Vescio, In the matter of an application for leave to issue aproceeding [2008] HCATrans 252 (20 June 2008)

Last Updated: 24 June 2008

[2008] HCATrans 252

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S292 of 2008

In the matter of –

an application by CARMELO MICHAEL VESCIO for leave to issue a proceeding

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 JUNE 2008, AT 10.03 AM

Copyright in the High Court of Australia

MR P.E. KING: If the Court pleases, I appear for the plaintiff applicant. (instructed by Horowitz & Bilinsky)

MR A. MARKUS: May it please the Court, I appear for the Commonwealth of Australia. Should it be necessary, I seek your Honour’s leave to appear. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, of course, I am grateful to you for coming along. I directed that the Commonwealth be informed of this application.

MR MARKUS: If the Court pleases.

MR KING: Your Honour, I have reduced to writing an outline of what I will say on the issues relating to leave, if it is of any assistance.

HIS HONOUR: Is that in writing?

MR KING: Together with a folder that includes those authorities that are not in the usual Commonwealth Law Reports or Australian Law Reports referred to on the list.

HIS HONOUR: If you would hand that up. Has Mr Markus a copy of that?

MR KING: Yes, your Honour.

HIS HONOUR: Yes, thank you, Mr King. Can we get the formal parts correct? I have the reasons for decision of Justice Crennan and I have an affidavit of Mr Claudius Bilinsky, solicitor, sworn 2 May 2008 which has a number of annexures and I have the ex parte application for leave to issue the proceedings which I directed should be served on the Commonwealth and that is all I have. Are there any other documents that I should have?

MR KING: Yes, your Honour should have the summons.

HIS HONOUR: Yes, I have that in another file.

MR KING: And also the affidavit in support of the summons of Mr Bilinsky sworn 18 June 2008.

HIS HONOUR: Yes, I have both of those documents. Thank you. Do you wish to say anything in relation to those documents, Mr Markus?

MR MARKUS: If your Honour pleases. Your Honour, I appreciate that what is listed today is the summons and it is a process seeking procedural orders and the nature of the application today is interlocutory in character. Nevertheless, your Honour, I do object to the last sentence in paragraph 11.

HIS HONOUR: This is of which affidavit?

MR MARKUS: Of 18 June 2008.

HIS HONOUR: Yes. Just let me read again that paragraph. Yes, what is the nature of the objection?

MR MARKUS: Your Honour, whether that sentence is to be treated as hearsay evidence or evidence based on information and belief, in either case the Evidence Act would require that the source of the hearsay and the information or belief be properly identified.

MR KING: I do not press it for today’s purposes, your Honour.

HIS HONOUR: Paragraph 11 is not pressed and is rejected, but I receive otherwise the affidavit of Mr Claudius Bilinsky sworn 18 June 2008. Does that mean that there is any evidence before me as to the dates of the World Youth Day?

MR KING: Yes, your Honour.

HIS HONOUR: Because that, as I understand it, is the foundation for the contention that this matter should be taken out of its ordinary order and should be listed with urgency by the Court.

MR KING: If your Honour has a look at paragraph 11, it refers to that event and it is, indeed, stated in the statement of claim and the writ of summons the third week in July 2008. If your Honour has a look at paragraph 11 in Mr Bilinsky’s affidavit.

HIS HONOUR: Is this the other affidavit?

MR KING: No, the affidavit of 18 June. Two sentences immediately prior to the one that my friend objected to.

HIS HONOUR: So the objection was to which sentence?

MR KING: The last sentence, your Honour, of 11.

HIS HONOUR: That is “I am informed from reports” down to the word “observance”?

MR KING: Yes.

HIS HONOUR: Yes, very well, they are the words that I reject, but you say the remaining words in that paragraph remain before me and indicate that the World Youth Day occasions are going to take place in the third week of July 2008?

MR KING: That is correct.

HIS HONOUR: Yes, very well.

MR KING: Thank you. Now, your Honour, the first question before your Honour, we respectfully submit, is the issue of leave and the background to - - -

HIS HONOUR: I do not have to give the leave because you at the moment have a procedural impasse arising from, originally, the direction of the Chief Justice and then, secondly, the decision of Justice Crennan not to give leave and you are seeking leave to appeal against Justice Crennan’s order and that would normally come either before a panel of the Justices to be dealt with on the papers or would be heard by two or three Justices some time later in the year on an oral hearing.

MR KING: Yes, and hence the summons, your Honour. This is a case, in effect, seeking leave, not special leave, of course, within the Judiciary Act section 34 which deals with leave from a decision of a Justice of this Court.

HIS HONOUR: That is right. We are concerned with an application for leave, not special leave.

MR KING: That is correct.

HIS HONOUR: It is important to keep that distinction steadily in mind.

MR KING: That is what we respectfully submit. Your Honour, before I take your Honour to the actual grounds, can I just introduce the procedural background to the case because it does have some implications on the leave questions. First, your Honour will observe that the plaintiff lodged his writ of summons on 14 March this year in the Registry and, interestingly enough, your Honour, section 30(7) of the High Court of Australia Act provides that in such cases the document is deemed to be received in the Registry on that date.

HIS HONOUR: What date was that?

MR KING: That was 14 March 2008. That writ we contend, your Honour, was in proper form for issue by the Registry as from the High Court and subject to rule 6.07, the Registry had a duty under rule 20.02 to issue the writ. Paragraph 24 of the statement of claim attached to the writ, if your Honour would go to it, asserts that the matters raised in it:

arise under the Constitution or involve its interpretation within section 76 of the Constitution and section 30 of the Judiciary Act 1903 -

and hence, invoke the original jurisdiction of this Court pursuant to those provisions. If I can just briefly take your Honour to those provisions.

HIS HONOUR: There is no doubt that if it is raising invalid proceedings, a question under the Constitution, it is properly brought before the Court. As I see it, there are three problems that you have to overcome to secure an earlier hearing than would otherwise be given. The first is the question of the standing of your client to bring the proceedings raising a constitutional question, the second is the concern that insofar as your client is relying on section 116 of the Constitution, that the construction of that section in the case of Attorney-General (Vic); Ex Rel Black v Commonwealth stands in the path of that argument concerning establishment of religion, et cetera, and, thirdly, that insofar as you are raising points concerning the appropriations power, that the decision of the Court in Combet v Commonwealth stands against the arguability of that proposition.

MR KING: Yes.

HIS HONOUR: If you can overcome those three points at least on an arguability basis, then I would be inclined to – subject to hearing Mr Markus – return the matter with some degree of speed before a leave panel of the Court.

MR KING: Yes, thank you, your Honour. We understood, your Honour, from the terms of the summons and the listing today that the question was not earlier hearing, but rather the question today was actual leave which your Honour has power to grant, that is, leave to file the writ or issue the writ.

HIS HONOUR: No, but Justice Crennan has refused that leave.

MR KING: We are appealing from that decision.

HIS HONOUR: That is so and you have to seek leave from that decision which cannot be given by a single Justice. It can only be given by two Justices or more. Therefore, you first of all have to circumvent the iceberg that is presented by Justice Crennan’s decision. I cannot just assume that that decision will go away. I have to respect that decision. The only way you can overcome that decision is by getting the leave of the Full Court and that is a Court of two or more Justices. So the question before me, as it seems to me, is, have you an arguable basis for me to expedite the hearing of the leave application or the determination of the leave application in a way that will bring the matter on quickly before the World Youth Day festival and events so that, as you suggest in the affidavit of Mr Bilinsky, your client will not be reduced to a futile proceedings.

MR KING: Thank you, your Honour. In relation to the question of whether there is a serious question, we would firstly rely upon the particular matters we raise in the outline, your Honour.

HIS HONOUR: I have not seen this outline until you handed it to me this morning.

MR KING: Would it be helpful for your Honour to read that?

HIS HONOUR: Yes, I will have a quick look at it. Does it say anything of substance on the three points that I have identified that was not dealt with in the earlier affidavit and annexures because I have read them?

MR KING: It does, although more in the nature of submitting that there are very proper questions raised which would ex debito justitiae lead to a grant of leave.

HIS HONOUR: Just give me a few minutes to have a look at this outline of oral submissions and that will save us all time.

MR KING: Yes.

HIS HONOUR: Yes, I have read that.

MR KING: Thank you, your Honour.

HIS HONOUR: I notice that you are seeking the suppression of the plaintiff’s name?

MR KING: As happened in the recent Supreme Court case in the United States, because of the sensitivity and possibility of victimisation or personal criticism in raising such an issue. That was the reason that the Supreme Court in that case granted a request that the plaintiff, or the applicant in that particular case, that the pseudonym be adopted.

HIS HONOUR: I feel a bit disinclined to do that. We do that in the cases concerning refugees because there is a specific statutory provision. It is done in respect of children because of specific statutory provisions in the State law. It is done in family law matters because of statutory provision, but generally the courts are open and people coming to them must expect that their names will become part of the record. But we can perhaps develop that further down the track if need be.

MR KING: Yes, of course.

HIS HONOUR: But meantime, I still need to be satisfied on the three points that I have identified to you, otherwise your case would simply go into the list and be dealt with either by a panel on the papers or, if it passed that stage, by two or more Justices on the return of an application for leave.

MR KING: Yes. Your Honour, on the question of standing, it is, we respectfully submit, appropriate to begin with the statement of claim and the allegation which, we respectfully submit, should be taken as true, with respect to the personal affectation by exclusion of the plaintiff from Royal Randwick as a racegoer during the events, his exclusion from streets, airwaves and the other substantive exclusions that occur.

HIS HONOUR: Did he say – I did not read but it may be there – that he is a racegoer. Did it say that he was excluded from attending at Royal Randwick Racecourse during the festival so far as that racecourse was taken over for the purposes of the World Youth Day occasions?

MR KING: Yes, he does, your Honour. I will point your Honour to that.

HIS HONOUR: Those affectations do not appear to be in any way special in the sense that Mr Combet was employed by the trade union movement and that was felt by Justice McHugh and myself to be something that was special to him and, similarly, in Croome there were concessions about the effect of the possible proceedings under the Criminal Code (Tas) in the case of Mr Croome. But I am still concerned there is a special interest of the plaintiff that lifts him out of the situation of being, in effect, nothing more than a citizen and a taxpayer.

MR KING: Yes. Well, that is our contention, your Honour. Can I come straight to the point that your Honour has just raised. Of course, it was interesting coming to Court this morning; my own clerk informed me that during this period the streets will be closed in his area in the city so that he cannot get to work. So that does raise a real question about the impact of these laws and the effect, operation or intent of what has occurred on others apart from just the plaintiff himself. But coming straight to the question that your Honour has raised, our respectful submission is this, that the Court would have regard to the US authorities on the question of standing in cases such as religion for this reason; that the rule against taxpayer standing which applies in the United States as much as it does here, as your Honour would know, does not apply to a challenge to religious expenditure by the Government and that is set out in a decision of the US Supreme Court in Flask v Cohen (1968) - - -

HIS HONOUR: I saw these authorities, but, of course, they are anchored in a much broader view of the establishment clause of the Constitution than was accepted by this Court in Black’s Case.

MR KING: We would respectfully submit that Black’s Case is clearly distinguishable in the circumstances of this case. The ratio of Black was that the law there was characterised as a law with respect to education. So everything that was said about this issue, with respect, is obiter. But even if those obiter observations can be taken into account, nonetheless the allegations in this particular case are far more cogent and the evidence would establish, in our respectful submission, that the intent, operation or effect of the law in question was for the establishing of religion and for imposing a religious observance and for inhibiting the free exercise of religion. There are some observations of Justice Jackson in one of the cases to which I will take your Honour which indicates that evidence in relation to those matters is admissible, that is, looking at the effect or operation of what has been passed by the Parliament, but I will come to that shortly.

HIS HONOUR: If this matter were to be returned before this Court, would you be challenging the decision in Black, or the so-called Defence of Government Schools Case, or would you be content with the principles that are established by that case and say that, notwithstanding the narrower view taken of section 116 of the Australian Constitution than has been taken in the United States, that you nonetheless can establish an arguable case of breach of section 116?

MR KING: Yes, but we put it both ways.

HIS HONOUR: What is the yes answer?

MR KING: Can I just make this introductory comment. Black’s Case, apart from being obiter on this particular question, only dealt with one of the four clauses in section 116. It only dealt with the first part, that is, is it a law for establishing any religion. It did not deal with the second and third parts and it is the second part which is very important on the facts of this case because here, unlike in Black’s Case which simply dealt with public expenditure on schools, education delivered by a systemic school system not for the purposes of, for example, educating the priesthood, but simply for educating persons generally who embraced those schools, whereas this case is quite different from that because here we have a religious observance that is - - -

HIS HONOUR: How is it imposing any religious observance? Was that not interpreted or has that not been interpreted as meaning imposing an obligation to adhere to and profess a religion in order to secure particular public or other officers, as, for example, the requirement to be a Christian, and at one stage a Protestant Christian, was a requirement for election to the Parliament of the United Kingdom?

MR KING: No. If your Honour looks at the words, they are broad and general, as Justice Gaudron said in Kruger’s Case.

HIS HONOUR: Justice Gaudron was dissenting in Kruger’s Case.

MR KING: The fact that her Honour dissented and found the argument strong and persuasive itself illustrates it is a strong argument. But putting it another way, the words are “for imposing any religious observance”. There can be no doubt whatsoever that this is a religious observance. What we have are 700 priests who will be taking confessions over a whole week with respect to one denomination. We have an altar, a high altar, being built for the head of this particular church with public money and we have the AJC, who are the lessees from the Crown, excluded from the premises by force of the government pressure.

HIS HONOUR: Let us understand the way you emphasise the words in section 116 “religious observance”. If it were “or for funding any religious observance”, then you would have a strong argument arguably, but how is it imposing a religious observance? You do not have to go to Randwick Racecourse.

MR KING: But if you do, you are excluded from practising any other religion. Let us take this example. Let us assume that one is a young person who did not realise that this was in fact a religious observance of the sort that is outlined in the statement of claim and has become more obvious in recent times from the press, to the offence of a substantial number of people, at least according to newspaper reports. Now, let us assume one goes along to the event, into Royal Randwick, and then one finds that one is a Muslim or a Hindu and one finds that one is excluded from participation in all of the events because the religious observance is according to some other religion. That, in effect, imposes upon one as a factual inference in the circumstances of the case the religious observance.

HIS HONOUR: Does the evidence that you have placed before the Court actually show that persons of other religions or of other denominations in the Christian religion are excluded from attendance or simply not catered for by the observance that will take place?

MR KING: No, that is exactly what we allege, your Honour. If your Honour goes to paragraph 4, we allege:

the exclusion of all other religions and to the further exclusion of the racing industry and owners of land, lessees and licences thereof –

and, of course, all the working men and women involved with the racing industry for the period of the religious observance. That includes, in addition, we allege a little further along in paragraphs 11 and following and, in particular, 7:

The said papal mass and/or the said vigil is

a. a religious observance –

so that must be taken as correct for present purposes –

b. that excludes or precludes participation by persons who profess other Faiths and religions –

and, we would say, certainly that is the allegation as a matter of common sense, and, critical for the issue before the Court is –

c. is divisive within the Australian community;

d. is conducted as an event or function endorsed and supported by the Defendant;

e. precludes or excludes the Plaintiff.

So, your Honour, those facts, we respectfully submit, address those questions.

HIS HONOUR: Has the plaintiff disclosed that he is not himself a Roman Catholic?

MR KING: No, he is a non-practising Catholic.

HIS HONOUR: Is that disclosed in the affidavit or in any of the evidence before the Court?

MR KING: It was disclosed in a letter we sent to the Commonwealth earlier in the year seeking - - -

HIS HONOUR: That was the application for related proceedings, was it?

MR KING: No, your Honour.

HIS HONOUR: If it is not before me, I do not need to know.

MR KING: No. The short facts are, your Honour, the plaintiff discovered five days before the last election that when the government announced that it was going to make this funding available, he immediately contacted the Minister’s office and protested and said, “On what basis are you doing this?”

HIS HONOUR: Yes. I think this is in paragraph 4.

MR KING: Yes. He received no reply. The then Prime Minister refused to respond to him, nor did any of his staff. After that, in January he wrote to the present relevant Minister and raised the issue again and sought the support of the Commonwealth through a fiat to bring the proceedings but we received no response from that either, your Honour. It has just been completely - his concerns and issues relating to section 116 have just been completely ignored by government - - -

HIS HONOUR: Let us go back to the issue of standing, which is what I have said is the first iceberg because it is personal to the plaintiff.

MR KING: Yes. But your Honour was asking me a question about Flask v Cohen. We would respectfully submit that that case is sound and, indeed, at least at this stage of the matter, ought to be followed or applied and the sound reason for it is this, that when government, age, religion, community divisiveness is likely to follow, for example, on the internet, as has in fact occurred in this particular case, and because government action is seen as uniquely offensive to others, and that is the phrase that the Supreme Court used. The reason that issues of standing of the sort that your Honour raised are not permitted to stand in the way of a complaint that the Commonwealth has acted in conflict with the constitutional guarantees of freedom of religion is because it is uniquely offensive for the government or the Commonwealth to endorse or support one religion over another.

HIS HONOUR: Can I ask you this. Have you looked at the discussion of standing in Combet?

MR KING: I have.

HIS HONOUR: Did the majority Justices deal with that issue or was it only Justice McHugh and myself who had to deal with it because of our differing view on the substance of the matter?

MR KING: If your Honour looks at paragraph 31 in the majority judgment, their Honours said that was a question of “importance and difficulty”. They did not decide it. Does your Honour see that?

HIS HONOUR: Yes.

MR KING: If your Honour goes to the religion cases, in the New Faith Case in this Court, Chief Justice Mason and Justice Brennan held, by reference to the US cases on the religious clause, that they should adopt a particular construction on the issue raised in that case. So that illustrates, we respectfully submit, that the US cases have relevance on an issue such as standing in relation to religion. If I could just take your Honour to the passage. It is set out in Blackshield, your Honour. I do not have a copy. I did not put that on the list, your Honour.

HIS HONOUR: I have that, but the New Faith Case involved a claim by the Church of Scientology to benefits that were available for religious institutions and therefore to that extent one could see a special particular and even financial stake of the litigant in that issue. But what is concerning me here is whether, simply because for a short time your client is inconvenienced by not being able to go to a racecourse, there will be enough to bring on a whole case claiming a sufficient interest to challenge the actual or potential provision of federal money to the religious observance, as you describe it.

MR KING: All we are asking, your Honour, is to file a writ. That is all we want.

HIS HONOUR: I know you do, but - - -

MR KING: Issue the writ.

HIS HONOUR: A decision of a Justice has been given which - - -

MR KING: Which is flawed, in our respectful submission.

HIS HONOUR: - - - says that you cannot have that leave and you have to overcome that by getting the Full Court to overturn that decision in a leave application and my present concern is whether your argument is sufficiently strong to expedite the return of that application for leave. That is what I am focusing on.

MR KING: Yes, can I address that more specifically. Your Honour has referred to the Church of New Faith v Commissioner of Pay-Roll Tax [1983] HCA 40; (1983) 154 CLR 120 and at paragraph 135 their Honours said this:

Thus, in Jehovah’s Witnesses Inc a prohibition against subversion of the war effort was not circumvented by the pacifist ideals of the Jehovah’s Witnesses . . . even though s 116 protects both freedom of religious opinion and the free exercise of religion. In the United States, where similar constitutional guarantees are to be found in the First Amendment, the free exercise clause was held not to exempt the Mormons from the law forbidding polygamy –

Their Honours then referred to those decisions with approval. So it does indicate, your Honour, that the Court does seek guidance from the United States in issues such as this, which is new. It is not the subject of any decision on, for example, the question of standing.

Your Honour, I respectfully submit that the reasoning of the Supreme Court in the United States in Flask v Cohen is very convincing. It is uniquely offensive to persons excluded from religious observances that that occurs. That is a fundamental constitutional guarantee. As your Honour’s own judgment in Smith v ANL very properly pointed out, those constitutional guarantees must be construed broadly and without pedantic application. Here we have an express - - -

HIS HONOUR: It may be my view, but the decision in Black does not appear to reflect that view.

MR KING: I will come to Black in a moment, but we are dealing only with the question of standing at this stage. Your Honour mentioned Black as, I think, the second issue your Honour wanted to raise with me.

HIS HONOUR: Your point is that, at least for the purpose of the matter that I am considering, that the Supreme Court of the United States has taken a particular stand in relation to the issue of standing as it affects objections to the provision of funds to religious observances and that this Court in the New Faith Case has expressed some approval for a relaxed standing rule in the context of religious observance and section 116 of the Constitution by reference to the United States cases and that therefore you have at least enough foundation to say that you have an arguable case for standing to bring proceedings challenging what you claim to be a breach of section 116 of the Constitution?

MR KING: Yes, but that is not all on the question of standing, your Honour. If your Honour goes to the orders we seek in paragraph 25 of the writ, your Honour will see that h. seeks an order of prohibition against the Commonwealth and in Croome’s Case your Honour may recall that Justices Gaudron, McHugh and Gummow, at page, I think, 132 made observations that where an issue such as that is raised that the plaintiff had standing independently of any personal affectation of the sort that your Honour mentioned in Croome.

HIS HONOUR: It was Croome on 127, the other joint reasons of Chief Justice Brennan, Justice Dawson, Justice Toohey founded their view on the fact that there was a concession:

that the plaintiffs have standing to bring the action seeking declarations of invalidity of the impugned provisions of the –

Criminal Code (Tas). So that that was really the foundation for the decision of the three Justices. Their Honours said:

That concession, if rightly made, establishes that they have a sufficient interest to support an action for a declaration that the impugned provisions of the Code are “invalid” by reason of s 109 of the Constitution.

So the issue of standing is a little bit tricky in that case given that the two plurality joint reasons appear to have taken a somewhat differing view about what was required for standing.

MR KING: Yes. But we would ask your Honour to note also that even in Combet the majority acknowledged that the point is difficult and we would submit - - -

HIS HONOUR: It is true that Combet was not knocked out, as it might have been if you had a strong view that there was no standing, by the fact that Mr Combet had no standing and that would have saved dealing with the issues.

MR KING: The whole issue of standing is the Court is taking a more relaxed approach, if I can use that expression, on that issue if the plaintiff can show a real live concern relating to the exercise of the judicial power and in which he has an interest. I have already made a submission about his own interest, exclusion from the use of land, exclusion from the event should he go there, et cetera, and, of course, exclusion from roads, public infrastructure and the like, but we submit that it is - - -

HIS HONOUR: As I say to you, Mr King, I find it a little bit difficult to accept that the events at the Randwick Racecourse will positively exclude people who are not Roman Catholics. I mean, it is one thing not to have your religious convictions attended to, but it is another thing to say that they would actually exclude people and apply some sort of test at the turnstile.

MR KING: No, that is not what we submit, your Honour. That is not the way we put the case. The way we put it is this, that if a young person, for example, approached it on the basis that this is – say they are a young Muslim or a young Hindu, or perhaps even a young Anglican, approaches the event on the basis that this is really about youth and the world and then discovered that, in fact, as alleged in the statement of claim in accordance with information available to the plaintiff, there will be 700 priests taking confession as they approach a high altar, which offends their own religious approach, that is a form of exclusion. It is not an exclusion in the sense that the police stand there and exclude them or somebody stands at the turnstile and excludes them, but it has a very powerful effect on the sensibility and something that is innate and core to most people’s existence, and hence the - - -

HIS HONOUR: Would not a person knowing that the Pope is going to be officiating at the ceremony draw an inference that this was a ceremony of the Roman Catholic Church?

MR KING: Then for that reason again they would feel excluded from even approaching the event.

HIS HONOUR: They do not have to go. It is not compulsory.

MR KING: That is different. We are talking here about - - -

HIS HONOUR: In a diverse community where people can observe a particular religion or no religion at all.

MR KING: That is right. But here we are dealing with a law of the Commonwealth which has an operation or effect – and I am using now the language of the US judges – of funding a religious observance. That has the effect in itself of excluding others and tangling government in religion, the very things that Thomas Jefferson said was the reason for having such a provision in a constitution. Justice Higgins, a former Judge of this Court, indeed, appears to have adopted not dissimilar language in promoting this provision in the Constitution, in the debates.

HIS HONOUR: I saw a reference to the fact that Justice Higgins’ views about the need for the provision of what became section 116 of the Constitution was an understandable response to his own Catholic faith. Justice Higgins was a Protestant Irishman. He was not a Roman Catholic.

MR KING: The short point is this, that on the first issue that your Honour raised, that is, the issue of standing, we respectfully submit, having regard to the observations of the majority in Combet, the fact that they did not decide but might have decided the case on that basis, the fact that their Honours referred to it as difficult and the guidance received from the Supreme Court of the United States in matters of this kind, we would respectfully submit that the standing issue is readily overcome or certainly overcome as an arguable basis for expediting the application for leave.

HIS HONOUR: Assume for the moment that you can overcome the first problem of standing, turn your attention, please, to the problem of section 116 of the Constitution and the decision in the Defence of Government Schools Case.

MR KING: Yes. Can I take your Honour to the provision. The first observation, with respect, we submit is to observe the width of the general words that are used in the provision. The words are:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance –

So let us take this example, your Honour, one that was put in the written outline. Let us assume, for example, that the government decided to make available to a religion – it does not matter which one – a large sum of money, say, a billion dollars, to purchase the church land but then lease the land back to the church. Now, that would not be a law with respect to the establishment of such a church, but it would be a law for establishing it, because the Constitution and the language that it used draws a distinction between stasis and happening between change.

HIS HONOUR: But does not that view of section 116 run directly into what this Court by majority held in Black’s Case, namely, that where the provisions of section 116 refer to establishing any religion, the word “establishing” is being used in a specific historical meaning by reference to the particular status of the Anglican denomination of Christianity in the United Kingdom whereby the Anglican church was the official state religion, the monarch was the supreme governor of the church, the bishops of the church sat in the House of Lords, the church had particular state subventions for the maintenance of its buildings and institutions and that all of that is what is being got at by the prohibition on establishing a religion and that it is not directed to prohibiting funding of religious denominations or beliefs for particular purposes, but just giving them an official status?

MR KING: The difficulty with that, your Honour, is that one needs to focus on the words “the law” and the words “for establishing” and the comments that I made earlier about Black’s Case, strictly speaking, the observations in Black are obiter on any question regarding the conclusive interpretation of section 116.

HIS HONOUR: That may be so, but some of the arguments that you are advancing seem to be rather similar to those that found favour with Justice Murphy but not with the other Justices of the Court.

MR KING: No, we would submit, even if your Honour felt compelled to apply the ipsissima verba of what was said by some of the majority, not all – because the Chief Justice, Sir Garfield Barwick, adopted a very much broader approach and I will come to that in a moment – that the word “establishing” really means establishment. Although there is a problem with that, we say, your Honour, because if that is intended to be a reference to a church such as the Anglican church in the United Kingdom, that seems a bit odd when it is apparent that those who established the Constitution, the founding fathers, welcomed the head of that church as the head of this particular country.

HIS HONOUR: That is another mistake in the facts. The Queen is not the head of the Anglican Church. The Queen is the supreme governor of the Anglican Church and that is a secular civil status. The head of the church is not the monarch.

MR KING: No.

HIS HONOUR: That is loose language, I am afraid. But what is the law that is being challenged, “The Commonwealth shall not make any law for establishing any religion”?

MR KING: It is the Financial Management Accountability Act which was the law which had the result of approving and then making available the public funding for the event, that is, for the religious observance and/or the establishing of the church. If your Honour goes to paragraph 61 and following of the written submissions that were filed on 20 April, we respectfully submit that the arguments there set out, referring both to Black’s Case and to the Supreme Court of the United States decisions about this matter, raise at least, if we are talking about a threshold issue in relation to purely expedition for the purposes of leave so that we can file a writ and get the case started, questions of significance.

For example, if we assume that the law in this case infringes the clause in the narrow sense, in the sense, for example, that it is referring to the actual establishment of a church as a church of the State, that does not necessarily mean or exclude the particular law in this case because, as I submitted earlier to your Honour, the mere fact that the purpose has not been achieved does not mean that an event on the way to the purpose is not able to characterised in that way. The reason that I use the word “purpose” advisedly, your Honour, is that that word was referred to by Justice Gibbs in Black’s Case as being appropriate for consideration in the context of section 116. So the fully informed observer in the circumstances of this case might reasonably conclude that the law has the consequence or effect or tends to establish, or to the establishing, of a religion and a religion in particular.

Your Honour, the concern is a broad-based one. It is not focused on a particular church. Mr Vescio is not a person who is anti-religious or even a religious but he finds, within the meaning of the authorities that the events have had the effect, or he submits that the events have had the effect for which we contend. We would particularly point this out, your Honour. First, no other church has received such significant largesse or government support and those matters are set out in paragraph 7 of the statement of claim. Secondly, the institutions of government, including the Commonwealth and the State Public Service, have become entangled in the workings of the denomination by the monitoring of the expenditures for the very purpose of the vigil and the mass, that is, the religious observances themselves. Third, the establishment of a very significant infrastructure using public laws and finance for the religious institution’s purposes - - -

HIS HONOUR: But this is not, to my knowledge, of which is can take judicial notice I would think, the first visit by a Pope to Australia. There have been previous visits and, in fact, I attended a function at the University of Sydney when Pope John Paul II visited the University and presumably there were some costs involved in that visit. The Pope is a head of a state and all such visits of heads of state have cost implications which would be borne by the Commonwealth, one would think, just as a matter of common sense.

MR KING: That is not the case, your Honour. This is the first time, so far as the plaintiff is aware, that the law is being used in this way, a law of the Commonwealth. One can go back to the observations of the American founding fathers, one of whom was in fact himself a reverend, and his comment was that political incursions into the conduct of the affairs of any denomination or religion itself has the result of debasing the religion and the higher religious purpose.

HIS HONOUR: Can I take judicial notice of the fact that the Pope went to the United States of America recently and conducted a Papal Mass there with a very large congregation which was shown on all the television stations?

MR KING: Yes, of course, but that is not the issue - - -

HIS HONOUR: If that can happen in the United States with its more severe interpretation of its constitutional prohibition on religious observance, what is the problem of a Papal Mass in Australia?

MR KING: Your Honour, with respect, our point is not that the church is holding a religious observance. The plaintiff supports the right of the church to do that. But what we are dealing with is the entanglement of the public in that process. We are dealing with a very - - -

HIS HONOUR: Do you say that any observance in the United States would not have been funded by the United States Government?

MR KING: Could not possibly have been under the US law and the provisions of the Constitution.

HIS HONOUR: Is the provision in the United States Constitution – it is a long time since I studied that – of the same language as the provision in 116 of our Constitution?

MR KING: Almost exactly the same. We have set it out in our written submissions, your Honour. The establishment clause is based almost word for word on that and the free exercise clause is also the same, or virtually the same. One difference is that in the American clause, instead of using the words “for establishing any religion”, the words used “with respect to the establishment of”, or words to that effect. I do not suggest I have the precise words.

There was an argument in Black’s Case that the words “with respect to” as distinct from “for establishing” led to a different result. We respectfully submit that on the facts of this case, it does not matter whether you adopt the broad view or the narrow view of the words “for establishing”, that the prohibition kicks in, if I can use that language. The reason is, because here we have public funds being used for the construction of, in this particular case, an altar, for the taking over of a lease Crown land from the racing fraternity and excluding all those people – they will all have to go to Warwick Farm – closing of roads, et cetera.

Your Honour, if the church was able to persuade Royal Randwick to do that without government support, that would be one thing, anybody can do that, but because this has government funding, the pressure of government laws behind it and the focus that that entails, we say that involves the intermixture that is impermissible and that that fundamental constitutional guarantee is utterly important to the health of the democracy of the country in the long term. One need only reread Gibbon’s Decline and Fall of the Roman Empire or, indeed, Voltaire’s Candide to see those themes repeated throughout the history of thinkers about these matters.

So, your Honour, this is not a light or frivolous issue. This is a weighty issue. There is one case, for example, in the United States, O’Connell’s Case, where the question went to the High Court on this point. There was in the particular city, I think it was Philadelphia, and we have referred to it in our argument, the city council paid funds for a crèche, a Christmas crèche, probably only a couple of hundred dollars, in the town square and a question arose as to whether or not that was a law with respect to the establishing of a religion, or any religion, because, as Sir John Latham pointed out in the Jehovah’s Witnesses Case, this constitutional protection is also designed to protect those who do not wish to advocate or profess a religion as well as those who do, or have other religions and that observation of Sir John Latham, we submit, is a very important one.

What the American Supreme Court held there was that the payment of funds to build that small crèche in the public square, subject to one qualification, was capable of amounting to funding by the public for the establishment of a religion. The religion should pay their own way for their own interest sake and for the public interest sake. That is the gravamen behind the constitutional guarantee in this particular matter. There is no basis for narrowly construing, we respectfully submit, those protections and provisions.

HIS HONOUR: Perhaps you might move on to the third issue which is the appropriations power having regard to the decision in Combet.

MR KING: Yes. This requires your Honour to look at the particular statute.

HIS HONOUR: The Financial Management and Accountability Act 1997.

MR KING: Yes.

HIS HONOUR: I have Reprint No 1, is that the correct one?

MR KING: Thank you, your Honour, yes. If your Honour just goes to section 5, which is the definition provision. One notes firstly “Special Account” towards the end of the provision means:

A Special Account that is established by the Finance Minister under section 20 –

Then if one goes to section 20 - - -

HIS HONOUR: How do I know that it is a special account out of which the funds that you complain of will be appropriated to this purpose?

MR KING: That is the case we bring. That has been put prior to these proceedings to the - - -

HIS HONOUR: Where in the record?

MR KING: Obviously, your Honour, before the case starts, we do not have the opportunity by discovery or notices to produce as happened in Combet to have the material before the Court. That is our case. The case is that this Act, in fact, no other Act can be referred to, that established the payment basis for what occurred because - - -

HIS HONOUR: Is there a statement in the evidence that you have searched and that there is no express appropriation for the visit of the Pope or for the payment for a Papal Mass at Randwick Racecourse?

MR KING: Those are my instructions. What happened was that there was an order under regulations 9 and/or 10 pursuant to the provisions of the Act and I will come to those in a minute, your Honour. That seems to be supported by the facts of the case, that is, that it was the decision of the government in the caretaker period, that is, apparently on an urgent basis five days before an election, a general election, one must look, with some reservations, to that happening during the caretaker period.

HIS HONOUR: That would seem to be simply an objection on the basis of a convention that is normally observed.

MR KING: That is right.

HIS HONOUR: I do not know whether that convention applies to this sort of decision, but that does not seem to be relevant to any legal objection to its constitutionality.

MR KING: No, it does not, but your Honour asked me what is the indication that the Financial Management and Accountability Act was adopted.

HIS HONOUR: Presumably because so many things arise from time to time which have not been foreshadowed or seen or the needs for them have not been known or they are too small, presumably there is a fund which is available to government to pay unexpected expenditures or to commit unexpected expenditures?

MR KING: With respect, no, your Honour, because sections 61 and 83 of the Constitution require that there can be no appropriation without a law. So that there must be a law which authorises the expenditure and one of the points that Chief Justice Gleeson - - -

HIS HONOUR: There must be something in general terms to provide for unexpected or urgent emergency or other funds. Take the tsunami in Indonesia, the need to find a fund to provide quickly for the assistance to Indonesian victims of the tsunami. That would not have been the subject of a specific appropriation by the Parliament but there may be some general appropriation that is sufficient to capture the particular case.

MR KING: That may well be the case, your Honour, but if one looks at section 83 of the Constitution, it simply provides:

No money shall be drawn from the Treasury of the Commonwealth expect under appropriation made by law.

HIS HONOUR: I am quite familiar with that. I participated in Combet. I know its history and I know how important it is to the design of the Constitution, but I am just asking, how do we know the appropriation under which the previous government committed the funding, if any appropriation was relied on, and whether there is any appropriation that the present government of the Commonwealth could use to fund the ceremonies at Randwick and the other public expenses?

MR KING: Your Honour, I suppose the correct answer to that question is to go to paragraph 6 of the statement of claim in the writ in which we allege that it was that statute and the regulations under it were the basis for the proposed payments. We do further make the point in the statement of claim, as I recall it, that if that is not correct, then there was no law; there being no law, there was no authority to make the payment. We are talking about a very substantial sum of public money. No authority under section 81.

HIS HONOUR: Is there anywhere in the record that you have a written public announcement or was there a press statement by the Ministers or the Prime Minister for giving this commitment or was there a newspaper item which - - -

MR KING: Yes, there was a statement by Minister McGauran five days before the election and then an apparent joint statement issued by the New South Wales then Deputy Premier, I seem to recall – it has been shown to me – by Minister Watkins in which he made the announcement.

HIS HONOUR: The State Government and Parliament are not subject to a provision similar to section 116. So announcements there would not, on the face of things, attract any federal constitutional problem. But insofar as you are complaining of the use of federal moneys that have not been appropriated by the Parliament for the use to which they have been or will be put, then we have to identify what is the basis of appropriation that might be relevant here.

MR KING: That is right.

HIS HONOUR: And then test whether that is arguably impermissible under the provisions of the Constitution.

MR KING: We agree with that. That is why the plaintiff alleges that the relevant law was Financial Management and Accountability Act 1997. I have taken your Honour to section 20. If your Honour goes to subsection (1):

The Finance Minister may make a written determination that does all of the following:

(a) establishes a Special Account;

(b) allows or requires amounts to be credited to the Special Account;

(c) specifies the purposes for which amounts are allowed or required to be debited from the Special Account.

Your Honour will observe that that gives the Minister a very wide power to establish an account and specify the purposes for that account. If your Honour goes over to section 27, the issue of drawing rights, your Honour will recall that in Combet’s Case it was that section that was the subject of consideration there and Justice McHugh in his Honour’s judgment at paragraph 99 of that judgment, which we respectfully submit, which was in that respect was agreed, that is, in relation to the relief sought, was agreed in by your Honour. That appears at paragraphs 99 to 108.

HIS HONOUR: That is [2005] HCA 61; (2005) 224 CLR 494.

MR KING: That is right.

HIS HONOUR: Of course, Justice McHugh and I were dissenting in Combet.

MR KING: Yes, but on this question of principle, what your Honours held was that the Court had the power to issue an injunction to prevent a payment under the Act pursuant to section 27 in that particular case and an exercise of a right of that sort is sought here. There was no suggestion by the majority that if they were in agreement with your Honours that such an order could not have been made. So the issue of judicial power and the appropriate order is not the question in this case.

HIS HONOUR: You see, I remember from Combet that we were taken into the nooks and crannies of the appropriation Acts and they are statutes that lawyers do not often look at, but they are very detailed statutes that have a breakdown by various departments and they have headings and subheadings and paragraphs and many of them are in very general language as was the source of the controversy in Combet.

MR KING: Exactly, but that is not this case.

HIS HONOUR: I do not know anything about this case. We do not have any reference to the relevant appropriation Act to demonstrate that there is no arguable head of appropriation that could be invoked by the Commonwealth in this case. I just do not know.

MR KING: No, we do not put the case on the basis of the appropriations bills. The Parliament is not powerless once an appropriations bill is passed to – or the Government is not powerless to make further monetary payments. As your Honour rightly pointed out, there may be a tsunami, there may be something unexpected, some political purpose which otherwise had not been anticipated at the time of the Budget by the detailed approach that is adopted through the public service. It happens every day of the week within the Parliament.

That was the reason that the Financial Management and Accountability Act 1997 was passed, as it was, by the then the new government and it is interesting that Mr Tanner, the new Minister, has indicated that he wishes to review whether that is an appropriate statute any further, but that is not for present purposes to be considered. The fact is, in our respectful submission, we have alleged that irrespective of any appropriations bill, which is irrelevant, here what occurred was the use of the ministerial power to make the payment in accordance with this particular Act.

HIS HONOUR: Should not one infer that the Minister would not have given that commitment unless he believed that some general head of appropriation provided the source upon which he could base his commitment to expend a very significant portion of federal funds?

MR KING: With respect, no, your Honour, because the power exists irrespective of the appropriations bill. That is the whole point of the Financial Management and Accountability Act. Section 63 gives the Minister the actual power. The process is the Minister concerned says, “I wish to make some money available for bush care, natural heritage funding, or the like, not dealt with in the appropriations bills.” The Finance Minister then says, “You make an order that this happen for this particular purpose”, and your Honour will see section 26(c). The Finance Minister then makes an order under section 63 and makes it happen. Simple as that. They do not need a statute. They do not need an appropriations bill, they do not need a special purpose bill and that is part of the, one might say, the administrative evil of this particular statute, but that is not what we are about in this case.

What we are about in this case, in our respectful submission, is shortly this, that if the Parliament or the government of the day uses a law of the Parliament which has the operation or effect – and I use those words advisedly because they are taken straight from this Court’s decision in Langer’s Case about how constitutional guarantees are to be applied – if at the time the Court looks at it the operation or effect of the law is to authorise a funding or an agreement or an Act by the Commonwealth, by the government which infringes the constitutional guarantee, then the Act is invalid to the extent that it permits that to occur. That is all we are seeking in this case. We are seeking a declaration that those financial provisions are invalid to the extent that it authorises the religious purpose because of the infringement of the constitutional guarantee. There is nothing unusual or odd about that proposition.

HIS HONOUR: Just let me get it clear. Is the objection to the validity of the regulations and the provisions of the Financial Management and Accountability Act 1997 limited to the fact that the appropriation in fact promised was made contrary to section 116 of the Constitution or is it based on a contention that whatever the purpose announced by the Minister and the Prime Minister of the day, that section 26 by permitting effectively the use of federal funds without an appropriation by the Parliament is contrary to section 81 of the Constitution?

MR KING: No, it is the former. The order we seek, your Honour, is the very sort of order the majority made of which your Honour formed part, a very important majority, if I may say so respectfully, in Newcrest Mining v Commonwealth. That was the case in which there was a law about a territory in relation to the establishment – a proclamation to establish a park in the Northern Territory. That effected an acquisition of property for the purposes of section 51(xxxi), another constitutional guarantee.

Your Honour, in that case, when one looks at the order that the Court made, the order was this, not that the whole law was invalid or some general proposition about what Parliament did or did not do, but rather that the law was invalid insofar as it effected the acquisition. So here. We are not asking in terms of the constitutional argument for an order that the whole Act is invalid or that the regulations are invalid. We are seeking an order of that limited kind applicable to the particular purpose which we say contravenes section 116 and, hence, the form of the declarations that are found in paragraph 25 of the statement of claim.

It is perhaps important if your Honour just goes to the regulations before I finish just dealing with this third question which your Honour raised. They are set out in the little black book that I have handed up to your Honour.

HIS HONOUR: Where are they?

MR KING: They are behind the Act. The first relevant one is regulation 3 which defines, firstly, the “approver”. The “approver” is a Minister or includes a Minister. Then if your Honour goes to regulation 9:

An approver must not approve a proposal to spend public money –

one need not worry about notional payments, your Honour, because that deals with offsets –

unless the approver is satisfied, after making such inquiries as are reasonable, that the proposed expenditure:

(a) is in accordance with the policies of the Commonwealth; and

(b) will make efficient and effective use of the public money; and

(c) if the proposal is one to spend special money, is consistent with the terms under which the money is held by the Commonwealth.

That deals with moneys, for example, the sale of Telstra moneys, that do not go directly into the Treasury, your Honour. Before I depart from that, your Honour will see in line 2 the word “approver”, that includes the Minister. So the Minister has power to spend money under this particular provision within any of the circumstances there set out.

If I can just pause there, your Honour, the question of the policies of the Commonwealth is, of course, something that, no doubt, the Minister would say that he addressed. He would say, “It is in the policy of the Commonwealth as announced today that we will spend $22 million of taxpayers’ money five days before a general election in the interests of a large section of the community”. One might take a slightly cynical approach to that but that is not what we are about presently, contrary to an observation in the decision of Justice Crennan. This case is about something far more fundamental and important than that. Then if your Honour goes to regulation 10:

If any of the expenditure under a spending proposal is expenditure for which an appropriation of money is not authorised by the provisions of an existing law or a proposed law that is before the Parliament, an approver must not approve the proposal unless the Finance Minister has given written authorisation –

So, your Honour, this law contemplates that even if there is no other law, then you can still use this law and the Minister has that power, and I have referred your Honour back to section - - -

HIS HONOUR: That is why I asked you the question whether your objection was anchored in section 116 or anchored in a suggested attempt by the Financial Management and Accountability Act and these regulations to go beyond the scheme that is permitted by section 81 of the Constitution.

MR KING: It is both. If your Honour reads the statement of claim, and we hope it is sufficiently clear that the matter is put in different – firstly, there is a constitutional challenge. That is in paragraphs 1 through to 13 and then alternatively 14 and 15 through to 16. Then at 17 it is put in the alternative that if there was no law, then section 83 prohibited the impermissible Act. Then to address your Honour’s specific question, in paragraph 18, the Minister’s decision was not a decision made pursuant to the regulation. It was ultra vires in respect of that. Then it is pleaded that “The approver”, that is, the Minister, “made no inquiries which are reasonable”, “There was no relevant policy”:

(c) The approver described in the Regulation made no inquiries which are reasonable . . .

(d) The approver made no inquiries which are reasonable as to whether the proposed expenditure to spend special public money is consistent with the terms under which the money is held - - -

HIS HONOUR: Is there anything in the record concerning whether the Finance Minister of the day or the Finance Minister since has given written authorisation for the approval?

MR KING: We have sought by extra judicial process to find that out. It has been put to the Commonwealth, not challenged by it, but, of course, we cannot take that any further than the allegation until we have the writ filed and can exercise the usual machinery powers of the Court by notice to produce. So if I can just pause there at paragraph 18, in a recent decision of Telstra in the Federal Court, Justice Graham examined the operation of regulation 9 in this particular context. That is the decision at the back of the little black bundle that I have handed to your Honour.

HIS HONOUR: Yes, this is [2007] FCA 1567.

MR KING: Yes. There the complaint by Telstra was that the Minister had paid out $600 million under this particular Act without exercising the power properly under regulation 9. The decision of the learned judge at paragraphs 112 to 114 was that Telstra had not proved that there was no reasonable cause. Does your Honour see that?

HIS HONOUR: Yes.

MR KING: Then at 114:

I am unable to discern any shackle on such policy –

so his Honour considered the policy as well and those documents were produced to the court on notice –

which would limit the amount of funding that could be made available in fulfilment of the relevant policy.

This case is different in that here we do have a shackle on the exercise of the power, that is, the constitutional shackle, if I can use the expression of the learned judge. That appears itself from Combet’s Case in the judgment of the Chief Justice. If your Honour just goes back to Combet.

HIS HONOUR: Yes. I think you referred to this in your written submissions, did you not?

MR KING: This particular point? I did not refer to Telstra, your Honour, I am sorry. But if your Honour goes back to Combet at paragraph 2, having referred to section 83 of the Constitution, the Appropriation Act, his Honour said this:

It is not contended that the Appropriate Act is invalid. Nor is it argued that expenditure of public money, by way of advertising or otherwise, upon the promotion of government policy is inherently unlawful or unconstitutional.

Now, that is this case. It was not suggested by the Chief Justice in Combet that if an argument of the sort that we are putting here had been put up, it would not have been considered or a proper constitutional argument for this Court. That is the very argument that we seek to run in this case, once the writ is filed. We think that the facts in the matter are incontrovertible and will in fact probably be admitted by the Commonwealth and they will probably – who knows what they will do. They may well file a demurrer or they may file an application to strike out, but once they do file those applications, whatever it is they do – we think what they should do responsibly is file a defence – but immediately the plaintiff will be able to serve a notice to produce, the relevant finance documents will be before the Court and the allegations in the statement of claim are either proven or they are not.

HIS HONOUR: You have dealt with the three matters that I raised. What is the error that you suggest can be seen in the reasons of Justice Crennan?

MR KING: Yes, we submit those errors, with respect, your Honour, are certainly deserving of leave. Can I just take your Honour to the judgment of the learned Judge.

HIS HONOUR: Yes, I have that in front of me. These are the reasons for judgment dated 12 June 2008.

MR KING: Yes.

HIS HONOUR: Is there anything on the first page?

MR KING: No, your Honour, it is the second page. The copy we have is not dated, your Honour.

HIS HONOUR: No, but I have the order of the Court which is dated 18 June 2008 and I assume that the reasons were delivered on the same day.

MR KING: We do not know that. We had some rather confusing emails from somebody in the Registry about that. We were told it was being issued from Canberra, then we got a fax from Sydney and then we were told it was going to be on the website and it has - - -

HIS HONOUR: What date was that exchange?

MR KING: It is in Mr Bilinsky’s affidavit. He was up here on other matters in the High Court, as he has a busy High Court practice and is a solicitor who respects and understands the processes of this Court. That is set out in, if your Honour goes to - - -

HIS HONOUR: There was an email from an officer of the Registry?

MR KING: Yes, that is right.

HIS HONOUR: What was the date of that email?

MR KING: That was dated 12 June.

MR MARKUS: I am sorry. I do not know whether this assists, but I have a transcript dated 12 June 2008 relating to the handing down of the judgment by Justice Crennan.

HIS HONOUR: Yes, that is correct. I also have the transcript and it is dated 12 June 2008 and it records that on that day Justice Crennan published her reasons for refusing the leave sought by the present plaintiff. The document that I referred to, namely, the order is dated 18 June and bears the seal of the High Court of Australia, but that is a formalisation of the process which was disposed of by the reasons of Justice Crennan on 12 June.

MR KING: It seems to be so, your Honour. The email that I referred to is annexure A to Mr Bilinsky’s affidavit. It refers to “his Honour’s reasons”. Presumably that was a slip. But if I can take your Honour to page 2 of the judgment, the last paragraph, and this is the reasoning. It comprises of four sentences. First:

The documents filed in support of the application are confusing, prolix and embarrassing in form.

Your Honour, the first problem with that sentence is that it refers to “the documents”. Your Honour, there was only one document that was of any issue before the learned Judge and that was the writ of summons. It was the writ of summons which the Deputy Registrar had referred to a Justice that happened to be the Chief Justice. It was that document that was the only question before her Honour. So we respectfully submit that that illustrates that her Honour misconceived the question before her.

HIS HONOUR: There is in the file another document called “Plaintiff’s Outline of Case”. It is quite a lengthy document. It is 15 pages and it does contain a lot of discursive matter and is in argumentative form and appears to be a kind of submission. So I assume that that was one of the documents that was filed in support of the application.

MR KING: The issue before her Honour, with respect, was not other documents, that is - - -

HIS HONOUR: But, Mr King, if you file a number of documents, you cannot criticise Justice Crennan for reading them and for referring to the fact that there were filed documents in support of the application.

MR KING: Yes. That is correct, your Honour, we do not criticise that at all.

HIS HONOUR: I must say, having read the plaintiff’s outline of case, I could understand an impression that the outline of case is in some respects prolix and in some respects simply erroneous, as, for example, the references to Justice Higgins’ religious denomination and to the role of the Queen as the head of the Church of England and other matters of that kind that are not really central to the constitutional issues. They are argumentative.

MR KING: No, they are not central and to the extent that, I think, they are intended only to be illustrative, your Honour. But the short point is this, that, with respect, the question before her Honour was not – let me start again. The written submissions were filed only after the original writ was refused for filing and they were filed in support of the further application for leave that the Chief Justice said was necessary, and there have been substantial delays in relation to those issues which are presently not relevant. But the short point is this, the only issue before her Honour was the document which the Chief Justice had said could not be filed except by leave, so therefore for her Honour to be referring to other documents raises a question as to whether her Honour had asked herself the correct questions.

The other problem with the first sentence is that there are no reasons given for that conclusion. All that happens in the previous page is a recitation of the writ, but no reasons are given and, as we submitted respectfully in the oral argument, it is important for the proper exercise of a right of appeal and to facilitate the administration of the case and to make sure appellate rights are not illusory that reasons are given for a conclusion.

Then, your Honour, in relation to the words “embarrassing in form”, if your Honour sees those at the end of the first sentence, the evidence of Mr Bilinsky is that as soon as he received back an indication from the Registry that the writ was not to be filed, he then rang the Registrar, properly, and asked the Registrar, “Well, is there a problem about form here?”, and the answer was no. Now, a very experienced Registrar of this Court has indicated that there was no issue as to form. So for her Honour, with respect, to say the writ was embarrassing in form without any reasons, we submit, with respect, is certainly a sufficient start for a proper leave basis. Then the next sentence says this - - -

HIS HONOUR: Statements made by the Deputy Registrar were made before Justice Crennan had considered and decided this matter and, of course, a Registrar seeks to help parties who come to the Registry, but cannot foreclose what a Justice will decide when making the decision that is reposed only in the Justice.

MR KING: But, your Honour, it cannot be gainsaid that there is any embarrassment in form in the writ. It is filed conformably with Form 23.

HIS HONOUR: Anyway, that is something that other Judges and I myself can form our own views on that without any help from you.

MR KING: Yes, of course.

HIS HONOUR: What do you say about the second sentence?

MR KING: We have set out in detail in the oral reasons, your Honour, at paragraph g at page 5 of the note I just handed to your Honour, the fifth page, this observation that her Honour has addressed. Her Honour said, “On their face they” – that is referring to the documents – “disclose complaints which are political in nature”. This appears to be the only hint, we submit, of the real reason for the refusal to grant leave. If it be assumed “their” includes reference to the writ of summons, then, with respect, the reason is not legally supportable. First, that is not a ground specified in rule 6.07. Second, it may be observed that logically and textually a complaint which is political in nature may also be a legally valid complaint. That, indeed, was an observation that the Chief Justice made in Combet’s Case and some observations of Justice McHugh and your Honour which are referred to in our written notes.

HIS HONOUR: Long before any of us were appointed to the High Court Justice Dixon said, I think in either the Banking Case or the Communist Party Case, that it is the nature of constitutional arguments that they often raise political questions in the broad sense of that word and that that is not a reason for the Court attending to the requirements of the Constitution. That is its function.

MR KING: We would respectfully adopt anything that has fallen from your Honour on that.

HIS HONOUR: I am just telling you my recollection of what Justice Dixon says. You had better see if you can find that passage. It is either in the Banking Case or the Communist Party Case.

MR KING: I know from reading Professor Ayres’ biography of Sir Owen Dixon recently, your Honour, that his Honour was roundly criticised by certain persons, particularly on the conservative side of politics, for the view that he adopted in the Communist Party Case because - - -

HIS HONOUR: Now, I think you are getting a little bit into the political, which is not the proper province of the Court.

MR KING: I am just making the point that the two questions that his Honour posed for the Full Court in that case were – and they are quite relevant to this case, in fact – firstly, whether or not on the facts alleged in the statement of claim there was a contravention of the Constitution and, secondly, whether evidence was admissible on those points.

HIS HONOUR: Perhaps what Justice Crennan was saying was that these are matters that your client has to fight out in the political context as distinct from in a court of law, but they are questions upon which citizens can no doubt have differing points of view, but they have to be argued amongst the citizenry and take their place in the ordinary political dialogue of the country.

MR KING: With respect, your Honour, even if that is true, that is not a reason why this Court should not examine the legality of what has occurred, which is what we are seeking to have happen here. It is simply illogical to conclude that because a complaint may be criticised as political, it is not also a legally valid complaint and that is illustrated by Combet and the observation that your Honour made a little while ago. Thirdly, in relation to this point, if your Honour meant that the question in the case raises an issue of importance to everyone in Australia, the plaintiff respectfully agrees, but we respectfully submit that - - -

HIS HONOUR: Well, I did not say that. I just said that Justice Crennan may have meant that the proper venue for you to have these arguments is not in a court of law but in the general civil society of Australia.

MR KING: We submit that simply displays an error of approach, with respect, your Honour, because the whole point of the constitutional guarantee in section 116 is to ensure the disentanglement of politics from religion, of the public from what is conceived to be an otherwise non-public purpose. So that far from being a reason why the writ should not be filed, it is a reason why it should. Can it be doubted, it might be asked, your Honour, that if a law in question was used by the Minister to give $22 million to some other religion, for example, Muslims, Buddhists or a Protestant religion to build a platform to speak to the flock, this would not give rise to a serious question whether any law having that intent, operation or effect would be struck down under section 116.

HIS HONOUR: You have had a fair chance to put your case. Is there anything else that you want to say that is new and fresh? Are you seriously pressing the anonymising of your client’s name?

MR KING: Not at this stage, your Honour, but we - - -

HIS HONOUR: I think you would need to have more than you have to persuade a court to take your client’s name off the record. If, for example, he had suffered some threats or something of that kind, that might be a matter that a court out of its implied powers would take into account in removing his name, but otherwise on the face of things, courts in our country act in the open and people come to them and their names are then a part of the record.

MR KING: Yes.

HIS HONOUR: It is not the same as a refugee.

MR KING: That is correct, your Honour. It was raised with the Registry and it was suggested by the Registry that it would be appropriate to mention it, although not necessarily on this occasion. Maybe we should deal with that on the leave application or by a separate notice - - -

HIS HONOUR: Yes. I would not be inclined, if I am otherwise inclined to give you some relief, to anonymise the name of your client.

MR KING: Yes, perhaps by a notice of motion, if necessary. Your Honour, there are just a couple of other points about the last paragraph. The criticisms we make which we submit, respectfully, are a proper foundation for a grant of leave also include the next sentence, “They do not disclose any matter of legal substance which would justify the grant of leave to issue the proceeding”. That is not the test, your Honour. The test is, is the writ on its face something which an abuse of process or which is vexatious.

HIS HONOUR: Well, her Honour says that it is in the last sentence of her reasons.

MR KING: No, with respect, her Honour does not say that. Her Honour says, “In terms of Rule 6.07, the proceeding, if issued, would be an abuse of process and vexatious”. But it is not clear that what her Honour focuses on is the preliminary words in rule 6.07 that on its face it was an abuse of process. Those words do not appear in that particular sentence. If your Honour goes back to our notes in relation to this point, Justice McHugh in Rogers v The Queen dealt with procedural abuse and said that there were three possible bases for such a conclusion, none of which apply here on the face of the writ.

Illegitimate purpose was one, his Honour said in Rogers v The Queen 181 CLR 251. That could not possibly be said here because the writ on its face raises long-established questions within the Court’s Chapter III jurisdiction. Second, there is no oppression of any party. There is no oppression by the plaintiff of the Commonwealth. We are actually seeking in an orderly, legally appropriate fashion to question what the Commonwealth has done or is intending to do and thirdly, that the administration of justice will be brought into disrepute by the bringing of the case. We say the exact opposite is the case, for if the appeal is refused, an ordinary person filing a writ in the original jurisdiction cannot get the writ issued, then when that writ was filed, we say, in proper time, then the administration of justice itself may be brought into disrepute.

HIS HONOUR: Could you give me the citation of Rogers again?

MR KING: Yes, your Honour. If your Honour goes to d on the fourth page, it is 181 CLR 251 at page 286.

HIS HONOUR: Thank you.

MR KING: Just one concluding point, your Honour, in Batistatos v RTA Justice Callinan made the point that the Court should not impose a threshold or should with reluctance impose thresholds on plaintiffs seeking to have determined any case before it and his Honour was there referring to after the writ is filed, not before, as in this case.

There is, I apologise, just one further citation which I wish to make brief reference to and that is your Honour’s own decision in the case of Ha v New South Wales [1996] HCA 17; [1996] 70 ALJR 611 and in that case your Honour dealt with an application to strike out in relation to a constitutional question and, we would submit that the constitutional questions that are raised in this particular case, that is, under the three clauses of section 116 in relation to the law in question certainly exceed that threshold, even if that threshold is relevant before the writ is filed.

HIS HONOUR: Mr Ha ended up succeeding, I think, before the Full Court.

MR KING: Yes. So, you know, what sometimes looks to be what is criticised by some to be inappropriate is in fact found at the end of the day to be a very important matter.

HIS HONOUR: It is fair to say it was a closely divided decision.

MR KING: I commended to your Honour the decision of the majority in Newcrest Mining and the sort of order that was made there. This is a very important and fundamental matter. It might be argued, your Honour, that the High Court has not really grappled with the full meaning - - -

HIS HONOUR: You are getting into the hortatory business now. I do not need that.

MR KING: All right, your Honour. But I do hand up this press release, a release by State Minister Watkins of the jointly funded package. That would be part of the evidence that - - -

HIS HONOUR: Do you have any objection to the Court receiving this document, Mr Markus?

MR MARKUS: No, your Honour. I think it is helpful background information. Can I just ask whether your Honour requires two copies?

HIS HONOUR: Thank you. Well, the news release issued by the Deputy Premier of New South Wales and Minister for Transport and Minister for Finance, Mr John Watkins, dated 15 November 2007 is exhibit 1 in these proceedings.

EXHIBIT: Exhibit 1.....News release issued by the Deputy Premier of New South Wales and Minister for Transport and Minister for Finance, Mr John Watkins, dated 15 November 2007.

HIS HONOUR: What do you wish to say, Mr Markus?

MR MARKUS: Your Honour, I think I can be fairly short. I wanted to address your Honour in relation to specific points. First, in relation to the question of standing, your Honour, I simply wanted to draw your Honour’s attention to - the only references that I could find in the statement of claim to the applicant plaintiff for his position, those are at paragraph 7e where the statement of claim asserts that the said Papal Mass and/or the said vigil “precludes or excludes the Plaintiff”, which is a bare assertion. Then if your Honour goes to paragraph 20, your Honour will see - - -

HIS HONOUR: Where is there is a reference to the racecourse? This is the paragraph b, which “precludes participation by persons who - - -

MR MARKUS: No, 7e, your Honour.

HIS HONOUR:

e. precludes or excludes the Plaintiff.

MR MARKUS: There is a specific reference to the plaintiff there.

HIS HONOUR: Yes.

MR KING: And also 8i.

MR MARKUS: Then if your Honour goes to 8i where, in effect, the plaintiff is specifically mentioned although reference is to the exclusion of the public. Then if your Honour goes to paragraph 20, 22 and 23. Those are the only references that I could find to the plaintiff. Your Honour, we would submit that they are very serious issues relating to the plaintiff’s standing in the.....

Your Honour, I do not intend to make detailed submissions in relation to the legal issues that would be raised if the writ was permitted to issue. In my respectful submission, however, in addition to the three difficulties that your Honour identified there is an even more fundamental difficulty in the context of the orders that are specifically sought today. Your Honour, that is that apart from the fact that there is a general assertion in paragraph 11 of Mr Bilinsky’s affidavit of 18 June to the effect that unless the orders sought are granted, the relief sought in the matter will be futile or will require substantial amendment, there is in fact no evidence whatsoever that would support that assertion.

Your Honour did refer to the fact that the previous sentence refers to the fact that the papal visit will take place in the third week in July 2008, and that is not disputed. That, however, has absolutely nothing, in my respectful submission, to do with the relief that is being sought. If your Honour will look at - - -

HIS HONOUR: Could one not draw an inference from the evidence that deposes to the joint announcement by the former Minister, Mr McGauran, and the former Prime Minister, Mr Howard, of a subvention – a very substantial sum of federal moneys and the pendency of the papal visit and Papal Mass and other functions that the payment would be either very shortly to be made or perhaps even already have been made?

MR MARKUS: Well, that is exactly my point, your Honour. On my instructions the payment had been made back in March, but if your Honour looks at the news release your Honour will see the nature of the package that was the subject of the agreement by the two governments and, in substance, your Honour, my client has agreed with the State of New South Wales to meet that State’s financial commitment in order - - -

HIS HONOUR: But the State is in a different position to the Commonwealth. The State is not subject to any constitutional provisions similar to section 116, whereas the Commonwealth is.

MR MARKUS: I understand that. My point is simply that the package is directed to the AJC, Randwick Trainers and Racing New South Wales and the like for the purpose that is specifically set out there, that is, “$3 million to the AJC for direct costs incurred by them, a 50 year extension of their lease at Randwick and a legislative amendment to allow a full 99 year term”, and so on. I will not read the whole of that article, your Honour, but that is the nature of the funding that was agreed to. Your Honour will see that the funding is such that it requires commitment and capital works and so on prior to the Papal visit taking place.

HIS HONOUR: But how would that answer the plaintiff’s contention that he is entitled to declarations of the kind referred to in paragraphs a, b, c and d of paragraph 25 of the statement of claim?

MR MARKUS: Your Honour, I am simply making the point that there is no urgency because there is no evidence at all that any order that this Court would make, now or – like, what is the difference when the Court makes the order? The Papal visit itself has no bearing on that, your Honour. What is the urgency? The urgency presumably would be that if an order is made by this Court, then the funds would not be committed, but clearly, your Honour, the Papal visit is to take place in July and, as I indicated, my instructions are the funds have already been committed and have been forwarded to the State of New South Wales pursuant to the agreement between the two States on 27 March this year.

I am not asking your Honour to accept that fact. I am simply asking your Honour to look at the evidence and on the basis of that evidence, in my respectful submission, your Honour cannot be satisfied as to the urgency of the matter, because the fact of the Papal visit taking place in the third week of July really has very little to do with the relief that is sought in these proceedings.

HIS HONOUR: But the problem is that the news release, which has been handed to me and which is exhibit 1 in these proceedings, merely says that the package “will be jointly funded by the NSW and Commonwealth Governments”.

MR MARKUS: I understand that, your Honour.

HIS HONOUR: I have your understanding, but I do not have anything that says that it has been, and if one were to accept the arguments that the plaintiff has standing in this Court and is invoking what is contended to be a fundamental principle of the federal Constitution directed to the activities of federal officers and if there is any chance that that might succeed and that the moneys have not yet been paid, then there is an element of urgency.

MR MARKUS: With the greatest respect, if your Honour looks at the nature of the work that is to be done for the purpose of the funding, your Honour will see that it will require the construction of various facilities and capital works to be carried out.

HIS HONOUR: That might be so and it may be that one would draw the inference that the moneys have already been paid, but in the absence of establishing that matter and if there is any chance that the payment would be in breach of the Constitution, then at least arguably it is a matter for this Court to defend the Constitution and to ensure that moneys are not spent in breach of the Constitution, both section 116 and the appropriations power.

MR MARKUS: I understand what your Honour is saying. In my respectful submission, however, the plaintiff or applicant, in seeking the sort of orders that he is seeking, bears an onus on establishing the urgency of the matter and, in my respectful submission, he entirely failed to do that.

HIS HONOUR: Yes, very well. I understand that submission.

MR MARKUS: Your Honour, the other matter that I wish to draw to your Honour’s attention is that the nature of the order that has been made by Justice Crennan does not prevent on its face the applicant from filing a writ of summons that seeks to raise these issues.

HIS HONOUR: Justice Crennan thought that these issues are political in nature and that appears to have affected her Honour’s - - -

MR MARKUS: That was one of the reasons given.

HIS HONOUR: And if that were the view, then another Justice, whilst Justice Crennan’s orders stands, might feel that that ought to be deferred to, whereas at least arguably the political character, on one view of the complaints, is part and parcel of constitutional litigation.

MR MARKUS: Your Honour, I am simply making the point - - -

HIS HONOUR: I may be wrong, but my recollection is that Justice Dixon said exactly that, that constitutional cases are political in nature.

MR MARKUS: I accept what your Honour says about that. My submission, your Honour, is simply that the orders themselves do not prevent the filing of a writ of summons as such. What the orders do is
prevent the issuing of the writ of summons in their present form. There are a number of reasons given by her Honour why the writ in the form that it was sought to be issued fell into the category that was covered by rule 6.07 of the High Court Rules.

I am simply making this submission, your Honour, because ultimately the applicant is seeking orders which would take this matter out of the ordinary in that the applicant is seeking orders – and I am not sure whether this order is pressed, your Honour – but the first order that the summons seeks is, 1:

Order that the application for leave and the appeal be heard concurrently.

My friend has not addressed that particular order, as far as I recall. Then order 2 in substance seeks to dispense with the requirements of the High Court Rules insofar as they would require the applicant to file and serve a summary of argument. Again, that has not been addressed and, in my respectful submission, there is no good reason why that order ought to be made. Order 3 seeks expedition - - -

HIS HONOUR: Where is this order?

MR MARKUS: I am looking at the summons. My understanding is that what is returnable today is the summons. As your Honour has noted, the application itself would need to be dealt with by a Full Court that is constituted by two or more Justices of this Court.

HIS HONOUR: Yes, that is correct.

MR MARKUS: So my understanding is that what is before the Court today is the summons which seeks certain procedural orders. I simply have noted that orders 1 and 2 have not been addressed by my friend. Order 3 appears to have been addressed and I have made a submission to the effect that, apart from the difficulties that your Honour has identified, in my respectful submission, the applicant has not demonstrated urgency behind the expediting the application for leave. Order 4 is general and no specific order has been sought in relation to that. Your Honour, those are the only matters I wish to say, your Honour.

HIS HONOUR: Yes, thank you, Mr Markus. What do you say in response to that, Mr King?

MR KING: Just briefly, your Honour. Mr Markus has raised the issue of standing. It does not appear to have, we respectfully submit, addressed in any sufficient way our submissions, but can I make this further point on that issue? The House of Lords in The Crown v Inland Revenue Commissioners [1981] UKHL 2; [1982] AC 617 held that issues of standing should not be determined at the outset of a case but only after the evidence has been heard. We would respectfully submit that is an appropriate observation in response to my friend’s submission there, apart from the other matters that were previously put.

The second is my friend points to the paragraphs in the statement of claim attached to the writ about the affectation of the plaintiff, including allegations of loss and damage and personal affectation. We would respectfully submit that what my friend overlooks is that, for present purposes at least, those allegations must be accepted as true.

Thirdly, Mr Markus points to the orders in the summons and says that I have not addressed on the detail of those particular orders. It was my understanding that what your Honour was dealing with today was expedition of the hearing of the summons, not the actual orders in the summons itself, but if I am wrong about that, then I would be grateful to be disabused.

HIS HONOUR: Attention has been paid to rule 41.05 of the new High Court Rules which would, if the Court were to deal with the summons by expedition and, in particular, if it were to deal with it before the winter recess, would have to envisage some modification of rule 41.05.1 which would otherwise require that within 28 days of filing of the application, in order for the Court to deal with it you would have to file and serve a summary of argument.

MR KING: That is right.

HIS HONOUR: And one would have to have abridge those times if the matter were to be dealt with in a shorter interval.

MR KING: Yes. What we submit about that, your Honour, is that having regard to the detailed written submissions filed in support of the leave application itself dated 20 April, that those submissions should be treated as compliant with 41.05. Subject to this, we do know and, with respect, apologise in relation to the two errors of fact in relation to the Queen and Justice Higgins. They should be withdrawn and the appropriate statement of fact corrected. But subject to that, we would respectfully submit that the issues raised in the case are properly raised by those submissions and by the oral outline that I have just put to your Honour. We would ask on that basis for dispensation with a requirement of compliance with 41.05 or, alternatively, that we are in a position to file those within a very short period of time, say, within 48 hours, by close of business on Monday.

The only other point that Mr Markus raised concerned urgency, but we would respectfully submit that in circumstances where the plaintiff has not slept on his rights, he raised these issues appropriately at an early point in time, that there is a basis for expediting the matter, otherwise on an important question, the orders of the Court may be rendered futile and the plaintiff’s purpose, which he has been pursuing since at least March in an appropriate fashion, would be jeopardised. So for those respectful reasons, we ask your Honour to give the matter expedition and to fix the questions in the summons together with any issue relating to the final appeal, or such other directions that are appropriate.

HIS HONOUR: Since March 2008, Mr Carmelo Vescio (the applicant) has been seeking to challenge in this Court the constitutional and statutory validity of what he claims is an intention or act of the Commonwealth to pay a very large sum of money towards the costs of a Papal Mass and other religious activities which, the evidence indicates, are intended to accompany what is called “World Youth Day” in Sydney to be held in July 2008.

On 20 March 2008, a writ of summons, which the applicant filed in this Court, by which he sought to bring his challenge to the Court, was considered by Chief Justice Gleeson pursuant to rule 6.07 of the High Court Rules. On that day, the Chief Justice directed that the Registrar of the Court refuse to issue the proceedings without the leave of a Justice first had and obtained.

Subsequently, in conformity with the Chief Justice’s direction, the applicant sought the leave of a Justice. That application was referred to Justice Crennan and was considered by her Honour. For reasons published on 12 June 2008, Justice Crennan refused such leave. The material part of her Honour’s reasons reads:

“The documents filed in support of the application are confusing, prolix and embarrassing in form. On their face they disclose complaints which are political in nature. They do not disclose any matter of legal substance which would justify the grant of leave to issue the proceeding. In terms of Rule 6.07, the proceeding, if issued, would be an abuse of process and vexatious. Leave is refused.”

The applicant then issued a summons out of this Court. That summons seeks the following relief, namely:

“1. Order that the application for leave and the appeal [from the order of Justice Crennan] be heard concurrently;

2. Order dispensing with the requirements of the High Court Rules Regulation (sic) 41.05 in relation to the application for leave to appeal;

3. Order expediting the hearing of the application for leave and the appeal; and

4. Directions for the hearing of the matter.”

It is that summons which has been returned before me today. I am considering only the relief that the applicant seeks in that summons. I am not considering whether leave to appeal, which would be required to overturn the order of Justice Crennan, should be granted. Such a decision is reserved to the Full Court of this Court comprising two or more Justices.

In the ordinary course, the application for leave to appeal, brought by the applicant, would be considered by a panel of the Justices of the Court to determine whether or not it should be the subject of an oral hearing. Then, if an oral hearing were deemed appropriate, it would be considered by two or more Justices. In the ordinary course, that process would not be complete before World Youth Day, the Papal Mass and the other activities connected with those events took place in July 2008. That is the reason why, as duty judge, I directed that the proceedings before the Court on the summons be returned before me with expedition today.

At the time of so directing I indicated that copy of the applicant’s process should be provided to the Commonwealth. So it was. I have been much assisted by the presence today of Mr Markus, appearing as a solicitor on behalf of the Commonwealth to assist the Court, although in form the process before me now is an ex parte application.

In support of the orders sought in the summons the applicant has filed an extensive statement of argument. This was then elaborated orally by Mr Peter King, counsel appearing today for the applicant. As well, an exhibit was tendered. This is a news release dated 15 November 2007 issued by the Hon John Watkins, Deputy Premier and Minister for Transport and Finance in the Government of New South Wales. That release stated, inter alia:

“Deputy Premier John Watkins today announced that a package valued at up to $40 million has been agreed with the AJC, Randwick Trainers and Racing NSW, for the use of Randwick Racecourse for World Youth Day 2008.

The package will be jointly funded by the NSW and Commonwealth Governments.”

From this release, Mr Markus submitted that I should infer that the amount of the subvention by the Commonwealth, promised on 14 November 2007 by the former Prime Minister and the former Minister Peter McGauran has already been paid. It was said that such payment removed any urgency for the hearing of the application for leave to appeal from the order of Justice Crennan. It was suggested that that process should therefore take its normal place in the list of the Court and be dealt with in the regular fashion.

The applicant seeks to challenge the subvention which was promised by the former Prime Minister and Minister McGauran upon two bases. In short they are that any such provision of federal funds would be in breach of section 116 of the Constitution and secondly, that any such payment would also be in breach of sections 81 and 83 of the Constitution and, as I understood it, of the provisions of the Financial Management and Accountability Regulations 1997 and section 64 of the Financial Management and Accountability Act 1997 (Cth).

An alternative proposition was outlined. This argued that if, contrary to the applicant’s primary submission on the contravention of the Regulations and Act referred to, there was no breach of the law by or under the statute, such laws were themselves invalid as contrary to sections 81 and 83 of the Constitution.

When the matter was called I drew attention to three considerations which appeared to me to present difficulties for the applicant in succeeding in securing leave to appeal from Justice Crennan’s order. These were quite apart from the fact that the order made by her Honour was a procedural one and also a discretionary one based upon a judgment about the nature and viability of the process which the applicant seeks to bring.

Additionally, as was pointed out by Mr Markus, the order made by Justice Crennan would not necessarily prevent the applicant seeking leave to issue further and different process, aimed at presenting similar constitutional and legal questions, but in a form that lacked the defects which Justice Crennan mentioned, specifically what her Honour saw as the abuse of process and vexatious character of the documents filed by the applicant in their present form. I take all of these considerations into account.

On the other hand, the applicant raises arguably important constitutional questions which, uniquely in the Australian Commonwealth, concern the disbursement of moneys from the Treasury of the Commonwealth. I would not infer from the news release exhibited in these proceedings that the moneys have already been paid by the Commonwealth. At least, I would not do so in the absence of clear proof that that is the case. If the moneys have not been paid, then it cannot be gainsaid that the applicant has for his part since March been seeking, by process in this Court, to challenge the payments. Therefore, it seems to me that there is some ground for curtailing what might otherwise be a result that would render the relief from this Court less meaningful than relief that could be provided before any funds had been disbursed from the Treasury.

The three possible difficulties that I referred to in the applicant’s substantive case arise from the decision of this Court in Attorney-General (Vic); Ex Rel Black v The Commonwealth [1981] HCA 2; (1981) 146 CLR 559 (insofar as the Court there identified the purpose and operation of section 116 of the Constitution in the context that was there considered); the decision of the Court in Combet v The Commonwealth [2005] HCA 61; (2005) 224 CLR 494 (where the Court considered the operation and requirements of sections 81 and 83 of the Constitution); and in Croome v State of Tasmania [1997] HCA 5; (1997) 191 CLR 119 (where the Court considered the requirements for standing on the part of an individual who seeks to challenge the constitutionality of a law or of actions of the Commonwealth or of a State).

I am mindful of those difficulties. However, following the presentation of the arguments for the provision of relief to the applicant, the nature of the applicant’s case has become somewhat more clear. I would certainly not conclude at this stage that, in substance, the application for leave is beyond argument. If there is some defect in the applicant’s process it is sometimes appropriate to endeavour to cure that defect, rather than to prevent the person having one of the most fundamental rights that exists in a society governed by the rule of law, which is access to the courts. That right is especially important where there is an arguable question concerning the observance of the Constitution. This Court has its own special responsibilities to protect and uphold the Constitution.

As well, the reference by Justice Crennan to the fact that the complaints of the applicant are “political in nature” does not necessarily render them insusceptible to consideration against the standards set by the Constitution. That document, of its character, is “political”. Questions that are raised in respect of its meaning are often political in the broad sense. That being the case, there is no exclusion from the admissibility of process in this Court on the basis that the process presents questions which are “political”. Such questions often arise in a federation. The Commonwealth of Australia is no exception: cf Melbourne Corporation v The Commonwealth [1947] HCA 26; (1947) 74 CLR 31 at 82 per Dixon J.

This being the case, my opinion is that the application for leave is reasonably arguable. The hearing of the application should be expedited. I would not be prepared to order that the appeal be heard concurrently with the application. Such a direction would be a matter for the Full Court before whom the application for leave is returned. Whether the Full Court would wish to proceed immediately to hear the appeal would be a matter for it, having regard to the opportunity that was then presented more closely to examine the issues and difficulties in the case than has been possible for me in the short time that I have had to consider it.

So far as the request for an order dispensing with the requirements of rule 41.05 of the High Court Rules, in relation to the provision of a written application in support of, and against, the request for leave, necessarily if the application for leave is to be considered before the Winter recess, an order must be made dispensing with the requirements of rule 41.05 of the High Court Rules, 2004. Accordingly, the applicant will have relief under that provision of the Rules so as to permit a more abbreviated timeframe for the exchange of written arguments.

Because the applicant’s written case and process, although prolix and inaccurate in some respects, has been served upon the Commonwealth as of yesterday, following my direction to that effect, and because it has been refined and made somewhat clearer in the oral arguments today, and because the transcript of today’s proceedings will be available to the Commonwealth and the Court, it is appropriate to abbreviate the time for the provision of written submissions and to that end to dispense with the requirements of rule 41.05.

The written submissions for the applicant should be provided to the Court by Monday next, 23 June at 4.00 pm, and served on the Commonwealth by that time. The Commonwealth’s written submissions should be provided to the Court and the applicant by Thursday, 26 June at 4.00 pm. The expedited hearing of the application for leave will be listed before the Court for hearing on Friday, 27 June at 10.00 am. A direction will be given to the parties in due course whether the matter will be returned in Sydney or in Canberra. The costs of the proceedings before the Court today will be costs in the application for leave.

A question arises as to whether notice of constitutional questions should be given under the Judiciary Act 1903 (Cth) s 78B, against certain eventualities, to the States, Territories and also notice to the organisers of the World Youth Day. I will need to hear from the parties on whether such notice should be given. A further question arises as to whether there are any other respondents to the application for leave, other than the Commonwealth of Australia. What do you say on those matters?

MR KING: Thank you, your Honour. On the 78B notice, we, the plaintiff, will put in train service of that, perhaps with service of that on Monday by close of business at 4.00 pm. We may be able to do it today, but it may not be possible, your Honour. It may be best to say 4.00 pm on Monday.

HIS HONOUR: There are certain statutory consequences of such a notice. However, you are certainly arguing a matter arising under the Constitution. That may just have to be considered next week if that causes any problems. Such notices should be given.

MR KING: Yes. We will try and get it served today, your Honour. That is the indication. As to other respondents, well perhaps my friend may have a view about that, but it is our respectful submission that it does not really concern other respondents. It is a matter relating - - -

HIS HONOUR: Potentially there might be an interest of the New South Wales Government, but that will presumably arise following notices under the Judiciary Act.

MR KING: Yes.

HIS HONOUR: What about the Trustees for the Roman Catholic Church and the trustees or whoever is the organising body of the World Youth Day?

MR KING: What we will do, your Honour, is that I will speak with Mr Bilinsky, my solicitor, if I may and as a matter of courtesy we will today serve upon the Trustees of the Roman Catholic Church a copy of the writ of summons and the application and the summons itself; that is three documents: the writ of summons, the application and the summons.

HIS HONOUR: You might give some thought, Mr King, if I can say so, (not least because of the language of Justice Crennan’s criticisms of them) to some more abbreviated, precise and sharp statement of the applicant’s submissions on the issues of standing, section 116 of the Constitution, sections 81 and 83 of the Constitution and the possible suggestions of futility, so that those matters are dealt with more briefly and less argumentatively than exists in the current documentation.

MR KING: If the Court pleases.

HIS HONOUR: Is there anything that you want to say, Mr Markus?

MR MARKUS: No, your Honour. I think that my appearance already addressed the issue that may arise in relation to the issuing of section 78B notices. On my understanding of the facts as they presently stand I do not think any other party would need to be notified. The only question I have, your Honour, is in relation to the directions regarding the timetable. Your Honour referred to written submissions and just to be on the safe side, could I just clarify whether your Honour envisages that those documents would be in the form of a summary of argument?

HIS HONOUR: I am not hearing you, I am sorry.

MR MARKUS: I am sorry, your Honour. Does your Honour envisage that those documents would be in the form of summaries of argument?

HIS HONOUR: Yes.

MR MARKUS: Yes, your Honour.

HIS HONOUR: Not in the form of the normal statement under the Rules in support of an application for leave and response to that, but in the form of summary of argument so that the Court can come to grips immediately with the arguments for and against the grant of leave. In the light of the conclusion on that matter, the Full Court can then take any steps that it considers necessary and appropriate in order to preserve and protect the jurisdiction and exercise of jurisdiction by the Court.

MR MARKUS: Yes, your Honour. Lastly, I presume that the Registry will ensure that the transcript of today’s proceedings will be put on the website as soon as possible.

HIS HONOUR: I have indicated that that will be necessary, both for the parties and for the Court.

MR MARKUS: If the Court pleases.

HIS HONOUR: Thank you both for your assistance. Such are the orders that I make.

The Court will now adjourn these proceedings until 10.00 am on Friday, 27 June 2008.

AT 12.41 AM THE MATTER WAS CONCLUDED