our learned friend’s written submissions. Section 4(1) says:
The Portfolio Budget Statements are hereby declared to be relevant documents for the purposes of section 15AB of the Acts Interpretation Act.
Now, what does it mean to declare them to be relevant documents for the purposes of section 15AB of the Acts Interpretation Act? Well, section 15AB is concerned with what material may be taken into account in ascertaining the meaning that is fixing or determining the meaning of a statutory expression. In our respectful submission, what section 4(1) is seeking to do is to fix the content of the broad statement of purpose in the schedule by reference to the detail in the portfolio budget statements.
HIS HONOUR: Schedule 1 at page 16, “Services for which money is appropriated”, you say that is a portfolio budget statement?
MR GAGELER: No, the portfolio budget statements your Honour will see, the reference is defined – it is a defined term in section 3 - - -
HIS HONOUR: One is tabled in the Senate or the House of Representatives.
MR GAGELER: Yes. It is our case, your Honour, that the way in which the legislation is structured is to give in the schedule to Appropriation Act (No 1) a high level label for the description of activities more fully particularised in the portfolio budget statement which is tabled in Parliament at the same time that the Bill is introduced.
HIS HONOUR: Is one of your arguments this, that the meaning of “Higher productivity, higher pay workplaces” can possibly be found in the portfolio budget statements?
MR GAGELER: Exactly, yes. The expression is, taken
alone, so vague as to be almost meaningless. It is given content, and indeed
detailed content,
by the portfolio budget statement. There would be a question
whether, in the absence of that content being given, the broad statement
would
meet the constitutional imperative of section 81. Section 4(2) then
comes into play and it is really an explanation of the
consequence of the
portfolio budget statements giving content to the broad description of
“purpose”. Subsection (2)
says:
If the Portfolio Budget Statements indicate that activities of a particular kind were intended to be treated as activities in respect of a particular outcome, then expenditure for the purpose of carrying out those activities is taken to be expenditure for the purpose of contributing to achieving the outcome.
They are words of explanation, in our respectful submission. They are not words of expansion, as our learned friends would have it.
The portfolio budget statement in question here, your Honour,
in volume 1, tab E, has what is described as outcome 2.
Your Honour
will see at page 369 there is a heading “OUTCOMES
RESOURCING – OUTCOME 2”. There then appears immediately
before
the first two dot points on the page a statement:
The department actively contributes to outcome 2 by:
• providing policy advice and legislation development services to government; and
• supporting employers and employees in adopting fair and flexible workplace relations practices.
There is then a
heading “Key priorities” and it is said:
Key priorities for outcome 2 for 2005-06 are to:
• develop a workplace reform package which implements the Government’s policy agenda;
and, in our submission, there is a wealth of difference between developing a reform package and actively promoting and implementing that reform package once developed, or even before developed.
At page 371, tellingly, in a table that is headed “Table 3.1.2: Total resources for outcome 2” your Honour will see a heading about a third of the way down “Departmental appropriations” and a further heading “Departmental appropriations”, the first heading dealing with “Output Group 2.1 - Workplace relations policy and analysis” and the only two entries after that being “Workplace relations policy advice” and “Workplace relations legislation development”, neither of which encompass on an ordinary reading the advertising to promote the policy. Your Honour then sees ”Departmental appropriations” “Workplace relations implementation” and a series of entries, again, none of which, in our respectful submission, embrace comfortably, or at all, the notion of advertising.
The total revenue appropriated for those two purposes of departmental appropriations your Honour will then see about two-thirds of the way down the page as being 140,131,000. Your Honour will see that figure and your Honour will see that that figure is - - -
HIS HONOUR: I do not at the moment. What is the precise figure?
MR GAGELER: If you look at the shaded column - - -
HIS HONOUR: Yes, 140,131,000?
MR GAGELER: That is right. That is the total of departmental appropriations Output Group 2.1, which is “Workplace relations policy advice”, and departmental appropriations Output Group 2.2, “Workplace relations implementation:. Those two things then tally to 140,131, which is a bit over $140 million, and that is the figure that one sees appearing at page 79 as the departmental output for outcome 2. In our respectful submission, on the proper construction of the language of Appropriation Act (No 1) the meaning of outcome 2, that is, “Higher productivity, higher pay workplaces”, is fixed by the detailed description that one sees at pages 369 and 371 of the portfolio budget statement, and none of that encompasses advertising. If it did, one could comfortably expect the Parliament – at least the Senate at the time, in our respectful submission to have had some interest in it.
Contrast, for the purposes of the exercise of statutory construction, what is said about outcome 1 in the same portfolio budget statement. Your Honour will note at page 359 there is a description of outcome 1 resourcing under the heading 3.3.1 and there is a reference in the first full paragraph to the department being involved in the “Welfare to Work” policy. Does your Honour see that second sentence of the first full paragraph?
The “Welfare to Work” policy involves measures that are more fully detailed back at page 345 in a table. I am sorry that this becomes a little tedious in the detail. In the table, in landscape form, table 2.2.1, your Honour will see the heading in the top left-hand shaded column “Measure”, “Welfare to Work” and then a series of dash entries. The second-last of those dash entries is said to be a communication strategy, and your Honour will see that an amount is referred to as being a budgeted appropriation for the 2005-2006 year and for subsequent years against the entry “communication strategy”.
It is said at the bottom of the table that further details of the measures listed are published in Budget Paper No 2. Budget Paper No 2 your Honour has behind tab G, beginning at page 595, which is again another of the four budget papers tabled with the Appropriation Bills. Budget Paper No 2 at page 758 contains an explanation of that communication strategy. I draw your Honour’s attention to that as demonstrating a case in which there is specifically identified in the portfolio budget papers a purpose which involves advertising. No such purpose is identified in relation to outcome 2.
So, your Honour, I think in addition to what is in our written submissions that is as much as I wish to say on the merits. It really is a question of construction, but it is a question of construction that must be addressed in what is really a high constitutional context of parliamentary control over the Executive.
I need to deal with the balance of convenience and I need to deal with the standing and I need to deal with the absence of an undertaking as to damages. Can I deal with the balance of convenience by responding to what is put against us in the Commonwealth’s written submissions paragraphs 31 through to 33? Paragraph 31, in our respectful submission, embodies a particularly unattractive proposition. In our submission, it is no answer to an allegation that the Executive is involved in illegal activity to say that it can always be rendered legal by a subsequent Act of Parliament. It is a proposition which would make Dicey turn in his grave and, in any event, we have no proposal by the Executive to seek a new appropriation from Parliament. Indeed, the position of the defendants is that the current appropriation is sufficient and presumably sufficient to allow them to engage in any other communication strategy that they see fit during the period of the Appropriation Act.
In relation to paragraph 32, what one sees is an attempt to have your Honour form a view that there is a public interest in countering the campaign being mounted by the ACTU against the workplace relations package. In our respectful submission, not only is that a submission that is made without evidence as to the harm which is suggested but the very nature of the harm renders it something that is beyond the scope of any judicial determination. Your Honour simply cannot form a view in the exercise of judicial power as to where the public interest lies in relation to the implementation or introduction of a particular legislative measure. We say that the only relevant - - -
HIS HONOUR: This is a matter of political controversy and the ACTU are propounding a particular point of view which is perfectly reasonable from their point of view. The executive, according to the Solicitor-General, wants to propound the alternative, or a competing line.
MR GAGELER: Yes. With a parliamentary appropriation it can do so. We do not say it lies beyond executive power to do so.
HIS HONOUR: And we cannot decide today whether it is lawful. We can decide today perhaps whether there is a serious question or a high probability or a distinct probability of success, but this, as it were, puts on one side issues about serious question and just says if free political speech is to be protected, then you have to bear in mind that this is cutting down on free political speech.
MR GAGELER: Your Honour is putting perhaps an acceptable interpretation on language which on the face of it reads to the effect that if the ACTU campaign continues, then harm will be caused by that campaign itself by the unchecked communication of those views which, in our submission, your Honour simply cannot accept.
HIS HONOUR: It is very difficult of course to separate out what one learns from day to day and perhaps what one learns from day to day is appropriate material to take into account. Is it not the case that there has in fact been some raising of the possibility of industrial action as an action against this legislative package?
MR GAGELER: Your Honour, I will seek some instructions. My understanding was – I will seek some instructions. I do not want to say something without instructions.
HIS HONOUR: If not I will put it out of my mind, but I - - -
MR GAGELER: I am instructed that the ACTU is not planning any industrial action in relation to this matter.
HIS HONOUR: Anyone else?
MR GAGELER: I am sure I cannot speak for anyone else, your Honour, except my clients. I will have those instructions checked, your Honour, but the only relevant public interest, in our submission, that your Honour can and should take into account is that of holding the executive accountable to the law.
HIS HONOUR: That is obviously fundamentally important, but it is not to be decided today whether they are in breach of the law.
MR GAGELER: No. If your Honour accepts that there is a serious question to be tried, then one gets to the balance of convenience.
HIS
HONOUR: Just on that serious question matter, Sir Anthony Mason
said in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986)
161 CLR 148 at 154 – and you may have a number of answers
to this. He said at the bottom of the previous page, speaking at a time when
there was still some controversy as to what the appropriate test generally
was:
Recently two members of this Court have held that the plaintiff must establish that there is “a serious question to be tried” . . . that is the correct test . . . in the majority of cases . . . it may be that in some cases where the public interest would be adversely affected by the grant of an injunction the plaintiff may need to show a probability, even a distinct probability of success, in order to obtain an interlocutory injunction.
Does that apply here or not?
MR GAGELER: As a statement of broad principle, we accept that the strength of the case is something to be factored into the exercise of discretion by reference to the balance of convenience but we do not accept, your Honour, that there is an identified distinct public interest which can be raised against us. At least the public interest so far as your Honour can properly take it into account is something that is in our favour, not against the grant of an injunction.
HIS HONOUR: I can see aspects of the public interest in your favour. I am simply posing for consideration the question of whether it is against the public interest to stop people who know quite a lot about industrial relations saying something about industrial relations when other people are debating the matter and when it is, because of the actions of the government, a matter of political interest at this particular moment.
MR GAGELER: Your Honour, I should make it perfectly clear what we are seeking to do. We are not seeking to prevent the government from speaking. We are seeking to prevent the government from spending public money to speak.
HIS HONOUR: The effect of the injunction, however else it can be justified, will be to prevent a form of speech.
MR GAGELER: That may be the effect. The immediate effect and the only legal effect will be to prevent the withdrawing and expenditure of public money for the purpose of paid speech. The injunction we seek is not one that in any way interferes with existing contractual rights or obligations. Indeed, the executive can enter into a contract without a parliamentary appropriation - Bardolph’s Case and many other cases. What we seek to do is restrain action that is under the Constitution illegal and is specifically rendered further illegal by the particular provisions of the Financial Management and Accountability Act.
HIS HONOUR: Just on that point you made about – you said the injunction would not interfere with existing contractual rights. What if ads had been booked by the government by way of contract but not yet paid for. Would not your injunction stop payment?
MR GAGELER: It will stop payment but it will not – it will interfere perhaps - we do not know the detail. We have not been favoured with the detail. It will interfere perhaps with the performance by the Commonwealth of contractual obligations but so far as the contractual rights of parties with whom it may have booked advertisements are concerned, those parties have those rights and may enforce those rights if necessary.
HIS HONOUR: A third party could not sue the Commonwealth, could it, on a contract where there was an injunction in place restraining payment out in performance of the Commonwealth’s obligations under that contract?
MR GAGELER: Your Honour has in mind the doctrine of frustration.
HIS HONOUR: That covers part of the field.
MR GAGELER: Your Honour, I do not have the citation, but there was the case of Carmen Lawrence’s legal fees some years ago which was the subject of litigation, and that was a case in which the Parliament had specifically stated that the legal fees were not to be paid. That had been said in an Appropriation Act. There was a suit by the law firm which had entered into a contract with the Commonwealth. It was successful and the legal fees were ultimately paid from a different appropriation.
HIS HONOUR: You say that there Parliament had not appropriated money for Ms Lawrence’s legal fees but they were ultimately paid by recourse to some other - - -
MR GAGELER: Yes, they were ultimately paid because there was a judgment debt and the judgment debt was met from an appropriation that dealt with judgment debts.
HIS HONOUR: Was there an injunction restraining?
MR GAGELER: There was no injunction, no.
HIS HONOUR: I do not see how the Commonwealth could perform its part of the contract in that example without being in contempt of court.
MR GAGELER: That is so, and there may be a question - - -
HIS HONOUR: And if that is so, then there is an injurious effect on a third party, namely the owner of the media outlet.
MR GAGELER: I think my point is simply that the third party’s contractual rights would remain and the third party could enforce a contract by way of judgment against the Commonwealth in those circumstances. That really brings me to what is said in paragraph 33, your Honour, about - - -
HIS HONOUR: That would mean your injunction would be effective as to future contracts but not as to past.
MR GAGELER: It will mean my injunction - - -
HIS HONOUR: I really cannot at the moment agree with your reasoning.
MR GAGELER: My injunction will be effective to restrain the withdrawal of payment of funds. The extent to which it is effective as to existing contracts, that is practically effective as to existing contracts, really would depend on I suppose the attitude of the contracting parties. We have not been favoured with any detail as to what third party interests may be involved. In those circumstances, given that the extent of contracting and the extent to which third party interests might in a practical sense be affected is something peculiarly within the knowledge of the defendants – and your Honour has been given no information about it – it is not something your Honour ought accord any particular weight.
HIS HONOUR: Agreed. There is no evidence about it and I, as it were, just heard your submission that it should not be given any particular weight, but it does seem to be common ground that there may well be some third party contracts.
MR GAGELER: I will take the common ground that far, yes. Your Honour, I have instructions. The ACTU’s position is that it is not proposing industrial action but it is not ruling anything out. Can I say something about standing. The first thing we say is that it is something that need not and ought not be determined at an interlocutory level. It ought be left to be an issue in the final hearing.
HIS HONOUR: Your submission would be this, I suppose, that if it were plain beyond doubt that the plaintiff had no standing, then an injunction should be refused on that ground but it is seriously arguable that these two plaintiffs do have standing?
MR GAGELER: Yes.
HIS HONOUR: So no final point of law need be determined at this stage?
MR GAGELER: Exactly, yes. In relation to Ms Roxon, her standing is precisely the same as Mr Brown’s standing in Brown v West. Mr Brown was a parliamentarian and Mr Brown was the Shadow Attorney-General. In relation to Mr Combet, our learned friend’s affidavit demonstrated that it is the activities of his organisation that are singled out as the catalyst for the executive action of which he complains.
HIS HONOUR: It is perhaps not necessary to take up very much time on this. I do not think if you fail, you will fail on this point today. Presumably the Commonwealth’s point is that the Australian Council of Trade Unions itself, or themselves if they are a number of persons, might have better standing than Mr Combet.
MR GAGELER: They are an unincorporated association. There may be someone with better standing but that does not undermine - - -
HIS HONOUR: Large trade unions or any trade unions might – anyway, I think probably it is not necessary to worry too much about standing.
MR GAGELER: In relation to the undertaking as to damages, we have been completely frank about our position, but can I add this to what we have said, that it is inherently unlikely that where a complaint is made about the expenditure of a large amount of public money in breach of the Constitution, that anyone could afford to give an undertaking as to damages. In our respectful submission, to require an undertaking as to damages, or indeed to give it any significant weight in the exercise of discretion, would in a practical sense have the effect of undermining the prohibition in section 83 of the Constitution and undermining the operation of section 75(v) of the Constitution which is designed in part to allow the Court to grant relief in circumstances where there is a breach of section 83.
HIS HONOUR: Do you have any authority that supports that? I am not saying its absence is significant, but do you have any - - -
MR GAGELER: No, I do not, your Honour. I simply draw your Honour’s attention to really the language of the provisions. Section 83 is a direct prohibition on executive action and section 75(v) is a specific grant of jurisdiction to grant injunctions to Commonwealth executive officers. For those two provisions - - -
HIS HONOUR: Against Commonwealth executive officers.
MR GAGELER: That is what I meant, yes.
HIS HONOUR: Going to.
MR GAGELER: Going to, yes.
HIS HONOUR: That word “injunction” carries with it, does it not, the general law as to injunctions?
MR GAGELER:
My point is, I think, your Honour, one has to have regard again to the
higher constitutional purpose. Amongst other things, it
exists to allow for
the policing of the prohibition in section 83 and one ought not too readily
import the ordinary discretionary principles from a private law context into the
operation of that
provision. Your Honour, those are our
submissions.
HIS HONOUR: Thank you, Mr Gageler. Yes,
Mr Solicitor.
MR BENNETT: If the Court pleases, I will
deal with the question of arguable case first. We would submit that this is
clearly within the express
words of the appropriation. The relevant words are
“Higher productivity”. Higher productivity in the industrial
context
clearly includes within it the reduction of industrial action which
interferes with higher productivity in the specific case. Without
taking
your Honour through the tedious affidavit and all the advertisements
inserted by the interests represented by my learned friend,
the point about them
is not whether they are true or false or whether the ACTU is itself going to
engage in industrial action, the
point is that these advertisements are on their
face likely to foment, if unanswered, industrial action. One sees that again
and
again. One clause which appears repeatedly in these advertisements is
“Your rights at work are worth fighting for”.
HIS HONOUR: Yes, just give us an example of that if you can - - -
MR BENNETT: Yes, your Honour. Unfortunately the pages are not numbered and I apologise for that; it seems to have been a result of the haste. If your Honour goes about six pages in after the page headed “CERTIFICATE OF EXHIBIT BEQ-1”, does your Honour see a page with at the top the words, “First Radio Advertisement (ACTU 053 female contract)”?
HIS HONOUR: Yes, page 12 on the – yes.
MR BENNETT: Now,
your Honour sees half way down that page and at the bottom the voiceover
saying:
Your rights at work worth fighting for.
On the next page, at
about point 8:
The advertising campaign will be backed by action in workplaces and communities around the nation, as unions mobilise opposition to the changes.
On the next page at the end of the text at
point 5:
A national week of union and community action is planned –
for certain dates –
Ask your workplace delegate, union organiser or branch head office how you can participate in the week of action.
If your Honour goes
to the exhibit BEQ-2 a few pages on, not very far
on - - -
HIS HONOUR: Yes.
MR BENNETT:
The first page, the first paragraph:
JOHN Howard will struggle to have his far-reaching workplace reforms operating by January as planned because his Government will be bombarded by union protests and High Court challenges, ACTU secretary Greg Combet said yesterday. “There is a long, long way to go in this,” Mr Combet said.
HIS HONOUR: This was after a council of war
meeting, I suppose you would say.
MR BENNETT: Sorry, your Honour?
HIS HONOUR: You would draw attention to the third paragraph. This was “after a special council of war meeting”.
MR BENNETT: Yes, and on the next page, reference
to:
television and radio advertisements to try to raise community opposition.
The campaign will focus on how the Government’s changes will severely downgrade collective bargaining rights . . .
A week of national action will begin on June 27, including a half-day strike in Victoria.
Mr Combet would not rule out more strikes, even though –
there are certain consequences. When one
looks at the emotive nature of the examples – as I say, I am not
making any submission
about the relative merits of the case, that might take a
long time, but what I do put is that these emotive examples of hapless employees
being bullied by cruel employers with the comment that the legislation will
permit this and so on is on its face likely to give rise
to industrial action of
various kinds. The task of resisting that and preserving industrial peace is
squarely, we would submit,
within the words, “Higher productivity”.
That is the beginning and end of the case, your Honour. I can sit down now
really. We would submit the contrary is just not arguable, that higher
productivity includes resisting advertisements and calls
which are likely to
result in industrial action by answering the allegations made in them and thus
reducing the probability of industrial
action. It is as simple as
that.
It is squarely, we would submit, within the appropriation, the words “Higher productivity”. Those words are not diminished by the ungrammatical phrase “higher pay workplaces” where a noun has been used as an adjective for some reason, but that is obviously a separate concept and to place the two in juxtaposition is simply, I suppose, part of a general demonstration that there are a string of objectives but the relevant objective is higher productivity and that means less industrial action.
HIS HONOUR: Remember Mr Gageler’s submission which took those words and then he ultimately worked his way to pages 369 and 371, outcome 2 activities are actively contributed to by the department by “providing policy advice and legislation” and “supporting employers and employees in adopting fair and flexible workplace relations practices” and he said policy advice is not advertising and supporting workplace relations practices of a fair kind is not either. What do you say in answer to that, just considered as a technical piece of statutory construction or linguistic construction?
MR BENNETT: Simply, your Honour, that the budget statements are useful tools as, in effect, adding. They are not very useful as, in effect, subtracting, particularly when one is dealing with an emergency situation which falls within the clear words of the appropriation. Obviously one cannot predict emergency situations in budget statements, the emergency situation being that industrial action is being fermented by allegations which need to be answered to reduce the possibility of industrial action. That is not something which one would expect to find in a budget statement because one would not expect it to be anticipated. It is within the general words and that is a very good reason why the general words of an appropriation should not be regarded as being cut down by a budget statement.
The Act having made the general proposition that it is an extrinsic document within the meaning of the Acts Interpretation Act goes on to give the normal specific application which is to use it to extend and expand upon the words of an appropriation, but one cannot, we would submit, subtract from in the way my learned friend seeks to do. He tries to create an expressio unius by reference to page 758 - - -
HIS HONOUR: Just before you go to that, that last submission you put is a submission which in part turns on section 4(2) of the Appropriation Act (No 1)?
MR BENNETT: Yes, your Honour.
HIS HONOUR: Now, you were going to a new point?
MR BENNETT: Your Honour, page 758 is dealing with a completely different form of advertising or communication. That is where there is an objective of encouraging people to act in a particular way in relation to workforce participation – i.e. to get a job, I assume the words mean – and that is obviously something which is anticipated as part of, as one would expect, a policy of implementing certain matters. That has nothing at all to do with the type of advertisement we have here where there is an emergency situation and to achieve a general objective in the appropriation one needs to face up to and deal with that emergency situation. One almost calls in aid the old French proverb. I will spell it out for the transcription later on, but the old French proverb, “Cet animal est très méchant: quand on l’attaque il se defend”, this animal is very wicked because when you attack it, it defends itself. One cannot predict in appropriations every form of attack against which one is going to have to defend. What one can do is to say here is an objective, if there is an attack designed to impede that objective, then the objective itself is sufficient for the use of funds to resist the attack. Really, that is all this case is about. It is a very simple proposition and, in our respectful submission, the contrary is not an arguable case.
In relation to the ordinary annual services of government, my friend concedes that is not a judiciable issue and he says promoting new initiatives is not an ordinary annual service of government. That, of course, assumes that one characterises what these advertisements are doing is as something ancillary to the reform legislation, but for the purpose of the appropriation we characterise it quite differently. It is preventing the consequences being fermented by the advertisements inserted by the other side in order to prevent the reduction of productivity.
HIS HONOUR: Your point is this, is it, that the conduct of the government can be characterised in two ways? It can be characterised as advertising in relation to the promotion of its hope for reforms or it can be characterised as a response to an emergency lying behind the ACTU campaign. That latter characterisation falls within the words in the Act. The fact that if the former characterisation were the only characterisation, it might not, does not matter.
MR BENNETT: Precisely, your Honour. Anything a government or a person does may have a multiplicity of purposes. If one is entitled to spend money for a particular purpose, it does not detract from that, even if it were so demonstrated, that one is happy to do it because it achieves other things in one’s interests. It is like the old attacks on the Bar, when the Bar sought to defend awards to injured plaintiffs and the personal injury laws, and the attack was, “but this serves your purposes well”. That may be right, it may be wrong, but it is not an answer to the argument. It is not an answer to an argument that a person is justified in doing something for an authorised person that the person may get some other benefit from doing that. It is sort of a more general proposition.
Now, those are my submissions on the main issue. The other matters I can deal with rather more briefly. In relation to balance of convenience, my learned friend seeks to do something which, in our respectful submission, is totally irrelevant to the balance of convenience, and that is what he seeks to do is to weigh a deontic consideration against a practical consideration and say the principle of the deontic consideration outweighs the practicality of the other.
He says on the one hand you have the possibility of damage that may emerge if the advertising campaign is prevented and on the other hand you have a breach of the Constitution, and my learned friend says, “I put Dicey on one side of the scales and I put your little factual matters on the other side of the scales and Dicey outweighs the facts”. Your Honour, he is just not comparing like and like.
When one looks at the balance of convenience, one does not look at it from a deontic point of view. One looks at it from a factual point of view of saying, one, assume the plaintiff wins and there is no injunction in the meantime, what damage is suffered? Then you go to the defendants’ side and you say, assume an injunction is granted but the defendant wins, what damage does the defendant suffer? You may on each side put in damage suffered by other parties. One does not say, if there is not an injunction and the plaintiff wins, there would have been a breach of the Constitution and that is something so serious that it outweighs all these little factual matters. It is just not the way one approaches balance of convenience. It is not a deontic exercise, and, your Honour, that is the short answer.
So when one looks at what the competing considerations are they are these. Assume first that my friend wins the case and does not get an injunction, the loss is that a comparatively small sum of money has been paid out of government funds without proper authorisation. There are various steps which can be taken and have been taken in the past where that has accidentally occurred to rectify the situation. There are certain consequences that may flow under Auckland Harbour Board – I will not expatiate on those – but that is the damage on the one side, over, I might add, what is likely to be a short closed period, bearing in mind (a) the effect of your Honour’s proposed expedition order, which we fully support, and (b) bearing in mind the fact that Parliament is going to sit in a comparatively short time. On the other side, one has a period – that same period perhaps – during which, without any undertaking to let up on the ACTU campaign - - -
HIS HONOUR: Now, we are assuming the defendant wins but was the victim of an interlocutory injunction?
MR BENNETT: Yes, your Honour, and one then has the same period during which the ACTU and others continue with their campaign and the fermenting of industrial action without us being able to put the opposing case - - -
HIS HONOUR: He says you can put it, but do not charge the taxpayer. You can talk on the radio.
MR BENNETT: It is a little difficult, your Honour, to obtain advertising space on television and radio and newspapers without paying someone some money. Maybe my learned friend knows a way of doing it. One can give interviews, I suppose, but what is put against us is a full-scale advertising campaign, and it is that that has to be met by putting the case on the other side.
If we are right in our assessment of the possibilities, that may lead to extensive industrial action with substantial economic harm to large numbers of people, and I do add this, although it may be partially against me on another aspect of my case, in a situation where it would be extremely difficult to enforce an undertaking as to damages because of the problems of proving causation and directness and so on - - -
HIS HONOUR: We need not bother too much about that. There is not going to be any undertaking as to damages. Now, that might be a complete bar or it might not be a complete bar but merely be relevant to the balance of convenience, so I suppose at this point you would work into your argument the complexities are such that generalised harm might be caused, and even if it were possible to connect it somehow to an undertaking as to damages, there is just not going to be any compensation coming that way.
MR BENNETT: Yes, precisely, your Honour, and we note that not only is there is no undertaking as to damages, there is no offer to desist from the campaign. What the first plaintiff seeks on behalf of his organisation is that it should be able to continue with its campaign unanswered by the obvious person who has the interest to answer it. So we submit that when one weighs those two, the difference is very substantial.
May I just give a hypothetical example which illustrates the fallacy of my learned friend’s deontic argument? Let us suppose that under a contract the Commonwealth has entered into involving billions of dollars there remains one dollar to be paid, and let us assume that if that dollar is not paid the billion dollar contract may be at risk, and let us assume that the plaintiff contends that paying that dollar is not authorised by an appropriation and the plaintiff seeks an injunction to prevent the payment of the dollar, and one is looking at the balance of convenience, would one seriously say that one weighs on the one hand the billions of dollars that might be lost and one weighs on the other hand Dicey and the importance of complying with the Constitution and therefore Dicey prevails, or would one say, no, this is a dollar against billions of dollars and the balance of convenience is clear? We submit it is quite clear that one would say the later, not the former.
That may not affect a final order. Of course, in relation to the final order the rule of law must prevail regardless. In an interlocutory order one does not weigh deontic matters against real matters. That is the submission on the balance of convenience. We invite your Honour to skim through the advertisements in Mr Quade’s affidavit to see the flavour. It is not only the phrases like “worth fighting for”, it is the emotive nature of the examples chosen and what they are likely in the real world to ferment.
The third issue is the question of locus standi and, your Honour, we would submit that that is quite clear. In Brown v West the locus standi was that the plaintiff himself was a person who was a beneficiary of the postage stamp appropriation and had an interest in seeing whether he was entitled to it or not. In one sense, it was a negative interest - - -
HIS HONOUR: He was trying to stop it, was he not?
MR BENNETT: That is right, your Honour, but he is entitled to know one way or the other. It is a little like the Croome Case in a sense. One could argue that the plaintiff in that case had a double interest, one the interest in having the legislation declared invalid, the other the interest in knowing if it really was violated for the purpose of determining future action.
HIS HONOUR: Who would have standing to bring an action of this kind in relation to - - -
MR BENNETT: Your Honour, that is difficult, probably only a State because of the surplus considerations.
HIS HONOUR: Would you not say a large trade union or a small trade union would have more than an academic interest in the legislation that might affect that trade union’s activities in the future?
MR BENNETT: No, your Honour, and of course the first plaintiff does not purport to sue on behalf of - - -
HIS HONOUR: I know. Just accepting for the moment that you may be right about the first plaintiff and the second plaintiff, but as a method of testing whether you are right who would have standing apart from a State?
MR BENNETT: Your Honour, first of all, we would submit that on the authorities a taxpayer does not have standing, that is clear.
HIS HONOUR: I suppose Mr Combet is saying, “I happen to be the secretary of the peak body that looks after union affairs in this country” and the second plaintiff is saying, “I have a specific responsibility in Parliament for the legislation that may be introduced later and I am in a position to take an interest over and above that of general members of the public in how the publicity in relation to that should be funded”.
MR BENNETT: It is hard to see how one would justify that on behalf of the second plaintiff as other than an intellectual or academic interest arising out of a political view.
HIS HONOUR: This may get you into a firmer wicket, as it were, an easier area. One problem is – it may not be fatal legally, but this is really a political dispute. Courts tend to be reluctant to interfere in political disputes. You cannot treat the second plaintiff as just having a purely academic airy-fairy sort of disinterested concern, can you? She is in the eye of the storm; she is leading part of the cavalry.
MR BENNETT: Your Honour, what all that assumes is this, that if the – there is no suggestion that any of the advertising by the Commonwealth is not advertising which could properly be engaged in by any other person or group that had that interest but - - -
HIS HONOUR: Yes, it is not in itself unlawful at all, at least it is not so contended.
MR BENNETT: No, or, indeed, that it could not be engaged in by the Commonwealth if it was available free.
HIS HONOUR: Yes.
MR BENNETT: What is sought to be raised is almost an accidental matter in relation to the interest held, namely, the appropriation argument. We would submit that the mere fact that a person may have an interest contrary to the policy on which the money is being spent does not itself give locus standi to challenge the appropriation. That is not the type of special damage contemplated by Boyce and the other cases. It must be damage related to the illegality – to the illegal aspect.
HIS HONOUR: I know in Onus’s Case the facts were very different. Onus’s Case was a case going way beyond private right.
MR BENNETT: Onus’s Case we would characterise this way, your Honour. That was a case where under Aboriginal law there was a private duty, if one likes, or right, which was analogous in many ways to a common law right of ownership and obligation of trusteeship which was treated by the Court as sufficiently analogous to those common law rights as to qualify as an interest for the relevant purpose. So we would characterise Onus as a very special and narrow type of case. The case that is more clearly in point we would say would be the Australian Conservation Foundation Case.
HIS HONOUR: Which was decided against the Conservation Foundation.
MR BENNETT: Yes.
HIS HONOUR: I was in some of them – many, many cases since then in which conservation bodies have been given standing in the Federal Court.
MR BENNETT: Your Honour, generally under legislation which confers that sort of right, for example, the Trade Practices Act has such a section. There is a case which I can get your Honour the reference to – unfortunately, I do not have it here – in which an organisation whose name began with the words “Right to Life” was the plaintiff, where it sought an injunction against a minister granting an import licence for import of a morning after pill on the basis that the act of the minister was unlawful because it was encouraging what was said to be murder. That was dismissed on the basis of absence of locus standi by a single judge of the Federal Court. I can get the reference for your Honour. I do not have it here.
HIS HONOUR: I think, frankly, Mr Bennett, you may well be right on the standing question but I do not think one could say that Mr Gageler’s position is not arguable.
MR BENNETT: Your Honour, in my submission, the consequence of that is that one can seek interlocutory relief without standing but needs standing for final relief.
HIS HONOUR: One can seek interlocutory relief as long as it is seriously arguable that you have standing. You cannot seek it if it is plain that you do not.
MR BENNETT: Your Honour, when one talks about an arguable case, one is normally talking about arguable - - -
HIS HONOUR: But it does not go to the jurisdiction of the Court.
MR BENNETT: No, unless one says there is no matter because there is no standing, but that is an extended approach. We would simply submit that here it is very clear that there is no standing and that is an insuperable objection.
The final matter concerns the issue of the absence of an undertaking as to damages. We have set out the authorities in our submissions. Your Honour is no doubt familiar with them. The National Australia Bank v Bond Brewing Holdings Ltd is perhaps the most egregious example of an order being made without an undertaking as to damages that one could find. The judgment of the Full Court of Victoria which was unsuccessfully appealed against in the case we have cited is actually quite strong in its criticism of what occurred in that case. What those cases say is that in general an interlocutory injunction should not be granted without an undertaking as to damages, the reason being, of course, that it has a huge effect on the balance of convenience.
We would submit in a case like this, where the real fight is, as your Honour has said, a political fight, there is no reason why such an undertaking should not be granted. I concede the problem, as I mentioned earlier, that this is a case where the proof of damage would be extremely difficult and we put that into the balance of convenience even if an undertaking were given.
HIS HONOUR: You put it two ways. The proof of some of the damage would be extremely difficult, and even if one had been given it might not solve the problem so as to wipe out problems on balance of convenience, but do you secondly say that there are some types of damage arising out of breaches or interferences with contracts between the Commonwealth and media organisations which would be capable of being readily enough calculated and could be coloured by the undertaking as to damages but since there is no undertaking that damage will, as it were, lie where it falls?
MR BENNETT: Yes, that is certainly so. That type of damage certainly could be covered by an undertaking and none has been proffered. That damage would, of course, be in the form of delay in payment rather than in non-payment.
HIS HONOUR: A question of interest, I suppose, at least a question of interest.
MR BENNETT: Yes. The real damage is the damage suffered because of the inability to insert further advertisements while the advertising campaign being waged by the first plaintiff’s organisation continues unabated and unanswered and the consequences I have referred to which might flow from that. That is the key factor on the balance of convenience.
There is one other matter I wanted to remind your Honour of and that was some of the remarks in the Australian Assistance Plan Case [1975] HCA 52; 134 CLR 338 at 394. Without reading the whole of it, we commend to your Honour the passage beginning with the words “The annual appropriations” at point 2 of page 394 – am I looking at the wrong case – I am sorry, I have the - - -
HIS HONOUR: I have Victoria v The Commonwealth and Hayden and I have Mr Justice Mason.
MR BENNETT: Yes, I gave your Honour the wrong name of the case. This is the case of Victoria v The Commonwealth [1975] HCA 52; (1975) 134 CLR 338. It is the industrial relations case. It is a passage dealing with appropriations at page 394. I apologise for that. It seems to be misnamed in paragraph 11 of our submissions.
HIS HONOUR: I will just read this carefully. Mr Justice Mason talks about a narrow view of section 81 which was advanced by the plaintiffs. What was that narrow view? The plaintiffs were Victoria, Mr Dawson.
MR BENNETT: Yes, Mr Dawson, as he then was, leading Mr Searby and Mr Hayne, as he then was. It was dealing with a slightly different point. That was the question of the ability to appropriate for purposes outside section 51, that issue. But the remarks being made in that context are remarks which deal with the practical way in which appropriations take place.
Your Honour, might I also correct two typographical errors in our
submissions in paragraph 30. Bullock’s Case is volume 5
of the Federal Court Reports – the volume number is
omitted – and the reference to Castlemaine Tooheys should be
at page 155. That proposition in
paragraph 30 is, we would submit, an
uncontroversial one, that one weighs the - - -
HIS HONOUR: Well, Mr Gageler did not attack it and at a later point I think he - - -
MR BENNETT: It is analogous to what occurs in setting aside a judgment, where one has a defence on the merits and the explanation for the delay and if one is very strong, the other can be much weaker, and it is the same sort of consideration. The two matters are weighed as an overall matter.
Those are the submissions for the defendants, if your Honour pleases.
HIS HONOUR: Thank you,
Mr Solicitor. Yes, Mr Gageler.
MR GAGELER: Your
Honour, in Victoria v The Commonwealth and Hayden [1975] HCA 52; 134 CLR 338
it is the passage in the judgment of Justice Mason at 392, the full
paragraph at the bottom of the page, which was picked up and
applied by the Full
High Court in Brown v West and, particularly, I have already drawn
your Honour’s attention to the reference in the last two sentences of
that paragraph
to the twofold purpose of an Appropriation Act.
In relation to the balance of convenience, the defendants’ basic position comes down to two propositions. One is that there is an ACTU advertising campaign going on and for that campaign to go unanswered will cause harm and the second is that for the ACTU advertising campaign to be answered it must be answered by the Executive Government and it must be answered by the expenditure of public funds. There is no part of either proposition with which we agree.
HIS HONOUR: The Times said when Hitler made some proposals about the future of the Sudetenland “it must be conceded that these proposals could not be expected to have a strong prima facie appeal to the Czechs.” I do not expect Mr Bennett’s arguments could be expected to have a strong prima facie appeal to you.
MR GAGELER: No, but I am about to give your Honour some reasons why your Honour should not be attracted to them either. As to the first proposition, your Honour is presented with no evidence and your Honour is to draw certain inferences as to public harm. Your Honour cannot, in our respectful submission, as a repository of judicial power, form a view as to the existence or non-existence of any harm from having a one-sided public debate. Your Honour cannot take a position in the marketplace of ideas. That is a phrase that I have just coined and I rather like it.
HIS HONOUR: It is not an original phrase. You say it is beyond judicial power to conclude that there might be any harm from having a one-sided public debate?
MR GAGELER: Correct. If it is not technically a matter beyond judicial power, it is a path that your Honour should not easily be led down. As to the second proposition, your Honour, there is nothing in the interlocutory relief we seek that prevents the Executive by the ordinary means in which the Executive communicates at doorstop interviews, press conferences, press releases and the like from communicating its version of the public debate, nor do we seek to prevent any other group, whether it be the Liberal Party or employer groups or anyone else who wants to spend their own money, as is the ACTU spending the money of its own constituents, to put the alternative view. What we seek to do alone is to prevent what we say is the unauthorised expenditure of public funds.
Can I then come to what the defendants say on the merits. The defendants on the merits seize upon two words in the schedule to the Appropriation Act (No 1) the words “Higher productivity” and they say that those words, considered alone, authorise the expenditure of public funds on any measure that may be capable of countering a perception on the part of the Executive of public or industrial unrest, and they say, in particular, a very broad meaning must be attributed to those words because they, of course, have to extend to cover an emergency situation that was unanticipated at the time of the Appropriation Act being enacted.
To deal with that point immediately, if your Honour turned to our volume of materials, tab B, section 12, your Honour will see tab B, page 13, section 12 of the Appropriation Act (No 1), your Honour will see a provision that is designed exactly to cover an emergency situation where the need for the expenditure of funds was unanticipated at the time of the enactment of the Appropriation Act (No 1). It is the advance to the Minister for Finance upon which our learned friends seek to place no reliance. Your Honour might note in this respect that the passages in Brown v West to which I have drawn your Honour’s attention concerned the construction of the equivalent provision in an earlier Appropriation Act, that is, the court was specifically concerned with the scope of expenditure that is authorised by the advance to the Minister for Finance, and what was being said is that on a proper construction, in the light of parliamentary practice and in the light of the constitutional purposes of sections 81 and 83, one does not read the advance to the Minister for Finance as extending to expenditure on new policy.
Now, if they cannot use the advance to the Minister for Finance for that purpose, it would be, in our respectful submission, extraordinary if it were the intention of Parliament that the vague two words upon which the defendants rely cover that sort of unforseen expenditure. The submission, in our submission, ignores entirely the Compact of 1965. Indeed, nothing has been said about it in our learned friend’s oral submissions, and in writing all that is said is that it does not compel the result for which the plaintiffs contend.
We agree that it does not compel the result that it is a powerful part of the context in which the words have to be construed and, in our respectful submission, the submission of the defendants also, on the construction of those words also, places no weight or inadequate weight on what is the clear intent, we say, of section 4(1) of the Appropriation Act (No 1) which is not to expand on what is included within an appropriation but to fix the meaning of the words used to describe an appropriation. At the level of fact, in our respectful submission, to say that this advertising campaign is somehow designed to counter a perception of industrial unrest that would be caused by a one-sided debate is to seize upon what is at best an incidental and indirect consequence of what is, in essence, the promotion of a partisan policy.
In relation to standing, your Honour, can I simply add this to what has already been said. Insofar as the cases have raised a doubt – and it goes no higher than a doubt – as to the existence of standing on the part of a private citizen to challenge an appropriation, that has been in the context of a challenge to the validity of an Appropriation Act. That is the context in which those remarks have been made, and even in that context the question was left open in Davis v The Commonwealth. Here we are concerned with a very different context. We are not challenging an Appropriation Act. Indeed, we are seeking to enforce an Appropriation Act. We are seeking to limit the Executive to that which the Executive is authorised to do. In that context, in our submission, the ordinary rules of standing which point simply to a particular and special interest lead to both of the plaintiffs, but in particular the second plaintiff, Ms Roxon, having the appropriate standing. Davis v Commonwealth, your Honour, the reference is [1988] HCA 63; (1988) 166 CLR 79 at 96.
I should also give your Honour finally a reference to Onus v Alcoa [1981] HCA 50; (1981) 149 CLR 27 at 38. It is the beginning of the full paragraph that commences about a third of the way down the page. It is more fully expounded in Robinson v Western Australian Museum but the point being that difficult - - -
HIS HONOUR: It should not determine separately and in advance questions of standing.
MR GAGELER: Yes. If your Honour pleases, those
are our submissions.
MR BENNETT: Would your Honour give me
leave to say two short things - - -
HIS HONOUR: Yes, unless Mr Gageler explodes.
MR BENNETT: The first is, your Honour, that we do not for a moment invite your Honour to take sides in the marketplace of ideas. One does not need to take sides in the marketplace of ideas in order to determine whether or not particular things being said in the ACTU campaign are, if uncontradicted, of a type which one could reasonably conclude might lead to industrial action or action which results in a reduction of productivity. That is an issue one can draw an inference from the documents without forming a view on which side has the greater ultimate justice in its campaign. Neither of us have gone into that for obvious reasons.
The second matter is in relation to the ordinary annual services of government, the submission I made which my friend said I did not make, as I understood him, was very, very simple. It is that dealing with an emergency which arises and responding to it is part of the ordinary annual services of government and one does not need to characterise, and we do not characterise, what is being done as money being spent in relation to some new initiative or policy. That depends on my friend’s characterisation of advertisements as being concerned with the merits of the legislation alone as opposed to the discouragement of industrial action leading to loss of productivity. Those are - - -
HIS HONOUR: Thank you. I think it might be convenient if I adjourned until 11.45 am. I will return then.
AT 11.28 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.47 AM:
HIS HONOUR: The first plaintiff is the Secretary of the Australian Council of Trade Unions, an unincorporated association which was described in the evidence as the peak representative body for trade unions in Australia. The second plaintiff is a Member of the House of Representatives and is the Shadow Attorney-General.
On 27 July 2005 they filed a writ of summons in the original jurisdiction of the Court under sections 75 and 76 of the Constitution against three defendants. The first was the Commonwealth of Australia, the second is the Minister administering the Department of Employment and Workplace Relations, the third is the Minister administering various relevant statutes.
By a summons also filed on 27 July 2005 the plaintiffs seek injunctions until further order restraining the defendants, in effect, from drawing any moneys for the purpose of any advertisement promoting the workplace relations reform package announced by the government on 26 May 2005. That summons also seeks an order for expedition of the final hearing. That order is not opposed and it will be made.
The plaintiffs thus seek interlocutory injunctions to hold the status quo pending a determination by the Full Court of this Court of whether the plaintiffs’ claim that money spent by the first defendant in promoting the reform package are being spent without legislative appropriation. In their written submissions the plaintiffs said that they sought a final hearing before the Full Court within the next two weeks. It was said orally today that there would be no need for any interlocutory injunction if a hearing could take place in that period. That is not possible but it is desirable that I should say why.
In the next two weeks the Court will be occupied on each day except next Monday in hearing appeals and special leave applications in Canberra and Adelaide. Next Friday and the Thursday and Friday of the following week are devoted to special leave applications. Selection of any of those days in which two panels of three Justices will hear 12 special leave applications each will cause at least 48 parties on those days to have their fixtures abandoned. Some of those parties are in immigration detention; others of them are in gaol. All of them have legitimate expectations that their cases having been fixed will be heard on the day fixed. That expectation will be shared by the less numerous parties to appeals in that period.
A related topic was raised in paragraph 8 of the
plaintiffs’ written submissions which are in these terms:
This matter is one appropriately heard by this Court, as it:
a. is one of substantial public importance and public interest;
b. involves a significant amount of public monies which, if the Plaintiffs are correct, are being spent in breach of the Constitution and relevant Acts of the Parliament;
c. turns upon issues of statutory construction;
d. raises issues which are the subject of relatively limited authority of this Court; and
e. can be dealt with very quickly – of the order of half a day hearing.
If paragraph 8 subparagraphs a to d are
correct, it is hard to see how subparagraph e can be correct.
Constitutional cases heard
in half a day are very rare cases, and in a sense
this is a constitutional case. The temptation to slip the final hearing in
these
proceedings in on some day after some other case must be resisted.
The defendants take a number of points in opposition to the grant of the interlocutory injunctions sought. They say that the plaintiffs lack standing, they say there is no serious question to be tried, they say the balance of convenience is against the grant of interlocutory relief and they rely on the failure of the plaintiffs to offer an undertaking as to damages.
In all the circumstances, it is not necessary and not desirable to say anything in detail about the first two of the points which the defendants wish to advance, that is to say the standing question and the question of whether there is a serious question to be tried. It is undesirable because it would be unsatisfactory to reach a preliminary view on matters which may be argued much more fully at the final hearing.
The defendants’ position on standing is simply that neither plaintiff has “a special interest in the subject matter of the action” in the sense discussed in Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 at 36. I would say only that as at present advised it is at least arguable that the plaintiffs do have standing, although the contrary position is also arguable.
Counsel for the plaintiffs drew attention to Mr Justice Gibbs’s warning in Onus’s Case at 38 about the undesirability of determining questions of standing as a preliminary issue before the final hearing, particularly on scanty material. To refuse the relief sought on grounds of standing by concluding that there was no serious question to be tried on that subject would be to transgress that warning.
In relation to the next topic, whether there is a serious question to be tried, the defendants’ case is this. Schedule 1 of the Appropriation Act (No 1) 2005-2006 allocates approximately $140 million to “Higher productivity, higher pay workplaces”. The defendants argue that since about June the Australian Council of Trade Unions has been running a media campaign which, amongst much else, uses emotive examples, refers to industrial action, including a half-day strike in Victoria, and asserts that the rights of workers are worth fighting for; that that campaign is likely to give rise to industrial action; and that a counter-campaign which responds to this emergency by minimising the risk of industrial action assists in achieving higher productivity.
The plaintiffs’ case on the other hand boils down to the proposition that the Portfolio Budget Statements 2005-2006 reveal that what is intended to be conveyed by the words “Higher productivity, higher pay workplaces” is the provision by the department of “policy advice and legislation development services to government” and “supporting employers and employees in adopting fair and flexible workplace relations practices”. The plaintiffs submit that those expressions do not include the funding of a media campaign. That material appears at volume 1, page 369 of the bundle of materials supplied by the plaintiffs.
It is, as I indicated earlier, undesirable to say anything definitive about those competing arguments or the arguments that are advanced in support of those competing positions.
In Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986)
161 CLR 148 at 154 Mr Justice Mason, when he was Acting
Chief Justice, after drawing attention to the rise in the “serious
question to
be tried” test as the test relevant to the grant of
interlocutory injunctions said:
However, it may be that in some cases where the public interest would be adversely affected by the grant of an injunction the plaintiff may need to show a probability, even a distinct probability of success, in order to obtain an interlocutory injunction.
Here, if the expenditures are
lawful, the public interest would be adversely affected.
The decision of the defendants to deal with a media campaign by the Australian Council of Trade Unions with one of their own is one which involves an attempt to employ political speech. As this Court has repeatedly said in the last 15 years, freedom of political speech is constitutionally protected: indeed it is an important matter in national life.
Whatever the legal merits of the plaintiffs’ application, one effect of the application if it succeeded would be to cut down that freedom. It is true, as the plaintiffs say, that the injunction does not stop members of the government from having interviews with journalists or appearing on talkback radio or using other methods of communication which are not directly funded by the Commonwealth. It is also true, as the plaintiffs say, that it would be open to other bodies to fund a media campaign, but the fact is that there is a media campaign which has taken place and may continue to take place organised by the Australian Council of Trade Unions and it is understandable that the tactic of responding to it by another media campaign was seen as an available one.
At all events, it would seem to follow that Mr Justice Mason would have found here that the public interest would be adversely affected by the grant of the injunction, at least at the interlocutory stage, and therefore that a distinct probability of success at the final hearing would have to be shown. But, as already indicated, it is not necessary to decide, and undesirable to decide, whether the plaintiffs have raised a serious question to be tried, if that is sufficient, or whether they have established a distinct possibility of success if that in the circumstances is called for.
Nor is it necessary to say very much about the balance of convenience, to which the parties devoted considerable attention.
The fourth matter which the defendants raised was the fact
that the plaintiffs will not be offering an undertaking as to damages.
I.C.F. Spry’s Principles of Equitable Remedies, 6th
edition, page 483 says this:
It has indeed been suggested that an undertaking as to damages “ought to be given on every interlocutory injunction”, but it is the preferable view that in very exceptional cases this course may be inappropriate.
On page 485 the author says:
If, in view of inadequacy of the plaintiff’s financial resources, there is a substantial doubt whether the defendant will be adequately protected by an undertaking by [the plaintiff], the court ordinarily requires either that security be provided for the undertaking or that an undertaking be given by some other person, with security if appropriate.
In my judgment,
the Court will almost always decline to grant an interlocutory injunction unless
the plaintiff undertakes to the
Court to pay any damages which the Court may
later assess as necessary to compensate the defendant for any harm caused by the
interlocutory
injunction in the event that the Court at the final hearing
refuses to grant a final injunction. The importance of the undertaking
is that
without it a defendant ultimately successful at the final hearing would not be
able to recover damages for any loss suffered
by complying with the
interlocutory injunction.
In the Full Court in Air Express
Limited v Ansett Transport Industries (Operations) Pty Limited [1981] HCA 75; (1981)
146 CLR 249 Mr Justice Gibbs at 311-312 said:
The object of requiring a plaintiff who seeks an interlocutory injunction to enter into an undertaking of this kind is to attempt to ensure that a defendant will receive compensation for any loss which he suffers by reason of the grant of the injunction if it appears in the event that the plaintiff was not entitled to obtain it. The insistence upon the giving of an undertaking is a very important, if not an essential, means of preventing injustice from being done by the court when it makes an order at an interlocutory stage, before the rights of the parties have been finally determined. The court has a discretion not to enforce such an undertaking, but unless the defendant has been guilty of conduct that would render it inequitable to enforce the undertaking it would seem just, speaking generally, that a plaintiff who has failed on the merits should recompense the defendant for the damage that he has suffered as the result of the making of the interlocutory order.
At page 260 the
primary Judge, Mr Justice Aickin, quoted
Lord Justices James, Cotton and Thesiger in Graham v Campbell
(1878) 7 Ch D 490 at 494 to this effect:
If any damage has been occasioned by an interlocutory injunction, which on the hearing is found to have been wrongly asked for, justice requires that such damage should fall on the voluntary litigant who fails, not on the litigant who has been without just cause made so.
Mr Justice Stephen agreed generally with what
Mr Justice Aickin said at page 315.
The question of an undertaking as to damages has the following specific elements of importance in this case. First, it is notorious that mass media advertising is expensive, and the plaintiffs’ evidence supports that view. It is also notorious that it takes place pursuant to contract, and both the plaintiffs’ written submissions paragraph 34a and the defendants’ written submissions paragraph 33 acknowledge that. If the media organisations with whom the advertising has been placed have not been paid, they will be injured by the injunction to the extent of delay in payment taking place and the undertaking, if an undertaking were to be proffered, ought to extend to them. If they have been paid but the advertising has not yet taken place, then the first defendant will be injured by not receiving the services bargained for.
Secondly, if an undertaking were to be effective, it will probably be necessary for it to be secured. The amounts potentially involved are such that, with respect to each of the plaintiffs, it is probable that they could not answer for the undertaking out of their own resources.
Thirdly, there is one consequence of granting an injunction which might make it hard for an undertaking as to damages wholly to compensate for the harm caused. Harm might be caused quite distinct from the financial losses which media organisations might suffer or other losses which the first defendant might suffer. It would be a form of harm difficult to reduce into money terms arising from the continuation or possible continuation of one media campaign which is not answered by the other.
The failure of a plaintiff to offer an undertaking as to damages is sometimes treated as a bar to the grant of interlocutory relief simpliciter. Sometimes it is not treated as an absolute bar but as merely an important matter to be weighed on the balance of convenience.
Mr Gageler submitted that this case fell within one of the exceptional cases where an undertaking as to damages should not be sought. He submitted that it was inherently unlikely that where a complaint is made about expenditure of large and continuing sums capable of causing significant damage in the event of the grant of an interlocutory injunction anyone would be able to give an undertaking as to damages. To require an undertaking as to damages in these circumstances or to give weight to the failure of the plaintiffs to give the undertaking would in a practical sense undermine the prohibition in section 83 of the Constitution on drawing money from the Treasury of the Commonwealth “except under appropriation made by law”.
He submitted further that the mechanism by which the operation of section 83 was vindicated was section 75(v) of the Constitution which gives this Court original jurisdiction where, among other things, an injunction is sought against an officer of the Commonwealth. He said it was necessary to have regard to the high constitutional purpose of section 75(v) because that was the way in which the prohibition under section 83 was to be policed and he submitted that the Court ought not to import discretionary principles from private law into the operation of the constitutional provisions. He accepted that there was no authority for the submission.
There is no indication in section 75(v) that the general law relating to injunctions is cut down and in my judgment every reason to suppose that the reference to injunction is a reference to that remedy as traditionally administered in courts of equity. Accordingly, while one understands the position of the plaintiffs in this matter, I would refuse the relief they seek on the ground that no undertaking as to damages has been offered either by the plaintiffs or by anyone else.
Now, has any discussion taken place between the parties as to the following topics. One, is the evidence complete? Two, when can the final hearing take place from the parties’ point of view, in other words when can written submissions or any further written submissions that the parties want to be filed and matters of that sort? Mr Solicitor?
MR BENNETT: Your Honour, I think we are in agreement that the matter should be heard as soon as possible. I would doubt that there would be need for further evidence, but there may be updating evidence on both sides and I do not know if there is any internal evidence we would wish to call in relation to how things are handled in relation to the appropriation and I have not looked at that, but there is certainly a possibility there may be more evidence for a final hearing, although as presently advised I would have thought the evidence is probably substantially complete.
HIS HONOUR: One problem is that the more evidence of a controversial kind there is, and the evidence in play today was not controversial, the less appropriate it is for the matter to be heard by the Full Court.
MR BENNETT: I do not think, your Honour, that either side would wish to fight the case on the basis of the merits of the respective campaigns. I do not think the way either of us have put it would treat that as a relevant consideration.
HIS HONOUR: Do you think it is necessary to give any directions or is it sufficient for the parties to liaise with the Registry and - - -
MR BENNETT: I think it is probably sufficient, your Honour. I am sure my learned friend and I can agree, once we know a date, on directions.
HIS HONOUR: Yes, thank you. Mr Gageler, do you have any - - -
MR GAGELER: Yes, I agree with that position, your Honour, that it is easier to work back from a hearing date of course.
HIS HONOUR: Yes. Well, is it appropriate then, one, to order that the matter be expedited and, two, to direct the parties to remain in contact with the Registry with a view to the preparation of the matter for final hearing before a Full Court? What should be done about costs?
MR GAGELER: We have agreed that your Honour should reserve costs.
MR BENNETT: We have agreed they should be reserved.
HIS HONOUR: Reserved, very well.
1. I order that the hearing of the application for a final injunction be referred to the Full Court and expedited;
2. I direct the parties to remain in contact with the Registry with a view to the preparation of the matter for final hearing;
3. I order that the costs be reserved; and
4. I certify that this was an appropriate matter for the attendance of counsel, including senior counsel, in Chambers.
Is there anything
else? Thank you. Court will adjourn.
AT 12.13 PM THE MATTER
WAS CONCLUDED
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