Williams [No 2] Symposium: Cheryl Saunders on the Executive Power of the Commonwealth after Williams [No 2]

By Professor Cheryl Saunders

Williams [No 2] Case Page

Williams [No 2] does not add a great deal of substance to the conclusions about the ambit of the executive power of the Commonwealth reached in Williams [No 1]. The principal question for the Court was the validity of the legislation that had been enacted in the wake of Williams [No 1], to provide a loose statutory base for the National School Chaplaincy and Student Welfare Program (NSCSWP) and more than 400 other executive spending programs. The reasoning of the Court on the issues raised by this question is dealt with elsewhere in the symposium. In brief, the six sitting Justices, in two separate judgements, rejected arguments that either the benefits to students power (s 51(xxiiiA)) or the corporations power (s 51(xx)) provided a head of power for the legislation in relation to the NSCSWP. The Court did not need to determine whether the covering provisions in the Appropriation Acts provided the necessary legislative base for executive spending programs, because similar questions about a head of power arose: [55]. Nor did it need to reach the more novel question of whether the challenged legislation involved a delegation of legislative power that was so excessive or vague that it transgressed the Constitution in some other way: [36].

The ambit of federal executive power nevertheless was in issue in Williams [No 2], not least because the Commonwealth sought to reopen Williams [No 1] (for this argument, see [59]). In place of the majority holding in Williams [No 1], the Commonwealth argued for an understanding of s 61 that identified minimal limitations on the ability of the Executive to contract and spend: [68]. Alternatively, if the executive power also was limited by subject matter, the Commonwealth argued that federal power to contract and spend ‘extends to all those matters that are reasonably capable as being seen of national benefit or concern; that is, all those matters that befit the national government of the federation, as discerned from the text and structure of the Constitution’: [70]. Had either argument succeeded, the legislation might have been upheld as an exercise of s 51(xxxix) in combination with s 61 or even ss 81 and 83. Indeed, on the basis of the first argument, at least, there would have been no need for legislation at all. Both, however, were rejected, as arguments that, effectively, had been tried and had failed before ([69], [71]). Williams [No 1] was not reopened and the majority holding stands.

Williams [No 2] does not clearly affirm it, however. In the circumstances, it was unnecessary to do so, but the point should be noted. The wide formulations of the ambit of the executive power of which the Commonwealth sought to persuade the Court, as characterised by the Court, ran counter to the conclusions of most Justices in both Pape v Commissioner of Taxation [2009] HCA 23 and Williams [No 1] irrespective of differences in their reasoning. It must now be regarded as settled, and should have been before, that the power to spend appropriated moneys does not derive from ss 81 and 83 but must be found elsewhere in the Constitution or legislation and that s 61 is limited for the purpose.

Precisely how limited remains to be seen, although the analytical approach is now clear: the key passages are at [76]–[83]. The executive power of the Commonwealth derives from s 61, the meaning of which is determined by reference to the text and context of the Constitution in which it is embedded. ‘British constitutional history’ through which the common law understanding of executive power was shaped assists in the interpretive process but is neither conclusive nor, necessarily, the appropriate starting point. The scope of the executive power of the Commonwealth cannot be equated with executive power in Britain, as a ‘unitary state having no written constitution’: [79]. This appears to be a compound distinction. Federalism infuses the written, entrenched, Australian Constitution and provides the most obvious rationale for a general limitation on Commonwealth executive power. It was the only form of limitation in issue in Williams [No 2]. The Constitution incorporates other principles as well, however, including elements of separation of powers, representative government and the rule of law. It is conceivable that, in other contexts, these could have a bearing on the meaning of s 61 as well.

One final point should be made about what is at stake in these deliberations over the scope of executive power. The joint reasons, with which Crennan J agreed, ‘assumed’, perhaps too readily, the Commonwealth’s submission that ‘what might be described as the inherent or traditional limits on executive power, as they emerged from the historical relationship between Parliament [at Westminster] and the Executive, have not hitherto been treated [in Australia or, for that matter, in Britain] as the source of any general limitation on the ability of the Executive to spend and contract without legislative authority’: [82]. The assumption was not critical, because the Court denied that this factor was determinative in any event.

In fact, however, as footnote 35 to an earlier passage acknowledges, the scope of executive power at common law, including the extent of the power to contract and spend without statutory authority, has been the subject of considerable recent introspection, in Britain and elsewhere, by courts, governments, Parliaments and scholars (see, eg, here and here). The new prominence of such questions is unsurprising in the face of the growing reliance on executive power, including for quasi-regulatory purposes, using executive instruments as a form of soft law. In Australia, this development has been further encouraged by the possibility of evading federal limitations on Commonwealth power and by the financial resources at the Commonwealth’s command. New or extreme practices encourage litigation. The High Court will continue to resolve questions about the meaning of s 61 as long as these cases come before it. The other branches of government have responsibilities here as well, however. The Government and Parliament should seize the opportunity provided by the Williams cases to review their own practices for constitutional compliance, assuming that Commonwealth executive power is limited by the federal form of the polity, even if grey areas remain.

AGLC3 Citation: Cheryl Saunders, ‘Williams [No 2] Symposium: Cheryl Saunders on the Executive Power of the Commonwealth after Williams [No 2]’ on Opinions on High (25 June 2014) <https://blogs.unimelb.edu.au/opinionsonhigh/2014/06/25/saunders-williams/>.

Cheryl Saunders AO is Laureate Professor and holds a Personal Chair at Melbourne Law School.

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About Cheryl Saunders

Cheryl Saunders AO is Laureate Professor and holds a personal chair at Melbourne Law School. She is also Founding Director of the Centre for Comparative Constitutional Studies and an editor of the Public Law Review. Her research focuses on Australian and comparative public law, including comparative constitutional law and intergovernmental relations and constitutional design and change, on all of which she has published widely. She has held numerous visiting appointments at universities around the world, and has received several distinguished public honours.