Heresy in the High Court? Federalism as a Constraint on Commonwealth Power
| Author | David Hume,George Williams,Andrew Lynch |
| DOI | 10.22145/flr.41.1.3 |
| Published date | 01 March 2013 |
| Date | 01 March 2013 |
| Subject Matter | Article |
FEDERALISM AS A CONSTRAINT ON COMMONWEALTH
POWER
David Hume,* Andrew Lynch** and George Williams***
ABSTRACT
Williams v Commonwealth of Australia is a landmark decision of the High Court on the
scope of federal executive power in s 61 of the Constitution. The decision is also
important for the interpretive methodology adopted by the Court. Notably, each judge
based their understanding of s 61 upon federal readings of the Constitution. This
methodology raises fresh questions about how the Constitution is to be interpreted, and
whether Williams marks a break from orthodox understandings of that task. This article
assesses the significance of Williams for constitutional interpretation in Australia, and
whether it lays the foundation for a more robust protection of state interests by the
High Court.
I
INTRODUCTION
It was famously said during the Convention Debates that 'either responsible
government will kill federation, or federation … will kill responsible government'.1
One could only wonder, with two such deadly foes, what would happen if they joined
forces. In Williams v Commonwealth of Australia2 ('Williams'), we learnt that the two,
together, could kill the common assumption that Commonwealth executive power
follows the contours of Commonwealth legislative power. This was an assumption
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*
Associate, Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South
Wales.
** Professor and Director, Gilbert + Tobin Centre of Public Law, Faculty of Law, University of
New South Wales.
*** Anthony Mason Professor, Scientia Professor and Foundation Director, Gilbert + Tobin
Centre of Public Law, Faculty of Law, University of New South Wales; Australian Research
Council Laureate Fellow; Barrister, New South Wales Bar. We thank Lisa Burton for her
research assistance.
1
Official Report of the National Australasian Convention Debates, (Sydney), 12 March 1891, 436
(JW Hackett).
2
[2012] HCA 23 (20 June 2012).
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Volume 41
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held by all the parties and interveners to the case and acted on by the Commonwealth
for many years.3
At issue in Williams was the validity of a contract, and payments under this
contract, between the Commonwealth and a private entity for the purpose of
providing chaplaincy services to a school operated by the Queensland State
Government. The payments were supported by a valid Appropriation Act.4 There was
no express statutory authority for the Commonwealth to enter into the contract and
make payments under it. Mr Williams challenged the validity of the contract and
payments supporting the provision of chaplaincy services at the school attended by his
children. All the states intervened.
The Court, by 6:1, upheld the challenge. Four of the judges (French CJ, Gummow
and Bell JJ, and Crennan J) held that the Commonwealth's power to enter contracts and
spend money was not coextensive with the potential scope of Commonwealth
legislative power, and that the contract and payments at issue were not authorised by
any residual classes of executive power empowering extra-statutory conduct.5 This
meant that the contract and payments could only have been supported by executive
action authorised by legislation passed under a head of federal power. Hayne J and
Kiefel J found it was unnecessary to decide generally whether or not the power to
contract and spend conformed to the scope of Commonwealth legislative power, since
in their view the contract and expenditure in question could not have been authorised
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3
See Williams [2012] HCA 23, [404] (Heydon J). As to the nature of the 'common
assumption', see Geoffrey Lindell, 'Williams v Commonwealth — How the School Chaplains
and Mr Pape Destroyed the 'Common Assumption' Regarding Executive Power' (Paper
Delivered at the AACL Seminar, Sydney, 13 August 2012) 9. See also Andrew Lynch,
'Commonwealth Financial Powers — Taxation, Direct Spending and Grants — Scope and
Limitations' (2011) 6 Public Policy 23; George Winterton, 'The Relationship Between
Commonwealth Legislative and Executive Power' (2004) 25 Adelaide Law Review 21.
4
In Pape v Federal Commissioner of Taxation (‘Pape’) (2009) 238 CLR 1, the High Court held that
the enactment of an Appropriation Act did not in itself confer power to spend: 36 [53], 55–6
[111]–[113] (French CJ), 72 [176], 72 [178], 74 [180], 74–5 [183]–[184] (Gummow, Crennan
and Bell JJ), 100-1 [283], 105 [296], 113 [320] (Hayne and Kiefel JJ), 210 [600], 213 [607]
(Heydon J).
5
These may include contracting and expenditure with respect to the administration of
Departments of State pursuant to s 64 of the Constitution; contracting and expenditure in
the execution and maintenance of the laws of the Commonwealth; contracting and
expenditure in the exercise of prerogative powers attributable to the Commonwealth; or
contracting and expenditure in the exercise of inherent authority derived from the
character and status of the Commonwealth as the national government: Williams [2012]
HCA 23, [4] (French CJ), [146] (Gummow and Bell JJ). See also Pape (2009) 238 CLR 1, 63–4
[133] (French CJ), 90 [236] (Gummow, Crennan and Bell JJ). See further Cheryl Saunders,
'The Sources and Scope of Commonwealth Power to Spend' (2009) 20 Public Law Review
256.
2013
Heresy in the High Court?
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by such a power.6 In dissent, Heydon J held that the power to contract and spend
conformed at least to Parliament's heads of legislative power.7
The majority judges relied on a number of factors to support their position,
particularly: representative and responsible government;8 the unmanageability of a
criterion which would authorise extra-statutory power if it could be supported by a
hypothetical law;9 and the inaccuracy of the proposition that the Commonwealth is a
juristic person with all the capacities of an ordinary juristic person.10 The judges also
relied on a broad range of federal considerations.
The purpose of this article is not to examine and critique all of the many factors on
which the majority relied in Williams. Our focus is more selective. Specifically, we
examine the degree to which federalism was an influence upon the way members of
the Court read the Constitution in this case, before considering the potential
significance of this for future decisions. We examine both the substantive conceptions
of federalism that underpinned some judgments and also the federalism-protecting
interpretive choices that are observable in respect of all of them. In focusing on
federalism, we do not suggest that federalism factors are wholly distinct from the other
factors in Williams. The federal aspects of the composition of Parliament, for example,
mean that there is no clear separation between representative and responsible
government, on the one hand, and federalism, on the other.
We argue that Williams marks an important retreat from the principles which saw
Commonwealth power expand dramatically over the course of the 20th century. These
principles derive ultimately from the watershed 1920 decision of Amalgamated Society of
Engineers v Adelaide Steamship Co Ltd ('Engineers Case').11 The High Court in that case
rejected interpretive theories, such as that of reserved state powers,12 that were based
upon conceptions of federalism protective of the position of the states. The approach to
constitutional interpretation laid down in the Engineers Case has since been accepted as
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6
Williams [2012] HCA 23, [252], [288] (Hayne J). While agreeing with that conclusion, Kiefel J
appeared more willing to accept, albeit without conclusively deciding, that the power to
contract and spend extended to 'subject matters of express grants of legislative power in
ss 51, 52 and 122': Williams [2012] HCA 23, [594].
7
Ibid [403].
8
Ibid [60]–[61] (French CJ), [136], [145] (Gummow and Bell JJ), [252] (Hayne J), [487], [515]–
[517], [527]–[530], [532], [544] (Crennan J). The general theme was that the exercise of extra-
statutory power undermines the legislative predominance which is essential for
responsible government.
9
Ibid [27], [36], [38] (French CJ), [288] (Hayne J).
10 Ibid [38] (French CJ), [151] (Gummow and Bell JJ), [204], [206], [215]–[217] (Hayne J), [518]–
[521] (Crennan J), [577] (Kiefel J). For an earlier discussion of this concept, see Anne
Twomey, 'Pushing the Boundaries of Executive Power – Pape, the Prerogative and
Nationhood Powers' (2010) Melbourne University Law Review 313, 322–4; Leslie Zines, The
High Court and the Constitution (Federation Press, 5th ed, 2008) 349–58.
11 (1920) 28 CLR 129. See generally Keven Booker and Arthur Glass, 'The Engineers Case' in
HP Lee and George Winterton (eds), Australian Constitutional Landmarks (Cambridge
University Press, 2003) 34; Michael Coper and George Williams (eds), How Many Cheers for
Engineers? (Federation Press, 1997).
12 See, eg, R v Barger; Commonwealth v McKay (1908) 6 CLR 41.
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