Advancing Democracy

62A The power to govern defined

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Drafting Notes

These notes, when printed, cover about 30 pages. The explanation of the drafting of the subsections begins at Note 62A.20.

Why define executive power?
62A.1 Currently the Constitution does not define the content of executive power; supposedly s.61 simply marks out its boundaries. There are three reasons why the words of s.61 should not be repeated in the Advancing Democracy model:
▸    Firstly, it is completely unsatisfactory that executive power is not defined. Concern at the extent of Government powers is one of the few things which unites all voters.
▸    Secondly, voters are entitled to understand their Constitution when they read it. The language of s.61 is incomprehensible to most people.
▸    Thirdly, it is accepted that s.61 includes the Crown’s prerogative powers. They will be abolished. What effect would this have on the interpretation of the words used in s.61?
The proposed section equates executive power with the power to govern, to assist ordinary voters to understand their Constitution. The remainder of the subsection defines what the power to govern means. Apart from limited changes made in subsections 62A(vi), 62A(vii) and 62A(viii), the definition is based on the prevailing interpretation of s.61. The need to ensure powers formerly classed as prerogative powers of the Crown are retained, where appropriate, has little influence on the definition.
62A.2 The significance of executive power is usually not apparent, because Governments rarely take action on the basis of executive power alone. Usually Governments act pursuant to powers regulated by legislation, and constitutional challenges to their actions take the form of a challenge to the Parliament’s legislative powers under s.51, rather than the Government’s executive power under s.61. The definition, or extent, of executive power becomes significant only when:
▸    Parliament has not made a law on a subject - perhaps it cannot agree on a law, or it has inadvertently omitted something from legislation, or a court interprets the law in an unexpected way; or
▸    A law passed by Parliament has no obvious or convincing connection with a specific subject of legislative power under s.51, and is based on the incidental power in s.51(xxxix). The latter section states that Parliament may make laws with respect to:
        “(xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.”
    The words of relevance to executive power have been underlined.
Until 20th June 2012, the main issue was whether - or how far - the executive power extended beyond the subjects of legislative power set out in ss.51 and 52. To the extent that it did, the Government could act without legislation authorising its actions, because they were authorised by s.61. Its actions were however likely to be severely limited by s.83, the first paragraph of which provides: “No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.” (The first paragraph of s.83 will remain in its present form under the Advancing Democracy model. The redundant second paragraph will be deleted).
On 20th June 2012 however, the interpretation of the Constitution was changed by the High Court in Williams v Commonwealth of Australia [2012] HCA 23, the school chaplains case. A majority of the Court refused to accept that without legislation the Government could act even in relation to those subjects which fall within Commonwealth legislative power, even though at the start of the case every party to it had accepted that this was the position. Somehow the Court managed to deny this common assumption yet failed to identify a coherent alternative rule. It nevertheless recognised some exceptions where the previously accepted common assumption does still operate. The result is that the content of the Commonwealth’s executive power has become even more hopelessly confused.
The Williams Case magnifies the need for a definition of executive power to be included in the Constitution. The Advancing Democracy model was complete and on the point of publication in early June 2012. The definition of the power in the model has now been revised to reverse the contraction in the executive power caused by the Court’s departure from the previously accepted common assumption.

The original aim
62A.3 In the proposed section 62A, the power to govern is stated to be “comprised of and limited to” certain components. The original intention of the proposed clause was to:
▸    Restate the current ambit of executive power;
▸    Then expressly limit executive power so that it extends no further than its presently accepted ambit;
in order to achieve the results that:
▸    Everyone can understand how much power the Government has; and
▸    The extent to which Government power can be expanded or contracted in the future by judicial decision is reduced.
The aim was to clarify the extent of Commonwealth executive power, without extending or reducing it.
62A.4 Even before Williams v Commonwealth of Australia there were two difficulties with this aim:
▸    There was not complete agreement over the present extent of executive power. The Constitution does not define it, so its extent has been defined partially and incrementally in an ad hoc way through High Court decisions. (Court cases can only determine the law in relation to the issues raised in the case, so a complete comprehensive definition of the extent of Government power will never emerge unless we include it in the Constitution).
▸    The law on the current s.61 was arguably in a state of flux, with the decision in Pape v Commissioner of Taxation [2009] HCA 23; 238 CLR 1; 257 ALR 1 indicating some Government actions thought by judges in prior cases to have been justifiable under ss.81 & 83 now needed to be justified (in part) under s.61, which the 2009 High Court seemed inclined to interpret narrowly.
Williams v Commonwealth of Australia has exacerbated the uncertainty over the meaning of the current s.61 in this respect: before Williams, it was accepted that executive power could be exercised in relation to the subjects on which the Commonwealth may legislate, but there was only a partial consensus on the extent to which it could be exercised beyond those subjects. Now it is no longer clear how far executive power extends even within those subjects without legislation, yet it is acknowledged that executive power sometimes extends beyond those subjects even without legislation. The result is an incoherent mess.

Current interpretation of the executive power
62A.5 Notes 62A.5 to 62A.15 below present a summary of how the executive power is currently interpreted. Section 61 cannot however be considered in isolation from the appropriation provisions in ss.81 and 83, because until Pape v Commissioner of Taxation many judges and commentators took the view that these provisions conferred an independent spending power on the Government. Spending pursuant to an Appropriation Act could be justified without reference to s.61. Successive Governments from opposing political sides acted on this basis for decades. In Pape, and then in Williams v The Commonwealth, the High Court dismissed previous interpretations of ss.81 and 83 as being based on an assumption that they conferred a spending power. This supposed assumption was discarded in favour of an interpretation which sees the appropriation provisions as an internal management rule for the Commonwealth, rather than one which governed how the Commonwealth interacts with others. By analogy, in its constitution, a company or an incorporated association decides who within the entity may make certain decisions - the directors or executive committee make some decisions, while others are reserved for the members in general meeting. This allocation of powers within the organisation does not determine the extent of the powers the company or association has when dealing with those outside it. On this approach, s.83 merely states which entity within the Commonwealth can make decisions about expenditure - Parliament, rather than the Government - but does not itself confirm that the Commonwealth has the power to spend. Spending must therefore be justified under s.61 alone, which in Williams was given a much reduced ambit. The result is a contraction of the Commonwealth’s executive power which only became apparent from 20th June 2012.
62A.6 Section 61 states that executive power “extends to the execution and maintenance of this Constitution, and the laws of the Commonwealth”. There has never been any dispute that this grants power to put into effect the requirements of the Constitution and any law passed by Parliament. A number of individual statements confirm this but for brevity they are omitted. Several are referred to below in commentary on why it is proposed to discard the words “execution and maintenance”.
62A.7 Does s.61 mean, however, that the Government cannot act unless the Constitution or a law authorises the action? The section has never been interpreted in such a limited way, because the section does not vest executive power in the Government, a new entity created by the Constitution, but in the Queen, who already had powers at common law. Thus the power includes the Crown’s prerogative powers. This was not definitively established by a case which turned on the point, but was generally assumed to follow from prevailing theory (which at the time of Federation included the view that there was one Crown for the whole British Empire, an idea later discarded). The existence of the prerogative in Australia at the Commonwealth level was referred to in several judgments. Opinions differed however on how the prerogative came to be incorporated into the Constitution. That s.61 provides the mechanism really only emerged from 1947 onwards:
▸    R v Kidman [1915] HCA 58; (1915) 20 CLR 425 per Griffiths CJ: “It is clear law that in the case of British Colonies acquired by settlement the colonists carry their law with them so far as it is applicable to the altered conditions. In the case of the eastern Colonies of Australia this general rule was supplemented by the Act 9 Geo. IV., c. 83. The laws so brought to Australia undoubtedly included all the common law relating to the rights and prerogatives of the Sovereign in his capacity of head of the Realm and the protection of his officers in enforcing them, ...”.
▸    Commonwealth v Colonial Combing Spinning & Weaving Co Ltd [1922] HCA 62; (1922) 31 CLR 421 per Starke J: “The Executive power ....... section simply marks out the field of the executive power of the Commonwealth, and the validity of any particular act within that field must be determined by reference to the Constitution or the laws of the Commonwealth, or to the prerogative or inherent powers of the King.” In the same case, Isaacs J referred to the prerogative being incorporated by the presence of the Crown in the Constitution.
▸    R v Hush Ex parte Devanny [1932] HCA 64; (1932) 48 CLR 487 per Evatt J: “Whatever powers or duties are conferred or imposed upon the King's executive government, by any section of the Constitution, or by such portion of the Royal prerogative as is applicable, may lawfully be exercised; but sec. 61 itself gives no assistance in the ascertainment or definition of such powers and duties.”
▸    Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 per Starke J: “But it is necessary to consider the precise right claimed by the Crown in right of the Commonwealth. It is a prerogative right because it is a right which belongs to the Crown ‘over and above all other persons.’ It is not expressly conferred upon the Crown by the Constitution but flows, however, from the fact that the executive authority of the Commonwealth is vested in the Crown.” Per Dixon J: “But the priority which the State Act, ..., is supposed to have destroyed ..., is a consequence of the King's prerogative. It is an adjunct of the "Executive power of the Commonwealth" that is vested by s. 61 of the Constitution in the Sovereign.”
▸    In Barton v Commonwealth (1974) 3 ALR 70 Mason J said at ALR 86: “By s.61 the executive power of the Commonwealth was vested in the Crown. It extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth. It enables the Crown to undertake all executive action which is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution. It includes the prerogative powers of the Crown, that is, the powers accorded to the Crown by the common law.” This statement has been accepted or supported in cases referred to below, namely the AAP Case (by Jacobs J), Davis and Others v Commonwealth of Australia and Another and Pape v Commissioner of Taxation.
That s.61 incorporates the Crown’s prerogative powers is no longer disputed. But opinion has fluctuated over time as to how far those prerogative powers extend. This is illustrated by the contrast between the judgment of Jacobs J in the AAP Case, in which he regards spending by the Commonwealth Government as part of the prerogative power, and the decision in Williams which negates that view.
62A.8 There has always been controversy over the breadth of the power in s.61. ‘Breadth’ here is used in the same sense as George Winterton used the term in Parliament, The Executive and the Governor-General (1983, Melbourne University Press) at pp.29-31 - namely the range of subjects over which the Commonwealth can exercise the power. Prior to the decision in Williams on 20th June 2012, there seemed to be a consensus that executive power at least extended over all the subjects on which the Commonwealth had legislative power. The issue was whether the power extended beyond those subjects. In Victoria v Commonwealth (The AAP Case) (1975) 134 CLR 338, 7 ALR 277 there was majority support for s.61 extending Commonwealth executive powers beyond the subjects of legislative power in ss.51 and 52 to a limited extent, but there was no consensus on how far it extended. (Consider when reading the following extracts whether the judges were acknowledging that executive power at least extends as far as the subjects of legislative power, or whether, as the High Court in Williams would now have us believe, they saw gaps within those subject areas where no executive power existed in the absence of legislation).
▸    Mason J, in a passage at CLR 397, ALR 327-8 much cited in later cases, said: “.. 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. ...
    However, the executive power to engage in activities appropriate to a national government, arising as it does from an implication drawn from the Constitution and having no counterpart, apart from the incidental power, in the expressed heads of legislative power, is limited in scope. It would be inconsistent with the broad division of responsibilities between the Commonwealth and the States achieved by the distribution of legislative powers to concede to this aspect of the executive power a wide operation effecting a radical transformation in what has hitherto been thought to be the Commonwealth's area of responsibility under the Constitution, thereby enabling the Commonwealth to carry out within Australia programs standing outside the acknowledged heads of legislative power merely because these programs can be conveniently formulated and administered by the national government.”
▸    Barwick CJ said at CLR 362, ALR 298: “The Commonwealth is a polity of limited powers, its legislative power principally found in the topics granted by ss 51 and 52: its executive power is described as extending to the execution and maintenance of the Constitution and of the laws of the Commonwealth. No doubt some powers, legislative and executive, may come from the very formation of the Commonwealth as a polity and its emergence as an international State. Thus it may be granted that in considering what are Commonwealth purposes, attention will not be confined to ss 51 and 52. The extent of powers which are inherent in the fact of nationhood and of international personality has not been fully explored. Some of them may readily be recognized: and in furtherance of such powers money may properly be spent. One such power, for example, is the power to explore, whether it be of foreign lands or seas or in areas of scientific knowledge or technology. Again, there is power to create Departments of State, for the servicing of which as distinct from the activities in which the Departments seek to engage money may be withdrawn from the Consolidated Revenue Fund. But, to anticipate a submission with which I must later deal, to say that a matter or situation is of national interest or concern does not, in my opinion, attract any power to the Commonwealth. ...... [ALR 299] In the long run, whether the attempt is made to refer the appropriation and expenditure to legislative or to executive power, it will be the capacity of the Parliament to make a law to govern the activities for which the money is to be spent, which will determine whether or not the appropriation is valid. 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 the subject of valid legislation.”
▸    Gibbs J, dealing with s.81 at CLR 375, ALR 309, said: “It therefore seems correct to say that "purposes of the Commonwealth" are purposes for which the Commonwealth has power to make laws - purposes which however are not limited to those mentioned in ss 51 and 52 but which, as was pointed out by Starke J (at 266) and Dixon J (at 269) in the Pharmaceutical Benefits Case, may include matters "incidental to the existence of the Commonwealth as a state" and to the exercise of its powers as a national government.” Having found the appropriation was not valid as it was not for a ‘purpose of the Commonwealth’, he said at 312: “It follows from what I have said that the expenditure of the moneys of the Commonwealth for the purposes of the Plan would be unlawful. 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". Those words limit the power of the Executive and, in my opinion, make it clear that the Executive cannot act in respect of a matter which falls entirely outside the legislative competence of the Commonwealth. A view consonant with that which I have expressed has previously received acceptance in this court: see Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922), 31 CLR 421 at 431-2, 437-41; 29 ALR 138; Commonwealth v Australian Commonwealth Shipping Board (1926) 39 CLR 1 at 10; [1927] ALR 61. The Constitution effects a distribution between the Commonwealth and the States of all power, not merely of legislative power. We are in no way concerned in the present case to consider the scope of the prerogative or the circumstances in which the Executive may act without statutory sanction. Once it is concluded that the Plan is one in respect of which legislation could not validly be passed, it follows that public moneys of the Commonwealth may not lawfully be expended for the purposes of the Plan.”
▸    Jacobs J said at CLR 406, ALR 333-334: “The exercise of the prerogative of expending moneys voted by Parliament does not depend on the existence of legislation on the subject by the Australian Parliament other than the appropriation itself. This exercise of the prerogative is in no different case from other exercises of the prerogative which fall within the powers of the Executive Government of the Commonwealth under s 61 of the Constitution. If legislation were a prerequisite it would follow that the Queen would never be able to exercise the prerogative through the Governor-General acting on the advice of the Executive Council; she would always exercise executive power by authority of the Parliament. This cannot be suggested. It would, if correct, result in an inability of Australia to declare war, make treaties, appoint officers of State and members of the Public Service of the Commonwealth and do all the multitude of things which still fall within the prerogative, unless there was a general or special sanction of an Act of Parliament. ......[ALR 334] Within the words "maintenance of this Constitution" appearing in s 61 lies the idea of Australia as a nation within itself and in its relationship with the external world, a nation governed by a system of law in which the powers of government are divided between a government representative of all the people of Australia and a number of governments each representative of the people of the various States.”
62A.9 In Davis v Commonwealth of Australia (1988) 166 CLR 79, 82 ALR 633, four of the seven judges cited with approval Justice Mason’s formulation of the breadth of section 61 in the AAP Case set out above: see the judgments of Mason CJ, Deane and Gaudron JJ at 166 CLR 93, 82 ALR 640, and Brennan J at 166 CLR 119, 82 ALR 653. The remaining 3 judges gave Justice Mason’s formulation qualified support, but the qualifications related more to the identification of the source of power than the extent of the power. Justices Wilson & Dawson JJ at CLR 103, ALR 648 and Toohey at CLR 119, ALR 658-9 saw the powers under discussion as falling within the incidental legislative power in s.51(xxxix), so that Commonwealth executive power did not extend beyond the subjects of the Parliament’s legislative power. They agreed that the character and status of the Commonwealth as a national government is an element to be considered in the construction of s 61. The majority in Davis v Commonwealth of Australia (1988) 82 ALR 633 also regarded the present s. 61 as incorporating such of the prerogative powers of the Crown as can be exercised by the Commonwealth in a federal system: per Mason CJ, Deane and Gaudron JJ in at CLR 93, ALR 640 and Brennan J at CLR 108, ALR 652.
62A.10 In Pape v Commissioner of Taxation [2009] HCA 23; 238 CLR 1; 257 ALR 1, six of the seven judges generally accepted Justice Mason’s interpretation of section 61 in the AAP Case set out above: see French CJ at para.s [127] - [133], Gummow, Crennan & Bell JJ at [228] and Hayne & Kiefel JJ at [329] - [330]. (Justices Gummow, Crennan & Bell JJ also agreed at [214] that the executive power included the Crown prerogatives). However, there were indicators in Pape that the application of the Mason test would be applied much more narrowly by the 2009 High Court. For example:
▸    At para. [239] Justices Gummow, Crennan and Bell referred to the need to examine the “sufficiency of the powers of the States to engage effectively in the enterprise or activity in question and of the need for national action (whether unilateral or in cooperation with the States)” when deciding whether the enterprise or activity fell within the Commonwealth’s executive power. The implication is that only if the States don’t have sufficient power to do something will it fall within Commonwealth power. Where does this leave research, such as that conducted by the CSIRO, which Justice Mason (and Barwick CJ) regarded as within Commonwealth power despite its absence from the subjects of legislative power in s.51? The States appear to have sufficient power to conduct research. If the Commonwealth has no executive power of research, how is the legislation establishing the CSIRO valid? The same question mark hangs over inquiries, investigations and advocacy in relation to matters affecting public health, which Justice Mason also regarded as within Commonwealth power, but which the States have sufficient power to undertake.
▸    At para. [345] Justices Hayne and Kiefel concluded that expenditure by the Government directed to addressing a national economic emergency such as the Global Financial Crisis of 2008 was not an exercise of power “derived from the character and status of the Commonwealth as a national polity or as deduced from the existence and character of the Commonwealth as a national government”. In other words, the judges did not see an immediate response to a threatened economic depression as within the range of activities ‘peculiarly suited to a national Government’ - a bizarre misapplication of the Mason formulation. (In Williams Justice Hayne accepted at [194] the majority position in Pape that whether or not there was a national emergency or crisis did affect whether the power was available.)
▸    Justice Heydon dissented in Pape, and indicated at [519] - [520] that if Mason’s test was valid, he would give it a narrow ambit. He held that the Commonwealth’s response to the Global Financial Crisis was beyond its power, saying at [504] “the mere fact that controlling economic crises is a matter of national interest does not lead to the conclusion that the Commonwealth has any power to control them apart from the powers expressly granted to it”.
62A.11 Pape appeared to have partially settled the question of the breadth of the executive power, through acceptance of the Mason formulation, but the implications of it being interpreted more narrowly are profound. Significant sections of Commonwealth Government activity and expenditure are at risk of being declared unconstitutional. The Commonwealth has no legislative power over education, local government and the environment. It has only indirect powers of economic management, exercised through powers such as those over trade and commerce between the States, taxation, corporations and banking. It has only limited powers in relation to health and welfare. Many of its activities in these areas are undertaken by way of grants to States under s.96, to which conditions are attached. The s.96 approach is not threatened by the tendencies in Pape, but activities where s.96 cannot be used, perhaps because the States do not agree with them, are now open to challenge.
62A.12 Pape also finally established an accepted interpretation of s.81, the appropriation power. This had a significant effect on the analysis of s.61, because previously where spending not authorised by legislation other than an Appropriation Act had been challenged, the cases had often focused on s.81. Post 2009, such cases will focus instead on s.61. Section 81 states: “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 ....”. For present purposes, the question is whether s.81 is merely an internal management rule, as explained above at Note 62A.5, or an independent source of power for the Commonwealth. Early commentaries, and several participants in the constitutional conventions, favoured the latter interpretation - that s.81 conferred a power to spend appropriated money. Section 81 has however only been considered by the High Court intermittently and this issue did not receive detailed consideration until 1945.
    62A.12.1 The first case which referred to appropriation, New South Wales v Commonwealth (the Surplus Revenue Case) (1908) 7 CLR 179, mainly considered ss.89 and 94, and did not address the question of whether s.81 is an internal management rule or a section granting the Commonwealth power to spend. Hence the statements judges made were equivocal on that point. The same comment can be made in relation to the discussion of appropriations by Isaacs J in Commonwealth v Colonial Combing Spinning & Weaving Co Ltd [1922] HCA 62; (1922) 31 CLR 421, where he was the only judge to refer to s.81.
    62A.12.2 In Commonwealth v Colonial Ammunition Co Ltd (1924) 34 CLR 198 the majority of three decided the case on contractual grounds and did not consider constitutional issues. Only Justices Isaacs & Rich considered s.81. They held that three Appropriation Acts had not expressly validated a contract when they authorised the expenditure of funds related to the purposes of the contract, and such validation could not be implied due to the nature of appropriations. The judgment is consistent with the view that appropriations do not ordinarily grant powers to the Government which impact on another party, but by considering whether there had been an express validation their Honours implicitly acknowledged it would be possible for an Appropriation Act to confer such power. Appropriation (under the New South Wales’ Constitution) was discussed at length in New South Wales v Bardolph [1934] HCA 74; (1934) 52 CLR 455, but the issue was whether the absence of an appropriation rendered invalid a contract which required expenditure - it doesn’t.
    62A.12.3 In Attorney-General (Ex Relatione Dale) v Commonwealth (Pharmaceutical Benefits Case) (1945) 71 CLR 237, the Victorian Government claimed a declaration that the Pharmaceutical Benefits Act 1944 was unconstitutional, in that it was an exercise of legislative power vested in the States. The Commonwealth conceded the Act would be invalid without the section which appropriated funds for the scheme, but said that was an appropriation under s.81, and the remaining provisions were valid under the incidental power in s.51(xxxix). The Commonwealth lost because 5 of the 6 judges held that the appropriation was not “for the purposes of the Commonwealth”, though there was no consensus among the majority as to what those words meant. The case therefore focused more on the extent of any limitation on the appropriation power than on whether the section conferred power. However, the latter issue was directly raised by a submission which Chief Justice Latham recorded in this way:
    “The principal argument for the plaintiff was that a Commonwealth purpose (for which alone appropriation of money is said to be legitimate) must be found in powers conferred upon the Parliament by some other provision than s 81: that s 81 conferred no legislative power whatever, but was based upon the assumption that the purposes of the Commonwealth were defined or limited by other provisions of the Constitution; so that ‘the purposes of the Commonwealth" must be construed as meaning purposes for which the Commonwealth Parliament has power to make laws.’”
    ▸    Two of the six judges, Dixon J (Rich J concurring), saw no need to decide this point, on the basis that the Act was not just an appropriation; it was much more: “appropriation of money is the consequence of the plan; the plan is not consequential upon or incidental to the appropriation of money.”
    ▸    Another two, Latham CJ and McTiernan J, held that s.81 did confer legislative power to spend for such purposes as Parliament determined.
    ▸    Justices Starke and Williams held that s.81 authorised appropriations for the Commonwealth’s legislative, executive and judicial purposes, which included (according to Starke J at least) those arising from its status as a national government.
    The Pharmaceutical Benefits Case did not therefore decide whether ss.81 and 83 conferred additional power on the Commonwealth, or merely regulated its internal management. Two judges favoured the former view, while another two impliedly favoured the latter, with two not answering the question.
    62A.12.4 In Victoria v Commonwealth (The AAP Case) (1975) 7 ALR 277, the Court dismissed a challenge to the appropriation of money for the Australian Assistance Plan, which had no legislative basis other than a short entry in the schedule to the Appropriation Act. There was no consensus among the majority as to the reasons for the decision.
    ▸    Two of the majority judges, McTiernan & Murphy JJ, agreed with the Latham/McTiernan position in the Pharmaceutical Benefits Case and held s.81 conferred an independent spending power.
    ▸    Stephen J held that an Appropriation Act was a machinery provision which created no rights, privileges, duties or obligations: “... the real substance of the plaintiffs' complaint must be, not that the Commonwealth has exceeded its legislative competence but rather that, by the manner in which it is proposing to spend its revenues, it is exceeding its spending powers, which are not necessarily restricted to its heads of legislative power.” As the Act was only of concern to the jurisdiction which created it, he said the plaintiff had no standing to bring the case.
    ▸    The final member of the majority in favour of dismissing the demurrer, Jacobs J, held that appropriation, as a mere earmarking of money, was a matter internal to Government and could not be challenged. Relief can only be given in relation to expenditure, and then only in respect of so much of it as lies outside the purposes for which an appropriation can be made. Expenditure of moneys voted by Parliament is part of the prerogative granted to the Government through s.61. In the absence of legislation to the contrary, the Government may spend the money which has been appropriated.
    ▸    Two judges (Barwick CJ & Gibbs J) held that “the purposes of the Commonwealth” meant the purposes for which the Commonwealth could make laws, though this was not limited to the purposes in ss.51 and 52. Their position was virtually identical to that of Starke and Williams JJ in the Pharmaceutical Benefits Case.
    ▸    Mason J distinguished between appropriation and spending, so that while he agreed that with Justices McTiernan and Murphy that it was for Parliament to determine for what purposes it appropriates money, he would allow challenges to spending: “An appropriation .... has a limited effect. It may provide the necessary parliamentary sanction for the withdrawal of money from Consolidated Revenue and the payment or subscription of money to a particular recipient or for a particular purpose, but it does not supply legal authority for the Commonwealth's engagement in the activities in connection with which the moneys are to be spent. Whether the Commonwealth can engage in any specified activities depends upon the extent of the Commonwealth's legislative, executive and judicial powers.”
    In summary, five of the seven judgments were more consistent with the appropriations power not being an independent spending power, but rather one which is limited to the internal management of the Commonwealth.
    62A.12.5 In Pape v Commissioner of Taxation [2009] HCA 23; 238 CLR 1; 257 ALR 1, all seven judges agreed said that s.81 did not confer an independent power to spend the money appropriated: French CJ at [111], Gummow, Crennan & Bell JJ at [180], Hayne & Kiefel JJ at [296] & Heydon J at [604]. The legislation under challenge was the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) and the Tax Bonus for Working Australians (Consequential Amendments) Act (No 2) 2009 (Cth), passed by Parliament in mid-February 2009. The legislation was part of the Rudd Government’s efforts to respond to the global financial crisis. The Acts provided for payments in 2008-09 on a sliding scale to taxpayers who earned no more than $100,000 in the 2007-08 financial year, according to their tax assessments. The total of all bonuses was about $7.7 billion. The Commonwealth submitted that the Act was supported on any or all of five bases: the appropriations power read with the incidental power, the implied "nationhood power" in s.61, the external affairs power, the trade and commerce power and the taxation power. The only basis on which the legislation was upheld was the ‘nationhood’ power - that part of s.61 referred to in the Mason formulation outlined at Note 62A.8 above.
62A.13 The full significance of Pape became apparent in Williams v Commonwealth of Australia [2012] HCA 23, in which the High Court held the Commonwealth’s expenditure on the school chaplains program to be invalid despite being authorised by appropriation legislation.
    62A.13.1 Like the disputed program in the AAP Case, the chaplains program was not regulated by separate legislation. It was simply money spent on a particular purpose pursuant to guidelines and a contract between the Commonwealth and the supplier of chaplains. The Court approached the case on the basis that it did not raise questions about:
    ▸    the administration of departments of State pursuant to s 64 of the Constitution;
    ▸    the execution and maintenance of the laws of the Commonwealth;
    ▸    the exercise of power conferred by or derived from an Act of the Parliament;
    ▸    the exercise of prerogative powers; or
    ▸    the exercise of inherent authority derived from the character and status of the Commonwealth as the national government - the Mason formulation of an aspect of s.61.
    Accordingly its decision does not affect executive power over and spending on these matters, but it has a substantial impact on any grant of money or payment pursuant to a contract which is based solely on an Appropriation Act (rather than on a s.96 payment or separate legislation).
    62A.13.2 Because the Court regarded the appropriation power as an internal management rule, not a conferral of power, it disregarded the Appropriation Act, and considered only whether the expenditure could be justified under s.61. Had its reasons been limited to the ground that the chaplains program was outside the breadth of s.61 - i.e., beyond the range of subjects on which the Commonwealth could spend - there would have been no surprise, but:
    ▸    In relation to breadth, the Court unexpectedly opened gaps in executive power within the range of subjects over which the Commonwealth can legislate; and
    ▸    It found the depth of executive power to be much more shallow than previously thought. ‘Depth’ refers to the extent of the power the Government may exercise over a subject within the breadth of Commonwealth power; that is, whether a power available to the Commonwealth is exercisable by the executive alone or requires support from legislation. Whereas breadth is mainly determined by federal considerations, depth is affected by the separation of powers.
    62A.13.3 Breadth: There had been a consensus that executive power in s.61 could be exercised in relation to a subject over which the Commonwealth had legislative power even if there was no legislation authorising the actions taken. This view was based on the Constitution establishing spheres of Commonwealth responsibility for certain areas, which requires executive power to be co-extensive with legislative power. The position was most succinctly put by Barwick CJ in the AAP Case when he said at (1975) 7 ALR at 299: “the Executive may only do that which has been or could be the subject of valid legislation.” Prior to Williams there had been such extensive support for this view that all parties in the case based their submissions prior to the hearing on the common assumption that this proposition was the law: see the dissenting judgment of Justice Heydon at [2012] HCA 23 at [340] - [404], where he sets out the authorities in support and the reasons why the proposition was consistent with principle.
    62A.13.4 Nevertheless this proposition was rejected by a majority of 4 judges: French CJ at [26] - [27], Gummow & Bell JJ at [134] - [135] and Crennan J at [544]. (Justices Hayne at [183] & [288] and Kiefel at [569] found it unnecessary to decide, though the latter at [594] seemed inclined to accept the proposition. Only Heydon J in dissent at [340] actually accepted it).
    ▸    Chief Justice French said at [26] - [27] that the proposition that the executive power in all of its aspects extends to the subject matter of grants of legislative power to the Commonwealth Parliament, should not be accepted. Executive action, except in the exercise of delegated legislative authority, is qualitatively different from legislative action. To say without qualification that the executive power in its various aspects extends, absent statutory support, to the "subject matters" of the legislative powers of the Commonwealth is to make a statement the content of which is not easy to determine. At [60], he said a Commonwealth Executive with a general power to deal with matters of Commonwealth legislative competence is in tension with the federal conception which informed the function of the Senate as a necessary organ of Commonwealth legislative power. It would undermine parliamentary control of the executive branch and weaken the role of the Senate.
    ▸    Justices Gummow & Bell JJ said [134] - [135] that any proposition that the spending power of the executive branch of government is co-extensive with those activities which could be the subject of legislation supported by any head of power in s 51, is too broad. Referring to s 51(ii), the taxation power, ‘it is well settled that there can be no taxation except under the authority of statute (234). Many other of the heads of power in s 51 are quite inapt for exercise by the Executive. Marriage and divorce, and bankruptcy and insolvency by executive decree, are among the more obvious examples. These heads and other heads of legislative power in Ch II are complemented by the power given to the Parliament by Ch III to make laws conferring upon courts federal jurisdiction in matters arising under federal laws. Further, while heads of power in s 51 carry with them the power to create offences (235), the Executive cannot create a new offence (236), and cannot dispense with the operation of any law (237). Secondly, such a proposition would undermine the basal assumption of legislative predominance inherited from the United Kingdom and so would distort the relationship between Ch I and Ch II of the Constitution. There are considerations of representative as well as of responsible government in cases where an executive spending scheme has no legislative engagement for its creation or operation beyond the appropriation process. And that appropriation process requires that the proposed law not originate in the Senate, and that the proposed law appropriating revenue or moneys "for the ordinary annual services of the Government" not be amended by the Senate (240). The questions therefore cannot to be answered through debate as to what legislation could have been passed by the Parliament in reliance upon s.51'.
    ▸    Justice Crennan at [542] - [544] said that opinions about the synergy between executive power and legislative powers expressed in terms which are general, absolute or otherwise imperfect should not be taken to imply that expenditure by the Executive which does not fall within the second limb of s 61 is nevertheless within the scope of s 61 provided it is possible to identify special legislation which might be, but was not, passed. If the fact that the Parliament could pass valid Commonwealth legislation were sufficient authorisation for any expenditure by the Commonwealth Executive, the Commonwealth's capacities to contract and to spend would operate, in practice, indistinguishably from the Commonwealth Executive's exercise of a prerogative power. Such a view ignores the restrained approach to the prerogative adopted by Brennan J in Davis and disregards the constitutional relationship between the Executive and Parliament affecting spending.
    The majority judges did not set out a clear alternative proposition.
    62A.13.5 Depth (1): Of the majority of six, only Justice Hayne at [229] - [231] acknowledged that an Appropriation Act could perform the dual role of not just authorising expenditure but also conferring power, where power is available under a section of the Constitution other than s.81. Justice Crennan’s position differed slightly. She said at [531]: “It is possible for an Act to do both where it amounts to a special appropriation Act and provides some detail about the policy being authorised.” It is not clear what she meant by a special appropriation - see Note 62A.15.2 below. Partly because of the way the case was argued, the other four majority judges did not address this point specifically, but their reasoning seemed more consistent with Justice Crennan’s approach.
    62A.13.6 Depth (2): Further, none of the judges was prepared to determine the extent of Government powers by reference to notions an ordinary individual’s capacity to enter contracts and spend money. Any individual may enter any agreement which does not affect the rights or liabilities of others, but whether the Commonwealth has analogous legal capacity within the breadth of the executive power was regarded as irrelevant: French CJ at [38] & [83], Gummow & Bell JJ at [150] - [151], Hayne J at [202] - [204], Crennan J at [518] - [524], Kiefel J at [581].
    ▸    Chief Justice French said at [83]: “The character of the Commonwealth Government as a national government does not entitle it, as a general proposition, to enter into any such field of activity by executive action alone.”
    ▸    Justices Gummow & Bell referred at [150] - [151] to the Commonwealth’s argument that because the capacities to contract and to spend moneys lawfully available for expenditure do not "involve interference with what would otherwise be the legal rights and duties of others" which exist under the ordinary law, the Executive Government possesses these capacities in common with other legal persons. The capacity to contract and to spend then was said to take its legal effect from the general law. But, the judges said, a Government is not in the position of a person proposing to expend moneys of his own. Public moneys are involved. The law of contract has been fashioned primarily to deal with the interests of private parties.
    ▸    Justice Hayne said: [204] - [205]: “It is not to be assumed, and was not demonstrated, that the Executive Government of the Commonwealth has all of the capacities – in the sense of powers – to contract and spend that a natural person has. There is no basis in law for attributing human attitudes, form, or personality to the federal polity. .... Of course, it is important to recognise that s 61 begins by providing that "[t]he executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative". But, as was pointed out in Sue v Hill [321], the personification of the Executive as "the Crown" (or, I would add, as "the Queen" or "the Governor-General as the Queen's representative") must not be permitted to disguise the several different senses in which the term "the Crown" is used or to deny that the Executive Government of the Commonwealth is the executive government of an artificial legal entity – a polity.
    ▸    Justice Crennan said at [516]: “The principles of accountability of the Executive to Parliament and Parliament's control over supply and expenditure operate inevitably to constrain the Commonwealth's capacities to contract and to spend. Such principles do not constrain the common law freedom to contract and to spend enjoyed by non-governmental juristic persons.”
62A.14 The reasoning and methodology of the majority in Williams v The Commonwealth are well below acceptable standards.
    62A.14.1 The discussion about how certain judges in the AAP Case regarded s.61 as extending across the Commonwealth’s spheres of responsibility under the Constitution misrepresents what those judges said. Barwick CJ and Gibbs, Mason & Jacobs JJ saw the subjects of legislative power as within the sphere of Commonwealth executive action, with the question being whether executive powers extended beyond the subjects of legislative power. (This is apparent from the passages referred to at Note 62A.8 above, and from the judgment of Mason CJ, Deane and Gaudron JJ in Davis and Others v Commonwealth of Australia and Another (1988) 82 ALR 633 at 82 ALR 640.) Their judgments are not consistent with there being gaps within the subjects of legislative power over which no Commonwealth executive power exists. Had there been such gaps, that surely would have been a factor tending against executive power extending beyond legislative subjects which would have required consideration. It is difficult to understand how judges could make the comments made by French CJ at [29] - [30], Gummow & Bell JJ at [130] - [132] and Crennan J at [540]. In the AAP Case, there were few issues for which there was majority support, but there was majority support for executive power at least extending across the subjects of legislative power, and this appears to be a necessary step in the reasoning underpinning the conclusions of Barwick CJ and Gibbs, Mason & Jacobs JJ. That they did not agree in the result does not detract from the authority of the case on this point. The Court should have expressly overruled the AAP Case on this point and explained where those judges were wrong if it was not prepared to accept the decision.
    62A.14.2 The Williams majority do not cite any authority to support the proposition that there are such gaps in the breadth of the power. They appear to have deliberately steered a path around prior authority to arrive at their preferred position. While that may be permissible where prior authority:
    ▸    is divided,
    ▸    or based on a wrong principle,
    ▸    or based on a principle which is subsidiary to a more important principle,
    none of these factors was present. The Court seemed determined to establish its own interpretation regardless of established opinion. Under our totally deficient Constitution, which contains no mechanism to hold judges accountable for their exercise of power, they can do that. But what if a later Court adopts the same approach? Will the pendulum swing back the other way, with further resulting confusion to the orderly running of Government?
    62A.14.3 The view that the subjects of executive powers are co-extensive with the subjects of legislative powers was distilled from considerable prior authority. If the view is taken, disregarding the AAP Case, that no previous case had determined, as part of the reason for the decision, that legislative and executive powers were co-extensive, that approach is nevertheless consistent with federalism and provides an easy, workable rule to guide Government. That rule was discarded without an alternate rule being suggested. This is irresponsible. Justice Heydon’s judgment should have been adopted by the majority.
    62A.14.4 Some of the reasoning of the majority is intellectually shallow. To point to the differences between legislative and executive power, as French CJ did at [26] and Gummow & Bell J did at [134] - [135], as a reason for not regarding them as covering the same subject areas is to misrepresent the argument in favour of this approach. The argument is not that the executive may exercise legislative powers over the subjects listed in s.51, but that it may exercise executive powers over those subjects. Thus the point made by Justices Gummow & Bell, querying how the executive could exercise power over subjects of power such as taxation, divorce and bankruptcy, is devoid of substance. Potential executive powers on these matters are limited. They could however include the establishment of centres to counsel citizens on these matters, or to train professionals dealing with these areas, assuming money was appropriated for these purposes under s.83. Further, since executive power does not include authority to create offences or dispense with compliance with the law, the executive could never exercise such powers, which in no way impairs the proposition that it could exercise executive powers over the subjects of legislative power.
    62A.14.5 Similarly the comments at [136] by Justices Gummow & Bell are an absurd exaggeration. Of the proposition that the spending power of the executive branch of government is co-extensive with legislative powers, they said:
        “such a proposition would undermine the basal assumption of legislative predominance inherited from the United Kingdom and so would distort the relationship between Ch I and Ch II of the Constitution. No doubt the requirement of s 64 of the Constitution that Ministers of State be senators or members of the House of Representatives has the consequence that the Minister whose department administers an executive spending scheme, such as the NSCP, is responsible to account for its administration to the Parliament [238]. This is so whether the responsibility is to the chamber of which the Minister is a member or to the other chamber, in which the Minister is "represented" by another Minister [239]. But there remain considerations of representative as well as of responsible government in cases where an executive spending scheme has no legislative engagement for its creation or operation beyond the appropriation process.”
    The Parliament had approved the expenditure in the Appropriation Act, and the Government remained accountable to Parliament for that expenditure. The Senate was not by-passed. It could have rejected the Appropriation Bill, but did not. The fact that it could not have amended it is not to the point. While the program was open to challenge as beyond federal power, what occurred clearly met the requirements of responsible government.
    62A.14.6 Similarly the dismissal of the argument that the Commonwealth, as a legal entity, has a right to contract as much as any individual does, and that this is a factor in determining the extent of executive power, was accompanied by remarks which ought not to have been made. The Court’s comments were not directed to the Commonwealth’s power to contract in relation to the administration of Government departments and the provision of the ordinary services of Government. The issue was a submission that just as an individual may make a contract which does not affect the rights of others, so too may the Crown, and no statutory authority is needed for such contracts whether they are part of ordinary Government administration or otherwise. The criticisms of this view by Justices Gummow & Bell at [150] - [153] and particularly Justice Hayne at [204] - [205] (see above at Note 62A.13.6) overlook an elementary point: under our Constitution, executive power is not vested in a Government, it is vested in a person, the Queen, and is exercisable by another person, the Governor-General. The Queen always had the same common law rights as an ordinary citizen as well as her prerogative powers. To claim that the Crown is used in different senses does not explain why powers which once existed are no longer available to the Government.
62A.15 The result in the case is absurd.
    62A.15.1 A decision that the chaplains program was outside the range of subjects of the Commonwealth’s power would not have been surprising. But invalidity was based on Parliament’s supposed failure to confer power on the Government to run the program, even though the program was a widely discussed political issue, and Parliament provided funds for the program on a bipartisan basis year after year. In substance, Parliament did what it regarded as necessary to approve the program, but was told by the Court, in effect, that it should have passed two laws, not one. This result could have been avoided had the Court accepted prior authorities that an appropriation impliedly conferred power - some are referred to below at Note 62A.41 - or by considering whether the Appropriation Acts in issue could have been regarded as both an appropriation and a conferral of power over the activity to be funded by the appropriation. In principle, there should be no reason why an Act cannot serve both purposes, but only Justice Hayne at [229] - [231] indicated this approach was available.
    62A.15.2 As noted at 62A.13.5 above, Justice Crennan said at [531] that it is possible for an Act to be both an appropriation and a conferral of power “where it amounts to a special appropriation Act and provides some detail about the policy being authorised”. She did not define ‘special’ appropriation. The context suggests that she regarded a special appropriation as one which was not for the “ordinary annual services of the Government” under s.53: see para.s [527] - [530]. This fitted with her earlier comments at [472] - [473], where she had referred to Parliamentary practice in a way which suggested that ‘special’ means an appropriation for something other than the “ordinary annual services of the Government” under s.53 of the Constitution. However, at [531] she gave the legislation dealt with in Pape as an example of legislation which both appropriated and conferred power, and referenced paragraph [167] from her joint judgment in Pape. That paragraph cited the House of Representatives Practice, which treats as a special appropriation bill one which:
        “while not in [itself] containing words of appropriation, would have the effect of increasing, extending the objects or purposes of, or altering the destination of, the amount that may be paid out of the Consolidated Revenue Fund under existing words of appropriation in a principal Act to be amended, or another Act.”
    This definition could apply equally to the “ordinary annual services of the Government” under s.53 or to expenditure outside that definition. Accordingly it is quite unclear whether or not the judge was saying that an Appropriation Act could only be both an appropriation and a conferral of power if it is of the kind which the Senate may amend under s.53. The tenor of her judgment suggests that she was making that distinction but she failed to make it clear in her words. Given the comments about responsible government and the place of the Senate in the judgments of other judges in the majority, it is quite likely that they also would require an appropriation to be one which is not for the ‘annual ordinary services of Government’ if it is also to confer power. There is no justification for interpreting an Appropriation Act by reference to whether or not it deals with ordinary government services or other matters outside that class.
    62A.15.3 Six days after the decision in Williams, remedial legislation, the Financial Framework Legislation Amendment Act (No.3) 2012, was introduced into the House of Representatives and passed the same day. The next day it was introduced into and passed by the Senate. Assent was given on 28th June 2012. Although divisions were called on amendments unsuccessfully moved by the Liberals in the House and the Greens in the Senate, no division was required in either House on the final vote. For all the high-sounding rhetoric in the Court’s judgments about responsible government and the need for proper Parliamentary scrutiny of spending, all political groups represented in the Parliament, right across the political spectrum, wanted the continuation of the 416 then-current government programs which were based solely on Appropriation Acts. Given the opportunity to terminate programs which were not controlled by special legislation, no-one voted to do so. There is a message here for High Court judges and commentators who like to preach about responsible government. Those actually involved in responsible government; i.e., the people who have to make it work, do not think it is necessary for every program to be based on separate legislation, in addition to appropriation provisions. The Court should not presume to tell them now to do their jobs.
    62A.15.4 Among other things, the legislation amended the Financial Management Act 1997 by adding s.32B. The new section provides that if, apart from the section, the Commonwealth does not have power to make, vary or administer a financial arrangement under which public money is payable, or make a grant to any person, then the Commonwealth has that power by virtue of the section, provided the arrangement or grant is specified in regulations. At the same time the regulations were amended to include Schedule 1AA specifying the 416 programs as arrangements under s.32B. Whether this approach overcomes the supposed problem identified in Williams is not clear. If, as is suggested at Note 62A14.8 above, some judges in the majority would only regard legislation as having conferred power if the Senate had the opportunity to amend the legislation, then the new Act will not work. It depends for its efficacy on programs being referred to in regulations, which are then presented to both Houses on a take it or leave it basis. They may disallow the regulations, in whole or in part, but not amend them: see the Legislative Instruments Act 2003, s.42, and Pt 5 generally. (Of course, amendments can be forced if either House threatens disallowance unless an amendment is made). So it seems possible that in the near future the High Court will tell Parliament 416 separate Acts of Parliament are needed, even though Parliament doesn’t think that is necessary. That would be High Court mandated red tape.

The revised aim
62A.16 In summary, this is how the Advancing Democracy model responds to the changes in the law made by the decisions in Pape and Williams:
    62A.16.1 Pape decided that ss.81 and 83 were not spending powers; but rather an internal approval mechanism determining which entity within the Commonwealth decides whether or not money can be spent, if the Commonwealth otherwise has the power to spend. This approach will be retained. Nothing in the model changes the appropriations provisions back into a spending power.
    62A.16.2 Pape and Williams confirmed that the source of the power to spend is the executive power, currently in s.61. The Advancing Democracy model retains this approach, but the section defining executive power will now be s.62A.
    62A.16.3 Williams rejected the commonly, but not universally, held view that the executive powers in the section were co-extensive with the Commonwealth’s legislative powers - that if the Commonwealth Parliament had legislative power on a particular subject, the Commonwealth Government had executive power on that subject. The majority held that with certain (ill-defined) exceptions, the Government only had executive power when Parliament had passed a law which it could administer. This was a court-determined amendment to the Constitution which contracted the Commonwealth’s executive power. It will be reversed through proposed subsections 62A(vii) and 62A(ix).
    62A.16.4 Williams established that for activities requiring spending which is not ‘for the annual ordinary services of Government’ under s.53, an appropriation is not sufficient - there must be two Acts; an appropriation and special legislation conferring power to spend. This too was a court-determined amendment to the Constitution which contracted the Commonwealth’s executive power. It too will be reversed through proposed subsections 62A(vii) and 62A(ix).
62A.17 The intention then of proposed section 62A is to reverse the arbitrary reduction in executive power imposed by the High Court in Williams, while otherwise preserving the prevailing interpretation of s.61, and to re-write the section in more comprehensible terms which prevent further expansions of power. An alternative to this express restatement would be to provide that executive power comprises ‘such powers as the executive power included immediately prior to the passing of the Advancing Democracy referendum’; or to just repeat the words in the current s.61, which was what was proposed in the 1999 republican referendum (in a revised s.59). That approach however would force us to constantly refer to what the law was prior to the referendum. It would perpetuate past uncertainties for several more decades. A clean break from the past is a far better approach.
62A.18 In restating executive power, consideration has been given to whether some or all of the prerogative powers of the Crown should be included in the definition. This raises the following problems:
    62A.18.1 The main problem is that prerogative powers were always capable of abolition or amendment by statute, whereas the intention of s.62A is to list powers the Government may exercise in the absence of legislation, and which cannot be taken away by Parliament. To expressly include prerogative powers in s.62A would elevate their status and deprive Parliament of the right to amend or abolish them. To not include them risks reducing Commonwealth executive power.
    There are some minor problems as well:
    62A.18.2 There is no universally accepted, exhaustive definition of these powers.
    62A.18.3 These days the powers comprise a rather eclectic mix, from the prerogative to grant mercy to criminals to the power to make treaties.
The solution adopted in the Advancing Democracy model is to include only the Crown prerogatives over foreign affairs in s.62A, for the reasons set out in Notes below, and to abolish the remainder. The Notes under s.63A indicate why abolition will not significantly affect Commonwealth executive power.
62A.19 Each component of 62A will now be examined to demonstrate its consistency or otherwise with the existing state of the law.

Subsection 62A - comprised of and limited to
62A.20 At present, Australia lacks a definition of what it means to govern. Section 62A confirms that it is the aggregate of the nine separate components identified in the subsection. The key words are “limited to”. If the justification for an action cannot be found within the section, the action is outside executive power and cannot be undertaken. From time to time courts have examined which powers are executive, and which are legislative and judicial. Much of that will no longer be necessary. For example, the section does not say that the Government can override the law, or change legal rights, or impose penalties, or create offences. It follows from the words “limited to” that it can do none of these things. Similarly it will not be possible for future lawyers to conjure up additional implied powers based on other parts of the Constitution, in the way that the ‘nationhood’ power was invented.

Subsection 62A(i) - administration, implementation and protection of the Constitution
62A.21 In the first two components of executive power, the words “administration, implementation” have been chosen rather than the present “execution and maintenance” of the Constitution and Commonwealth laws. There are few cases dealing with s.61 exclusively, and none has turned on the meaning of “execution and maintenance”. The phrase has been explained as follows:
▸    In Commonwealth v Colonial Combing Spinning & Weaving Co Ltd [1922] HCA 62; (1922) 31 CLR 421 Knox CJ and Gavan Duffy J said at 425: “.... execution of the Constitution means the doing of something immediately prescribed or authorized by the Constitution without the intervention of Federal legislation.” This statement was part of the reasons for their Honours’ decision, but the following comment by Justice Isaacs at 441 in the same case was merely an observation: “The mere fact of the creation of the Executive Government carries with it some constitutional consequences, unwritten, it is true, but nevertheless very real, that Courts recognize and that are included in the terms "maintenance of the Constitution."”
▸    In R. v Hush; Ex parte Devanny (1932) 48 CLR, at p 506, Rich J. said: “To prevent persons associating together for the purpose of destroying the Constitution is a matter incidental to maintaining it." The other members of the Court decided the case on other grounds.
▸    In Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, Williams J at CLR 230 said: “The maintenance of the Constitution therefore means the protection and safeguarding of something immediately prescribed or authorized by the Constitution without the intervention of Federal legislation.” (This case did not turn however on an interpretation of s.61).
▸    As noted above at 62A5.1, in Victoria v Commonwealth (The AAP Case) (1975) 134 CLR 338, 7 ALR 277 Jacobs J said at CLR 406, ALR 334: “Within the words "maintenance of this Constitution" appearing in s 61 lies the idea of Australia as a nation within itself and in its relationship with the external world, a nation governed by a system of law in which the powers of government are divided between a government representative of all the people of Australia and a number of governments each representative of the people of the various States.” His interpretation was endorsed by Brennan J in Davis v Commonwealth (1988) 166 CLR 79, 82 ALR 652 at at CLR 108, ALR 652.
▸    In Pape v Commissioner of Taxation [2009] HCA 23; 238 CLR 1; 257 ALR 1 Gummow, Crennan and Bell JJ. said:
    “[214] .... The conduct of the executive branch of government includes, but involves much more than, enjoyment of the benefit of those preferences, immunities and exceptions which are denied to the citizen and are commonly identified with "the prerogative"; the executive power of the Commonwealth enables the undertaking of action appropriate to the position of the Commonwealth as a polity created by the Constitution and having regard to the spheres of responsibility vested in it.259
    [215] With that understanding, the phrase "maintenance of this Constitution" in s 61 imports more than a species of what is identified as "the prerogative" in constitutional theory. It conveys the idea of the protection of the body politic or nation of Australia.”
62A.22 While this is not an exhaustive list, it does convey the range of implications judges have been prepared to draw from the word “maintenance”. In proposed s.62A, the words “administration, implementation” replace “execution and maintenance” for these reasons:
▸    The word “maintenance” has an uncertain meaning when applied to law. It is better to avoid words which may be susceptible to varying interpretation over time.
▸    The new phrase is more comprehensible to the public.
▸    The words ‘administration and implementation’ are consistent with the dominant view of the meaning of ‘execution and maintenance’.
62A.23 Proposed s.62A(1)(i), uses the term “protection” of this Constitution. There is no doubt the Commonwealth Parliament has legislative power to protect the Constitution. This has been variously seen as stemming from:
▸    The incidental power in s.51(xxxix) of the Constitution: R v Kidman [1915] HCA 58; (1915) 20 CLR 425, per Griffith CJ at 434, Isaacs J at 442, Higgins J at 450, Gavan Duffy J at 456, and Rich & Powers JJ at 459-460; Burns v Ransley [1949] HCA 45; (1949) 79 CLR 101 per Latham CJ at 109-110, Rich J at 111, Dixon J at 116 & McTiernan J at 120; The King v Sharkey [1949] HCA 46; (1949) 79 CLR 121 per Latham CJ, Rich, McTiernan & Williams JJ;
▸    The defence power in s.51(vi): Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, per Latham CJ at CLR 151, Dixon J at CLR 186; Thomas v Mowbray (2007) 233 CLR 307, where Gummow & Crennan JJ held at [139]-[148] that the power was not limited to resisting external aggression, Gleeson CJ agreeing at [6] - [9], Heydon J agreeing at [611]; Kirby J similar at [250] - [251]; and
▸    Necessarily implied from the Commonwealth’s existence: per Dixon J in Burns v Ransley and The King v Sharkey and Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 187-8.
(This list of citations is not exhaustive). The extensive legislative power for protection has meant that few judges have needed to comment on the protective aspect of executive power. Nevertheless there is direct support for protection of the Constitution being part of executive power in 3 of the passages cited at Note 62A.9 above, and it seems implicit in many other, more general, explanations of s.61, such as the Mason formulation in the AAP Case.

Subsection 62A(ii) - administration and implementation of the laws of the Commonwealth
62A.24 The second component - s.62A(1)(ii) - is a partial restatement of s.61. The change in wording - from ‘execute and maintain’ the laws to “administer and implement” the laws - does not change the meaning, and has been made to make the section more comprehensible. However, the temptation to define “laws of the Commonwealth” has been resisted. The only issue is whether it means laws enacted by the Commonwealth Parliament, or those laws plus the common law. Commonwealth v Colonial Combing Spinning & Weaving Co Ltd (1922) 31 CLR 421 is generally taken as having decided that it means only the laws made by the Parliament. This is probably correct, as it is difficult to see how the Commonwealth could ‘execute and maintain’ the common law. Similarly it is not clear how the Commonwealth could ‘administer and implement’ the common law, so the meaning of “laws of the Commonwealth” will probably remain the same under s.62A. However, cases referring to this phrase pre-date Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, in which it was held that there was one common law for Australia. It may be in future that the Commonwealth jurisdiction is seen as having a greater role in the development of the common law and that the meaning of the phrase in s.62A needs to be adapted accordingly. Leaving “laws of the Commonwealth” undefined allows, but does not compel, such a reinterpretation.

Subsection 62A(iii) - administration of the Government
62A.25 The third component in s.62A(iii) merely makes explicit what is already obvious - the power to govern is a power of administration. Given the introductory words “and limited to”, the obvious must be included for completeness. There is no need to be more explicit. Even without a power of administration having been conferred, the High Court has been prepared to imply that the Commonwealth has power to regulate its own activities: e.g., State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 at 357, 73 ALR 161 at 177-8, per Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ.

Subsection 62A(iv) - foreign affairs
62A.26 The fourth component is a restatement of part of the Crown’s prerogative to act in international matters. The right to declare war was a Crown prerogative: see for example Joseph v Colonial Treasurer (NSW) [1918] HCA 30; (1918) 25 CLR 32 at 45-47 per Isaacs, Powers & Rich JJ and at 54-55 per Gavan Duffy J. The power to make treaties is partly a corollary to the power to make war, and was traditionally regarded as part of the Crown prerogative. The treaty power has been recognised in several High Court case, e.g.:
▸    Farey v Burvett (The Bread Case) (1916) 21 CLR 433 per by Isaacs J at 452 (with whom Powers J agreed at 468): “By s 61 of the Constitution that is vested in the Sovereign, and (subject to s 2) is exercisable by the Governor-General as the Royal representative, and, says s 61, this executive power extends to the execution and maintenance of this Constitution and of the laws of the Commonwealth. These provisions carry with them the Royal war prerogative, and all that the Common Law of England includes in that prerogative, so far as it is applicable to Australia. The creation of a state of war and the establishment of peace necessarily reside in the Sovereign himself as the head of the Empire, but apart from that, the prerogative powers of the Crown are exercisable locally.” (Emphasis added)
▸    Chow Hung Ching v R (1948) 77 CLR 449 at 478-479 per Dixon J.
▸    Davis v Commonwealth of Australia (1988) 166 CLR 108, 82 ALR 633 per Brennan J at ALR 651.
▸    Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 278 at 286-7, 128 ALR 353 at 361-2 per Mason CJ & Deane J (Gaudron J agreeing): “It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. (4) This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of parliament, not the Executive. (5)”
Quick and Garran (1901) at pp. 322-323 mention other elements of the power: accrediting and receiving ambassadors, recognition of foreign states and appropriating prizes of war. The range of these executive prerogatives is no more extensive than Parliament’s legislative powers over external affairs in s.51(xxix). The prevailing interpretation of that power was summarised by Gummow, Hayne and Crennan JJ. in XYZ v Commonwealth (2005) 227 CLR 532, 227 ALR 495, [2006] HCA 25 as follows:
    “[30] In the joint judgment of five members of the court in the Industrial Relations Act Case, (32) it was said:
    ‘The modern doctrine as to the scope of the power conferred by s 51(xxix) was adopted in Polyukhovich v Commonwealth. (33) Dawson J expressed the doctrine in these terms: (34)
        "[T]he power extends to places, persons, matters or things physically external to Australia. The word 'affairs' is imprecise, but is wide enough to cover places, persons, matters or things. The word 'external' is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase 'external affairs'."’
    Similar statements of the doctrine are to be found in the reasons for judgment of other justices: Mason CJ; (35) Deane J; (36) Gaudron J; (37) and McHugh J. (38). They must now be taken as representing the view of the Court.”
62A.27 Some powers Australia presently exercises internationally may not have been part of the Crown prerogative. For example, under the Seas and Submerged Lands Act 1973, Australia asserts sovereignty over the “territorial seas”, which generally speaking are the seas beyond the low water mark of our coastline. In the case which upheld the validity of this legislation, New South Wales and Ors v Commonwealth (Seas and Submerged Lands) (1975) 135 CLR 337, 8 ALR 1, six of the seven judges expressed different views as to whether, prior to adoption of the Constitution, claims over the seas arose from an assertion of the royal prerogative or from international law. The argument no longer matters. The legislation itself is firmly grounded on international law: initially on Australia’s rights under the Convention on the Territorial Sea and Contiguous Zone and Convention on the Continental Shelf, Geneva 1958, and now on the United Nations Convention on the Law of the Sea 1982. Such comprehensive legislation would have extinguished any remaining prerogative power. Proposed s.62A(iv) confirms that rights under international law may be exercised by the Commonwealth Government, which in turn makes the manner of their exercise a subject of legislation under s.51(xxxix) as well as under s.51(xxix). Rights rarely come without obligations, so it is necessary to provide that the same branch of Government which exercises the rights must also discharge any obligations.
62A.28 In re-stating the power the word “Australia” has been chosen in preference to the words “the Commonwealth”. The choice between the two has little relevance for s.62A(iv) but has been chosen for consistency with proposed s.62A(vi), where the choice has some significance - see Note 62A.33 below.
62A.29 As noted above at 62A.7, the foreign affairs prerogative is the only current prerogative which will be expressly included in the Constitution. The reasons are:
    62A.29.1 Of all the Crown’s prerogatives, that over foreign affairs holds a unique position under our Constitution. Some prerogatives have been completely replaced by express terms of the Constitution. Many others are completely untouched by the Constitution. But the foreign affairs prerogative has been partly inserted in the Constitution - section 68 gives the Governor-General control of our military forces which is the main part of the war prerogative - with the lesser parts not expressly referred to. This leaves it open to Parliament to abolish these lesser powers, which would not be appropriate. Logically the power to make treaties and other arrangements should be held by the same branch of Government which controls the military, whose services may be needed if a treaty cannot be made or is broken.
    62A.29.2 The omission of the power to make treaties from the executive powers in the Constitution did not arise from a conscious decision that the Government should not have that power, or that the power should reside with Parliament, not the executive. It arose from Australia’s position as a colony. In 1901, the power to make treaties for Australia was vested in the executive Government of Britain. Following Britain’s gradual withdrawal from Australia’s affairs, all foreign affairs prerogatives have been exercised by Australia’s executive, not Parliament. Inclusion of those prerogative powers in the expression of executive power is therefore consistent with how the Constitution has developed since World War II.

Subsection 62A(v) - command of the armed forces
62A.30 Proposed s.62A(v) is a restatement of s.68, which gives command of “naval and military forces” to the Governor-General, with three changes:
    62A.30.1 The Governor-General has been removed as the commander in chief.
    62A.30.2 Whereas the current s.68 refers to “naval and military forces”, the proposed new section refers to “naval, military and defence forces”. The additional term is better suited to possibilities such as cyber warfare and counter-terrorism. It is conceded that the new section would use a wider term to that in the defence power, s.51(vi), and in s.114, but no adverse consequences flow from this. The latter sections can be amended in due course.
    62A.30.3 More importantly, proposed s.62A refers to “such military and defence forces as are established by law”. The italicised words do not appear in s.68. Their purpose is to confirm that the Government cannot create a military force without Parliamentary approval. This is probably the legal position at present, but it is better to put the matter beyond doubt.
        62A.30.3.1 The Bill of Rights of 1688 abolished any Crown prerogative to create an army in peace time:
        “Standing Army.
        That the raising or keeping a standing Army within the Kingdome in time of Peace unlesse it be with Consent of Parlyament is against Law.”
        (Citation from online version available at www.bailli.org.uk).
        62A.30.3.2 The Commonwealth Constitution incorporates some of the principles evident in the Bill of Rights but does not expressly adopt it or include the above provision. Instead, s.68 simply vests command in the Governor-General. The only High Court decision of significance on s.68, Lane v Morrison [2009] HCA 29, left its interpretation unresolved - see Note 68.3 above.
        62A.30.3.3 The most likely interpretation of s.68 is one consistent with the principles of the Bill of Rights - that the section means command of the forces which have been established by legislation. However, in Marks v Commonwealth (1964) 111 CLR 549, two of the five judges indicated that at common law the sovereign could still compel her subjects to serve in such offices as the public good and the nature of the constitution require. The extent of the obligation was said to be unclear. Windeyer J held that this rule was obsolete and the other two judges did not address this specific issue. This is the sort of judgment which in future could form part of an argument that the Constitution overruled the Bill of Rights on this point.
        62A.30.3.4 If the monarchy is abolished, and command of the military becomes part of the executive power vested in a democratic government, then a second, more potent argument could be made for the Bill of Rights requirement having been abolished. It could be said that it was a rule to control the Crown which is no longer required after the abolition of the Crown. Such arguments would be untenable if, as proposed, the section vests command of “such military and defence forces as are established by law”.

Subsection 62A(vi) - activities for the benefit of Australia
62A.31 The sixth component of s.62A makes explicit the power which the High Court has found to be implicit in the Constitution. Subsection (vi) is a restatement of the Mason formulation in the AAP Case. The words in Justice Mason’s judgment quoted at Note 62A.5.1 cover a couple of paragraphs. By contrast, the proposed s.62A(vi) condenses this into a couple of lines:
    “The power to engage in activities for the benefit of Australia where in the circumstances prevailing at the time of such engagement the States lack the practical power to engage in those activities”.
Making this power explicit confirms the extent of executive power as established by case law over the last 4 decades in a way that makes it comprehensible to ordinary Australians. Such a significant power should be explicit. Four elements must be present before the power may be exercised.
62A.32 Activities for the benefit: No criteria is set for judging whether an activity is of benefit, because at present the case law does not set any criteria. The approach the High Court takes at present is analogous to the statement of Barton J in relation to s.51(xxxv) in Jumbunna Coal Mine v Victorian Coal Miners Association (1908) 6 CLR 309 at 334: that once the end sought to be achieved is found to be something which might be of benefit, whether it is actually of benefit is a political question best left to the decision of the Government. This allows the Court some control over whether something is of benefit.
62A.33 Of Australia: The entity intended to be benefited is “Australia”. Mason J’s formulation in the AAP Case refers to the “nation”, but this word is not found in our Constitution. Similarly the word “Australia” is included only once; in s.51(x) concerning “fisheries in Australian waters”. (Note that the UK Act implementing the Constitution is not part of the Constitution.) The words “the Commonwealth” are used throughout the Constitution, but in different senses. Sometimes it means the whole nation; something apart from other nations. At other times the words are used to distinguish the Commonwealth Government from the States. In the opening sentence of s.62A and in subsections (ii) and (iii) “Commonwealth” necessarily means the political entity which is separate from the States. If “Commonwealth” was used in that sense in s.62A(vi) the whole meaning would be changed. The word “Australia” has therefore been selected. It directs attention to whether the activity can be said to be benefit to the nation as a whole.
62A.34 The States lack the practical power: A State may have the legal power to act but not be able to exercise it in practice. This is consistent with the High Court’s approach to date. Of the activities which have been held to be within the power in the cases such as the AAP Case, Davis v The Commonwealth and Pape, all were within the legal power of the States. Yet this was not a reason for finding them beyond the Commonwealth’s power. Practicality is the governing consideration at present. Practicality is affected by many factors - financial resources, expertise, administrative ability, legal powers and, arguably, the level of consensus between affected States as to the means by which the end should be achieved. The question will be: could this be done by the States if they supported the end to be achieved?
62A.35 In the circumstances prevailing at the time: The fourth element focuses attention on the timing of the action. Could the States do the same thing within the same time frame? Consideration of this issue was implicit in the decision of the majority in Pape. It was an issue on which Justices Hayne and Kiefel differed from the majority. At paragraphs [345] - [350], they said that whether or not there was a national crisis or emergency was not a factor in the interpretation of the powers in s.61. Had one more judge taken this view, a major part of the Government’s response to the global financial crisis of 2008 would have been rendered ineffective. It is absurd that whether the Commonwealth Government can respond adequately to an economic crisis depends on the obscure words of s.61. The reference to “circumstances prevailing at the time” ensures that whether or not there is a crisis or emergency will be of prime importance in whether or not the power in s.62A(1)(vi) is validly activated. That is exactly when such powers are needed, and most of the time it will be difficult for the Commonwealth to base action on the power unless there is a short-term need for action which the States cannot perform. The phrase does not however mean that the power may only be activated for temporary or short term activities. For example, the activities of the kind considered in the Davis case - national celebration of the Bicentenary of white settlement / invasion - are inherently beyond the practical power of the States.
62A.36 It may be argued that a consequence of elevating the power from an implied to an expressed term is that it will have more importance. The argument does not stand up to close scrutiny. By making the power explicit, its extent has been limited, and its impact will become more predictable. Four elements must be present before the power can be used. The third and fourth elements may be quite difficult to establish when the action planned is something other than a temporary response to a crisis, and in a crisis the people and the State Governments usually expect the Commonwealth Government to take action.
62A.37 As mentioned above at Note 62A.3, the aims of the section 62A include the restatement of the current ambit of executive power, and the reduction of the extent to which Government power could be expanded or contracted in the future by judicial decision. Proposed s.62A(1)(vi) is more consistent with the former than the latter. After the referendum is passed, judges will continue to have considerable discretion in declaring Government actions either within or outside s.62A(1)(vi), just as at present they have the power to determine the width of the implied power recognised in the AAP Case.

Subsection (vii) - the power to make contracts, acquire property and spend appropriated money
62A.38 Subsection (vii) reverses the contraction in Commonwealth executive power brought about by Williams v The Commonwealth: firstly, by re-establishing the Government’s power to exercise common law rights without legislative authorisation beyond an appropriation, and secondly by confirming those powers may be exercised across the full range of the Commonwealth’s spheres of responsibility under the Constitution.
62A.39 Make contracts, acquire property and spend: One of the Commonwealth’s submissions in Williams referred to executive powers being available to achieve anything which could be the subject of Commonwealth legislation. The Advancing Democracy model proposes a narrower power. The proposed subsection does not refer broadly to “executive power”. Instead it singles out three specific powers from all those potentially available; those which are most likely to be the subject of disputes if not dealt with clearly. It will be easy to see what the Government may do pursuant to the subsection. This negates the point made by French CJ at [27], Gummow & Bell JJ at [134] - [135], and possibly by Crennan J at [544], about the implications of accepting the Commonwealth’s submission. It is important to note that the three powers mentioned are all powers which the common law recognises as being possessed by any legal entity. Discussion below will focus on the prime power conferred by the subsection - the power to make contracts. (Aside from grants of funding, the acquisition and spending powers will ordinarily also be an exercise of the power to enter contracts).
62A.40 Appropriated money: Strictly speaking, the word “appropriated” is redundant. Since s.83 prevents money being drawn from the Treasury except under an appropriation by law, and s.62B states executive power must be exercised in accordance with the Constitution, the Government would have no power to spend money which has not been appropriated. The word has been included for its educative effect. It will prevent misunderstandings by non-lawyers who read the Constitution, which over time will of course include many politicians.
62A.41 Contract power - the argument in favour: The power to contract should be regarded as a return to the pre-Williams position, for the following reasons. Under our Constitution, executive power is not vested in a Government; it is vested in a person, the Queen, and is exercisable by another person, the Governor-General. The Constitution did not emerge in a legal vacuum. Under the common law prior to Federation, the Crown held prerogative powers which it alone could exercise, as well as the same common law rights which ordinary citizens possessed, such as the power to make contracts which did not interfere with the rights of others. Both sets of rights were available to be used for Government purposes. These powers must be regarded as having been divided on Federation between the Commonwealth and the States, limiting the range of subjects over which they could be exercised to those for which the Commonwealth had responsibility under the Constitution. This has been recognised in case law with reference to the prerogative. Logically the same approach should have been taken to common law powers. Just as a citizen or a corporation has power to enter contracts which do not interfere with the rights of others, so the Commonwealth had this power without the need for any special legislation authorising the contract beyond an Appropriation Act (if the contract requires expenditure). The power to enter contracts was subject to legislative control, under s.51(xxxix) if no other provision applied. Williams changed the law on this point. Proposed s.62A(1)(vii) reverses the change.
62A.42 Contract power - the authorities in support: Set out below are several authorities indicating the extent of judicial support for this argument before it was rejected by the majority in Williams. The purpose is not to present the ultimate refutation of the majority decision in Williams; or even to present all authorities one way or the other to allow readers to form their own judgment. The purpose is more political than legal - it is to show that many judges would regard the amendment as a continuation of the past, rather than a radical departure from it.
Note that until Williams v The Commonwealth there was no case which turned on whether a contract which required spending on something other than the ordinary services of Government needed to be authorised by legislation in addition to an appropriation. Prior authority consists of comments by individual judges when they were considering other related issues which were not necessarily the subject of comment by other judges in the same case. The weight to be attributed to each comment is open to debate.
▸    In Clough v Leahy (1904) 2 CLR 139 at 157, Griffith CJ (with whom Barton & O’Connor JJ agreed) said while examining whether it was lawful for the Crown to commission inquiries, said: “We start, then, with the principle that every man is free to do any act that does not unlawfully interfere with the liberty or reputation of his neighbour or interfere with the course of justice. That is the general principle. The liberty of another can only be interfered with according to law, but, subject to that limitation, every person is free to make any inquiry he chooses; and that which is lawful to an individual can surely not be denied to the Crown, .....” Logically this approach should apply to the Crown’s right to contract.
▸    In Williams v Silver Peak Mines Ltd (1915) 21 CLR 40 Griffith CJ considered whether a clause under which the Governor had cancelled a mining lease was void as against public policy. In finding that the term was not void, he said: “In my opinion, the Crown when making a contract with a subject is entitled, unless forbidden by law, to take advantage of the ordinary rules governing the rights of private citizens.” His Honour was in dissent in the result, but not on this point, and the decision of Isaacs J that the terms in the lease were valid impliedly supports Justice Griffith’s approach.
▸    The significance of the above cases is that judges who had been involved in the drafting of the Constitution saw it as obvious that the Crown had the right to make contracts not forbidden by law. It is unlikely the statements in the above extracts would have been made had the judges thought that the Commonwealth had no power to contract without legislative authority.
▸    The Full Court of the Queensland Supreme Court took what may at first appear to be a different view in Australian Alliance Assurance Co. Ltd v John Goodwin, Insurance Commissioner [1916] QSR 225. It held that: “... the Executive cannot enter into any business or any contracts which, in their operation or performance, are an appropriation of or lead to the appropriation of any part of the public revenue, unless expressly or by necessary implication authorised by an Act of the Legislature.” Per Lukin J at 258, (Cooper J concurring at 240, Shand J agreeing on this point at 272; Real & Chubb JJ agreeing with Shand J). However it is clear from the reasoning which preceded this statement that it was thought, based on statements in Alcock v Fergie (1867) W. W. & A’B 285, that the constitutional requirement for a Parliamentary appropriation meant that a contract which required expenditure for which there had been no appropriation must be illegal. This interpretation was however later rejected in New South Wales v Bardolph (1934) 52 CLR 455, where it was held that a lack of an appropriation does not invalidate a contract; appropriation is merely a condition precedent to payment. Accordingly the Australian Alliance Assurance Case does not support the Williams view that two laws are needed for a contract to be valid. It was only the absence of an appropriation which determined the result.
▸    The passage from Alcock v Fergie (1867) W. W. & A’B 285 at 310 cited in Australian Alliance Assurance [1916] QSR at 259 supports one branch of the argument at Note 62A.38.5, and refutes the other. Stawell CJ of the Full Court of the Victorian Supreme Court did say that there was no authority which determined that in the absence of an enabling power, the Government can enter contracts, which (without explanation) negates any common law right in the Government. But his preceding comments showed that he regarded special legislation conferring a power and an appropriation as alternative methods of authorisation by statute, which is the approach taken in proposed s.62A: “Parliament may, by Legislative enactment, either in express terms or by necessary implication, authorise the Government to enter into contract. Statutes directing the execution of certain works and appointing a certain department or person to carry them out, afford instances of the former. Statutes appropriating part of the Consolidated Revenue for certain services, and thus impliedly empowering contracts to be made for the performance of those services, afford instances of the latter kind.”
▸    Commonwealth v Colonial Combing Spinning & Weaving Co Ltd (1922) 31 CLR 421 considered Commonwealth contracts rightly held invalid on a number of grounds. The expenditure in that case was not supported by an appropriation, so it is difficult to determine whether the decision that the contracts were not valid would have been different had there been an appropriation; i.e., whether the judges would have regarded an appropriation as sufficient authority. However Justice Isaacs, in discussing and approving of Commercial Cable Co. v Government of Newfoundland [1916] 2 AC 610 and Mackay v Attorney-General for British Columbia [1922] 1 AC 457, paraphrased the rule from the former case as: “the constitutional practice that the Crown's discretion to make contracts involving the expenditure of public money would not be entrusted to Ministers unless Parliament had sanctioned it, either by direct legislation or by appropriation of funds ......” (Emphasis added) This suggests he regarded the Crown as having a power to make contracts, and saw an appropriation as an alternative form of authorisation.
▸    As mentioned in Note 62A.12.2, in Commonwealth v Colonial Ammunition Co Ltd (1924) 34 CLR 198, the judgment of Justices Isaacs & Rich is consistent with the view that appropriations do not ordinarily grant powers to the Government which impact on another party, but by considering whether there had been an express validation their Honours implicitly acknowledged it would be possible for an Appropriation Act to confer such power.
▸    New South Wales v Bardolph (1934) 52 CLR 455 concerned a contract accepted by the Court as one for the ordinary services of Government. Though the case concerns the Constitution of New South Wales, it is generally accepted that the decision is applicable to the Commonwealth. At first instance, Evatt J observed : “No doubt the King had special powers, privileges, immunities and prerogatives. But he never seems to have been regarded as being less powerful to enter into contracts than one of his subjects.” In upholding Evatt J’s decision on appeal, Rich J stated the rule for which the case stands at 496: “Apart from the question whether Parliamentary appropriation of moneys is a pre-requisite of the Crown's liability to pay under a contract made by it, the Crown has a power independent of Statute to make such contracts for the public service as are incidental to the ordinary and well-recognised functions of Government.” Dixon J at 508, (Gavan Duffy CJ agreeing at 493), phrased it as follows: “No statutory power to make a contract in the ordinary course of administering a recognised 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 ...’. McTiernan J said at 517: “The contract now in suit is within the prerogative powers exercised by the Crown ....”. The Court did not indicate whether the same or a different rule applied to contracts which were not for the ordinary services of Government.
▸    Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54 concerned the interpretation of contracts which underpinned the ‘two airlines policy’ which then existed. The agreements provided that they should have no effect until approved by the Commonwealth Parliament, and subsequently they were approved by legislation. Aickin J (in dissent in the result) said at 113: "It is plain that even without statutory authority the Commonwealth in the exercise of its executive power may enter into binding contracts affecting its future action." Barwick CJ added at 61: "We are not considering an agreement resting merely on the authority of the executive, though I agree with my brother Aickin in thinking that, even if we were, there is no ground for thinking that the Agreements or any of them were beyond the competence of the executive." Aickin J's statement was quoted with approval by Gibbs CJ in A v Hayden (1984) 156 CLR 532 at 543.
▸    In Pape v Federal Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1 at 60 [126], French CJ said that the powers which the Executive has under s 61 include statutory powers, "prerogative" powers and the "capacities" which may be possessed by persons other than the Executive. Gummow, Crennan and Bell JJ said at [214]: "The conduct of the executive branch of government includes, but involves much more than, enjoyment of the benefit of those preferences, immunities and exceptions which are denied to the citizen and are commonly identified with 'the prerogative'." In other words, four of the judges who in Williams denied the Commonwealth a general capacity to contract seemed to acknowledge it three years earlier.
62A.43 With respect to: This phrase is the same as that used in the opening paragraph of s.51 and should be interpreted in the same way. This approach is consistent with ensuring that the subjects over which the executive powers in the subsection may be used extend as far, but no further, than the subjects of legislative power. As to the meaning of the phrase, in the Work Choices case, New South Wales v Commonwealth of Australia; Western Australia v Commonwealth [2006] HCA 52, Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ summarised the prevailing interpretation as follows [142]:
    “The general principles to be applied in determining whether a law is with respect to a head of legislative power are well settled. It is necessary, always, to construe the constitutional text and to do that "with all the generality which the words used admit" [180]. The character of the law must then be determined by reference to the rights, powers, liabilities, duties and privileges which it creates [181]. The practical as well as the legal operation of the law must be examined [182]. If a law fairly answers the description of being a law with respect to two subject-matters, one a subject-matter within s 51 and the other not, it is valid notwithstanding there is no independent connection between the two subject-matters [183]. Finally, as remarked in Grain Pool of Western Australia v The Commonwealth [184], "if a sufficient connection with the head of power does exist, the justice and wisdom of the law, and the degree to which the means it adopts are necessary or desirable, are matters of legislative choice [185]".”
62A.44 Any subject on which the Commonwealth Parliament has the power to make laws: Contrary to the decision in Williams, the breadth of executive power will be the same as that of legislative power. There will be no gaps within the subjects of Commonwealth legislative power where no Commonwealth executive powers can operate. The proposal is completely consistent with the existing federal division of powers. Indirectly the subsection will affect the interpretation of section 81, which provides that appropriations may only be made “for the purposes of the Commonwealth”. With the power of spending limited as per subsection (vii), the logical interpretation of “for the purposes of the Commonwealth” will become that of Starke and Williams JJ in the Pharmaceutical Benefits Case and Barwick CJ and Gibbs J on the AAP Case: that the purposes are those for which the Commonwealth may make laws, which are mainly, but not exclusively, set out in ss.51, 52 and 122. Note the Constitution also allocates legislative power to the Commonwealth on judicial matters (e.g., ss77, 78) and other matters (e.g., ss.46-48).

Subsection 62A(viii) - research and inquiries
62A.45 The power to research or conduct an inquiry: The words are wide enough to cover matters such as scientific and medical research, investigations into social problems and inquiries of the kind usually undertaken by Royal Commissions. Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 41 ALR 71 confirms the Commonwealth has power to establish inquiries: see Gibbs CJ at 41 ALR 81-84, Stephen J at 94, Mason J at 113, Aickin J at 138-139, Wilson J at 141-143 and Brennan J at 161-163; but the Crown’s executive power does not extend beyond a mere inquiry and report. A long line of authority referred to in the case confirms that powers to compel witnesses to testify on oath or produce documents are not executive powers. Compulsion cannot occur unless authorised by legislation. Proposed s.62A(1)(viii) will operate in the same way. The section says powers are “limited to” those described, and nothing in the power to research and inquire refers to compulsion. Accordingly the Government will only be able to establish the equivalent of Royal Commissions if Parliament has passed an Act allowing the compulsion of witnesses.
62A.46 With respect to: This will be interpreted in the way set out above at Note 62A.42.
62A.47 Any subject other than: The subjects on which the research power may be used will not be limited to those on which the Commonwealth may make laws. The intention is that the Government have power to investigate matters even if they are the responsibility of the States. It is likely that this is an expansion of power, though the extent of the expansion is debatable. In Williams French CJ said at 63:
    “An early example of such consideration concerned the power of the Executive to undertake inquiries. ....... Importantly, the extent of the "power" was not at large. It was at least constrained by the distribution of powers in the Constitution. In Colonial Sugar Refining Co Ltd v Attorney-General (Cth) [131] the Court divided equally on the question whether s 51(xxxix) of the Constitution authorises legislation, incidental to the executive power, compelling persons to give evidence on matters outside the constitutional authority of the Commonwealth [132]. Griffith CJ, who viewed the question from a federal perspective, rejected the proposition, as one which [133]:
    "implicitly denies the whole doctrine of distribution of powers between the Commonwealth and the States, which is the fundamental basis of the federal compact."
    On appeal to the Privy Council, pursuant to s 72 of the Constitution, the view of the Chief Justice and Barton J prevailed [134].”
The subsequent ‘discovery’ of the implied power to engage in activities for the benefit of the nation has arguably widened the power of inquiry, so that it is likely to be available to investigate any problem which extends beyond the limits of one State. Further, Barwick CJ in the AAP Case favoured a wide research power - see the quote at Note 62A.8. Royal Commissions already range fairly widely, as does medical and scientific research. A broad power to research and inquire is appropriate for a Government which is national in character.
62A.48 The administration of a Government or entity which is accountable to a State Parliament: The power to research and inquire may not be used to investigate State Governments, or those responsible to such Governments. The word “responsible” has not been used however, as it may be interpreted too narrowly as only applying to Ministers and their Departments. “Reportable” is also inappropriate, as it would set the criterion by reference to something which may change over time leading to unforeseen consequences. The word “accountable” really means “answerable”. This is a broader concept than the alternatives.

Subsection 62A(ix) - the powers of a natural person
62A.49 With respect to the exercise of the above powers: The opening phrase confirms the power is intended to be something which supplements other powers as necessary and is not an independent power in its own right. It is an incidental executive power analogous to s.51(xxxix) which ensures there are no unintended gaps in power and makes it more difficult for courts to deprive future Governments of powers.
62A.50 The powers of a natural person: By aligning incidental government powers with those of individuals, the subsection ensures that the powers remain consistent and compatible with those of citizens over time. The main legal powers of individuals have already been set out in subsection 62A(vii), so subsection (ix) adds little. Examples of what it does add though include the power to incorporate companies, run businesses and create new property. These powers could not be exercised except as an adjunct to another power. But it is necessary to include them, given that the opening line of proposed s.62A states that power is “comprised of and limited to” those listed.

Current Constitution

[Not in current Constitution: nearest equivalent is:

61 Executive power
The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.]

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Proposed Constitution

The executive power of the Commonwealth is the power to govern the Commonwealth. It is comprised of and limited to:
(i) The administration, implementation and protection of this Constitution;
(ii) The administration and implementation of the laws of the Commonwealth;
(iii) The administration of the Government of the Commonwealth;
(iv) The power on behalf of Australia to make agreements and arrangements with, and take action with, against or with respect to, those outside Australia, and to exercise any rights conferred, and fulfill any obligations imposed, on Australia by international law;
(v) The command of such naval, military and defence forces as are established by law;
(vi) The power to engage in activities for the benefit of Australia where in the circumstances prevailing at the time of such engagement the States lack the practical power to engage in those activities;
(vii) The power to make contracts, acquire property and spend appropriated money with respect to any subject on which the Commonwealth Parliament has the power to make laws;
(viii) The power to research or conduct an inquiry with respect to any subject other than the administration of a Government or entity which is accountable to a State Parliament; and
(ix) With respect to the exercise of the above powers, such of the powers of a natural person as can be exercised by a Government.

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Drafting Notes

These notes, when printed, cover about 30 pages. The explanation of the drafting of the subsections begins at Note 62A.20.