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Murdoch University School of Law Michael Olds This Thesis Is

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Murdoch University School of Law Michael Olds This Thesis Is Murdoch University School of Law THE STREAM CANNOT RISE ABOVE ITS SOURCE: THE PRINCIPLE OF RESPONSIBLE GOVERNMENT INFORMING A LIMIT ON THE AMBIT OF THE EXECUTIVE POWER OF THE COMMONWEALTH Michael Olds This thesis is presented in fulfilment of the requirements of a Bachelor of Laws with Honours at Murdoch University in 2016 Word Count: 19,329 (Excluding title page, declaration, copyright acknowledgment, abstract, acknowledgments and bibliography) DECLARATION This thesis contains no material which has been accepted for the award of any other degree or diploma in any other University. Further, to the best of my knowledge or belief, this thesis contains no material previously published or written by another person except where due reference is made in the text. _______________ Michael Olds ii COPYRIGHT ACKNOWLEDGMENT I acknowledge that a copy of this thesis will be held at the Murdoch University Library. I understand that, under the provisions of s 51(2) of the Copyright Act 1968 (Cth), all or part of this thesis may be copied without infringement of copyright where such reproduction is for the purposes of study and research. This statement does not signal any transfer of copyright away from the author. Signed: ………………………………… Full Name of Degree: Bachelor of Laws with Honours Thesis Title: The stream cannot rise above its source: The principle of Responsible Government informing a limit on the ambit of the Executive Power of the Commonwealth Author: Michael Olds Year: 2016 iii ABSTRACT The Executive Power of the Commonwealth is shrouded in mystery. Although the scope of the legislative power of the Commonwealth Parliament has been settled for some time, the development of the Executive power has not followed suit. Over the last decade, the High Court has developed jurisprudence on the Executive Power – largely invoking more questions than answers – and while not conclusively defining it, certainly suggesting that there are limits. This thesis argues that one limit is the principle of responsible government. Responsible government requires that the Executive government be accountable to the Parliament. The accountability aspect allows Parliament to scrutinise the conduct of the Executive. This is of critical importance because the Executive has its own sphere of activity, acting through its non-statutory power, prerogative power and nationhood power. When the Executive acts, the activities necessarily require the expenditure of money. The money the Executive expends is not its own money, rather, it is public money in the Consolidated Revenue Fund. This thesis examines two key cases of expenditure initiated by the Executive government; Pape, and the impugned Tax Bonus Act that provided the fiscal stimulus package in the wake of the 2008 Global Financial Crisis; and Williams, which was a contract between the Commonwealth Government and Scripture Union Queensland for funding under the National Schools Chaplaincy Programme. Overall, this thesis highlights that as responsible government is entrenched in the Constitution, and the final say on all expenditure is provided by Parliament as representative of the people, the outcomes of the Pape and Williams cases point to the High Court limiting the ambit of the Executive Power by reference to the principle of responsible government. iv TABLE OF CONTENTS DECLARATION ............................................................................................................. II COPYRIGHT ACKNOWLEDGMENT .............................................................................. III ABSTRACT ................................................................................................................... IV TABLE OF CONTENTS .................................................................................................. V ACKNOWLEDGEMENTS ............................................................................................. VII CHAPTER ONE: INTRODUCTION ................................................................................. 1 I A SHIFT OF LEGISLATIVE POWER ................................................................................. 2 II DID THE EXECUTIVE POWER REALLY FOLLOW? .......................................................... 4 III SCOPE OF THIS THESIS .................................................................................................. 8 CHAPTER TWO: RESPONSIBLE GOVERNMENT IN AUSTRALIA ................................ 10 I AUSTRALIA’S SYSTEM OF GOVERNMENT .................................................................. 10 A The Parliament ...................................................................................................... 11 B The Executive Government ................................................................................... 11 C The Judicature ....................................................................................................... 13 II REPRESENTATIVE GOVERNMENT .............................................................................. 16 III RESPONSIBLE GOVERNMENT ..................................................................................... 18 IV RESPONSIBLE GOVERNMENT AFTER WILLIAMS ........................................................ 21 A Oversight of Expenditure ...................................................................................... 21 B Australian Constitutional Considerations .............................................................. 23 CHAPTER THREE: THE EXECUTIVE POWER ........................................................... 24 I THE EXECUTIVE GOVERNMENT OF THE COMMONWEALTH ...................................... 24 A The Crown ............................................................................................................. 24 B The Role of the Monarch in Australia ................................................................... 26 C Transition to the Modern Day Executive .............................................................. 27 1 The Balfour Declaration ................................................................................................ 29 2 The Statute of Westminster ............................................................................................ 29 3 The Australia Acts ......................................................................................................... 30 II THE BASES OF EXECUTIVE POWER ............................................................................ 31 A Non-Statutory Power ............................................................................................. 32 B Prerogative Power ................................................................................................. 35 C Nationhood Power ................................................................................................. 37 1 The History of the Nationhood Power ........................................................................... 37 2 Davis v Commonwealth ................................................................................................. 39 3 What is ‘the nation’ ........................................................................................................ 40 v IV A POWER SO LIMITED: THE CONSTRAINTS ON THE EXECUTIVE POWER ................... 41 CHAPTER FOUR: CONTROLLING THE ELUSIVE: RESPONSIBLE GOVERNMENT INFORMING A LIMIT ON EXECUTIVE POWER ............................................................ 43 I PAPE ........................................................................................................................... 43 A Facts ....................................................................................................................... 43 B Appropriations: Sections 81, 83 and Parliamentary Accountability ..................... 45 1 What is an appropriation ................................................................................................ 45 2 Section 81 Pre-Pape: The decision in AAP ................................................................... 48 3 Pape: Reformulation of Appropriation .......................................................................... 50 4 Post-Pape: The new mechanics ...................................................................................... 52 C Executive Power .................................................................................................... 52 1 French CJ ....................................................................................................................... 53 2 Gummow, Crennan and Bell JJ ..................................................................................... 54 3 Hayne and Kiefel JJ ....................................................................................................... 55 4 Heydon J ........................................................................................................................ 56 D The nationhood power: Responsibility is required ................................................ 58 II WILLIAMS .................................................................................................................. 58 A Facts ....................................................................................................................... 58 B Oversight of Expenditure ...................................................................................... 60 1 Contractual capacities .................................................................................................... 60 2 Parliament’s
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