Thursday, June 21, 2012

High Court asserts the power of Parliament

When I moved house, a work friend kindly gave me a slow cooker as a housewarming present.Tonight I sat down to eat a stew cooked in the cooker and found the time to do some browsing. It's been an interesting time. In this post I want to deal with just one item.

For the benefit of international readers, Australia is a federation in which the Commonwealth is granted certain designated powers, the rest staying with the states. Overtime, the Commonwealth has used its financial muscle to expand into every aspect of Australian. Now the Australian High Court has effectively said tutt, tutt chaps, just because you have the money and want to do it doesn't mean that you can do it in any way you want.

The judgement summary on this point reads:

By majority, the High Court held that  the  Funding Agreement  and payments made to SUQ under that agreement  were invalid because  they were beyond the executive power of the Commonwealth. In the  absence of legislation authorising the Commonwealth to enter into the Funding Agreement, the Commonwealth parties relied upon the executive power granted by s 61 of the Constitution. Relevantly, s 61 provides that the executive power of the Commonwealth "extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth". A majority of the High Court held that, in the absence of statutory authority, s 61 did not empower the Commonwealth to enter into the Funding Agreement or to make the challenged payments. In particular, a majority of the Court held that the Commonwealth's  executive power  does not  include a power to do what the Commonwealth Parliament could authorise the Executive to do, such as entering into agreements or contracts, whether or not the Parliament had actually enacted the legislation. A majority also held that s 44 of the Financial Management and Accountability Act 1997 (Cth) did not provide the Commonwealth with the  necessary statutory authorisation to enter into the Funding Agreement or to make payments to SUQ under that agreement

Much of the media commentary has focused on the implications for the Federation and for relations between Commonwealth and states. But if you look at this summary, it appears to affirm the power of Parliament relative to the executive. I think that's important.

I am looking forward to Legal Eagle's explanation. In a Facebook comment she promised to do so after she had finished her current round of marking. Please finish soon!

12 comments:

Anonymous said...

Hello Jim

Yes, I agree it will be good to get a considered review. At first impression it seems more of an industrial-scale administrative fix might be required, but I don't really understand if that's correct, and how much deeper it goes than the Executive must act upon Parliament, not before it.

kvd

Jim Belshaw said...

It's an interesting one, kvd.I suspect that the key sentence is: "Relevantly, s 61 provides that the executive power of the Commonwealth "extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth""

Anonymous said...

Jim, accepting that I'm cutting into your quote quite severely, then if it is said "the executive power ... extends to the execution of ... the laws of the Commonwealth" then I understand that to mean that the executive will act, and is bound to act, in accordance with (and only so) the will of the parliament, as enacted.

No doubt legaleaglelawyerperson will set me right, but that's my layman's interpretation.

kvd

ps those blogger verifies: doesn't matter what numeral(s) you type; it's the word that seems to matter? Minor annoyance for no good effect.

Jim Belshaw said...

You caused me to scratch my memory. kvd.

Parliament appropriates money through the Appropriation Acts for the general purposes of Government. It doesn't specify how that money will be spent. The Government makes that decision within the powers laid down in the constitution. In this case, the Court has ruled that the Government cannot rely on the executive power because it is outside the general function specified in the constitution.

If it wants to make the payment it either needs legislation that is then open to challenge on constitutional grounds. Or it can make the payment via the states since they appear to have the power.

Jim Belshaw said...

Too many its, but I hope that the meaning is clear!

Anonymous said...

Thanks Jim. Your meaning is clear, and that's certainly a different flavor to my innocent understanding. I hope LE does appear above water soon because it is really quite interesting.

kvd

Jim Belshaw said...

Come on, LE!

Anonymous said...

Hi Jim

Just a follow up. LE has made comment here:

http://skepticlawyer.com.au/2012/06/23/high-court-chaplaincy-case-and-government-contracting/

- and I tried to follow up my own continuing confusion in the comments, but not really resolved.

It seems the High Court has this annoying habit of deciding upon (and only upon) what is placed before it. Not a hint to be gained as to what "should have been done" or how you could achieve the desired objective by other means.

Of the two parts to the case, there's been very little attention to the 'religious' one - but I'm now wondering, on the basis of the decision, how, for instance, the Commonwealth can legally provide for Chaplains on all military installations?

Anyway, I am still confused as to if this decision was a case of the Commonwealth overstepping its remit under the Constitution, or the Executive acting without Parliamentary authority, or Venus being in the third quadrant.

kvd

Anonymous said...

And then there's this, just popped up on the SMH website:

http://news.smh.com.au/breaking-news-national/laws-for-chaplains-to-pass-this-week-20120625-20y8d.html

- which seems to go more towards my earlier "industrial scale administrative fix" comment?

kvd

Jim Belshaw said...

Venus was in the third quadrant, kvd. You have forced me back to the constitution and to the actual wording of the judgement!

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