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«Upholding the Australian Constitution Volume Seventeen Proceedings of the Seventeenth Conference of The Samuel Griffith Society Greenmount Beach Resort, ...»

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of particular concern where there has been a tacit i n t e r s e arrangement cobbled

together through political expediency:

“The existence of consensual arrangements of this nature should not be used to justify the restriction of standing rights”.7 The appropriation power C h a p t e r IV of the C o n s t i t u t i o n deals w i t h finance and t r a d e. For present purposes the key finance provisions of the Constitution are ss. 81 and 83. They

provide as follows:

“S. 81. All revenues or moneys r a i s e d or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, t o be a p p r o p r i a t e d f o r t h e p u r p o s e s of t h e Commonwealth in t h e manner and subject t o t h e charges and l i a b i l i t i e s i m p o s e d by t h i s Constitution”. (Emphasis added).

“S. 83. No money shall be d r a w n f r o m t h e T r e a s u r y o f t h e C o m m o n w e a l t h except under appropriation made by law….”.

The effect of these provisions was first considered by the High Court in Attorney-General for Victoria v. Commonwealth, 8 t h e Pharmaceutical B e n e f i t s Case, in which i t was held t h a t the Pharmaceutical Benefits Act 1944 w a s beyond any purpose of the Commonwealth: 9 “Section 81 is n o t t o be construed narrowly and is to be interpreted a s allowing the a p p r o p r i a t i o n of moneys to p e r m i t the Commonwealth t o carry out the usual incidents of government such a s payments for t h e executive and t h e j u d i c i a r y. Nevertheless s. 81 is n o t t o be construed a s permitting something to be done which is otherwise beyond the legislative competence of the Parliament”.

Dixon J in the Pharmaceutical Benefits Case rejected the idea t h a t t h e power “to spend money is independent of the other powers of t h e Commonwealth”. 10 T h a t i s c o n s i s t e n t w i t h h i s s u b m i s s i o n s i n 1 9 2 7 t o t h e R o y a l Commission on the Constitution, set out in Annexure A.

“The Commonwealth power of appropriation, however, is explicit; it is ‘for the purposes of the Commonwealth in the manner and subject to t h e charges and l i a b i l i t i e s imposed by’ the Constitution. This power m u s t b e construed liberally; i t is a g r e a t c o n s t i t u t i o n a l power, but i t does not a u t h o r i z e the Commonwealth a p p r o p r i a t i n g i t s r e v e n u e s and moneys f o r any purpose whatever, w i t h o u t regard to whether the object of t h e expenditure is for the purpose of and incident to some m a t t e r which belongs to the Federal Government….

“ B u t t h e Pharmaceutical Benefits Act 1944 is beyond any purpose of t h e Commonwealth. No legislative, executive or judicial function or purpose of the Commonwealth can be found which supports i t, and i t cannot be justified because of the existence of the Commonwealth or its status as a Federal Government”. 11 The case which appears to have encouraged the Commonwealth to bypass its contrived use of the s. 96 power of tied g r a n t s t o t h e S t a t e s i s V i c t o r i a v.

Commonwealth 12 (the Australian Assistance Plan Case or AAP Case). Briefly, money appropriated for the Australian Assistance Plan under the A p p r o p r i a t i o n Act 1974-75 for payment of grants to 35 Regional Councils for social development was unsuccessfully challenged as beyond power. Both Barwick C J and Gibbs J strongly dissented.

–  –  –

Construction, Agriculture, Special M i n i s t e r of S t a t e, P r i m e M i n i s t e r, M e d i a, Urban and Regional Development, Environment and Conservation, Labor and Immigration, and Social Security.

“To a s c e r t a i n whether these a p p r o p r i a t i o n s are referable to one of t h e enumerated powers (other than s. 81) would involve exhaustive inquiry into the boundaries of the enumerated powers.

“The a p p r o p r i a t i o n for those purposes not w i t h i n the scope of t h e enumerated powers would, on the plaintiff’s contention, be unconstitutional. Hundreds of items of appropriation since Federation and many hundreds of millions of dollars would have been unlawfully appropriated and spent.

“The chilling effect that such an interpretation would have on governmental and parliamentary initiatives is obvious. It is not a formula for operating a Constitution. It is one for stultifying government”. 19 To adopt Murphy J’s approach to s. 81 would be like deleting p a r a g r a p h s (i) to (xxxix) of s. 51 of the Constitution. If this were done it would then read:

“The Parliament shall have power to make laws for the peace, order, a n d good government of the Commonwealth”.

Unfortunately, those who advocate this position need to avail themselves of the provisions of s. 128 of the Constitution to bring about such an amendment.

Its time may have arrived!

Enactments beyond power?

“My Government also employed for the first time on any scale direct money grants ‘for the purposes of the Commonwealth’ under s. 81. For a number of reasons the making of g r a n t s t h r o u g h S t a t e Governments unnecessarily complicates the machinery of government. In the case of the A u s t r a l i a n Assistance Plan and t h e A u s t r a l i a n L e g a l A i d Office, for example, several States had shown their unwillingness or their inability to provide urgently needed services”.20 The R o a d s t o R e c o v e r y A c t 2000, consisting of 13 sections, provides for the appropriation by 30 June, 2005 of $1.2 billion to local government f o r r o a d s, o f which $850 million is being spent in rural and regional A u s t r a l i a (e.g., Wagga Wagga City Council $5.0 million) and the remainder in c a p i t a l cities (e.g., Blacktown City Council $4.9 million). 21 S e c t i o n 4 s i m p l y s t a t e s t h a t “ t h e m a i n object of t h i s Act is to provide $1,200,000,000 for road expenditure by local governing bodies”, and s. 6(3) again simply provides “ t h a t the Consolidated Revenue Fund is a p p r o p r i a t e d f o r p a y m e n t s u n d e r t h i s s e c t i o n ”. I n s h o r t, t h e r e i s no pretence by t h e P a r l i a m e n t that the appropriation of these moneys is for any purpose of the Commonwealth enumerated in s. 51 or elsewhere.

After 30 June, 2005 the R o a d s to Recovery p r o g r a m m e is pending c o n t i n u a t i o n u n d e r P a r t 8 o f t h e AusLink (National L a n d T r a n s p o r t ) B i l l 2004, and payments a s provided by s. 89 will be made in accordance w i t h t h e a p p r o p r i a t i o n for ordinary annual services under A p p r o p r i a t i o n Act (No.1).

These appropriations will be for a further $1.2 billion to be paid directly to local government in the four years to 30 June, 2009.

By putting the Nelsonian telescope to the blind eye the States have treated these payments to local government a s windfall gains. I t h a s allowed t h e m t o avoid any potential burden to provide this type of finance. A ditty attributable

–  –  –

Standing and justiciability 28 If citizens wish to challenge the validity of Commonwealth legislation they a r e obliged to get a State Attorney-General to bring a relator action. In short, such actions a r e n o t m a i n t a i n a b l e w i t h o u t t h e f i a t of the Attorney-General, which simply means t h a t the Attorneys-General bring these actions in t h e i r own names. 29 As to the v a l i d i t y of an A p p r o p r i a t i o n Act, i t is not o r d i n a r i l y susceptible to effective legal challenge. 30 I f s o, t h e n w h a t a r e t h e e x t r a o r d i n a r y circumstances where it is capable of challenge? In determining an application to strike out a statement of claim, Gibbs C J held that it was arguable whether the p l a i n t i f f s a s t a x p a y e r s h a d s t a n d i n g t o c h a l l e n g e t h e v a l i d i t y of a n A c t u n d e r which public moneys were being disbursed. 31 Professor P H Lane h a s suggested t h a t the suppressed reason for not g r a n t i n g a c i t i z e n s t a n d i n g t o a t t a c k u n c o n s t i t u t i o n a l e x p e n d i t u r e is found in convenience. I t is claimed t h a t the Commonwealth would be an easy t a r g e t because its powers are enumerated and specific. 32 If this is so, then the decisions of the Supreme Court of C a n a d a, s t a r t i n g w i t h Thorson v. Attorney-General of Canada, 33 m i g h t offer the prospect of t h e High Court overruling i t s a t t i t u d e to standing. In t h i s case, Thorson, QC challenged the constitutional validity of the Appropriation Act providing money t o i m p l e m e n t t h e Official Languages Act (1968-69) ( C a n ). L a s k i n J, a s he then

was, said:

“I do not think that anything is added to the reasons for denying standing, if otherwise cogent, by reference to grave inconvenience and public disorder……The Courts are quite able to control declaratory actions, both t h r o u g h d i s c r e t i o n, b y d i r e c t i n g a s t a y, a n d by imposing costs; … A more telling consideration for me, but on the other side of the issue, is whether a question of constitutionality should be immunized from judicial review by denying standing to anyone to challenge the impugned s t a t u t e …. The substantive issue raised by the plaintiff’s action is a justiciable one; and prima facie, it would be strange and, indeed alarming, if there was no way in which a question of alleged excess of legislative power, a m a t t e r t r a d i t i o n a l l y w i t h i n t h e s c o p e of t h e j u d i c i a l process, could be made t h e s u b j e c t o f a d j u d i c a t i o n ”. 34 The approach of Laskin J in emphasizing the need to provide legal redress to citizens who challenge allegedly illegal expenditures of public money 35 needs to be argued before the High Court. The Commonwealth pulls itself up by i t s o w n b o o t s t r a p s by relying on the a p p r o p r i a t i o n s power to support a c t i v i t i e s f o r which no authority can be found elsewhere in the Constitution. Saying so doesn’t make it so.

S u r r e p t i t i o u s l y, the Commonwealth h a s subverted the federal union a n d expanded i t s a c t i v i t i e s by relying on s. 81. The high w a t e r m a r k of t h e Commonwealth’s expansion of powers reached through the use of s. 96 has now been well passed. W h e t h e r t h i s h i g h e r l i m i t i s b u i l t u p o n a s o u n d l e g a l b a s i s i s doubtful because of t h e g e n e r a l l y u n s a t i s f a c t o r y s p r e a d o f reasons in the AAP Case.

Some encouragement as to whether the High Court would grant standing to a c i t i z e n t o challenge the unauthorized a p p r o p r i a t i o n of moneys under s. 81 may be gained from the remarks of Gleeson C J and McHugh J, where they s a i d “that it is not difficult to understand why, in the case of certain laws, it might be considered in the public interest to provide differently”. 36 Laws which a r e claimed to exceed power under the Constitution would be a prime example. As

Gibbs J observed:

“ I t i s s o m e w h a t v i s i o n a r y t o s u p p o s e t h a t t h e c i t i z e n s of t h e S t a t e could confidently rely upon the Commonwealth to protect t h e m a g a i n s t u n c o n s t i t u t i o n a l action for which the Commonwealth itself w a s responsible”. 37 A view approved of in Bateman’s Bay Local Aboriginal Land Council v. Aboriginal Community Benefit Fund Pty Ltd. 38 Murphy J urged the l i b e r a l i s a t i o n of the requirements of standing f o r i n d i v i d u a l s. 39 Later he expanded upon this idea in Attorney-General (Vic); Ex Rel Black v. The Commonwealth (the Defence of Government Schools Case – DOGS

Case) when he said:

“ A c i t i z e n ’ s r i g h t t o i n v o k e t h e j u d i c i a l power to vindicate c o n s t i t u t i o n a l guarantees should not, and in my opinion, does not depend upon obtaining an Attorney-General’s consent. Any one of the people of t h e C o m m o n w e a l t h h a s standing in the courts to secure the observance of c o n s t i t u t i o n a l g u a r a n t e e s ”. 40 So far as constitutional guarantees are concerned, there are none. At best there is a duty of the Parliament, the Executive and the Judiciary to uphold the Constitution. Citizens have a legitimate or reasonable expectation 41 t h a t i t w i l l be administered according to law.

Alternatively, the Court could allow the s u i t to be heard, deferring i t s decision on the grant of s t a n d i n g a s p a r t o f its decision whether to make a n order declaring the Act invalid or to d i s m i s s the proceedings for want of standing. Such a practice is used to determine applications for special leave to appeal in c r i m i n a l m a t t e r s. In short, the Court m i g h t make a g r a n t of conditional standing.

The requirement of justiciability 42 Standing and justiciability, whilst sometimes intertwined, are separate issues.

In the present context, the asserted “matter” which falls for adjudication is the due and proper a d m i n i s t r a t i o n of the C o n s t i t u t i o n. For example, i t is t h e registered electors who have the power to amend the Constitution in accordance with s.128. An analogy might profitably be drawn between the rights of an object of a d i s c r e t i o n a r y t r u s t t o sue the t r u s t e e to require the t r u s t e s t a t e to be administered in accordance with the terms of the trust. Here the object has no proprietary interest but a mere expectancy. 43 S i m i l a r l y, a c i t i z e n d u l y r e g i s t e r e d a s an elector who h a s no p r o p r i e t a r y r i g h t s to a s s e r t a g a i n s t t h e Commonwealth, ought to be entitled to enter the “temple of justice” to challenge the validity of appropriations for non-Commonwealth purposes.

At the very least, i t would seem t h a t “ m a t t e r ” should be widely a n d beneficially construed for the purpose of allowing notice to Attorneys-General under s. 78B of the Judiciary Act 1903. The Court is under a duty not to proceed in a matter arising under the Constitution, or involving its interpretation, until the Attorneys-General have considered whether they m i g h t seek to intervene in the proceedings. If an Attorney-General did so seek to intervene, and t h e C o u r t refused standing to the individual citizen who initiated the s. 78B notice, then a n a l t e r n a t i v e m i g h t b e t o a l l o w a n a p p e a r a n c e a s amicus curiae. Even in t h e AAP Case a m a j o r i t y h e l d t h a t t h e c h a l l e n g e t o t h e a p p r o p r i a t i o n p o w e r w a s j u s t i c i a b l e. 44 The Auditor-General – ally of the people? or, Who guards the guards?

Is the Auditor-General under a duty to report to P a r l i a m e n t a s to whether a p p r o p r i a t i o n s are beyond power? P r i m a f a c i e, the answer would seem to be “Yes”. To ignore such a failure sits uncomfortably with the task with which an a u d i t o r is charged. The Auditor-General h a s complete discretion in t h e performance of his or her functions or powers. 45 “ H i s d u t y i s t o c r i t i c i z e, m a k e s u g g e s t i o n s a n d t o d r a w a t t e n t i o n t o a n y b r e a c h o f l a w o r r e g u l a t i o n ”. 46 Where there is doubt the Auditor-General ought to obtain independent legal advice, and if equivocal, such matters ought to be disclosed. Section 25(1) of the AuditorGeneral Act 1997 allows the Auditor-General to report to the Parliament on any matter at any time.

A perusal of the reports of the Auditor-General to t h e P a r l i a m e n t s s h o w s that so long as there are Acts which appropriate moneys from the Consolidated Revenue Fund, the Auditor-General is seemingly indifferent as to whether those a p p r o p r i a t i o n s a r e m a d e under Acts which a r e c o n t r a r y to the C o n s t i t u t i o n.

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