LAWS1205 Study Guide - Final Guide: Natural Disaster, Appropriation Act, 5Aa
Week 9 :
Executive power : spending money
Friday, 28 April 2017
13:05
Executive power: spending power, legislative and constitutional responses to the
Williams
The executive power of the Commonwealth includes a capacity, without
statutory authorisation, to undertake functions common to legal persons, such as
entering into contracts and spending money
These common law capacities had been assumed to be at least co-extensive
with the scope of federal legislative power
For example, because the Commonwealth can legislate with respect to
quarantine in s51(x) of the Constitution, the federal executive could enter into
contracts and spend money on that subject
Williams v Commonwealth (School Chaplains case)
(2012)ALR:
The matter related to executive prerogative and spending under section 61
of the Australian Constitution.
Common law capacities and federal legislative power exploded/explored
Assessed federal executive power
The national school of chaplaincy program (NSCP) was created by the
Commonwealth to provide financial support for chaplaincy service in schools.
Ronald Williams was the father of four children enrolled at the Darling
Heights State School
In 2007, the school's principal sought funds under the NSCP to extend the
number of days that their chaplain was available to students
Under the DARLING heights funding agreement, the Cth undertook the fund
the provisions of chaplaincy services at the school by Scripture Union Queensland
(SUQ)
William challenged the validity of the NSCP in the high court on 3 bases
Relying on the guarantee in s 116 of the constitution that "no religious test
shall be required as a qualification for any office or public trust under the
commonwealth" (this was rejected)
Challenged the validity of the commonwealth's appropriation of funds and its
expenditure of them pursuant to the Funding agreement. [even if this succeed in
showing the money had not been lawfully appropriated, this would not have
impeached the Funding Agreement, because it was held in NSW v Badolph
(1934) CLR that executive can enter into contract without prior parliament
appropriation for the expenditure of money under the contract.]
Argued the Commonwealth lacked the power to enter into the Funding
Agreement and to make the payments to SUQ;
a. No statue established NSCP, or authorised such payment
b. Neither did s96 provided any assistance to this
c. Section 81 of the constitution: was also not a source of power as held
in Pape that it does not confer a substantive spending power
find more resources at oneclass.com
find more resources at oneclass.com
d. Which meant the power by which the Commonwealth's entry into the
Funding agreement and spending thereunder could be supported by "the
exercise of federal executive power"
Two main submissions offered by the commonwealth
Power to contract and spend under the NSCP
Broad: executive power to spend is essentially unlimited due to the
executive's enjoyment of capacities similar to those of other legal persons
Narrow: executive power, in all its aspects is "limited to the subject-matters
of the express grants of legislative powers in ss51, 52 and 122 of the constitution
(together with matters that because of their national character or their magnitude
and urgency are adapted to the government of the country and otherwise could not
be carried on for the public benefit)
This submission proceeded because although grants of legislative power
delineate this aspect of executive power, it was not necessary that Parliament had
actually enacted a law to support of the NSCP. It was thus argued that the NSCP
was sustained as an exercise of executive power by the mere existence of
legislative capacity on the subject
"with exceptions that are not relevant to this matter, and which need not be
stated, the executive may only do that which has been or could be subject of valid
legislation. Consequently, to describe a Commonwealth purpose as a purpose for
or in relation to which the Parliament may make a valid law, is both sufficient and
accurate
Gibbs J: " according to s 61 of the constitution, the executive power of the
Commonwealth "extends to the execution and maintenance of this Constitution,
and of the laws of the Commonwealth "
These words make it clear that the Executive cannot act in respect of a
matter which falls entirely outside the legislative competence of the
Commonwealth.
If it is concluded that the Plan is one in respect of which legislation could not
be validly passed, it follows that public moneys of the Commonwealth may not
lawfully be expended for the purposes of the Plan
Mason J and Gibbs J were not accepting that any broad proposition that
moneys may be spent by the executive government upon what answers the
description of any head of legislative power found in s51 of the constitution.
Murphy J and Jacobs J agreed that the purposes of the Commonwealth in
s81 certainly include all the purposes comprehended within the subject matters of
s51 in repsect of which the Commonwealth may legislate, including the subject
matter comprised in s51(xxxix)
Determinative question
The Commonwealth parties make the general submission that the executive
power extends to entry into contracts and the spending of money without any
legislative authority beyond an appropriation
Whether the executive power is of sufficient scope to support the entry
into and making of payments by the Commonwealth to SUQ under the
funding agreement: NO
In Pape approved Davis and also Davis:
" the existence of Commonwealth executive power in areas beyond the express
grants of legislative power will ordinarily be clearest where Commonwealth
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Executive power: spending power, legislative and constitutional responses to the. The executive power of the commonwealth includes a capacity, without statutory authorisation, to undertake functions common to legal persons, such as entering into contracts and spending money. These common law capacities had been assumed to be at least co-extensive with the scope of federal legislative power. For example, because the commonwealth can legislate with respect to quarantine in s51(x) of the constitution, the federal executive could enter into contracts and spend money on that subject. The matter related to executive prerogative and spending under section 61 of the australian constitution. Common law capacities and federal legislative power exploded/explored. The national school of chaplaincy program (nscp) was created by the. Commonwealth to provide financial support for chaplaincy service in schools. Ronald williams was the father of four children enrolled at the darling.
