Combet v Commonwealth
224 CLR 494Combet
vCommonwealth
High Court of Australia
Judges:
Gleeson CJ
McHugh J
Gummow J
Kirby J
Hayne J
Callinan J
Heydon J
Legislative References:
Acts Interpretation Act 1901 - s 15AB; s 15AB(2)(g)
Workplace Relations Act 1996 - The Act
Financial Management and Accountability Act 1997 - s 26; s 27
Audit Act 1901 - The Act; s 34(3)
Auditor-General Act 1997 - The Act
Case References:
-
Judgment date: 29 September 2005
[323] Although the Court majority has rejected the plaintiffs' proceedings in terms of the orders announced on 29 September 2005, it follows from these reasons that I disagree. In my opinion, the questions raised in the special case for the opinion of the Full Court should have been answered as proposed by McHugh J.
Order
The questions stated by the parties in the Special Case for the opinion of the Full Court are answered as follows:
- (1)
- Q -- Do the Plaintiffs, or either of them, have standing to seek the relief sought in the Statement of Claim in the Further Amended Writ of Summons?
- A
- -- It is unnecessary to answer this question.
- (2)
- Q -- If yes to (1), is the withdrawal of money from the Treasury of the Commonwealth to pay for the Government's Advertisements authorised by the Departmental Appropriation?
- A
- -- It is not appropriate to answer this question.
- (3)
- Q -- If no to (2), have the Plaintiffs established a basis for any, and if so which, of the relief sought in the Amended Statement of Claim?
- A
- -- The Plaintiffs have not established a basis for any of the relief sought in the Amended Statement of Claim or the alternative relief foreshadowed at the hearing of the Special Case, namely, declarations concerning payments to meet expenses incurred by the Commonwealth under contracts and arrangements for and in relation to certain past advertisements.
- (4)
- Q -- If yes to (3), should any such relief be refused on discretionary grounds?
- A
- -- It is unnecessary to answer this question.
- (5)
- Q -- Who should pay the costs of the proceedings?
- A
- -- The Plaintiffs.
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Counsel for the plaintiffs:
S J Gageler SC
with
J K Kirk
Counsel for the defendants:
D M J Bennett QC, Solicitor-General of the Commonwealth
with
S B Lloyd
and
K J Graham
Counsel for the State of Western Australia with J C Pritchard intervening on behalf of the Attorney-General for the State of Western Australia:
R J Meadows QC, Solicitor-General
Solicitor for the plaintiffs:
Maurice Blackburn Cashman
Solicitor for the defendants:
Australian Government Solicitor
Solicitor for the State of Western Australia with J C Pritchard intervening on behalf of the Attorney-General for the State of Western Australia:
Crown Solicitor's Office (Western Australia
)
Re Patterson ; Ex parte Taylor (2001) 207 CLR 391 at 401-403 [11]-[17].
Attorney-General (Vict) v The Commonwealth (1945) 71 CLR 237 at 254 per Latham CJ.
Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 404 per Jacobs J.
Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 422 per Murphy J.
Cincinnati Soap Co v United States 301 US 308 at 321-322 (1936).
Brumby and Robinson, "Performance Budgeting, an Overview", paper delivered at the International Seminar on Performance Budgeting, Brasilia, 2004 at 7 (cited in Webber, "Managing the Public's Money: From Outputs to Outcomes -- and Beyond", (2004) 4 OECD Journal on Budgeting 101 at 109).
Webber, "Managing the Public's Money: From Outputs to Outcomes -- and Beyond", (2004) 4 OECD Journal on Budgeting 101 at 114; Boxall, "Outcomes and Outputs: The New Resource Management Framework", (1998) 88 Canberra Bulletin of Public Administration 39 at 41; Her Majesty's Treasury, Better Accounting for the Taxpayer's Money : Resource Accounting and Budgeting in Government , (1994) Cmnd 2626.
Quick and Garran, The Annotated Constitution of the Australian Commonwealth , (1901) at 669.
Australia, House of Representatives, Parliamentary Debates (Hansard), 26 May 2005 at 38-43.
Maitland, The Constitutional History of England , (1908) at 181.
Saunders, "Parliamentary Appropriation", in Saunders et al, Current Constitutional Problems in Australia , (1982) 1 at 2.
Attorney-General v Wilts United Dairies Ltd (1920) 37 TLR 884 at 886.
Maitland, The Constitutional History of England , (1908) at 184, 328.
Auckland Harbour Board v R [1924] AC 318 at 326; Brown v West (1990) 169 CLR 195 at 205.
Victoria v The Commonwealth (1975) 134 CLR 338 at 385-386. After 1689, the only power the House of Lords had in respect of money Bills was to withhold assent.
Maitland, The Constitutional History of England , (1908) at 247.
Quick and Garran, The Annotated Constitution of the Australian Commonwealth , (1901) at 138.
Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament , 20th ed (1983) at 750.
Moore, The Constitution of the Commonwealth of Australia , 2nd ed (1910) at 142-143.
Section 57 is entitled "Disagreement between the Houses". It provides the mechanism for double dissolutions and joint sittings of both Houses of Parliament.
5th ed (2005) at 414.
Australia, 179th Report of the Joint Committee of Public Accounts of the Commonwealth Parliament , (1979) at paras 4.10, 4.11 cited in Saunders, "Parliamentary Appropriation", in Saunders et al, Current Constitutional Problems in Australia , (1982) 1 at 13.
Accrual accounting is the system under which items are brought to account and appear in financial statements as they are earned or incurred in contrast to a system where items are recorded when they are received or paid. For the purposes of these proceedings, the relevance of accrual accounting is simply that its adoption came with the adoption of the Outcomes and Outputs system.
Odgers, Australian Senate Practice , 11th ed (2004), App 6.
Odgers, Australian Senate Practice , 11th ed (2004), App 6 at 661.
Budget Paper No 4 laid before both Houses of Parliament on 10 May 2005 contains a link to The Outcomes & Outputs Framework Guidance Document. It is a relevant document for the purposes of s 15AB(1) of the Acts Interpretation Act 1901 (Cth) and may be taken into account in construing Act No 1.
PBS at (ix).
PBS at 17.
PBS at 19.
PBS at 32.
Reasons of Gummow, Hayne, Callinan and Heydon JJ at [128]-[129].
Set out earlier in these reasons at [64].
Financial Management and Accountability Orders (Financial Statements ), issued under the Financial Management and Accountability Act 1997 (Cth).
(1945) 71 CLR 237 at 253.
(1949) 79 CLR 201 at 257.
(1949) 79 CLR 201 at 257.
(1946) 73 CLR 213 at 224 , 226 , 228.
Sections 24, 26, 27 and 29-39.
(1975) 134 CLR 338 at 411.
Australia, House of Representatives, Parliamentary Debates (Hansard), 26 May 2005 at 38.
Constitution, s 83.
So far as relevant, s 27 now provides:
- (1)
- The Finance Minister may issue a drawing right to an official or Minister that authorises the official or Minister to do one or more of the following:
- (a)
- make a payment of public money for a specified purpose;
- (b)
- request the debiting of an amount against a particular appropriation;
- (c)
- debit an amount against a particular appropriation.
- ...
- (5)
- A drawing right has no effect to the extent that it claims to authorise the application of public money in a way that is not authorised by an appropriation."
High Court Rules 2004, r 27.08.
(1934) 52 CLR 455.
s 6.
Section 15AB, so far as now relevant, provides:
- (1)
- Subject to subs (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
- (a)
- to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
- (b)
- to determine the meaning of the provision when:
- (i)
- the provision is ambiguous or obscure; or
- (ii)
- the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
- (2)
- Without limiting the generality of subs (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:
- ...
- (g)
- any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section".
47 [2005] HCA Trans 650 at 5010-5086.
48 Those sections, and the notes printed with the sections, read as follows:
4 Portfolio Budget Statements
- (1)
- The Portfolio Budget Statements are hereby declared to be relevant documents for the purposes of s 15AB of the Acts Interpretation Act 1901.
- Note: See para 15AB(2)(g) of the Acts Interpretation Act 1901.
- (2)
- If the Portfolio Budget Statements indicate that activities of a particular kind were intended to be treated as activities in respect of a particular outcome, then expenditure for the purpose of carrying out those activities is taken to be expenditure for the purpose of contributing to achieving the outcome.
- ...
7 Departmental items -- basic appropriation
- (1)
- For a departmental item for an entity, the Finance Minister may issue out of the Consolidated Revenue Fund amounts that do not exceed, in total, the amount specified in the item.
- Note: Generally, the Finance Minister is permitted, but not obliged, to issue the amounts out of the Consolidated Revenue Fund. However, subs (3) and (4) impose an obligation on the Finance Minister to issue the amounts in certain circumstances.
- (2)
- An amount issued out of the Consolidated Revenue Fund for a departmental item for an entity may only be applied for the departmental expenditure of the entity . (emphasis added)
- Note: The acquisition of new departmental assets will usually be funded from an other departmental item (in another Appropriation Act).
- (3)
- If:
- (a)
- an Act provides that an entity must be paid amounts that are appropriated by the Parliament for the purposes of the entity; and
- (b)
- Sch 1 contains a departmental item for that entity;
- then the Finance Minister, under subs (1), must issue out of the Consolidated Revenue Fund the full amount specified in the item.
- (4)
- If a departmental item for an Agency includes provision for payment of remuneration and allowances to the holder of:
- (a)
- a public office (within the meaning of the Remuneration Tribunal Act 1973); or
- (b)
- an office specified in a Schedule to the Remuneration and Allowances Act 1990;
- then the Finance Minister, under subs (1), must issue out of the Consolidated Revenue Fund, under that item, amounts that are sufficient to pay the remuneration and allowances and must apply the amounts for that purpose.
8 Administered items -- basic appropriation
- (1)
- For an administered item for an outcome of an entity, the Finance Minister may issue out of the Consolidated Revenue Fund amounts that do not exceed, in total, the lesser of:
- (a)
- the amount specified in the item; and
- (b)
- the amount determined by the Finance Minister in relation to the item, having regard to the expenses incurred by the entity in the current year in relation to the item.
- (2)
- An amount issued out of the Consolidated Revenue Fund for an administered item for an outcome of an entity may only be applied for expenditure for the purpose of carrying out activities for the purpose of contributing to achieving that outcome . (emphasis added)
- Note: The acquisition of new administered assets will usually be funded from an administered assets and liabilities item (in another Appropriation Act).
- (3)
- A determination made under para (1)(b) is not a legislative instrument.
s 3.
Acts Interpretation Act 1901 (Cth), s 15AB(2)(a).
[2005] HCA Trans 650 at 5010-5086.
See, for example, Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict ) (2001) 207 CLR 72 at 77 [9] per Gaudron, Gummow, Hayne and Callinan JJ, 89 [46] per Kirby J; Victorian Workcover Authority v Esso Australia Ltd (2001) 207 CLR 520 at 526 [11] per Gleeson CJ, Gummow, Hayne and Callinan JJ, 545 [63] per Kirby J; Commonwealth v Yarmirr (2001) 208 CLR 1 at 37-39 [11]-[15] per Gleeson CJ, Gaudron, Gummow and Hayne JJ, 111-112 [249] per Kirby J; Visy Paper Pty Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 1 at 6-7 [7]-[9] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 at [30] per Gleeson CJ, Gummow, Hayne and Heydon JJ.
Attorney-General (Vict) v The Commonwealth (1945) 71 CLR 237 at 253 per Latham CJ.
s 15.
cf New South Wales v The Commonwealth ("the Surplus Revenue Case ") (1908) 7 CLR 179.
s 97.
For example, Audit Act 1898 (NSW), Pt III, ss 30-46.
s 7(1).
s 32.
Audit (Transitional and Miscellaneous) Amendment Act 1997 (Cth), Sch 1, item 1.
Audit Act 1901 (Cth), s 34(2) and (3).
Audit Act, s 40.
s 41(1)(a).
s 41(1)(b).
s 8(1).
Auditor-General Act 1997 (Cth), Sch 1, cl 1(1).
Sch 1, cl 6(1).
Sch 1, cl 6(2).
Financial Management and Accountability Act 1997 (Cth), s 5.
ss 19-36.
ss 26, 27.
Constitution, ss 53, 54.
Odgers, Australian Senate Practice , 4th ed (1972) at 324.
(1924) 34 CLR 198 at 220-221 per Isaacs and Rich JJ.
(1924) 34 CLR 198 at 224 per Isaacs and Rich JJ.
Australia, House of Representatives, Parliamentary Debates (Hansard), 13 May 1965 at 1485.
at 331.
Australia, Senate Standing Committee on Constitutional and Legal Affairs, Report on the Ordinary Annual Services of the Government , June 1976 at 5.
Australia, Senate, Journals of the Senate , 1976-1977, No 82, 17 February 1977 at 572.
Australia, Senate, Standing Committee on Appropriations and Staffing, Thirtieth Report , March 1999 at 3.
Australia, Senate, Standing Committee on Appropriations and Staffing, Thirtieth Report , March 1999 at 3.
Australia, Senate, Journals of the Senate , 1998-1999, No 34, 22 April 1999 at 776.
See Permanent Trustee Australia Ltd v Commissioner of State Revenue (2004) 79 ALJR 146 at 153-154 [40]-[41] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; 211 ALR 18 at 28-29.
(1990) 169 CLR 195 at 211.
Surplus Revenue Case (1908) 7 CLR 179 at 200 per Isaacs J; Attorney-General (Vict) v The Commonwealth (1945) 71 CLR 237 at 253 , 256 per Latham CJ; Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 404 per Jacobs J; cf Cincinnati Soap Co v United States 301 US 308 (1937) at 321-322.
Redlich, The Procedure of the House of Commons , (1908), Vol 3 at 170.
(1975) 134 CLR 338 at 394.
See [117].
See [121].
See [123].
See [123].
See [128].
See [129]-[132].
See [135].
See [133].
See [144]-[147].
(1975) 134 CLR 338 at 412.
(1975) 134 CLR 338 at 412.
Plaintiff S 157 / 2002 v The Commonwealth (2003) 211 CLR 476 at 514 [104].
Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193; Plaintiff S 157 / 2002 v The Commonwealth (2003) 211 CLR 476 at 492 [31].
Their broad intent was described by the Prime Minister in the House of Representatives: Australia, House of Representatives, Parliamentary Debates (Hansard), 26 May 2005 at 38-43.
Constitution, s 83 which requires the withdrawal of money from the Treasury to be "under appropriation made by law".
Victoria v The Commonwealth and Hayden ("the AAP Case ") (1975) 134 CLR 338 at 351. In cases of this kind, questions of constitutional validity and interpretation are closely related: Brown v West (1990) 169 CLR 195 at 200-201.
Especially Constitution, ss 53, 54, 55, 56, 81, 83 and 97.
(1981) 149 CLR 27 at 38.
AAP Case (1975) 134 CLR 338 at 379.
See reasons of McHugh J at [37]-[42]; reasons of Gummow, Hayne, Callinan and Heydon JJ ("the joint reasons") at [105].
Workplace Relations Act 1996 (Cth), Sch 1B, items 18-19.
Ministerial Statement on Workplace Relations Reform, Australia, House of Representatives, Parliamentary Debates (Hansard), 26 May 2005 at 38-43. Victoria alone of the States has referred powers with respect to industrial matters to the Federal Parliament: see Workplace Relations Act 1996 (Cth), Pt XV.
The Court answered the application unfavourably to the plaintiffs on 29 September 2005.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560-562 and cases there cited.
The text of a sample of such advertisements is set out in the reasons of McHugh J at [39]-[41].
The plaintiffs relied on a statement made by the Chairman of the Government's Taskforce on Workplace Relations Reform to the effect that the total expense would be of the order of that spent on the advertising campaign in support of the goods and services tax. According to published reports, this advertising campaign cost $14.9 million: see Lindell, "Parliamentary Appropriations and the Funding of the Federal Government's Pre-Election Advertising in 1998", (1999) 2 Constitutional Law and Policy Review 21 at 21 (hereafter "Lindell").
Lindell at 22.
73 USLW 4350 (2005).
73 USLW 4350 at 5356 (2005) per Souter J citing The Founders' Constitution §37, A Bill for Establishing Religious Freedom, (1987) at 77, codified in 1786 as Va Code Ann §57-1.
United States v United Foods Inc 533 US 405 at 411 (2001), referred to by Souter J in Johanns 73 USLW 4350 at 5356 (2005).
R v Lords Commissioners of the Treasury (1872) LR 7 QB 387 at 396 per Blackburn J.
AAP Case (1975) 134 CLR 338 at 393 per Mason J.
Constitution, ss 53, 54, 56 and 83.
Brown v West (1990) 169 CLR 195 at 209. See also Saunders, "Parliamentary Appropration", in Saunders et al (eds), Current Constitutional Problems in Australia , (1982) 1 at 35-36.
Interpretation Act (Cth), s 15AB(1).
Interpretation Act (Cth), s 15AB(1)(a).
Interpretation Act (Cth), s 15AB(1)(e).
Constitution, s 53.
(1990) 169 CLR 195 at 206-208. See also Harris (ed), House of Representatives Practice , 5th ed (2005) at 416-423.
Now, the Appropriation Act, s 15.
Reasons of Gleeson CJ at [14].
Reasons of McHugh J at [54]; joint reasons at [117].
Respectively cll 7 and 8 of the Bill. Now the Appropriation Act, ss 7 and 8.
Budget Related Paper No 1.6 at xii.
Now Appropriation Act, s 4.
PBS at xii.
Constitution, s 83.
Now Appropriation Act, s 4(2)
Now Appropriation Act, s 7.
Now Appropriation Act, s 8(2) (emphasis added).
Now Appropriation Act, s 3.
See below these reasons at [287]-[288].
PBS at ix.
PBS at 32.
PBS at 46-47: see reasons of McHugh J at [69].
PBS at 46.
PBS at 36.
PBS at 22 (second last entry).
Budget Paper No 2 at 133.
Budget Paper No 2 at 141 (emphasis added).
The Auditor-General of the Commonwealth was asked to investigate the subject: see Lindell at 22.
Odgers' Australian Senate Practice , 11th ed (2004), App 6.
The story is told in Harrison Moore, The Constitution of the Commonwealth of Australia , 2nd ed (1910) at 145-147.
Constitution, s 53.
See Financial Management and Accountability Regulations 1997 (Cth), made under the FMA Act.
See eg FMA Act, ss 7, 13, 14.
Under the Financial Management and Accountability Act 1997 (Cth), s 57(2)(a). See also Auditor-General Act 1997 (Cth), ss 11, 15, 23, 25; Campbell, "Parliamentary Appropriations", (1971) 4 Adelaide Law Review 145 at 164-168.
In accordance with the Constitution, s 83.
As Brown v West (1990) 169 CLR 195 at 212 demonstrates; cf Northern Suburbs General Cemetery Reserve Trust v The Commonwealth (1993) 176 CLR 555 at 572 , 577 , 578-579 , 584-585.
Harris (ed), House of Representatives Practice , 5th ed (2005) at 421.
Appropriation Bills (Nos 3 and 4) 1992-1993 (Cth) were introduced with this explanation: see Harris (ed), House of Representatives Practice , 5th ed (2005) at 421. As to unforeseen expenditure and the practices adopted to cope with unexpected developments, see Campbell, "Parliamentary Appropriations", (1971) 4 Adelaide Law Review 145 at 149-153.
Appropriation (East Timor) Act 1999-2000 (Cth).
Appropriation (Tsunami Financial Assistance) Act 2004-2005 (Cth); Appropriation (Tsunami Financial Assistance and Australia-Indonesia Partnership) Act 2004-2005 (Cth).
Australian Parliament, House of Representatives, Standing Orders, 180(b).
Australian Parliament, House of Representatives, Standing Orders, 178: see Harris (ed), House of Representatives Practice , 5th ed (2005) at 421.
Under the United States Constitution, Art 1, §9, cl 7: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law". This has been held to restrict the disbursing authority of the Executive so that no money is paid out of the Treasury unless it has been appropriated by an Act of Congress: see Cincinnati Soap Co v United States 301 US 308 at 321 (1937).
(1975) 134 CLR 338.
Attorney-General (Vict) v The Commonwealth (1945) 71 CLR 237 at 250. See also Constitution, s 53.
Lane, Lane's Commentary on the Australian Constitution , 2nd ed (1997) at 644.
There are exceptions to the need for specific appropriation recognised by the Constitution but these do not need to be considered here: Attorney-General (Vict) v The Commonwealth (1945) 71 CLR 237 at 251; AAP Case (1975) 134 CLR 338 at 353.
AAP Case (1975) 134 CLR 338 at 385-386.
Maitland, The Constitutional History of England , (1955) at 182-184, 309-310.
By the Parliament Act 1911 (UK) a Money Bill, not passed by the House of Lords, may be presented for the Royal Assent and become an Act without enactment by the Lords: see AAP Case (1975) 134 CLR 338 at 386 per Stephen J. No analogous amendment to the Australian Constitution has been adopted. See, however, Constitution, s 53 and Brown v West (1990) 169 CLR 195 at 201.
See Brown v West (1990) 169 CLR 195 at 209.
(1990) 169 CLR 195 at 208.
(1975) 134 CLR 338 at 392.
[1924] AC 318 at 326.
(1924) 34 CLR 198 at 224.
(1945) 71 CLR 237 at 253. The appropriation is the authority to the Treasurer to make "the specified disbursements": see The State of New South Wales v The Commonwealth (1908) 7 CLR 179 at 190 per Griffith CJ; see also at 200 per Isaacs J; cf Brown v West (1990) 169 CLR 195 at 205.
(1908) 7 CLR 179 at 200. The emphasis was added by this Court in Brown v West (1990) 169 CLR 195 at 208.
(1990) 169 CLR 195 at 209.
[1924] AC 318 at 326-327.
[1924] AC 318 at 327.
As envisaged by the Constitution, s 64. See also s 61.
cf State v Moore 69 NW 373 at 376 (1896) (SC Nebraska); Crane v Frohmiller 45 P 2d 955 at 959 (1935) (SC Arizona).
The long title to the Appropriation Act.
Durell, The Principles and Practice of the System of Control Over Parliamentary Grants , (1917) at 15.
Durell, The Principles and Practice of the System of Control Over Parliamentary Grants , (1917) at 46.
Gordon (ed), Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament , 20th ed (1983) at 791 ("hereafter Erskine May").
Erskine May at 791. See also Gordon (ed), Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament , 23rd ed (2004) at 882.
Erskine May at 760.
Erskine May at 793.
Erskine May at 791.
Harrison Moore, The Constitution of the Commonwealth of Australia , 2nd ed (1910) at 142-143.
See eg Constitution Act 1902 (NSW) s 5A; Constitution Act 1975 (Vic), s 65; Constitution Acts Amendment Act 1899 (WA), s 46; Constitution Act 1934 (Tas), s 36; cf Twomey, The Constitution of New South Wales , (2004) at 568.
Official Report of the National Australasian Convention Debates , (Sydney), 3 April 1891 at 720 (Mr McMillan).
Official Report of the National Australasian Convention Debates (Sydney), 6 April 1891at 756 (Mr McMillan).
Official Record of the Debates of the Australasian Federal Convention , (Melbourne), 8 March 1898 at 2077 (Mr Deakin). See also at 2076 (Mr Barton).
Official Report of the National Australasian Convention Debates , (Adelaide), 14 April 1897 at 605 (Mr Glynn).
Official Record of the Debates of the Australasian Federal Convention Debates , (Melbourne), 8 March 1898 at 2076 (Mr McMillan).
Brazil and Mitchell (eds), Opinions of Attorneys-General of the Commonwealth of Australia , (1981) Vol 1 at 28 (opinion dated 26 September 1901).
cf AAP Case (1975) 134 CLR 338 at 413 per Jacobs J, 418, 422 per Murphy J.
Constitution, s 53 (para 5).
Odgers' Australian Senate Practice , 11th ed (2004) at 282. See also Odgers' Australian Senate Practice , 6th ed (1991) at 581-582.
cf AAP Case (1975) 134 CLR 338 at 394; Egan v Willis (1998) 195 CLR 424 at 466-467 [79] per McHugh J, 487-494 [124]-[134] of my own reasons; Sue v Hill (1999) 199 CLR 462 at 557 [247] per McHugh J, 567-568 [277], 568-569 [279] of my own reasons.
Brown v West (1990) 169 CLR 195 at 206-208 , 211-212.
Thus in 1999, when the Executive Government adopted accrual accounting, the Finance Minister noted that the allocation of items between Appropriation Bills Numbers 1 and 2 "would be largely unchanged" and that Bill 2 would be appropriation, relevantly, for "new policy for new outcomes not previously approved by Parliament or authorised by special legislation". The Senate Committee approved the proposed changes as being "in accordance with the spirit of both the constitutional provisions and the Compact": see Australia, Senate Standing Committee on Appropriations and Staffing, 13th Report of the Senate Standing Committee on Appropriation and Staffing , (1999) at 3. This Report was adopted by the Senate.
Australia, Senate Standing Committee on Constitutional and Legal Affairs, Report on the Ordinary Annual Services of the Government , (1976) (Parliamentary Paper 130/1976) at 4-5.
The resolution appears in Australia, Senate, Journal of the Senate , (1977), Vol 82 at 572, No 20 (17 February 1977) (emphasis added). See also Australia, House of Representatives, Parliamentary Debates (Hansard), 13 May 1965 at 1485.
(1990) 169 CLR 195 at 211. The Court referred to the Compact of 1965 at 207. The Appropriation Act was read in the light of the existing federal law and parliamentary practice. It was not taken to have effected an implied repeal of the earlier federal legislation. By parity of reasoning, the existing federal law on industrial relations is primarily the Workplace Relations Act 1996 (Cth), enacted by the Parliament. Obviously, no announced proposed amendment of that Act could be taken to have repealed the provisions of that Act which remains the law of the Commonwealth: cf Lindell at 25.
(1990) 169 CLR 195 at 211.
Harrison Moore, The Constitution of the Commonwealth of Australia , 2nd ed (1910) at 152.
(1990) 169 CLR 195 at 212.
(1975) 134 CLR 338.
Chief Executive Officer of Customs v El Hajje (2005) 79 ALJR 1289 at 1304 [74]-[75] and cases there cited; 218 ALR 457 at 477.
cf APLA Ltd v Legal Services Commissioner (NSW ) (2005) 219 ALR 403 at 429-431 [92]-[95] per McHugh J, 493-494 [367]-[370] of my own reasons.
Auckland Harbour Board [1924] AC 318 at 326, approved in Brown v West (1990) 169 CLR 195 at 208-209. The "distinct authorization" must be either expressly or referentially granted: AAP Case (1975) 134 CLR 338 at 360.
Charter of Budget Honesty Act 1998 (Cth), s 3, Sch 1, cl 1.
There are many examples showing the need to adopt this approach. For instance, the outcomes of the Department of Prime Minister and Cabinet include "sound and well coordinated government policies, programmes and decision making processes". If read broadly, this would encompass virtually any Government policy at all.
Thus in New South Wales v Bardolph (1934) 52 CLR 455 at 472 Evatt J cited an example to illustrate the degree of particularity required. Hence, it would require identification of expenditure on a library but not appropriation for particular books.
See also the reasons of McHugh J at [93].
Lindell at 22.
As to the use of supplementary materials see AAP Case (1975) 134 CLR 338 at 360.
Reasons of Gleeson CJ at [27].
Reasons of Gleeson CJ at [12].
Reasons of Gleeson CJ at [28]-[29].
See Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 82 per Dixon J.
AAP Case (1975) 134 CLR 338 at 411 per Jacobs J.
The Commonwealth v Colonial Ammunition Co Ltd (1924) 34 CLR 198 at 222.
AAP Case (1975) 134 CLR 338 at 392 citing The Commonwealth v Colonial Ammunition Co Ltd (1924) 34 CLR 198 at 224 per Isaacs and Rich JJ.
Reasons of Gleeson CJ at [23]-[26].
Reasons of McHugh J at [81]-[91].
cf reasons of Gleeson CJ at [28].
See reasons of McHugh J at [92]-[95].
[2005] HCATrans 650 at 4292-4297. See also the reasons of McHugh J at [75]-[79], setting out the relevant submissions of the defendants.
Joint reasons at [128].
Joint reasons at [134].
[2005] HCATrans 650 at 6905. See also at 4254-4276, 5015, 5020. See reasons of McHugh J at [75]-[79].
cf joint reasons at [127].
[2005] HCATrans 633 at 2010-2030, esp at 2030.
[2005] HCATrans 633 at 2013-2017.
cf Chief Executive Officer of Customs v El Hajje (2005) 79 ALJR 1289 at 1295 [28] ; 218 ALR 457 at 464. Note that in that case a reference to a constitutional argument was criticised although it was confined to one that merely offered a context for interpretation. Here, the consideration embraced in the joint reasons is determinative of the outcome of the entire proceedings.
See the reasons of Gleeson CJ at [26], noting that Sch 1 identifies outcomes even where there are no relevant administered expenses.
See the Compact of 1965, para 2(b) and (c), noted above in these reasons at [248].
Joint reasons at [129]-[132].
See above these reasons at [201].
See reasons of McHugh J at [86].
See reasons of McHugh J at [89].
(1945) 71 CLR 237 at 253. See above these reasons at [233].
This approach was accepted by the defendants: [2005] HCATrans 650 at 4292-4297.
Such as those referred to above, these reasons at [259].
Pursuant to the Constitution, ss 75(iii) and 75(v).
See eg Roberts v Bass (2002) 212 CLR 1 at 54-55 [143]-[144].
Brown v West (1990) 169 CLR 195.
They relied on Re McBain ; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372. See eg at 449 [204].
(1975) 134 CLR 338 at 364.
(1975) 134 CLR 338 at 364. In the United States, in a number of cases the Supreme Court has found particular appropriations and expenditures beyond power: United States v Butler 297 US 1 at 74, 87 (1936): see AAP Case (1975) 134 CLR 338 at 359.
See eg AAP Case (1975) 134 CLR 338 at 386-387 , 393.
See Davis v The Commonwealth (1988) 166 CLR 79 at 96.
Saunders, "Parliamentary Appropriation", in Saunders et al (eds), Current Constitutional Problems in Australia , (1982) 1 at 36.
Brown v West (1990) 169 CLR 195 at 208; Saunders, "Parliamentary Appropriation", in Saunders et al (eds), Current Constitutional Problems in Australia , (1982) 1 at 36.
Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480 at 505-506.
Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193; Plaintiff S 157 / 2002 v The Commonwealth (2003) 211 CLR 476 at 492 [31], 513 [103].
cf R v Kirby ; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 267-278 cited by Gibbs J in the AAP Case (1975) 134 CLR 338 at 379.
AAP Case (1975) 134 CLR 338 at 380 per Gibbs J.
(1975) 134 CLR 338 at 380.
Victoria v The Commonwealth (1926) 38 CLR 399 at 406-407; AAP Case (1975) 134 CLR 338 at 365-366 per Barwick CJ, 383 per Gibbs J, 401-402 per Mason J; Attorney-General (Vict ); Ex rel Black v The Commonwealth (1981) 146 CLR 559 at 588-589.
AAP Case (1975) 134 CLR 338 at 391 , 424-425.
Since the Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193.
Under the Constitution, s 128.
See eg Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 138 per Mason CJ; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 70 per Deane and Toohey JJ.
It has been suggested that the relator procedure is not appropriate to the Australian judicial system because of the function that Attorneys-General play as Ministers in the Executive Government: see AAP Case (1975) 134 CLR 338 at 425 per Murphy J.
The unreality of relying on an Attorney-General to provide standing suggests the need for re-expression of the rules of standing in public law: Lindell at 26. See also Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 260-267 [33]-[48], 284-285 [107]-[109]; Re McBain (2002) 209 CLR 372 at 449-450 [206].
cf Flast v Cohen 392 US 80 (1968). See AAP Case (1975) 134 CLR 338 at 389; see also at 381.
Constitution, ss 24, 26, 27, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39 and 41.
cf Cormack v Cope (1974) 131 CLR 432 at 459.
See Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 511 , 530-531 , 547-548; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 37; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA ) (1995) 183 CLR 552 at 558; Bateman's Bay (1998) 194 CLR 247; APLA Ltd v Legal Services Commissioner (NSW ) (2005) 219 ALR 403 at 436 [116] per Gummow J, 469 [274]-[275] of my own reasons.
Constitution, s 83.
AAP Case (1975) 134 CLR 338 at 383; cf Bateman's Bay (1998) 194 CLR 247 at 262 [37]; Abebe v The Commonwealth (1999) 197 CLR 510 at 528 [32]; Truth About Motorways (2000) 200 CLR 591 at 611-612 [45]-[50] per Gaudron J, 629 [100] and 637 [122] per Gummow J, 659-660 [176]-[180] of my own reasons.
(1949) 79 CLR 201 at 257.
(1946) 73 CLR 213 at 224 , 226 , 228.
See Onus (1981) 149 CLR 27 at 37; Bateman's Bay (1998) 194 CLR 247. In Shop Distributive and Allied Employees Association (1995) 183 CLR 552 at 557-558, this Court held that the union had a special interest sufficient to ground standing. It assumed that the interest of the union was the same as that of its members. See also Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 at 133-134 per Gummow J.
(1975) 134 CLR 338 at 411.
(1990) 169 CLR 195 at 212-213.
(1990) 169 CLR 195 at 200.
(1990) 169 CLR 195 at 200.
But see Ainsworth v Criminal Justice Commission (1990) 175 CLR 564 at 581-582 , 595-597.
(1975) 134 CLR 338 at 383.
cf Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 367-371 [80]-[89]; cf at 356-360 [48]-[58].
cf Ruhani v Director of Police (2005) 219 ALR 199 at 246 [202] fn 190.