Implications for the federation Constitution, s 116 116 - PowerPoint PPT Presentation

WILLIAMS V COMMONWEALTH Implications for the federation

Constitution, s 116 116 Commonwealth not to legislate in respect of religion The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Executive Power – Commonwealth arguments • Broad Proposition - the Commonwealth has the same capacities as a legal person and can therefore contract and spend in relation to any subject-matter whatsoever. • Narrow proposition - the Commonwealth has the executive power to contract and spend in relation to subject-matters over which it has a legislative head of power, without the need actually to engage that head of power by enacting authorising legislation.

Rejection of the narrow proposition • Heydon J, dissenting, noted that the narrow proposition had been initially accepted by all parties and was a ‘common assumption’. In the course of argument, WA withdrew its submissions on this point and most of the other States followed. • A majority of the Court (French CJ, Gummow, Crennan and Bell JJ) rejected the narrow proposition for reasons including federal considerations, responsible government and the need for parliamentary scrutiny of the expenditure of public moneys. • Hayne and Kiefel JJ did not need to decide because they held that no head of Commonwealth legislative power would have supported the chaplaincy program anyway.

Considerations in assessing executive power • In considering the scope of the Commonwealth’s executive power, the majority placed stress on both the federalism aspect and the relationship with legislative power. • For example, Gummow and Bell JJ stated at [89] that it is important to bear in mind the federal system and the powers of the other federal branches of government (the Parliament and the Judicature) when ascertaining the limits of the executive power of the Commonwealth. At [155] they added that in assessing the extent of executive capacity to enter into contracts one must consider the federal structure and the relationship between Ch I and Ch II of the Constitution.

Federalism considerations • Hayne J noted at [197] that text and structure limit the executive power of the Commonwealth and that regard must be had to the spheres of responsibility vested in the Commonwealth and the position of the Executive Governments of the States. • Crennan J also observed at [495] that the Commonwealth’s argument regarding executive power must be assessed in light of the distribution of powers between the Commonwealth and the States as polities and financial relations between the Commonwealth and States in addition to the relationship between the legislature and the executive.

Responsible Government • Gummow and Bell J observed at [136] that if the executive had power to act regarding any subject of legislative power (without legislation) this would ‘undermine the basal assumption of legislative predominance’ and ‘distort the relationship between Ch I and Ch II of the Constitution’. • Crennan J at [508]-[511] stressed the responsibility of the Executive to the Parliament and considered that this affected the scope of executive power. • Kiefel J emphasised at [578]-[579] that responsible government is the key to understanding executive power. It places the Parliament over the Executive with regard to expenditure of public money.

Executive power with no statutory authority The majority recognised that there were some categories of executive power involving expenditure that could be exercised without statutory authority. These included: • prerogative powers, • the ordinary functions of government, such as the administration of departments under s 64 of the Constitution; • the nationhood power; and • the execution and maintenance of the laws of the Commonwealth.

Prerogative powers • The prerogative powers fall within s 61 of the Constitution. • The majority continued to rely on HV Evatt’s analysis of the distribution of prerogative powers between the Commonwealth and the States. • The prerogative powers do not include the capacities of the Crown as a natural person. • Prerogative powers may be exercised without statutory authorisation, but this does not extend the exercise of the capacities of the Crown.

Ordinary functions of government • Ordinary functions of government include the administration of government departments. • The power to exercise these functions is derived from s 64 of the Constitution which authorises the Governor- General to appoint officers to administer the departments of State. • Money is appropriated under s 81 and s 54 of the Constitution for the ‘ordinary annual services of the Government’. • Departments may enter into contracts for their administration (eg office supplies, leases, catering, etc). • Ordinary functions of government include agreements with the States under s 96 and s 51(xxxvii).

Nationhood power • Source – s 61 and s 51(xxxix) of the Constitution. • Mason J in AAP Case : ‘there is to be deduced from the existence and character of the Commonwealth as a national government and from the presence of ss 51(xxxix) and 61 a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation.’

Limits on the nationhood power • National endeavour: the enterprise or activity must be peculiarly adapted to the government of a nation and be a truly ‘national’ endeavour ([34] (French CJ); [196] (Hayne J); [485] (Crennan J); [583] (Kiefel J)). • Cannot otherwise be carried on: the enterprise or activity must be one that cannot otherwise be carried on for the benefit of the nation by the States or others ([196] (Hayne J); [498] (Crennan J); [583] (Kiefel J)). • Convenience: the Commonwealth’s executive power cannot be expanded outside its heads of power simply because it is ‘convenient’ to do so ([363] (Heydon J); [504] (Crennan J); [587] (Kiefel J)).

Limits on the nationhood power • Section 96: Section 96 of the Constitution must not be rendered otiose – so there must be large areas of activity which are outside the executive power of the Commonwealth which can only be entered by way of a s 96 grant ([243] and [247] (Hayne J); [501] and [503] (Crennan J); [592] (Kiefel J)). • No Competition : The Commonwealth’s exercise of executive or legislative power must involve no real competition with the States ([31] (French CJ); [144] (Gummow and Bell JJ); [256] (Hayne J); [505] (Crennan J); [588] (Kiefel J)).

Other limitations on executive power Executive power cannot be used to: • impose taxation ([135] (Gummow and Bell JJ); [398] (Heydon J)); • create a new offence or impose coercive measures ([135] (Gummow and Bell JJ); [521] (Crennan J)); • dispense with the operation of any law ([135] (Gummow and Bell JJ); [399] (Heydon J)); • alter rights and liabilities under states laws ([399] (Heydon J)); • curtail the capacity of the States to function as governments ([400] (Heydon J)).

Power of the States to contract and spend • Limitations on Commonwealth executive power, to the extent that they are derived from the fact that the Commonwealth has limited legislative powers or from federal considerations, will not apply to the States. • Limitations on executive power derived from the system of responsible government and the need for parliamentary scrutiny of executive action, particularly where the expenditure of public money is involved, may extend to the States.

NSW v Bardolph French CJ summarised the findings in Bardolph at [74] as follows: Rich J characterised the making of the contract for advertising services as ‘an ordinary incident of this particular function of Government’. Starke J made observations to similar effect. Dixon J, with whom Gavan Duffy CJ agreed, made a similar point, saying that: No statutory power to make a contract in the ordinary course of administering a recognized part of the government of the State appears to me to be necessary in order that, if made by the appropriate servant of the Crown, it should become the contract of the Crown, and, subject to the provision of funds to answer it, binding upon the Crown. (emphasis added) The words emphasised in the judgment of Dixon J reflect a characterisation of the contract in issue in Bardolph upon which all members of the Court agreed. That characterisation suggests that the State executive power considered in Bardolph was analogous to the powers of Commonwealth Minister, derived from s 64 of the Constitution, in relation to the administration of governmental departments. The case is not authority for the existence of a general contractual power derived from s 61 capable of exercise without statutory authority.