Combet v Commonwealth

224 CLR 494

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(Judgment by: McHugh J)

Combet
vCommonwealth

Court:

Judges: Gleeson CJ

McHugh JGummow 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:
-

Hearing date:
Judgment date: 29 September 2005

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Judgment by:
McHugh J

[33] The issues in this case arise out of a Special Case stated by Gummow J. The principal issue is whether the Appropriation Act (No 1) 2005-2006 (Cth) has authorised the withdrawal of money from the Treasury of the Commonwealth to pay for advertising by the federal government that promotes its industrial relations reform package.

[34] In their pleadings, the plaintiffs seek two declarations and an injunction. They seek a declaration that the drawing of money from the Treasury of the Commonwealth to pay for advertisements promoting the workplace relations reform package is not authorised by Appropriation Act (No 1) 2005-2006 ("Act No 1"). They also seek a declaration that the drawing rights issued by a delegate of the third defendant, the Minister for Finance and Administration, under s 27 of the Financial Management and Accountability Act 1997 (Cth) to authorise the payment of public money for advertisements promoting the reform package are invalid. Finally, they seek an injunction restraining the third defendant from issuing any further drawing right under s 27 of the Financial Management and Accountability Act 1997 (Cth) to authorise the payment of public money for advertisements that promote the reform package.

[35] In oral argument, however, the plaintiffs said that, if the Court was not prepared to grant the relief sought in their pleadings, it should grant two declarations. First, that the drawing of money from the Treasury for the purpose of making payments to meet expenses incurred by the Commonwealth in relation to past advertisements about the reform package was not authorised by Act No 1. Second, that the drawing rights issued by a delegate of the third defendant on 23 August 2005 have no effect in so far as they purport to authorise the debiting of an amount against the departmental item in respect of the Department of Employment and Workplace Relations in Act No 1 for the purpose of making payments of public money to meet expenses incurred by the Commonwealth in relation to the past advertisements.

[36] In my opinion, Act No 1 did not authorise expenditure on this advertising. The defendants contend that it did so because the Act authorised expenditure by the Department of Employment and Workplace Relations on advertising that could reasonably result in higher productivity or higher pay in Australian workplaces. However, the defendants tendered no expert evidence that these advertisements might achieve either result and, after examining them, I can see no rational connection between the advertisements and higher productivity or higher pay. The advertisements provide no information, instruction, encouragement or exhortation that could lead to higher productivity or higher pay. The joint judgment of Gummow, Hayne, Callinan and Heydon JJ asserts, despite the contention of the defendants, that it is not necessary that the expenditure be conducive to achieving higher productivity or higher pay or any outcome specified in Act No 1. For the reasons set out in this judgment, however, that assertion cannot be accepted. Not only is it contrary to what was common ground between the plaintiffs and the defendants but it is contrary to the language of Act No 1, the parliamentary practice, the parliamentary documents that explain the operation of Act No 1 and the understanding of all members of the Parliament. I venture to think that the joint judgment places a construction on Act No 1 that will surprise all members of the Parliament irrespective of party or ideology. It follows that Act No 1 did not authorise the expenditure of the moneys of the Commonwealth on the advertisements. A declaration to that effect should be made and the defendants should be restrained by injunction from spending the moneys of the Commonwealth on advertisements in the form or to the effect of those already published.

The material facts

[37] In May 2005, the Prime Minister informed the House of Representatives ^[9] that the federal government intended to legislate to reform workplace relations in Australia by introducing a unified national system. The Prime Minister gave no details of how this would be achieved. When this Court heard argument in the present proceedings, no legislation had been introduced into either House of Parliament to give effect to the proposed changes.

[38] In the weeks after the Prime Minister's announcement, the Australian Council of Trade Unions ("the ACTU") began a campaign opposing the proposed reforms. The campaign included rallies and marches and extensive television advertising. On and after 9 July 2005, the first defendant, the Commonwealth, responded to this campaign by publishing advertisements in newspapers in all States and Territories. On and after 23 July 2005, the first defendant also responded to the campaign of the ACTU by broadcasting advertisements on commercial radio stations. As at 15 August 2005, the first defendant had entered into contracts for advertising and related services with a value of at least $3.84 million. The cost of the advertising has been or will be met from public funds drawn from the Treasury of the Commonwealth. Unless restrained by this Court, the first defendant proposes to use funds of the Commonwealth to pay for advertisements concerning its industrial relations package.

[39] A copy of one of the first defendant's newspaper advertisements is Annex "A" to the Special Case. It is a fair sample of the nature of the advertising in question in these proceedings. The advertisement is headed:

MORE JOBS

HIGHER WAGES

A STRONGER ECONOMY

[40] The advertisement asserts that, as a result of Australians working together, the nation has a stronger economy with new jobs and higher real wages and the capacity to provide more health, education, social and community services. It claims that, if Australia is to remain effective in a global economy, more has to be done to keep these benefits. Changes to industrial relations law are therefore needed. The advertisement makes a number of specific claims about the present state of Australian industrial relations and what will happen under the reforms. It asserts that:

•

the Australian government will protect the rights and conditions of Australian workers by legislation;

•

the government will continue to protect workers with a fair and sustainable safety net of wages and conditions;

•

awards will not be abolished but will be updated so they continue to provide modern terms and conditions for those workers who choose not to have a workplace agreement;

•

workers will continue to be protected from unlawful termination including dismissal on discriminatory grounds;

•

it will remain unlawful for workers to be forced to sign an Australian Workplace Agreement (AWA) or be sacked for refusing to sign an AWA;

•

the government's plan will make it simpler and easier for workers and employers to agree on working conditions;

•

workers on AWAs currently earn 13% more than workers on certified agreements, and 100% more than workers on award rates;

•

all agreements will be required by law to meet the new tests set out by the Australian Fair Pay and Conditions Standard;

•

to keep pace with our modern economy the Australian Industrial Relations Commission will focus on dispute resolution and further simplification of awards;

•

Australia currently has six different workplace relations systems and can no longer afford to force employees and employers to work with this complexity; and that

•

Australia needs only one set of national laws to cover workplace relations.

[41] The advertisement concludes by claiming that, by working together, "we will create more jobs, with higher wages in a stronger economy and secure the future for Australian workers and their families."

[42] Whether expenditure on the advertisement and those like it was lawfully authorised depends on whether it could promote any of the items -- Outcomes 1, 2 and 3 -- in Table 1.1 of the Agency Budget Statements for the Department of Employment and Workplace Relations. Those Outcomes are identified as:

1.

Efficient and effective labour market assistance

2.

Higher productivity, higher pay workplaces.

3.

Increased workforce participation

[43] The issue in the case is one of statutory construction. No question of constitutional law is directly involved although the explanation and the meaning of the text of Act No 1 lie in the history of constitutional conflicts between the Crown and Parliament. They also lie in conflicts between the House of Representatives and the Senate over the Senate's right to amend legislation appropriating money for the purposes of the Commonwealth. It will, unfortunately, be necessary to go beyond an examination of the text of the statute. That is because the joint judgment of four members of the Court has construed Act No 1 in a manner contrary to that asserted by the plaintiffs and relevantly accepted by the defendants. As a result, it will be necessary to set out extracts from various documents in considerable detail to show that the construction that the parties have placed on Act No 1 is correct and that of the joint judgment erroneous.

The constitutional background

[44] For centuries before the enactment of the Constitution, the Crown conducted the day to day business of government -- as theoretically it still does today. But the business of government, ancient and modern, requires access to a continual supply of money. Taxation of the income or property of the subject is an obvious way of raising money for the business of government. Historically, taxation and loans have been the principal means by which governments have raised money. From an early period in the history of English constitutional law, however, the House of Commons insisted on its right to control the levying of direct taxes on the subjects of the Crown and others. It "repeatedly asserted that taxes were not to be imposed without its consent" ^[10] . By the 17th century, the House of Commons had also insisted on its right to control the levying of indirect taxation ^[11] . These demands of the Commons culminated in the promulgation of the Bill of Rights 1689 (UK) and its insistence "that levying money for or to the use of the Crown by pretence of prerogative, without grant of parliament, for longer time, or in other manner than the same is or shall be granted, is illegal." As a result, for more than three centuries, a fundamental rule of English constitutional law has been that the Crown cannot levy a tax without parliamentary authorisation ^[12] . But not only did the Commons insist on controlling the levying of taxes, it also insisted on knowing the purposes for which the Crown intended to use the supply of money and on scrutinising the expenditures of the Crown ^[13] . As a result, another fundamental rule of the constitutional law of the Anglo-Australian peoples is that the Crown cannot expend money without the authorisation of Parliament ^[14] . When the Constitution was drafted, there was also a widely accepted convention that control over money Bills essentially belonged to the popularly elected lower House of Parliament from which the government was formed. Indeed, as early as the second half of the 17th century the House of Commons had resolved that money Bills should not be amended by the House of Lords and that such Bills could only originate from the Commons ^[15] . The Lords could "make no alteration in a money bill, but must simply accept it, or simply reject it". ^[16]

[45] Sections 53, 54, 55 and 81 and 83 of our Constitution are the result of these rules of English constitutional law and this convention. Sections 53, 54 and 55 provide:

53.

Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate ...

The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.

...

The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications.

Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

54.

The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation.

55.

Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect.

[46] These three sections did not give full effect to the convention that control over money Bills belongs to the popularly elected House where the government is formed. That is because of a compromise made at the 1897 Adelaide Convention. Delegates from South Australia, Western Australia and Tasmania insisted on equal voting rights for the Senate in respect of all legislation passed by the Parliament ^[17] . In the end, they gave way in respect of money Bills to the extent provided for in s 53. Their compromise in respect of the "ordinary annual services" of the government reflected a convention that was then current in the United Kingdom and in the colonies of Australia.

[47] By the 19th century, the United Kingdom Parliament had adopted a convention that expenditure falling outside the estimates for the ordinary annual expenditure of the government required explicit approval by the Parliament. Thus, expenditures for new purposes not already covered by the existing powers or functions of a department or where the expenditure required authority for more than one year ^[18] required separate approval by the Parliament. In 1857, after a dispute between the House of Assembly and the Legislative Council in South Australia over the powers of the Council in respect of money Bills, the Council agreed to waive its claim that it could deal with appropriations concerning the ordinary annual expenses of government in South Australia ^[19] . This convention of the South Australian Parliament -- now incorporated in the Constitution Acts of a number of Australian States -- was the basis of the s 53 compromise. But as the events of 1975 showed, although the Senate cannot amend proposed laws appropriating revenue or moneys or imposing taxation, the compromise did not extend to failing to pass or rejecting them. Consequently, at the Constitutional Convention held in Sydney some months later, in 1897, s 57 ^[20] was inserted in the draft Constitution to resolve deadlocks that might arise as the result of the last paragraph in s 53 of the Constitution.

[48] Sections 81 and 83 of the Constitution, however, give full effect to the victory of the Houses of Parliament over the right of the Crown to spend public moneys at the Crown's discretion. They declare:

81.

All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution.

...

83.

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

The appropriations

[49] The practice of the federal Parliament in relation to Appropriation Bills is conveniently summarised in Harris, House of Representatives Practice ^[21] , which states:

The Parliament appropriates moneys from the Consolidated Revenue Fund on an annual basis in order to fund expenditure by the Government. Prior to 1999 the appropriation of funds by the annual appropriation bills expired at the end of the financial year on 30 June. The annual appropriations, although related to activity in a specific year, no longer lapse at the end of the year -- appropriations for departmental expenses are open ended, while appropriations for administered expenses are limited to expenses incurred in that year.

Appropriation Bill (No 1) is a key element in 'the Budget'; it contains details of estimates for ordinary annual government services -- that is, continuing expenditure by government agencies on services for existing policies.

Appropriation Bill (No 2) is also introduced as part of the Budget and appropriates funds for expenditure on new policies, new capital expenditure ...

[50] In 1979, the Joint Committee of Public Accounts of the federal Parliament reported ^[22] :

Theoretically, control over both taxation and expenditure lies with Parliament but the right to initiate spending proposals lies with the government. Parliament can debate, examine and criticise the estimates, but must accept or reject the spending proposals as a whole. If they are rejected this is generally taken as a major defeat for the government, leading either to a vote of confidence or a general election.

...

The main role of Parliament is limited to considering the estimates when they have been announced and later conducting a retrospective inquiry into how the money has been spent both in order to ensure compliance and to improve subsequent performance.

[51] The legislation with which these proceedings are concerned gives effect to ss 53, 54, 55, 81 and 83 of the Constitution and their underlying policies. Act No 1 gives effect to s 81 of the Constitution by providing for the appropriation of money for the purposes of the Commonwealth for the financial year 2005-2006. That Act and the Appropriation Act (No 2) 2005-2006 (Cth) give effect to the requirements of s 54 of the Constitution. The long title to the Bill that became Act No 1 was "[a] Bill for an Act to appropriate money out of the Consolidated Revenue Fund for the ordinary annual services of the Government, and for related purposes".

[52] The resolution of these proceedings depends upon the legal significance of a departmental "Outcome". The Outcomes are contained in Sch 1 of Act No 1. In essence, they set down the goals towards which each department will work during the next year and for which they are provided with funds. The members of this Court who are parties to the joint judgment have reached a different conclusion on this question to that which, in my opinion, is compelled by the weight of the evidence contained in various documents that show what Act No 1 was intended to achieve and how it was to be achieved. In order to demonstrate the true legal effect of these Outcomes, it will be necessary to set out lengthy excerpts of a number of these documents. These include:

-

Budget Paper No 4 for 2005-2006;

-

The Schedule to Act No 1;

-

Documents relating to established parliamentary practice concerning supply Bills;

-

A 1999 letter from the Minister for Finance and Administration to the President of the Senate;

-

A Ministerial advice on compliance with the "Outcomes & Outputs Framework Guidance Document"; and

-

Portfolio Budget Statements.

The purpose of the excerpts is to demonstrate that, contrary to the views of the members of the joint judgment, the desired Outcomes that are specified for the Department of Employment and Workplace Relations, operate as a control upon the purposes for which that Department is authorised to make appropriations from the Treasury.

[53] The 2005-06 Budget Paper No 4 provides a summary of the framework of the appropriations for that year. It states inter alia:

The annual appropriation bills, portfolio budget statements and agency annual reports are an integrated package showing the allocation of resources to government outcomes by agencies. The portfolio budget statements contain details of the estimated payments under each of the annual appropriation bills and legislation containing special appropriations. ... [T]he appropriation bills declare portfolio budget statements to be relevant documents for statutory interpretation. They can be referred to if issues arise over how to interpret the associated annual appropriation acts.

The portfolio budget statements are prepared by portfolio ministers for the purposes of Senate Legislation Committees' examination of the Government's budget. The statements are published as Budget Related Papers and tabled in the Parliament at budget time.

...

The annual appropriation bills propose the payment of specified amounts by agencies in achieving the government's outcomes.

...

In accordance with the Constitution, appropriations are provided for particular purposes. For all expenses appropriations, those purposes are the outcomes which are shown beside the appropriation amounts. Outcomes are the results or impacts on the community or the environment that the Government intends to achieve. They are specified by the responsible portfolio minister with the endorsement of the Finance Minister.

...

Departmental expenses are appropriated as a single amount for each agency. The single appropriation represents the cost of all the outputs that the agency plans to deliver. Appropriation Bill (No 1) 2005-06 shows a split of that amount across agency outcomes. The split is notional, providing an indication of the departmental resources that will be required to achieve agency outcomes .

Administered expenses are those administered by the agency on behalf of the Government. They are normally related to activities governed by eligibility rules and conditions established by the government or Parliament such as grants, subsidies and benefit payments. Agencies have no discretion over how administered expenses are spent. Administered expenses are appropriated separately for agency outcomes (ie the split across outcomes is not notional), specifying precisely how much can be expended on each outcome. (emphasis added)

[54] Section 15 of Act No 1 declared: "The Consolidated Revenue Fund is appropriated as necessary for the purposes of this Act." Sch 1 specified the "Services for which money is appropriated". The Schedule was divided into 16 portfolio items; one of them was described as the "Employment and Workplace Relations" Portfolio. It provided:

EMPLOYMENT AND WORKPLACE RELATIONS PORTFOLIO

Appropriation (plain figures) -- 2005-2006

Actual Available Appropriation (italic figures) -- 2004-2005

[55] The use of the terms "Outcome", "Departmental Outputs" and "Administered Expenses" is the result of the change to accrual accounting by the government in 1999 ^[23] . In February 1999, the Minister for Finance and Administration wrote to the President of the Senate informing her of the introduction of accrual budgeting in respect of federal government finance. The Minister said that it "would involve some modest changes to the Appropriation Bills with implications for the 1965 Compact between the Senate and the Executive on what constitutes 'the ordinary annual services of Government'". In 1965 -- in what became known as the Compact of 1965 -- the Senate had resolved to "reaffirm its constitutional right to amend proposed laws appropriating revenue or moneys for expenditure on all matters not involving the ordinary annual services of the Government". It resolved inter alia:

(2) That appropriations for expenditure on:

...

(e)

new policies not previously authorised by special legislation,

are not appropriations for the ordinary annual services of the Government and that proposed laws for the appropriation of revenue or moneys for expenditure on the said matters shall be presented to the Senate in a separate Appropriation Bill subject to amendment by the Senate.

[56] Much of the rest of the letter from the Minister for Finance and Administration to the President of the Senate must be set out because it makes clear what the "Employment and Workplace Relations Portfolio" of the Department of Employment and Workplace Relations in Act No 1 was intended to achieve. The relevant parts of the letter stated:

The Government will present its 1999-2000 Budget on an accrual basis. The focus on outcomes and outputs under an accrual budget means that the Commonwealth's financial infrastructure needs to be modified. The 1965 Compact has been applied to a cash-based, input focused system to date and needs to be updated for accrual budgeting to be effectively implemented.

The Proposal

The changes proposed to the Compact are minimal and can be achieved while maintaining the integrity of what was originally agreed in 1965 ...

Funds for capital injections, Section 96 Grants to the States and new administered outcomes not previously appropriated for by Parliament would remain in Bill 2.

The Structure of appropriations under an accrual framework

The introduction of accrual budgeting means that the Commonwealth and its agencies are changing how they plan, budget and report. The focus is on outcomes and outputs, not programs and inputs. For instance, agencies will specify their outcomes and detail the outputs to achieve them. The accrual budgeting reforms change both what is measured and the basis of measurement. As a result, the financial performance of agencies and the Government should become more transparent.

Changing to the outcomes and outputs framework has important implications for the structure of Appropriation Bills 1 and 2. The bills will no longer appropriate for the cost of inputs or programs; they will appropriate funding on the basis of outcomes. ... There are some important changes to be noted:

(i)

Allocation against Departmental and Administered items.

For each outcome the total funding for departmental and administered items will be shown.

In accordance with accrual accounting principles, departmental expenses are expenses that an agency has control over. These expenses represent the ordinary operating costs of Government Departments and agencies. They include:

•

salaries;

•

operational expenses including depreciation (or asset replacement);

•

accruing employee entitlements.

Departmental expenses will be notionally split between outcomes ... thereby providing in the Appropriation Bills an indication of the departmental resources to be allocated towards the achievement of key outcomes for agencies. However, this split will be for information purposes only, with departmental items to be appropriated, as running costs are now, as a single amount for each agency. This will maintain the flexibilities to adjust departmental outputs to take account of emerging priorities available under present running cost arrangements. The single appropriation for departmental items will represent the price to be paid by Government for all the outputs the agency plans to deliver.

Administered expenses are expenses that agencies do not have control over and are normally made pursuant to eligibility rules and conditions established by the Government such as grants, subsidies and benefit payments. Annual appropriations for administered expenses would be appropriated on the basis of agency outcomes, making it clear what the funding is intended to achieve rather than the program it is being spent on.

[57] As these passages make clear, both departmental and administered expenses bear a clear connection to the Outcomes specified for each department. I will return later in these reasons to the significance of departmental items being "notionally split between outcomes". The Minister's letter continues:

(ii)

Consistency of information between the Appropriation Bills, Portfolio Budget Statements and Annual Reports.

An important change under the accrual budget will be the provision of consistent information in the Appropriation Bills, Portfolio Budget Statements (PBS) and Annual Reports, as all the documents will be presented on an outcomes basis. The lack of linkages between the Bills, PBS and Annual Reports has long been a concern to Parliament. Agency Portfolio Budget Statements (which will be available on Budget night) will contain detailed information on planned performance of outputs and outcomes on the same outcomes basis as the bills. Additionally, information on actual performance will be published on an outcomes basis in agencies annual reports, enabling a clear read between the Bills, PBS and Annual Reports .

Not only will Senators and Members be able to make more informed assessments of the merits of appropriation bills using agency PBS, they will be able to assess actual versus planned performance by comparing information on:

price, quantity and quality of outputs; and

performance indicators for outcomes,

in an agency's PBS with actual performance information in its Annual Report. This will improve Parliamentary scrutiny of the Bills and agency performance. (emphasis added)

[58] The procedures outlined in the Minister's letter provide information that enables the Senate and others to scrutinise the purpose of appropriations and to check the performance of government agencies. The Senate has no power to amend "proposed laws appropriating revenue or moneys for the ordinary annual services of the Government". Hence, the Senate has a vital interest in knowing whether a particular appropriation is truly expenditure "for the ordinary annual services of the Government". Acting in accordance with its powers under s 53 of the Constitution, the Senate has frequently returned Bills to the House of Representatives with a request to amend or alter them ^[24] . In the first year of the sitting of Federal Parliament -- in June 1901 -- the Senate returned the Consolidated Revenue (Supply) Bill 1901-1902 (No 1) to the House of Representatives ^[25] . It was accompanied by a message requesting that House to amend the Bill by listing the items of expenditure comprised in the amounts for which the Bill provided. The House did not return the Bill, but subsequently it sent a second Bill to the Senate that identified the items of expenditure. Since that time, the Appropriation Bills and accompanying papers have sought to give the Senate sufficient detail to enable the Senate to understand the purpose and objects of the appropriations.

[59] Appropriation Bills for the financial years subsequent to 1999-2000 have followed the framework outlined in the Minister's letter of February 1999. To assist departments to comply with the framework, the Department of Finance and Administration has issued a "web-based advice", headed, "The Outcomes & Outputs Framework Guidance Document" ^[26] . This advice is also relevant in determining the meaning and construction of the "Employment and Workplace Relations Portfolio" of the Department of Employment and Workplace Relations in Act No 1 and what it was intended to achieve. It is part of the background to Act No 1 and gives content to the Department's Portfolio. Relevant parts of the advice state:

This guide takes the outcomes and outputs framework, first introduced in the 1999 Federal Budget, to the next level of development. It is aimed at practitioners within Commonwealth departments and agencies who have specific questions or issues about the framework and its application. The material in the guide draws on experience to date and differs from earlier advice in several respects. In particular, there is:

•

a greater emphasis on performance information, reporting and management, especially by identifying performance information with the major elements of the framework, that is, outcomes, administered items and departmental outputs;

...

•

an emphasis on the role of pricing of outputs.

[60] Under the heading "Policy & purpose", the advice states:

The outcomes and outputs framework ... helps answer three fundamental questions:

i.

What does government want to achieve?

ii.

How does it achieve this?

(outputs and administered items)

iii.

How does it know if it is succeeding?

(performance reporting)

...

In other words, government delivers benefits to the Australian community (outcomes) primarily through administered items and agencies' goods and services (outputs) which are delivered against specific performance benchmarks or targets (indicators ).

All Commonwealth agencies are required to report on the basis of an outcomes and outputs framework.

...

The framework has two basic objectives: to improve agencies' corporate governance and enhance public accountability. Managing through outcomes and outputs helps improve decision making and performance by focussing attention on the fundamental questions outlined above. (emphasis added)

[61] Under the heading "The framework & how it works", the advice states:

The outcomes and outputs framework is intended to be dynamic and flexible. It works as a decision hierarchy:

•

government (through its ministers and with the assistance of relevant agencies) specifies the outcomes it is seeking to achieve in a given area;

•

these outcomes are specified in terms of the impact government is aiming to have on some aspect of society (eg education), the economy (eg exports) or the national interest (eg defence);

•

Parliament appropriates funds to allow the government to achieve these outcomes through administered items and departmental outputs

•

items such as grants, transfers and benefit payments are administered on the government's behalf by agencies, with a view to maximising their contribution to the specified outcomes;

•

agencies specify and manage their outputs to maximise their contribution to the achievement of the Government's desired outcomes;

•

performance indicators are developed to allow scrutiny of the effectiveness (ie the impact of the outputs and administered items on outcomes) and efficiency (especially in terms of the application of administered items and the price, quality and quantity of outputs) and to enable the system to be further developed to improve performance and accountability for results.

Outcomes, administered items and outputs form the basis of the Commonwealth's budgetary framework and documentation. Outcome statements define the purpose of appropriations in the Budget Bills, while administered items and departmental outputs are detailed in Portfolio Budget Statements, which form part of the Budget Papers . ( emphasis added )

[62] Under the heading "Performance indicators", the advice states:

The specification of outcomes and outputs necessitates appropriate performance information. Performance indicators reflect:

•

the effectiveness of contributions to outcomes;

•

the price, quality and quantity of outputs; and

•

the desired characteristics of relevant administered items.

[63] Under the heading "Specifying Outcomes", the advice declares:

An 'outcome' is the impact sought or expected by government in a given policy arena. ... Outcome statements also perform a specific legal function by describing the purposes of appropriated funds.

1.1 Policy & purpose

Outcome statements serve several purposes. They:

•

define the impacts government expects from the work of the agency as well as administered items it manages;

•

articulate the purpose of the relevant appropriations under the Appropriation Acts of the Commonwealth Budget;

•

delineate the parameters for departmental outputs.

All departmental outputs must contribute -- directly or indirectly -- to the realisation of a specified outcome , including under purchaser/provider arrangements whereby the provider is delivering services to contribute to the purchaser's outcome(s). They must provide the Parliament, external accountability bodies, agency clients, interest groups and the general public with a clear statement of the broad goals of government and its agencies. (emphasis added)

[64] Section 4 of Act No 1 gives statutory effect to the Portfolio Budget Statements to which The Outcomes & Outputs Framework Guidance Document refers. Section 4 declares:

(1)

The Portfolio Budget Statements are hereby declared to be relevant documents for the purposes of section 15 AB 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.

[65] The Portfolio Budget Statements 2005-06 ("PBS") for the Employment and Workplace Relations Portfolio consisted of a 228 page booklet. Under the heading "USER GUIDE", the PBS stated ^[27] :

The purpose of the 2005-06 [PBS] is to inform Senators and Members of Parliament of the proposed allocation of resources to government outcomes by agencies within the portfolio.

...

The [ PBS ] provide sufficient information, explanation and justification to enable Parliament to understand the purpose of each outcome proposed in the Bills . (emphasis added)

[66] Under the heading "Section 1: Agency overview", the PBS declares ^[28] :

The department's aims are to maximise the ability of working age Australians to participate actively in the workforce; and improve the productive performance of enterprises in Australia.

To do this, the department provides the Government with high quality advice and services to achieve three outcomes:

•

efficient and effective labour market assistance;

•

higher productivity, higher pay workplaces; and

•

increased workforce participation.

•

These outcomes:

•

are integrally linked to the achievement of broader government economic performance, employment and social goals;

•

...

•

recognise the requirements for further reform to create competitive workplaces.

[67] Section 2 of the PBS contains 13 pages. Table 2.1 ^[29] in that section "shows the total resources from all origins for 2005-06, including appropriations. The table summarises how revenue will be applied by outcome, administered and departmental classification."

[68] Section 3 of the PBS is headed "Agency outcomes". It "explains how the resources identified in s 2 will be used to deliver outputs and administered items to contribute to the three outcomes for the Department of Employment and Workplace Relations." ^[30]

[69] In their submissions, the defendants relied on Outcome 2 -- higher productivity, higher pay workplaces -- to support the advertising campaign of the Commonwealth that is in issue in these proceedings. It is appropriate to set out lengthy extracts of what the PBS has to say under the heading "Outcome 2". Nine pages of the PBS are directed to this Outcome. They state inter alia:

Outcome 2 activities are directed towards encouraging employer[s] and employees to adopt flexible and modern workplace relations practices. This enables workplaces to be productive and competitive and to offer employees secure jobs that are well paid.

Agreement making is at the centre of the workplace relations system. The system is underpinned by a fair safety net and compliance with workplace relations obligations. The department actively contributes to Outcome 2 by:

•

providing policy advice and legislation development services to government; and

•

supporting employers and employees in adopting fair and flexible workplace relations practices.

Key priorities for 2005-06

Key priorities for outcome 2 for 2005-06 are to:

•

develop a workplace reform package which implements the Government's policy agenda;

•

continue to pursue reform in the building and construction industry to achieve proper regard for workplace relations and occupational health and safety law;

•

promote agreement-making choices to employers and employees;

•

improve access for employers and employees to workplace information and advice through streamlining operations and innovative information technology applications;

•

intervene in test cases to ensure the safety net is fair and facilitates agreement making;

•

pursue strategic interventions in AIRC and court cases to ensure the objects of the Workplace Relations Act 1996 are protected;

•

progress flexible workplace relations solutions to achieve balance between work and family demands;

•

promote workplace relations initiatives that address the emerging pressures of an ageing workforce;

•

strengthen the operational framework and stakeholder partnerships for the General Employee Entitlements and Redundancy Scheme (GEERS);

•

improve national outcomes in occupational health and safety and workers' compensation; and

•

engage strategically with the International Labour Organisation (ILO) to advance Australia's interests.

[70] Earlier in these reasons I referred to the distinction between departmental items and administered items. As is clear from ss 7 and 8 of Act No 1, one distinguishing feature is that the amounts set out against departmental outcomes are "notional". Those sections give statutory effect to the procedures outlined in the Minister's letter of February 1999. Section 7 provides as follows:

(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.

(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.

(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)

Schedule 1 contains a departmental item for that entity;

then the Finance Minister, under subsection (1), must issue out of the Consolidated Revenue Fund the full amount specified in the item.

...

[71] Section 3 of Act No 1 defines "departmental item" as "the total amount set out in Sch 1 in relation to an entity under the heading 'Departmental Outputs'". The definition has a note appended to it which declares:

The amounts set out opposite outcomes, under the heading 'Departmental Outputs', are 'notional'. They are not part of the item, and do not in any way restrict the scope of the expenditure authorised by the item.

Section 3 of Act No 1 also defines "expenditure" as "payments for expenses, acquiring assets, making loans or paying liabilities". Section 8 of Act No 1 provides:

(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.

...

[72] Section 3 defines "administered item" as "an amount set out in Sch 1 opposite an outcome of an entity under the heading 'Administered Expenses'".

[73] Sections 26 and 27 of the Financial Management and Accountability Act 1997 (Cth) regulate the drawing of public money from the Treasury of the Commonwealth. Section 26 makes it an offence for an official or Minister to make payments of public money or to debit an amount against an appropriation or make a request that a debit be made, except as authorised by a valid drawing right. Section 27 empowers the Finance Minister to issue such a drawing right but subs (5) provides that:

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.

The legal significance of Outcomes

[74] In support of the relief sought, the plaintiffs argued that nothing in Act No 1 or the PBS provides any foundation for a claim that that Act authorised the appropriation of moneys for the payment of advertisements in relation to the government's workplace reform package.

[75] In their written submissions, the defendants asserted that they proposed to pay for the advertising campaign in reliance on the departmental item for the Department. The defendants specifically pointed to "Outcome 2" -- "Higher productivity, higher pay workplaces" -- to justify paying for the advertising campaign. In their written submissions, the defendants did not contend that the payments could be justified on some other ground. Throughout the oral argument, the Solicitor-General for the Commonwealth maintained that position. He accepted that to justify the payment of public money for the advertisements, the defendants had to show that the payments could reasonably be regarded as contributing to achieving one or more of the Outcomes referred to in the Employment and Workplace Relations Portfolio. At one stage of the argument, the Solicitor-General, after referring to the Portfolio, said:

So what we have in the Act is a very simple situation in which the three administered items set out against each outcome are items that can only be spent in relation to that outcome, whereas the departmental item, which is the 1.4 billion, can be spent on any or all of the three outcomes . There is no requirement to comply with the breakdown. The breakdown is purely notional. (emphasis added)

[76] When I asked the Solicitor-General whether the effect of his submission was that the Outcomes were not controlling in respect of Departmental Outputs, he answered, "Yes. ... Except to the extent that one must be within one of them." This answer made it clear that, while the defendants contended that the Department did not have to spend the appropriations set out against individual Outcomes, the appropriation for Departmental Outputs had to be spent on one or other of the Outcomes. Later, the Solicitor-General said:

All I am pointing out is that the Act has defined the expenditure in terms of Outcomes. A certain sum of money is limited to Outcome 2 and a certain sum of money can be applied, at departmental discretion, to Outcomes 1, 2 or 3.

[77] Earlier in answer to a question from the Chief Justice, the Solicitor-General said that he was "content for present purposes to treat the relevant Outcome as Outcome 2."

[78] Counsel for the plaintiffs also agreed that the Department had a discretion as to how to spend the total appropriation for Departmental Outputs, so long as it related to an Outcome. In argument, he said, "the whole of the bottom line of the departmental item is available to be spent on all or any departmental outputs."

[79] Hence all parties agreed that expenditure on the advertisements for the proposed workplace reform package was authorised by Act No 1 only if the expenditure was capable of achieving one or more of the Outcomes identified in the Employment and Workplace Relations Portfolio. Neither the defendants nor the plaintiffs contended that the payments were authorised merely because they were Departmental expenditure.

[80] However, the joint judgment of the Court fastens on the difference between s 7(2) and s 8(2) to hold that ^[31] :

the several amounts of Departmental Outputs which are identified against particular outcomes, and together make up the departmental item, are not tied to expenditure for the purpose of achieving any of the nominated outcomes. The only relevant requirement imposed by the Act is that the departmental item be applied only 'for the departmental expenditure of the entity'. That is, the text of ss 7(2) and 8(2) requires the conclusion that the note appended to the definition of 'departmental item' accurately records the effect of s 7(2) of the Act.

There are two related propositions supported by the statement in the note appended to the definition of 'departmental item'. The note is to the effect that the amounts set out opposite outcomes under the heading 'Departmental Outputs' are 'notional', so that they are not part of the item and do not in any way restrict the scope of the expenditure authorised by the item (emphasis in original).

[81] With great respect to the members of the Court who are parties to the joint judgment, these conclusions cannot be supported. There are many reasons why that is so.

[82] First, it would mean that the specification of "Outcomes" in the Portfolios of every department -- including the Department of Employment and Workplace Relations -- in Act No 1 would have no controlling effect whatever on departmental outputs. At best, "Outcomes" would be but pious aspirations which departments could disregard if and when they pleased. A department could spend the total of the departmental outputs for any purpose it liked provided, presumably, that the money was spent for a purpose of the Commonwealth. Given the terms of the Minister's letter of February 1999, The Outcomes & Outputs Framework Guidance Document, the PBS for the Employment and Workplace Relations Portfolio and its "USER GUIDE", the conclusion that the total amount of the "Departmental Outputs" is not restricted to the pursuit of the identified "Outcomes" makes no sense.

[83] Second, the construction accepted by the joint judgment is based on the conclusion that "the departmental expenditure of the entity" referred to in s 7(2) is at large. But, even leaving aside the external documents, when s 7(2) is read in the textual context of Act No 1, particularly s 4(2) ^[32] and the Portfolio in Sch 1, the most natural reading of the phrase is that it is referring to the expenditure of the Department for the purpose of achieving the Outcomes specified in the Portfolio. The effect of s 4(2) is that, if a Portfolio Budget Statement indicates that activities of a particular kind were intended to be treated as activities in respect of a particular outcome, then expenditure on those activities is deemed to contribute to the Outcome. If the construction favoured by the joint judgment is correct, this subsection is redundant so far as "Departmental Outputs" are concerned. On that construction, there is no point in deeming the outputs to contribute to an Outcome because the outputs are not required to contribute to an Outcome.

[84] With great respect, it is not credible that Act No 1 authorises the various agencies to make "payments for expenses, acquiring assets, making loans or paying liabilities" without regard to whether such transactions could achieve one or more of the Outcomes identified in the Portfolio. If that was the case, there could be no consistent linkage between the Appropriation Bills, the Portfolio Budget Statements and the Annual Reports. There would be no way in which the Annual Reports of agencies could be consistently reconciled with the Portfolio Budget Statements and Appropriation Bills. On the construction that the joint judgment places on the Portfolios of agencies, the actual expenditure incurred by departments might bear little relationship to the Outcomes in their Portfolios or to their Portfolio Budget Statements. In his February 1999 letter, the Minister said that hitherto the "lack of linkages between the Bills, PBS and Annual Reports has long been a concern to Parliament." He said that an "important change under the accrual budget will be the provision of consistent information" in those documents. In his letter, he emphasised that "information on actual performance will be published on an outcomes basis in agencies annual reports, enabling a clear read between the Bills, PBS and Annual Reports." There can be no "clear read" if the construction placed on the Portfolios by the joint judgment is correct. Nor would the "three fundamental questions" set out in The Outcomes & Outputs Framework Guidance Document have any meaning. Those questions were:

i.

What does government want to achieve?

ii.

How does it achieve this?

(outputs and administered items)

iii.

How does it know if it is succeeding?

(performance reporting)

[85] If the construction favoured by the joint judgment is correct, there would seem to be little point in the Senate scrutinising the appropriations in so far as they dealt with "Departmental Outputs". On that construction, the outputs referred to in the Portfolio Budget Statements might bear no relationship to the actual outputs of the agency in the year succeeding the Senate's scrutiny.

[86] Third, it is only the "amounts set out opposite outcomes, under the heading 'Departmental Outputs'" that are "notional". Neither s 7(2) nor the note to that subsection indicate that the Outcomes referred to in the Portfolio are notional. If the "amounts set out opposite outcomes ... do not in any way restrict the scope of expenditure authorised by the item", then presumably a department could choose not to spend anything on that Outcome at all. This cannot be correct because the Outcomes have been set down in the Portfolio as the principal objectives for the Department for the forthcoming year. They therefore have the force of law as stated objectives for each department and cannot be disregarded in a capricious fashion.

[87] Fourth, the text of the Portfolio shows that Departmental Outputs must be related to the Outcomes. The Employment and Workplace Relations Portfolio shows not only the appropriation figures for 2005-2006 but also the actual available appropriation figures for the previous year. The moneys spent on Departmental Outputs for the previous year are segregated in terms of the Outcomes identified in the Portfolio. This is almost conclusive evidence that the Departmental Outputs can only be expended to achieve one or more of the identified Outcomes.

[88] If there were any doubt about the requirement that outputs must be related to the identified Outcomes, it is put to rest by the Finance Minister's Orders that set out the requirements and guidance for the preparation of financial statements of Australian government entities ^[33] . Section 2D of that document deals with the "Reporting of Outcomes and Outputs". That section states that "[e]ntities in the General Government Sector must disclose in the notes the following tables relating to outcomes and outputs". Table A in that section then requires Administered and Departmental expenses, costs recovered and other external revenues of an entity to be classified under each Outcome "as specified in the Appropriation Acts relevant to the entity." Table B in that section also requires an entity to prepare a separate table showing "each relevant major class" of "Departmental expenses" "for each Outcome ... as specified in the Appropriation Acts relevant to the entity." Accordingly, when agencies furnish their Annual Reports showing how they spent their appropriation, they must itemise the expenditure -- including Departmental Outputs -- under the Outcomes in the Portfolio. With great respect to the Justices who are parties to the joint judgment, this is a complete answer to the conclusion that the amounts set out opposite Outcomes "do not in any way restrict the scope of the expenditure authorised by the item."

[89] Fifth, the construction of s 7 favoured by the joint judgment raises an arguable question of constitutional invalidity. In Attorney-General (Vic) v The Commonwealth ^[34] , Latham CJ rejected the notion that there could be valid "appropriations in blank". He said that, if an Act merely authorised a Minister or other person to spend public money without the purpose of the expenditure being stated, it would not be a valid appropriation Act. The construction favoured by the joint judgment contravenes this principle, for it appears to authorise an agency to spend money on whatever outputs it pleases. Even if the authorisation is read down to confine the expenditure to "the purposes of the Commonwealth", the statement of Latham CJ indicates that the "appropriation" in this case was invalid. A statute of the Federal Parliament should not be construed in a way that gives rise to questions of its constitutional invalidity unless the words of the statute make it clear that such a construction was intended.

[90] Sixth, in construing an appropriation statute, the construction placed on it by the Houses of Parliament, as demonstrated by their practices, is a matter of considerable weight. In the present case, the third defendant, the Minister for Finance and Administration, the second defendant, the Minister in charge of the relevant Department, and the second plaintiff, the shadow Attorney-General, all agree that Departmental Outputs can only be expended if they contribute to one or more of the Outcomes identified in the Portfolio. One can safely assume that their agreement reflects the understanding of members of the Parliament as to the manner in which appropriation Acts operate. Their agreement is not decisive. It is for this Court to determine the meaning of Act No 1. But if there is any ambiguity in s 7(2) -- and I do not think that there is -- it should be resolved in accordance with their common understanding.

[91] Accordingly, the parties to these proceedings correctly construed s 7(2) and the Portfolio as authorising only those Departmental Outputs which contribute to one or more of the Outcomes identified in the Portfolio.

The advertisements were not authorised by the Appropriation Act (No 1) 2005-2006

[92] In their written submissions, the defendants contended that "the subject matter, scope and purpose of the appropriation Act make it clear that spending is authorised where a relevant official can reasonably conclude that spending is capable of achieving the outcome." In broad terms, this submission is correct. However, the better way of stating the issues is to say that the expenditure is authorised if there is a rational connection between the spending and the outcome. I also think that the defendants are correct in contending that the Portfolio Budget Statements do not exhaust the expenditures that an agency may incur to achieve an outcome. The argument of the plaintiffs to the contrary is inconsistent with the parliamentary practice in respect of expenditures that contribute to an Outcome although not specified in a PBS. However, even accepting these contentions of the defendants, I find it impossible to conclude that there is any rational connection between the advertisements and Outcome 2 -- which was the Outcome upon which the defendants relied.

[93] There is simply nothing in the advertisements that could result in an increase in productivity or wages. On their face, the advertisements are concerned to reassure members of the public -- and workers in particular -- that, under the reform package, workers will not be worse off and that there will be more jobs and higher wages for Australian workers and their families. The defendants tendered no expert evidence that "feel good" advertisements of this kind will increase the number of units of goods or services produced per worker or will induce employers to pay higher wages. In the absence of such evidence, I can see no connection -- rational or otherwise -- between the advertisements and higher productivity or higher wages. There is not a scintilla of material in the advertisements that could be construed as instructing workers to produce goods or services more efficiently or that could induce employers to pay higher wages. The advertisements do not instruct, encourage or exhort workers to increase productivity or employers to raise wages. The advertisements provide no information concerning techniques, products, processes or machinery that might increase the production of goods or services by workers. They provide no assistance to employers in obtaining skilled workers or to employees in obtaining skills that might increase productivity. They provide no information that might help employers to reduce costs or to increase revenue or production with a consequent increase in profit margins and higher wages.

[94] Moreover, there is nothing in the PBS that is deemed to represent Outcome 2 that would justify the advertisements. The defendants asserted that the advertisements were supported by the activity, "develop a workplace reform package which implements the Government's policy agenda". But these advertisements do not develop such a package. The "key priorities", including that priority, are concerned with matters of substance. They "are directed towards encouraging employer[s] and employees to adopt flexible and modern workplace relations practice." They are not directed to the public generally or to promoting the image of the government. Developing a workplace reform package to implement the government's policy means developing a body of doctrine that can be transformed into law or industrial practice and change the present state of workplace relations so that they become more flexible and consistent with contemporary needs. The Portfolio Budget Statements contain numerous illustrations of the difference between policy initiatives and providing information -- such as is found in advertisements -- where the provision of information is a matter of substance. A department needs no specific authority to advertise as long as it contributes to one of the Outcomes. But these advertisements do not do so. Where advertisements do not have a rational connection with the specified Outcome, they are only authorised where they are deemed to have that connection by being specifically referred to in the PBS. Advertising or any general description that would cover advertising is not mentioned in the Department's PBS. The advertisements appear to be political in nature. They appear designed to win support for government policy or, at least, to negate the impact of criticism of that policy. Nothing in them provides any support for the conclusion that somehow by some means the advertisements will contribute to achieving higher productivity or higher pay workplaces.

[95] In my opinion, there is no rational connection between the advertisements and Outcome 2. It follows that the defendants had no lawful authority to draw funds from the Treasury of the Commonwealth to finance the advertisements in question.

Standing

[96] The defendants contended that neither plaintiff has standing to obtain a declaration concerning the validity of the payments or an injunction to restrain the third defendant from issuing drawing rights to authorise the payment of public money for the advertising campaign. The first plaintiff is the Secretary of the ACTU. In British Medical Association v The Commonwealth ^[35] , Dixon J doubted that the Federal Council of the British Medical Association in Australia, one of whose objects was to advance the general interests of the medical profession in Australia, had standing to challenge federal legislation that imposed a form of civil conscription within the meaning of s 51(xxiiiA) of the Constitution. His Honour said ^[36] that it "may be doubted whether this body has, as a corporation, a sufficient material interest, which would be prejudiced by the operation of the Act, to give it a title to maintain the suit". Similarly, in The Real Estate Institute of NSW v Blair ^[37] , Latham CJ, Starke J and Dixon J were of the opinion that the Real Estate Institute of NSW had no standing to challenge legislation that made provision for the housing of members and ex-members of the armed forces. Their Honours thought that the Institute, in contrast to its members, had no material interest in the operation of the legislation. By parity of reasoning, the ACTU has no material interest in the operation of Act No 1. The Secretary of the ACTU is even further removed from the operation of the Act. It may be that the decisions and dicta in British Medical Association v The Commonwealth and The Real Estate Institute of NSW v Blair require reconsideration in the light of subsequent developments in the law of "standing" in relation to general law matters. It is not necessary, however, to determine whether the first plaintiff has standing. In my opinion, the second plaintiff as the shadow Attorney-General of the Commonwealth has sufficient interest in the proceedings to give her standing to bring these proceedings.

[97] The second plaintiff is a member of the House of Representatives. Her status as a member is expressly recognised by the Constitution ^[38] . She voted for or against or could have voted for or against Act No 1. She has a special interest in ensuring that public moneys are not expended inconsistently with the terms of Act No 1 passed by the Parliament of which she is a member. Furthermore, she is seeking an injunction to restrain an officer of the Commonwealth from acting in contravention of the law and s 83 of the Constitution. Her action is brought under s 75(v) of the Constitution. The remedy of injunction available under that paragraph of s 75 is one of three remedies that the paragraph makes available against officers of the Commonwealth. Another remedy under that paragraph is "prohibition", a remedy that even under the general law is available, subject to exercise of the Court's discretion, to a stranger to the issue. If a stranger can obtain a writ of prohibition under s 75(v), it is difficult to see why, subject to the Court's discretion, a stranger cannot obtain an injunction under that paragraph. In many cases to which s 75(v) applies, the distinction between a writ of prohibition and a writ of injunction will be elusive.

[98] Accordingly, the second plaintiff has standing to bring these proceedings.

Relief

[99] In Victoria v The Commonwealth and Hayden (the " AAP case "), Jacobs J referred to the problem of identifying "any expenditure which is impugned and to frame a prayer for relief in terms which will enjoin that expenditure and that only" ^[39] . Relying on that passage, the defendants contended that, even if expenditure on the advertisements for the workplace reform package were not authorised by Act No 1, it was not possible to frame an injunction against the defendants that had utility. During argument, I put to the Solicitor-General for the Commonwealth that an injunction could be framed "restraining the third defendant from issuing any drawing right under s 27 of the Financial Management and Accountability Act purporting to authorise the payment of moneys for the purpose of advertisement in the form, or to the effect, of Annex A". The Solicitor-General replied that such an injunction would be too narrow to have any utility. However, such an injunction would restrain the third defendant from authorising payments for advertisements of the kind involved in these proceedings. In addition, a declaration to the effect that drawing rights already made or intended to be made were not authorised by Act No 1 would indicate to the defendants that expenditure on advertisements of the kind in question in these proceedings is unlawful. It would assist them in determining the nature of advertisements that are authorised by Act No 1.

[100] Accordingly, the Court should issue an injunction under s 75(v) of the Constitution to the effect set out above. It should also make a declaration as set out above. Since this is a dissenting judgment, it is unnecessary to draft the precise form of the injunction and declaration that I favour.

Orders

[101] The questions asked in the Special Case for the opinion of the Full Court should be answered as follows:

(1)

The second plaintiff.

(2)

No.

(3)

The second plaintiff is entitled to the declaration and injunction described in these reasons.

(4)

No.

(5)

The defendants.