HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJGREG COMBET & ANOR PLAINTIFFS
AND
COMMONWEALTH OF AUSTRALIA & ORS DEFENDANTS
Combet v Commonwealth of Australia [2005] HCA 61
Date of order: 29 September 2005
Date of publication of reasons: 21 October 2005
S359/2005ORDER
The questions stated by the parties in the Special Case for the opinion of the Full Court are answered as follows:
(1) Q. Do the Plaintiffs, or either of them, have standing to seek the relief sought in the Statement of Claim in the Further Amended Writ of Summons?
A.It is unnecessary to answer this question.
(2) Q. If yes to (1), is the withdrawal of money from the Treasury of the Commonwealth to pay for the Government's Advertisements authorised by the Departmental Appropriation?
A.It is not appropriate to answer this question.
(3) Q. If no to (2), have the Plaintiffs established a basis for any, and if so which, of the relief sought in the Amended Statement of Claim?
A.The Plaintiffs have not established a basis for any of the relief sought in the Amended Statement of Claim or the alternative relief foreshadowed at the hearing of the Special Case, namely, declarations concerning payments to meet expenses incurred by the Commonwealth under contracts and arrangements for and in relation to certain past advertisements.
(4)Q. If yes to (3), should any such relief be refused on discretionary grounds?
A.It is unnecessary to answer this question.
(5)Q. Who should pay the costs of the proceedings?
A.The Plaintiffs.
Representation:
S J Gageler SC with J K Kirk for the plaintiffs (instructed by Maurice Blackburn Cashman)
D M J Bennett QC, Solicitor-General of the Commonwealth with S B Lloyd and K J Graham for the defendants (instructed by Australian Government Solicitor)
Intervener:
R J Meadows QC, Solicitor-General for the State of Western Australia with J C Pritchard intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor's Office (Western Australia))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Combet v Commonwealth of Australia
Statutes – Appropriation Act – Construction – Appropriation of moneys from Consolidated Revenue Fund – Expenditure of public money on advertising to provide information about, and promote, the Government's workplace relations reform package – Whether expenditure authorised by an appropriation made by law – Construction of Appropriation Act (No 1) 2005-2006 (Cth) – Whether expenditure falls within Outcome 2, "Higher productivity, higher pay workplaces", of the Department of Employment and Workplace Relations – Whether amounts issued out of Consolidated Revenue Fund for "departmental items" and for "administered items" tied to "outcomes".
Constitutional law (Cth) – Appropriation of moneys from Consolidated Revenue Fund – Standing to bring action for declarations and injunctions – Standing of Member of House of Representatives and Shadow Attorney-General – Standing of Secretary of peak union body – Justiciability of proceedings – Whether proceedings present a matter apt for judicial determination.
Constitutional law (Cth) – Appropriation of moneys from Consolidated Revenue Fund – Expenditure alleged to be unauthorised by Appropriation Act (No 1) 2005-2006 (Cth) – Relief – Injunction – Declaration – Whether relief claimed effective and confined to the expenditure impugned – Whether relief should be refused on discretionary grounds – Whether necessary or appropriate to answer such questions.
High Court – Practice – Special Case – Questions of law stated for the opinion of the Full Court – Matter presented by the arguments of the parties – Whether common assumption in the parties' submissions on questions of statutory construction – Whether Court obliged to decide controversy presented by the parties – Scope and content of that controversy – Extent to which parties' submissions foreclosed construction of the Appropriation Act (No 1) 2005-2006 (Cth).
Words and phrases – "appropriation", "appropriation made by law", "administered expenses", "administered item", "departmental expenditure", "departmental item", "departmental outputs", "outcomes".
Constitution, ss 53, 54, 56, 81, 83, 94, 97.
Appropriation Act (No 1) 2005-2006 (Cth), ss 3, 4, 7, 8, 15, Sched 1.
Financial Management and Accountability Act 1997 (Cth), ss 5, 26, 27.
Auditor-General Act 1997 (Cth).
Audit Act 1901 (Cth), ss 34, 40, 41.
Acts Interpretation Act 1901 (Cth), s15AB.
GLEESON CJ. Section 83 of the Constitution provides that no money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law. The Special Case says that, in May 2005, the Government announced its intention to introduce a "workplace relations reform package". In response, the Australian Council of Trade Unions instituted "a national campaign opposing the [r]eforms". The Government "has ... engaged and proposes to continue to engage in advertising the purpose of which is to provide information about and promote the [r]eforms". The advertisements have been, and will be, paid for by moneys drawn from the Treasury. The appropriation by law relied upon is that made by the Appropriation Act (No 1) 2005-2006 (Cth) ("the Appropriation Act"). The plaintiffs contend that the Appropriation Act does not cover such drawings. The defendants contend that it does. That is the principal issue to be decided. The question is one of the construction of the Appropriation Act.
It is not contended that the Appropriation Act is invalid. Nor is it argued that expenditure of public money, by way of advertising or otherwise, upon the promotion of government policy is inherently unlawful or unconstitutional. In a variety of ways, politicians, in and out of government, constantly engage in publicly funded activity promoting or opposing government policy. Costs of travel undertaken for purposes of political advocacy provide a simple example. Such expenditure may sometimes attract political controversy. Complaints of unfair or inappropriate use of public funds are part of the cut and thrust of political debate. If seen as justified, they may have an electoral impact. Our concern, however, is only with justiciable issues.
The issues for decision have been put before the Court in a number of questions formulated in the Special Case. I agree with the answers proposed in the reasons of Gummow, Hayne, Callinan and Heydon JJ ("the joint reasons"). I will, however, state my own reasons.
Questions of construction of the Appropriation Act are to be resolved by reference to text and context. The language of the text is controlling, but the meaning of that language is to be understood in a context which includes the Constitution, parliamentary practice, accounting standards, and principles and methods of public administration. The most relevant provisions of the Constitution are ss 53, 54, 81 and 83. The matter of parliamentary appropriation goes to the essence of relations between the Parliament and the Executive, and of relations between the Senate and the House of Representatives. Parliamentary practice comprehends procedures relating to budget estimates, audit, expenditure review, and performance assessment. Such procedures operate in a dynamic, political environment. In public administration, theory and practice change and develop. The Constitution was designed to allow for a necessary degree of flexibility in administrative arrangements[1].
[1]Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 401-403 [11]-[17].
The Constitution, consistently with the background of constitutional history and parliamentary practice with which the framers were familiar, reserves to the Parliament, and especially the House of Representatives, the power associated with control of funding through appropriation. It is for Parliament, consistently with the Constitution, to decide how it exercises that control. One factor of practical significance is the degree of specificity with which appropriations are made. Section 81 of the Constitution provides for the Consolidated Revenue Fund "to be appropriated for the purposes of the Commonwealth". It is for the Parliament, in making appropriations, to determine what purposes are purposes of the Commonwealth[2]. It is also for the Parliament to determine the degree of specificity with which such purposes are expressed. "Provided that purposes are stated it is a matter for the Parliament how minute and particular shall be the expression of purposes in any particular case."[3] "The purpose of any appropriation may be indicated generally. 'One-line' appropriations are valid."[4] In 1936, the Supreme Court of the United States, speaking of the provision of the United States Constitution that corresponds with s 83, said[5]:
"The contention that there has been no constitutional appropriation, or that any attempted appropriation is bad, because the particular uses to which the appropriated money is to be put have not been specified, is without merit. The provision of the Constitution ... that 'No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law' was intended as a restriction upon the disbursing authority of the Executive department, and is without significance here. It means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress. ...
The validity of the act disposing of the tax is also attacked as constituting an unlawful delegation of legislative power. That Congress has wide discretion in the matter of prescribing details of expenditures for which it appropriates must, of course, be plain. Appropriation and other acts of Congress are replete with instances of general appropriations of large amounts, to be allotted and expended as directed by designated government agencies."
[2]Attorney-General (Vict) v The Commonwealth (1945) 71 CLR 237 at 254 per Latham CJ.
[3]Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 404 per Jacobs J.
[4]Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 422 per Murphy J.
[5]Cincinnati Soap Co v United States 301 US 308 at 321-322 (1936).
A recent development in the theory and practice of public administration is the trend towards "outcome appropriations" as a means of stating the purposes for which governments spend public money. This was implemented in the Commonwealth in 1999-2000. "Outcomes are the intended effects of government programmes, whereas outputs — the goods and services delivered by government — are the means of achieving those outcomes."[6] A suggested benefit of changing the focus of appropriations from outputs to outcomes is the placing of greater emphasis on performance in the public sector[7]. Outcome appropriation is related to issues of performance assessment. Furthermore, the Financial Management and Accountability Act 1997 (Cth) forms part of the context in which the system operates. The practical manifestation of the system of outcome appropriation in the Appropriations Act will be examined below. Typically, outcomes are stated at a high level of generality. Furthermore, they are commonly expressed in value-laden terms which import political judgment. Parliament is appropriating funds for use by a government, and the outcomes pursued may involve controversial policy judgments.
[6]Brumby and Robinson, "Performance Budgeting, an Overview", paper delivered at the International Seminar on Performance Budgeting, Brasilia, 2004 at 7 (cited in Webber, "Managing the Public's Money: From Outputs to Outcomes – and Beyond", (2004) 4 OECD Journal on Budgeting 101 at 109).
[7]Webber, "Managing the Public's Money: From Outputs to Outcomes – and Beyond", (2004) 4 OECD Journal on Budgeting 101 at 114; Boxall, "Outcomes and Outputs: The New Resource Management Framework", (1998) 88 Canberra Bulletin of Public Administration 39 at 41; Her Majesty's Treasury, Better Accounting for the Taxpayer's Money: Resource Accounting and Budgeting in Government, (1994) Cmnd 2626.
While the generality of statements of outcome may increase the difficulty of contesting the relationship between an appropriation and a drawing, appropriations are made in a context that includes public scrutiny and political debate concerning budget estimates and expenditure review. The higher the level of abstraction, or the greater the scope for political interpretation, involved in a proposed outcome appropriation, the greater may be the detail required by Parliament before appropriating a sum to such a purpose; and the greater may be the scrutiny involved in review of such expenditure after it has occurred. Specificity of appropriation is not the only form of practical control over government expenditure. The political dynamics of estimation and review form part of the setting in which appropriations are sought, and made.
Section 53 of the Constitution provides that the Senate may not amend proposed laws appropriating revenue or moneys for the ordinary annual services of government. Legislation appropriating funds for the costs and expenses of maintaining the ordinary annual services of government is dealt with separately from legislation dealing, for example, with extraordinary charges and appropriations. Quick and Garran wrote that "[t]he ordinary annual services include the various public departments manned and equipped to carry on the general work of the Government departments, such as customs and excise, posts and telegraphs, light-houses, light-ships, and quarantine, naval and military defence, the money to pay for which is voted by Parliament from year to year"[8]. The authors were writing at a time when the role of the Commonwealth was more modest than at present, but the idea they convey remains true. The Appropriation Act, in its long title, is described as an Act to appropriate money out of the Consolidated Revenue Fund for the ordinary annual services of the Government, and for related purposes. The scheme of the Appropriation Act is built around Sched 1, which identifies 16 portfolios including, relevantly, Employment and Workplace Relations, and allocates sums to various agencies within those portfolios, dividing the sums between "Departmental Outputs" and "Administered Expenses".
[8]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 669.
Some insight into the distinction between "departmental" and "administered" items or expenses may be gained from Australian Accounting Standard 29 concerning Financial Reporting by Government Departments, written in June 1998:
"12.9.1A government department's operating statement only recognises revenues and expenses of the government department. Similarly, a government department's statement of financial position only recognises assets which the government department controls and liabilities which involve a future sacrifice of the government department's assets.
12.9.2However, the responsibilities of a government department may encompass the levying or collection of taxes, fines and fees, the provision of goods and services at a charge to recipients, and the transfer of funds to eligible beneficiaries. These activities may give rise to revenues and expenses which are not attributable to the government department. ... These administered revenues, expenses, assets and liabilities are not recognised in the government department's operating statement or statement of financial position."
In the Summary of Appropriations in Sched 1 to the Appropriation Act, the total sum of $47,371,218,000 was divided into $33,788,542,000 for departmental outputs and $13,582,676,000 for administered expenses. The allocations were broken down further into portfolios, and, within portfolios, into agencies. For some agencies, there were departmental outputs but no administered expenses. For some agencies, there were administered expenses but no departmental outputs. For some agencies, there were both.
The Appropriation Act, in s 4, refers to Portfolio Budget Statements. This is a defined term, meaning the Portfolio Budget Statements that were tabled in the Senate or the House of Representatives in relation to the Bill for the Appropriation Act (s 3). Those statements, prepared by Ministers for the budget estimates process, contained information on proposed agency activities in support of spending proposed by the Appropriation Bill. Such statements explain and seek to justify the appropriations proposed. They are scrutinised as part of the budget process. They reflect government policy as it affects budgetary planning. Government policy, however, is not frozen over a given budget period. Policies constantly change and develop. Indeed, governments may change during a budget period. Nor is there a clear distinction between "new" policies and modifications of existing policy.
In Sched 1 to the Appropriation Act, for each agency of each portfolio there is a statement of an outcome, or a number of outcomes. Reference has already been made to the generality, and political content, of some of these objectives. Furthermore, in most cases, neither departmental outputs (goods and services provided) nor administered expenses could possibly be the sole sources of influence contributing to or bearing upon the stated outcome. For example, within the Foreign Affairs and Trade portfolio, an amount of $49,334,000 is appropriated for the Australian Centre for International Agricultural Research. The relevant outcome is: "Agriculture in developing countries and Australia is more productive and sustainable as a result of better technologies, practices, policies and systems". Plainly, that outcome is likely to be affected by a host of factors beyond the control or influence of the Australian Government. Furthermore, opinions may be divided upon whether agriculture at one time is "more productive and sustainable" than at another, or upon whether certain technologies, practices, policies and systems have been made "better". This is a description, in the broadest political terms, of an objective of governmental activity. Whether a particular form of expenditure on goods or services (output) is likely to contribute to that objective might be contestable. For such a contest to give rise to a justiciable issue, as distinct from a political or scientific controversy, the issue could not be formulated appropriately by stating the outcome and asking whether the expenditure would contribute to it. The generality, and the value-laden content of the outcome would make that impossible. It would be possible to frame an issue in terms of relevance. A court might ask whether a particular expenditure could rationally be regarded as having been made in pursuit of, and as being in that sense related to, the stipulated outcome. A negative answer to that question would need to have due regard to the breadth of expression of the outcome, and to the consideration that the court's capacity to make a judgment about issues of policy formation and implementation is likely to be limited. A judge's intuition may be an insecure foundation for a denial of any rational connection between an output and an outcome.
The relevant provisions of the Appropriation Act begin with s 3, a definitions section. The term "administered item" is defined to mean an amount set out in Sched 1 opposite an outcome of an entity under the heading "Administered Expenses". The term "departmental item" is defined to mean the total amount set out in Sched 1 in relation to an entity under the heading "Departmental Outputs". The term "entity" is defined to include an Agency.
To give relevant content to those definitions, it is necessary to refer to the first agency item relating to the Employment and Workplace Relations Portfolio in Sched 1. (References to the earlier budget period, 2004-2005, included in the Schedule in italics for purposes of comparison, will be omitted.)
________________________________________________________________
EMPLOYMENT AND WORKPLACE RELATIONS PORTFOLIO
Appropriation — 2005-2006
_____________________________________________________________Departmental Administered
Outputs Expenses Total$'000 $'000 $'000
DEPARTMENT OF EMPLOYMENT
AND WORKPLACE RELATIONS
Outcome 1 -
Efficient and effective labour
market assistance 1,235,216 1,970,400 3,205,616Outcome 2 -
Higher productivity, higher
pay workplaces 140,131 90,559 230,690Outcome 3 -
Increased workforce
participation 72,205 560,642 632,847Total:Department of
Employment and Workplace
Relations 1,447,552 2,621,601 4,069,153
Applying the definitions in s 3, the relevant departmental item is $1,447,552,000, and the administered items are $1,970,400,000, $90,559,000 and $560,642,000.
Section 4 of the Appropriation Act provides:
"4(1)The Portfolio Budget Statements are hereby declared to be relevant documents for the purposes of section 15AB of the Acts Interpretation Act1901.
(2)If the Portfolio Budget Statements indicate that activities of a particular kind were intended to be treated as activities in respect of a particular outcome, then expenditure for the purpose of carrying out those activities is taken to be expenditure for the purpose of contributing to achieving the outcome."
Sections 7 and 8 effect what are described as the basic appropriation for departmental items (s 7) and the basic appropriation for administered items (s 8).
The language of s 4(2) ties in with the language of s 8(2). Section 8 relevantly provides:
"8(1)For an administered item for an outcome of an entity, the Finance Minister may issue out of the Consolidated Revenue Fund amounts that do not exceed, in total, the lesser of:
(a)the amount specified in the item; and
(b)the amount determined by the Finance Minister in relation to the item, having regard to the expenses incurred by the entity in the current year in relation to the item.
(2)An amount issued out of the Consolidated Revenue Fund for an administered item for an outcome of an entity may only be applied for expenditure for the purpose of carrying out activities for the purpose of contributing to achieving that outcome."
As a note to s 4(1) indicates, s 4(1) is intended to relate specifically to s 15AB(2)(g) of the Acts Interpretation Act 1901 (Cth). The Portfolio Budget Statements may be considered to confirm that the meaning of a provision is the ordinary meaning conveyed by the text, or to determine the meaning of a provision when the provision is ambiguous or obscure or where the ordinary meaning conveyed by the text leads to a result that is manifestly absurd or is unreasonable.
The focus of argument in the present case has been the departmental item of $1,447,552,000. The basic appropriation of that item is found in s 7, which relevantly provides:
"7(1)For a departmental item for an entity, the Finance Minister may issue out of the Consolidated Revenue Fund amounts that do not exceed, in total, the amount specified in the item.
(2)An amount issued out of the Consolidated Revenue Fund for a departmental item for an entity may only be applied for the departmental expenditure of the entity."
The term "expenditure" is defined in s 3 as meaning payments for expenses, acquiring assets, making loans or paying liabilities. The composite expression "departmental expenditure" is undefined.
Unlike ss 4 and 8, s 7 makes no reference to outcomes. Its only reference to purpose is "for the departmental expenditure of the entity." If the plaintiffs are right in their contention, it must be because payment of the advertising expenses in question, out of the amount of $1,447,552,000, involves an application of part of that amount otherwise than for the departmental expenditure of the Department of Employment and Workplace Relations.
I accept that the expression "departmental expenditure", in s 7(2), does not mean any expenditure that the Department chooses to make, or incur, or even any expenditure for the purposes of the Commonwealth that the Department chooses to make or incur. Description of the expenditure as "departmental" imports a purposive, as well as a factual, element. That follows from the constitutional context, a matter to which I shall return.
At the same time, I do not accept that expenditure cannot be supported under s 7 unless it is referred to in the Portfolio Budget Statement. Such a conclusion would be contrary to the terms of s 4, which are facultative, not limiting. Sub-section (2) of s 4 refers to what Portfolio Budget Statements "indicate". That word itself reflects the practical political context in which such statements are prepared, with the potential for developments and changes both in policy and in circumstances. The Appropriation Act characterises the statements as indicative, and says that if it is indicated that activities of a particular kind were intended to be treated as activities in respect of a particular outcome, then expenditure is taken to be for the purpose of contributing to the outcome. Such a question might arise most clearly in the case of administered items, having regard to the terms of s 8(2). Whether it could also arise under s 7 is an issue. In any event, to say that, if an activity is related to an outcome in the Portfolio Budget Statements, expenditure on that activity is to be taken to be for the purpose of the outcome is very different from saying that it is only expenditure on activities covered by Portfolio Budget Statements that may be taken to be expenditure for the purpose of contributing to achieving the outcome. As to the latter possibility, s 4 says no such thing. Putting to one side the practical difficulties that would arise from treating the Portfolio Budget Statements as definitive of the purposes of the appropriations effected by the Appropriation Act, such a conclusion cannot stand with the language of the Act.
In the case of administered items, the relationship between outcome and appropriation is clearly spelled out in the definition of administered item and the terms of s 8, read together with Sched 1. In the case of the Department of Employment and Workplace Relations, there are three administered items (amounts) and three outcomes, and an amount issued out of the Consolidated Revenue Fund must be related (in the sense explained in s 8(2)) to one of those items and to the outcome for which it has been appropriated.
We are, however, presently concerned with s 7(2). For the Department of Employment and Workplace Relations there is only one departmental item as defined, $1,447,552,000. An amount issued for that item may only be applied for the departmental expenditure of the Department. Such expenditure must, of course, be for a purpose of the Commonwealth (Constitution, s 81). The long title of the Appropriation Act, understood in the light of s 53 of the Constitution, shows that the expenditure referred to in s 7 is for the ordinary annual services of Government. That, however, is an expression of wide import. Are the outcomes stated in Sched 1 relevant to the characterisation of expenditure as "departmental expenditure" within the meaning of s 7? In my view, they are. The constitutional context in which the Appropriation Act was enacted was one of parliamentary appropriation of funds, under the control of Parliament, to be made available to the Executive for stated purposes. The statement of purposes may be broad or narrow. In Sched 1, amounts under the heading "Departmental Outputs" are related in each case to a statement of outcome. The total of those amounts, for an entity, is a departmental item. It is unlikely that the statements of outcome were intended to be relevant only to administered items, because in the case of some entities or agencies there are statements of outcome, but no administered expenses. I acknowledge that the contrast between the language of s 7(2) and that of s 8(2) could support a view that outcomes are irrelevant to s 7(2). Against that, however, is the wider context, together with the specific textual consideration that Sched 1 identifies outcomes even where there are no relevant administered expenses. In the case of departmental items, the relationship with outcomes is not identical to the relationship between outcomes and administered items spelled out in s 8(2). There is only one departmental item, to which a number of outcomes may be relevant. Taken together, however, outcomes towards which the Department of Employment and Workplace Relations is working assist in considering what is meant by "departmental expenditure". They may exclude expenditure which is so clearly unrelated to the business of the Department that it could not rationally be regarded as expenditure for the purpose of that business. There are probably many aspects of the routine business of the Department, undoubtedly included in the ordinary annual services of the Government, which could be regarded as contributing to one or other of outcomes 1, 2 or 3 only in the most indirect fashion. No doubt much departmental expenditure is of a kind that would be incurred even if the Department were pursuing different policy objectives. Such expenditure may be directed to outputs of a kind that a government of any political persuasion would expect the Department to provide. Policy development and advice to the Minister is an obvious example. Such advice might be directed towards a wholesale re-definition of the outcomes themselves, and yet the cost of providing it would qualify as departmental expenditure.
The plaintiffs, in their submissions to the Court, acknowledged that the outcomes listed in Sched 1 "are statements of purpose at a very high level of abstraction". So much is clear. Provided such statements are not so general, or abstract, as to be without meaning, they represent Parliament's lawful choice as to the manner in which it identifies the purpose of an appropriation. To the extent to which it is necessary to have regard to those statements of purpose in order to decide whether expenditure bears the character of departmental expenditure referred to in s 7, then the generality, and the political character, of a statement may make it difficult to establish that particular expenditure is not related to the relevant purpose (in the sense earlier discussed). It does not follow that the purpose should be confined, or stripped of its political content. By what process might such a narrowing legitimately take place? The plaintiffs argued, quoting the Portfolio Budget Statements, that outcome 2 might be narrowed to "providing policy advice and legislation development services to government" and "supporting employers and employees in adopting fair and flexible workplace relations practices". It has already been pointed out that the use of the Portfolio Budget Statements to restrict the generality, and thereby alter the meaning, of the language of the Act, including Sched 1, is inappropriate. If Parliament formulates the purposes of appropriation in broad, general terms, then those terms must be applied with the breadth and generality they bear. Furthermore, if (as appears to be common ground) "providing policy advice and legislation development services to government" serves a purpose described in Sched 1 as "higher productivity, higher pay workplaces", then it is instructive to consider why that is so.
If it be accepted (as it is) that "providing policy advice and legislation development services" is one way in which the Department pursues the outcome of "higher productivity, higher pay workplaces", that must be because the outcome is contributed to by development of policy, and formulation of legislation in accordance with such policy or, more precisely, because such activities could rationally be regarded as contributing to the outcome. It is not suggested that this result depends upon whether the policy advice, or proposed legislation, enjoys the approval of the person making the judgment. In the terms of outcome 2, "higher" must mean "higher than would otherwise be the case". Productivity and rates of pay in workplaces are influenced by many factors in addition to government action and legislation. Yet the assumption of Sched 1 is that they may be contributed to by departmental outputs, and the assumption of the Portfolio Budget Statements, and of the plaintiffs' argument, is that policy advice and legislation development services may reasonably be regarded as contributing to that outcome, regardless of the content of the advice or the merits of the legislation. If formulation and development of policy and legislation on the subject of workplace relations is related to "higher productivity, higher pay workplaces", then it is difficult to see why promotion of public acceptance of workplace relations policy and legislative change is not so related. It cannot be the case that it depends upon whether the policy is wise, or the changes constitute genuine reforms. These are political judgments, and the value-laden statements of outcome throughout Sched 1 invite differences of opinion on such questions.
In a representative democracy, governments, oppositions, politicians of all persuasions, and interest groups are constantly engaged in political struggle. Public, as well as private, funds are spent, in a variety of ways, on advocacy supporting or opposing proposals for executive action and legislative change. Persuading the public, or a sufficient number of members of the public, of the merits of government policy may be as important to successful formulation and implementation of policy as the drafting of advice and legislation. Persuading the public of the merits of policy and legislation may be vital to the achievement of the desired policy objective. There may be many grounds of political objection to the advertising in question, such as that the proposed changes will not result in "higher productivity, higher pay workplaces", or that a publicly funded advertising campaign is an inappropriate means of advocating such changes. The legal question, however, is whether the drawings in question are covered by the appropriation. The relevant outcome is stated with such breadth as to require an answer to that question adverse to the plaintiffs.
Reference has already been made to the long title of the Appropriation Act, the reference in the long title to "the ordinary annual services of the Government", and the constitutional significance of that expression. An argument was advanced with respect to that matter, with particular reference to a history of communications between the Senate and the Minister for Finance on the contents of the annual Appropriation Bill (No 1). The relevant history is traced in the joint reasons. The concept of running costs, and the relationship to that concept of "advertising and public relations services" and "information services" was examined in argument. I agree that the boundaries of the running costs included in departmental expenditure are unclear, and the parliamentary history and practice relied upon does not advance the argument of the plaintiffs. Counsel for the defendants pointed out that the development of new policy cannot be excluded from running costs, especially when regard is had to the possibility of a change of government during a budget period, and the fact that "information activities" may be an integral part of the development of new programmes.
It is unnecessary to deal with the questions of the standing of the plaintiffs to bring these proceedings or the form of relief that might have been available had the plaintiffs made good their primary contention. Those questions involve issues of importance and difficulty, but on the view I have taken on the principal question of construction they do not arise.
For those reasons I agreed in the order that was made on 29 September 2005.
McHUGH J. The issues in this case arise out of a Special Case stated by Gummow J. The principal issue is whether the Appropriation Act (No 1) 2005‑2006 (Cth) has authorised the withdrawal of money from the Treasury of the Commonwealth to pay for advertising by the federal government that promotes its industrial relations reform package.
In their pleadings, the plaintiffs seek two declarations and an injunction. They seek a declaration that the drawing of money from the Treasury of the Commonwealth to pay for advertisements promoting the workplace relations reform package is not authorised by Appropriation Act (No 1) 2005-2006 ("Act No 1"). They also seek a declaration that the drawing rights issued by a delegate of the third defendant, the Minister for Finance and Administration, under s 27 of the Financial Management and Accountability Act 1997 (Cth) to authorise the payment of public money for advertisements promoting the reform package are invalid. Finally, they seek an injunction restraining the third defendant from issuing any further drawing right under s 27 of the Financial Management and Accountability Act 1997 (Cth) to authorise the payment of public money for advertisements that promote the reform package.
In oral argument, however, the plaintiffs said that, if the Court was not prepared to grant the relief sought in their pleadings, it should grant two declarations. First, that the drawing of money from the Treasury for the purpose of making payments to meet expenses incurred by the Commonwealth in relation to past advertisements about the reform package was not authorised by Act No 1. Second, that the drawing rights issued by a delegate of the third defendant on 23 August 2005 have no effect in so far as they purport to authorise the debiting of an amount against the departmental item in respect of the Department of Employment and Workplace Relations in Act No 1 for the purpose of making payments of public money to meet expenses incurred by the Commonwealth in relation to the past advertisements.
In my opinion, Act No 1 did not authorise expenditure on this advertising. The defendants contend that it did so because the Act authorised expenditure by the Department of Employment and Workplace Relations on advertising that could reasonably result in higher productivity or higher pay in Australian workplaces. However, the defendants tendered no expert evidence that these advertisements might achieve either result and, after examining them, I can see no rational connection between the advertisements and higher productivity or higher pay. The advertisements provide no information, instruction, encouragement or exhortation that could lead to higher productivity or higher pay. The joint judgment of Gummow, Hayne, Callinan and Heydon JJ asserts, despite the contention of the defendants, that it is not necessary that the expenditure be conducive to achieving higher productivity or higher pay or any outcome specified in Act No 1. For the reasons set out in this judgment, however, that assertion cannot be accepted. Not only is it contrary to what was common ground between the plaintiffs and the defendants but it is contrary to the language of Act No 1, the parliamentary practice, the parliamentary documents that explain the operation of Act No 1 and the understanding of all members of the Parliament. I venture to think that the joint judgment places a construction on Act No 1 that will surprise all members of the Parliament irrespective of party or ideology. It follows that Act No 1 did not authorise the expenditure of the moneys of the Commonwealth on the advertisements. A declaration to that effect should be made and the defendants should be restrained by injunction from spending the moneys of the Commonwealth on advertisements in the form or to the effect of those already published.
The material facts
In May 2005, the Prime Minister informed the House of Representatives[9] that the federal government intended to legislate to reform workplace relations in Australia by introducing a unified national system. The Prime Minister gave no details of how this would be achieved. When this Court heard argument in the present proceedings, no legislation had been introduced into either House of Parliament to give effect to the proposed changes.
[9]Australia, House of Representatives, Parliamentary Debates (Hansard), 26 May 2005 at 38-43.
In the weeks after the Prime Minister's announcement, the Australian Council of Trade Unions ("the ACTU") began a campaign opposing the proposed reforms. The campaign included rallies and marches and extensive television advertising. On and after 9 July 2005, the first defendant, the Commonwealth, responded to this campaign by publishing advertisements in newspapers in all States and Territories. On and after 23 July 2005, the first defendant also responded to the campaign of the ACTU by broadcasting advertisements on commercial radio stations. As at 15 August 2005, the first defendant had entered into contracts for advertising and related services with a value of at least $3.84 million. The cost of the advertising has been or will be met from public funds drawn from the Treasury of the Commonwealth. Unless restrained by this Court, the first defendant proposes to use funds of the Commonwealth to pay for advertisements concerning its industrial relations package.
A copy of one of the first defendant's newspaper advertisements is Annexure "A" to the Special Case. It is a fair sample of the nature of the advertising in question in these proceedings. The advertisement is headed:
MORE JOBS
HIGHER WAGES
A STRONGER ECONOMYThe advertisement asserts that, as a result of Australians working together, the nation has a stronger economy with new jobs and higher real wages and the capacity to provide more health, education, social and community services. It claims that, if Australia is to remain effective in a global economy, more has to be done to keep these benefits. Changes to industrial relations law are therefore needed. The advertisement makes a number of specific claims about the present state of Australian industrial relations and what will happen under the reforms. It asserts that:
.the Australian government will protect the rights and conditions of Australian workers by legislation;
.the government will continue to protect workers with a fair and sustainable safety net of wages and conditions;
.awards will not be abolished but will be updated so they continue to provide modern terms and conditions for those workers who choose not to have a workplace agreement;
.workers will continue to be protected from unlawful termination including dismissal on discriminatory grounds;
.it will remain unlawful for workers to be forced to sign an Australian Workplace Agreement (AWA) or be sacked for refusing to sign an AWA;
.the government's plan will make it simpler and easier for workers and employers to agree on working conditions;
.workers on AWAs currently earn 13% more than workers on certified agreements, and 100% more than workers on award rates;
.all agreements will be required by law to meet the new tests set out by the Australian Fair Pay and Conditions Standard;
.to keep pace with our modern economy the Australian Industrial Relations Commission will focus on dispute resolution and further simplification of awards;
.Australia currently has six different workplace relations systems and can no longer afford to force employees and employers to work with this complexity; and that
.Australia needs only one set of national laws to cover workplace relations.
The advertisement concludes by claiming that, by working together, "we will create more jobs, with higher wages in a stronger economy and secure the future for Australian workers and their families."
Whether expenditure on the advertisement and those like it was lawfully authorised depends on whether it could promote any of the items – Outcomes 1, 2 and 3 – in Table 1.1 of the Agency Budget Statements for the Department of Employment and Workplace Relations. Those Outcomes are identified as:
1. Efficient and effective labour market assistance
2. Higher productivity, higher pay workplaces
3. Increased workforce participation
The issue in the case is one of statutory construction. No question of constitutional law is directly involved although the explanation and the meaning of the text of Act No 1 lie in the history of constitutional conflicts between the Crown and Parliament. They also lie in conflicts between the House of Representatives and the Senate over the Senate's right to amend legislation appropriating money for the purposes of the Commonwealth. It will, unfortunately, be necessary to go beyond an examination of the text of the statute. That is because the joint judgment of four members of the Court has construed Act No 1 in a manner contrary to that asserted by the plaintiffs and relevantly accepted by the defendants. As a result, it will be necessary to set out extracts from various documents in considerable detail to show that the construction that the parties have placed on Act No 1 is correct and that of the joint judgment erroneous.
The constitutional background
For centuries before the enactment of the Constitution, the Crown conducted the day to day business of government – as theoretically it still does today. But the business of government, ancient and modern, requires access to a continual supply of money. Taxation of the income or property of the subject is an obvious way of raising money for the business of government. Historically, taxation and loans have been the principal means by which governments have raised money. From an early period in the history of English constitutional law, however, the House of Commons insisted on its right to control the levying of direct taxes on the subjects of the Crown and others. It "repeatedly asserted that taxes were not to be imposed without its consent"[10]. By the 17th century, the House of Commons had also insisted on its right to control the levying of indirect taxation[11]. These demands of the Commons culminated in the promulgation of the Bill of Rights 1689 (UK) and its insistence "that levying money for or to the use of the Crown by pretence of prerogative, without grant of parliament, for longer time, or in other manner than the same is or shall be granted, is illegal." As a result, for more than three centuries, a fundamental rule of English constitutional law has been that the Crown cannot levy a tax without parliamentary authorisation[12]. But not only did the Commons insist on controlling the levying of taxes, it also insisted on knowing the purposes for which the Crown intended to use the supply of money and on scrutinising the expenditures of the Crown[13]. As a result, another fundamental rule of the constitutional law of the Anglo-Australian peoples is that the Crown cannot expend money without the authorisation of Parliament[14]. When the Constitution was drafted, there was also a widely accepted convention that control over money Bills essentially belonged to the popularly elected lower House of Parliament from which the government was formed. Indeed, as early as the second half of the 17th century the House of Commons had resolved that money Bills should not be amended by the House of Lords and that such Bills could only originate from the Commons[15]. The Lords could "make no alteration in a money bill, but must simply accept it, or simply reject it".[16]
[10]Maitland, The Constitutional History of England, (1908) at 181.
[11]Saunders, "Parliamentary Appropriation", in Saunders et al, Current Constitutional Problems in Australia, (1982) 1 at 2.
[12]Attorney-General v Wilts United Dairies Ltd (1920) 37 TLR 884 at 886.
[13]Maitland, The Constitutional History of England, (1908) at 184, 328.
[14]Auckland Harbour Board v The King [1924] AC 318 at 326; Brown v West (1990) 169 CLR 195 at 205.
[15]Victoria v The Commonwealth (1975) 134 CLR 338 at 385-386. After 1689, the only power the House of Lords had in respect of money Bills was to withhold assent.
[16]Maitland, The Constitutional History of England, (1908) at 247.
Sections 53, 54, 55 and 81 and 83 of our Constitution are the result of these rules of English constitutional law and this convention. Sections 53, 54 and 55 provide:
"53. Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate ...
The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.
...
The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications.
Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.
54. The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation.
55. Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect."
These three sections did not give full effect to the convention that control over money Bills belongs to the popularly elected House where the government is formed. That is because of a compromise made at the 1897 Adelaide Convention. Delegates from South Australia, Western Australia and Tasmania insisted on equal voting rights for the Senate in respect of all legislation passed by the Parliament[17]. In the end, they gave way in respect of money Bills to the extent provided for in s 53. Their compromise in respect of the "ordinary annual services" of the government reflected a convention that was then current in the United Kingdom and in the colonies of Australia.
[17]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 138.
By the 19th century, the United Kingdom Parliament had adopted a convention that expenditure falling outside the estimates for the ordinary annual expenditure of the government required explicit approval by the Parliament. Thus, expenditures for new purposes not already covered by the existing powers or functions of a department or where the expenditure required authority for more than one year[18] required separate approval by the Parliament. In 1857, after a dispute between the House of Assembly and the Legislative Council in South Australia over the powers of the Council in respect of money Bills, the Council agreed to waive its claim that it could deal with appropriations concerning the ordinary annual expenses of government in South Australia[19]. This convention of the South Australian Parliament – now incorporated in the Constitution Acts of a number of Australian States – was the basis of the s 53 compromise. But as the events of 1975 showed, although the Senate cannot amend proposed laws appropriating revenue or moneys or imposing taxation, the compromise did not extend to failing to pass or rejecting them. Consequently, at the Constitutional Convention held in Sydney some months later, in 1897, s 57[20] was inserted in the draft Constitution to resolve deadlocks that might arise as the result of the last paragraph in s 53 of the Constitution.
[18]Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 20th ed (1983) at 750.
[19]Moore, The Constitution of the Commonwealth of Australia, 2nd ed (1910) at 142-143.
[20]Section 57 is entitled "Disagreement between the Houses". It provides the mechanism for double dissolutions and joint sittings of both Houses of Parliament.
Sections 81 and 83 of the Constitution, however, give full effect to the victory of the Houses of Parliament over the right of the Crown to spend public moneys at the Crown's discretion. They declare:
"81. 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 in the manner and subject to the charges and liabilities imposed by this Constitution.
...
83. No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law."
The appropriations
The practice of the federal Parliament in relation to Appropriation Bills is conveniently summarised in Harris, House of Representatives Practice[21], which states:
"The Parliament appropriates moneys from the Consolidated Revenue Fund on an annual basis in order to fund expenditure by the Government. Prior to 1999 the appropriation of funds by the annual appropriation bills expired at the end of the financial year on 30 June. The annual appropriations, although related to activity in a specific year, no longer lapse at the end of the year – appropriations for departmental expenses are open ended, while appropriations for administered expenses are limited to expenses incurred in that year.
Appropriation Bill (No 1) is a key element in 'the Budget'; it contains details of estimates for ordinary annual government services – that is, continuing expenditure by government agencies on services for existing policies.
Appropriation Bill (No 2) is also introduced as part of the Budget and appropriates funds for expenditure on new policies, new capital expenditure ..."
[21]5th ed (2005) at 414.
In 1979, the Joint Committee of Public Accounts of the federal Parliament reported[22]:
"Theoretically, control over both taxation and expenditure lies with Parliament but the right to initiate spending proposals lies with the government. Parliament can debate, examine and criticise the estimates, but must accept or reject the spending proposals as a whole. If they are rejected this is generally taken as a major defeat for the government, leading either to a vote of confidence or a general election.
...
The main role of Parliament is limited to considering the estimates when they have been announced and later conducting a retrospective inquiry into how the money has been spent both in order to ensure compliance and to improve subsequent performance."
[22]Australia, 179th Report of the Joint Committee of Public Accounts of the Commonwealth Parliament, (1979) at pars 4.10, 4.11 cited in Saunders, "Parliamentary Appropriation", in Saunders et al, Current Constitutional Problems in Australia, (1982) 1 at 13.
The legislation with which these proceedings are concerned gives effect to ss 53, 54, 55, 81 and 83 of the Constitution and their underlying policies. Act No 1 gives effect to s 81 of the Constitution by providing for the appropriation of money for the purposes of the Commonwealth for the financial year 2005-2006. That Act and the Appropriation Act (No 2) 2005-2006 (Cth) give effect to the requirements of s 54 of the Constitution. The long title to the Bill that became Act No 1 was "[a] Bill for an Act to appropriate money out of the Consolidated Revenue Fund for the ordinary annual services of the Government, and for related purposes".
The resolution of these proceedings depends upon the legal significance of a departmental "Outcome". The Outcomes are contained in Schedule 1 of Act No 1. In essence, they set down the goals towards which each department will work during the next year and for which they are provided with funds. The members of this Court who are parties to the joint judgment have reached a different conclusion on this question to that which, in my opinion, is compelled by the weight of the evidence contained in various documents that show what Act No 1 was intended to achieve and how it was to be achieved. In order to demonstrate the true legal effect of these Outcomes, it will be necessary to set out lengthy excerpts of a number of these documents. These include:
- Budget Paper No 4 for 2005-2006;
- The Schedule to Act No 1;
-Documents relating to established parliamentary practice concerning supply Bills;
-A 1999 letter from the Minister for Finance and Administration to the President of the Senate;
-A Ministerial advice on compliance with the "Outcomes & Outputs Framework Guidance Document"; and
- Portfolio Budget Statements.
The purpose of the excerpts is to demonstrate that, contrary to the views of the members of the joint judgment, the desired Outcomes that are specified for the Department of Employment and Workplace Relations, operate as a control upon the purposes for which that Department is authorised to make appropriations from the Treasury.
The 2005-06 Budget Paper No 4 provides a summary of the framework of the appropriations for that year. It states inter alia:
"The annual appropriation bills, portfolio budget statements and agency annual reports are an integrated package showing the allocation of resources to government outcomes by agencies. The portfolio budget statements contain details of the estimated payments under each of the annual appropriation bills and legislation containing special appropriations. ... [T]he appropriation bills declare portfolio budget statements to be relevant documents for statutory interpretation. They can be referred to if issues arise over how to interpret the associated annual appropriation acts.
The portfolio budget statements are prepared by portfolio ministers for the purposes of Senate Legislation Committees' examination of the Government's budget. The statements are published as Budget Related Papers and tabled in the Parliament at budget time.
...
The annual appropriation bills propose the payment of specified amounts by agencies in achieving the government's outcomes.
...
In accordance with the Constitution, appropriations are provided for particular purposes. For all expenses appropriations, those purposes are the outcomes which are shown beside the appropriation amounts. Outcomes are the results or impacts on the community or the environment that the Government intends to achieve. They are specified by the responsible portfolio minister with the endorsement of the Finance Minister.
...
Departmental expenses are appropriated as a single amount for each agency. The single appropriation represents the cost of all the outputs that the agency plans to deliver. Appropriation Bill (No 1) 2005‑06 shows a split of that amount across agency outcomes. The split is notional, providing an indication of the departmental resources that will be required to achieve agency outcomes.
Administered expenses are those administered by the agency on behalf of the Government. They are normally related to activities governed by eligibility rules and conditions established by the government or Parliament such as grants, subsidies and benefit payments. Agencies have no discretion over how administered expenses are spent. Administered expenses are appropriated separately for agency outcomes (ie the split across outcomes is not notional), specifying precisely how much can be expended on each outcome." (emphasis added)
Section 15 of Act No 1 declared: "The Consolidated Revenue Fund is appropriated as necessary for the purposes of this Act." Schedule 1 specified the "Services for which money is appropriated". The Schedule was divided into 16 portfolio items; one of them was described as the "Employment and Workplace Relations" Portfolio. It provided:
EMPLOYMENT AND WORKPLACE RELATIONS PORTFOLIO
Appropriation (plain figures) – 2005-2006
Actual Available Appropriation (italic figures) – 2004-2005------------------------------------------------------------------------------------------------
Departmental Administered Total
Outputs Expenses
------------------------------------------------------------------------------------------------
$'000 $'000 $'000
DEPARTMENT OF
EMPLOYMENT AND
WORKPLACE RELATIONS
Outcome 1 -
Efficient and effective
labour market assistance 1,235,216 1,970,400 3,205,616
492,862 2,253,763 2,746,625
Outcome 2 -
Higher productivity,
higher pay workplaces 140,131 90,559 230,690
141,056 83,558 224,614Outcome 3 -
Increased workforce
participation 72,205 560,642 632,847
- - -
------------------------------------------------------------------------------------------------
Total: Department of 1,447,552 2,621,601 4,069,153
Employment and 633,918 2,337,321 2,971,239
Workplace Relations
------------------------------------------------------------------------------------------------
The use of the terms "Outcome", "Departmental Outputs" and "Administered Expenses" is the result of the change to accrual accounting by the government in 1999[23]. In February 1999, the Minister for Finance and Administration wrote to the President of the Senate informing her of the introduction of accrual budgeting in respect of federal government finance. The Minister said that it "would involve some modest changes to the Appropriation Bills with implications for the 1965 Compact between the Senate and the Executive on what constitutes 'the ordinary annual services of Government'". In 1965 – in what became known as the Compact of 1965 – the Senate had resolved to "reaffirm its constitutional right to amend proposed laws appropriating revenue or moneys for expenditure on all matters not involving the ordinary annual services of the Government". It resolved inter alia:
"(2) That appropriations for expenditure on:
...
(e)new policies not previously authorised by special legislation,
are not appropriations for the ordinary annual services of the Government and that proposed laws for the appropriation of revenue or moneys for expenditure on the said matters shall be presented to the Senate in a separate Appropriation Bill subject to amendment by the Senate."
[23]Accrual accounting is the system under which items are brought to account and appear in financial statements as they are earned or incurred in contrast to a system where items are recorded when they are received or paid. For the purposes of these proceedings, the relevance of accrual accounting is simply that its adoption came with the adoption of the Outcomes and Outputs system.
Much of the rest of the letter from the Minister for Finance and Administration to the President of the Senate must be set out because it makes clear what the "Employment and Workplace Relations Portfolio" of the Department of Employment and Workplace Relations in Act No 1 was intended to achieve. The relevant parts of the letter stated:
"The Government will present its 1999-2000 Budget on an accrual basis. The focus on outcomes and outputs under an accrual budget means that the Commonwealth's financial infrastructure needs to be modified. The 1965 Compact has been applied to a cash-based, input focused system to date and needs to be updated for accrual budgeting to be effectively implemented.
The Proposal
The changes proposed to the Compact are minimal and can be achieved while maintaining the integrity of what was originally agreed in 1965 ...
Funds for capital injections, Section 96 Grants to the States and new administered outcomes not previously appropriated for by Parliament would remain in Bill 2.
The Structure of appropriations under an accrual framework
The introduction of accrual budgeting means that the Commonwealth and its agencies are changing how they plan, budget and report. The focus is on outcomes and outputs, not programs and inputs. For instance, agencies will specify their outcomes and detail the outputs to achieve them. The accrual budgeting reforms change both what is measured and the basis of measurement. As a result, the financial performance of agencies and the Government should become more transparent.
Changing to the outcomes and outputs framework has important implications for the structure of Appropriation Bills 1 and 2. The bills will no longer appropriate for the cost of inputs or programs; they will appropriate funding on the basis of outcomes. ... There are some important changes to be noted:
(i) Allocation against Departmental and Administered items
For each outcome the total funding for departmental and administered items will be shown.
In accordance with accrual accounting principles, departmental expenses are expenses that an agency has control over. These expenses represent the ordinary operating costs of Government Departments and agencies. They include:
. salaries;
.operational expenses including depreciation (or asset replacement);
.accruing employee entitlements.
Departmental expenses will be notionally split between outcomes ... thereby providing in the Appropriation Bills an indication of the departmental resources to be allocated towards the achievement of key outcomes for agencies. However, this split will be for information purposes only, with departmental items to be appropriated, as running costs are now, as a single amount for each agency. This will maintain the flexibilities to adjust departmental outputs to take account of emerging priorities available under present running cost arrangements. The single appropriation for departmental items will represent the price to be paid by Government for all the outputs the agency plans to deliver.
Administered expenses are expenses that agencies do not have control over and are normally made pursuant to eligibility rules and conditions established by the Government such as grants, subsidies and benefit payments. Annual appropriations for administered expenses would be appropriated on the basis of agency outcomes, making it clear what the funding is intended to achieve rather than the program it is being spent on."
As these passages make clear, both departmental and administered expenses bear a clear connection to the Outcomes specified for each department. I will return later in these reasons to the significance of departmental items being "notionally split between outcomes". The Minister's letter continues:
"(ii) Consistency of information between the Appropriation Bills, Portfolio Budget Statements and Annual Reports.
An important change under the accrual budget will be the provision of consistent information in the Appropriation Bills, Portfolio Budget Statements (PBS) and Annual Reports, as all the documents will be presented on an outcomes basis. The lack of linkages between the Bills, PBS and Annual Reports has long been a concern to Parliament. Agency Portfolio Budget Statements (which will be available on Budget night) will contain detailed information on planned performance of outputs and outcomes on the same outcomes basis as the bills. Additionally, information on actual performance will be published on an outcomes basis in agencies annual reports, enabling a clear read between the Bills, PBS and Annual Reports.
Not only will Senators and Members be able to make more informed assessments of the merits of appropriation bills using agency PBS, they will be able to assess actual versus planned performance by comparing information on:
price, quantity and quality of outputs; and
performance indicators for outcomes,
in an agency's PBS with actual performance information in its Annual Report. This will improve Parliamentary scrutiny of the Bills and agency performance." (emphasis added)
The procedures outlined in the Minister's letter provide information that enables the Senate and others to scrutinise the purpose of appropriations and to check the performance of government agencies. The Senate has no power to amend "proposed laws appropriating revenue or moneys for the ordinary annual services of the Government". Hence, the Senate has a vital interest in knowing whether a particular appropriation is truly expenditure "for the ordinary annual services of the Government". Acting in accordance with its powers under s 53 of the Constitution, the Senate has frequently returned Bills to the House of Representatives with a request to amend or alter them[24]. In the first year of the sitting of Federal Parliament – in June 1901 – the Senate returned the Consolidated Revenue (Supply) Bill 1901-1902 (No 1) to the House of Representatives[25]. It was accompanied by a message requesting that House to amend the Bill by listing the items of expenditure comprised in the amounts for which the Bill provided. The House did not return the Bill, but subsequently it sent a second Bill to the Senate that identified the items of expenditure. Since that time, the Appropriation Bills and accompanying papers have sought to give the Senate sufficient detail to enable the Senate to understand the purpose and objects of the appropriations.
[24]Odgers, Australian Senate Practice, 11th ed (2004), Appendix 6.
[25]Odgers, Australian Senate Practice, 11th ed (2004), Appendix 6 at 661.
Appropriation Bills for the financial years subsequent to 1999‑2000 have followed the framework outlined in the Minister's letter of February 1999. To assist departments to comply with the framework, the Department of Finance and Administration has issued a "web-based advice", headed, "The Outcomes & Outputs Framework Guidance Document"[26]. This advice is also relevant in determining the meaning and construction of the "Employment and Workplace Relations Portfolio" of the Department of Employment and Workplace Relations in Act No 1 and what it was intended to achieve. It is part of the background to Act No 1 and gives content to the Department's Portfolio. Relevant parts of the advice state:
"This guide takes the outcomes and outputs framework, first introduced in the 1999 Federal Budget, to the next level of development. It is aimed at practitioners within Commonwealth departments and agencies who have specific questions or issues about the framework and its application. The material in the guide draws on experience to date and differs from earlier advice in several respects. In particular, there is:
.a greater emphasis on performance information, reporting and management, especially by identifying performance information with the major elements of the framework, that is, outcomes, administered items and departmental outputs;
...
.an emphasis on the role of pricing of outputs."
[26]Budget Paper No 4 laid before both Houses of Parliament on 10 May 2005 contains a link to The Outcomes & Outputs Framework Guidance Document. It is a relevant document for the purposes of s 15AB(1) of the Acts Interpretation Act 1901 (Cth) and may be taken into account in construing Act No 1.
Under the heading "Policy & purpose", the advice states:
"The outcomes and outputs framework ... helps answer three fundamental questions:
i. What does government want to achieve?
(outcomes)
ii. How does it achieve this?
(outputs and administered items)
iii How does it know if it is succeeding?
(performance reporting)
...
In other words, government delivers benefits to the Australian community (outcomes) primarily through administered items and agencies' goods and services (outputs) which are delivered against specific performance benchmarks or targets (indicators).
All Commonwealth agencies are required to report on the basis of an outcomes and outputs framework.
...
The framework has two basic objectives: to improve agencies' corporate governance and enhance public accountability. Managing through outcomes and outputs helps improve decision making and performance by focussing attention on the fundamental questions outlined above." (emphasis added)
Under the heading "The framework & how it works", the advice states:
"The outcomes and outputs framework is intended to be dynamic and flexible. It works as a decision hierarchy:
.government (through its ministers and with the assistance of relevant agencies) specifies the outcomes it is seeking to achieve in a given area;
.these outcomes are specified in terms of the impact government is aiming to have on some aspect of society (eg education), the economy (eg exports) or the national interest (eg defence);
.Parliament appropriates funds to allow the government to achieve these outcomes through administered items and departmental outputs;
.items such as grants, transfers and benefit payments are administered on the government's behalf by agencies, with a view to maximising their contribution to the specified outcomes;
.agencies specify and manage their outputs to maximise their contribution to the achievement of the Government's desired outcomes;
.performance indicators are developed to allow scrutiny of the effectiveness (ie the impact of the outputs and administered items on outcomes) and efficiency (especially in terms of the application of administered items and the price, quality and quantity of outputs) and to enable the system to be further developed to improve performance and accountability for results.
Outcomes, administered items and outputs form the basis of the Commonwealth's budgetary framework and documentation. Outcome statements define the purpose of appropriations in the Budget Bills, while administered items and departmental outputs are detailed in Portfolio Budget Statements, which form part of the Budget Papers." (emphasis added)
Under the heading "Performance indicators", the advice states:
"The specification of outcomes and outputs necessitates appropriate performance information. Performance indicators reflect:
. the effectiveness of contributions to outcomes;
. the price, quality and quantity of outputs; and
.the desired characteristics of relevant administered items."
Under the heading "Specifying Outcomes", the advice declares:
"An 'outcome' is the impact sought or expected by government in a given policy arena. ... Outcome statements also perform a specific legal function by describing the purposes of appropriated funds.
1.1 Policy & purpose
Outcome statements serve several purposes. They:
.define the impacts government expects from the work of the agency as well as administered items it manages;
.articulate the purpose of the relevant appropriations under the Appropriation Acts of the Commonwealth Budget;
.delineate the parameters for departmental outputs.
All departmental outputs must contribute – directly or indirectly – to the realisation of a specified outcome, including under purchaser/provider arrangements whereby the provider is delivering services to contribute to the purchaser's outcome(s). They must provide the Parliament, external accountability bodies, agency clients, interest groups and the general public with a clear statement of the broad goals of government and its agencies." (emphasis added)
Section 4 of Act No 1 gives statutory effect to the Portfolio Budget Statements to which The Outcomes & Outputs Framework Guidance Document refers. Section 4 declares:
"(1) The Portfolio Budget Statements are hereby declared to be relevant documents for the purposes of section 15 AB of the Acts Interpretation Act 1901.
(2) If the Portfolio Budget Statements indicate that activities of a particular kind were intended to be treated as activities in respect of a particular outcome, then expenditure for the purpose of carrying out those activities is taken to be expenditure for the purpose of contributing to achieving the outcome."
The Portfolio Budget Statements 2005-06 ("PBS") for the Employment and Workplace Relations Portfolio consisted of a 228 page booklet. Under the heading "USER GUIDE", the PBS stated[27]:
"The purpose of the 2005-06 [PBS] is to inform Senators and Members of Parliament of the proposed allocation of resources to government outcomes by agencies within the portfolio.
...
The [PBS] provide sufficient information, explanation and justification to enable Parliament to understand the purpose of each outcome proposed in the Bills." (emphasis added)
[27]PBS at (ix).
Under the heading "Section 1: Agency overview", the PBS declares[28]:
[28]PBS at 17.
"The department's aims are to maximise the ability of working age Australians to participate actively in the workforce; and improve the productive performance of enterprises in Australia.
To do this, the department provides the Government with high quality advice and services to achieve three outcomes:
. efficient and effective labour market assistance;
. higher productivity, higher pay workplaces; and
. increased workforce participation.
These outcomes:
.are integrally linked to the achievement of broader government economic performance, employment and social goals;
...
.recognise the requirements for further reform to create competitive workplaces."
Section 2 of the PBS contains 13 pages. Table 2.1[29] in that section "shows the total resources from all origins for 2005-06, including appropriations. The table summarises how revenue will be applied by outcome, administered and departmental classification."
[29]PBS at 19.
Section 3 of the PBS is headed "Agency outcomes". It "explains how the resources identified in Section 2 will be used to deliver outputs and administered items to contribute to the three outcomes for the Department of Employment and Workplace Relations."[30]
[30]PBS at 32.
In their submissions, the defendants relied on Outcome 2 – higher productivity, higher pay workplaces – to support the advertising campaign of the Commonwealth that is in issue in these proceedings. It is appropriate to set out lengthy extracts of what the PBS has to say under the heading "Outcome 2". Nine pages of the PBS are directed to this Outcome. They state inter alia:
"Outcome 2 activities are directed towards encouraging employer[s] and employees to adopt flexible and modern workplace relations practices. This enables workplaces to be productive and competitive and to offer employees secure jobs that are well paid.
Agreement making is at the centre of the workplace relations system. The system is underpinned by a fair safety net and compliance with workplace relations obligations. The department actively contributes to Outcome 2 by:
.providing policy advice and legislation development services to government; and
.supporting employers and employees in adopting fair and flexible workplace relations practices.
Key priorities for 2005-06
Key priorities for outcome 2 for 2005-06 are to:
.develop a workplace reform package which implements the Government's policy agenda;
.continue to pursue reform in the building and construction industry to achieve proper regard for workplace relations and occupational health and safety law;
.promote agreement-making choices to employers and employees;
.improve access for employers and employees to workplace information and advice through streamlining operations and innovative information technology applications;
.intervene in test cases to ensure the safety net is fair and facilitates agreement making;
.pursue strategic interventions in AIRC and court cases to ensure the objects of the Workplace Relations Act 1996 are protected;
.progress flexible workplace relations solutions to achieve balance between work and family demands;
.promote workplace relations initiatives that address the emerging pressures of an ageing workforce;
.strengthen the operational framework and stakeholder partnerships for the General Employee Entitlements and Redundancy Scheme (GEERS);
.improve national outcomes in occupational health and safety and workers' compensation; and
.engage strategically with the International Labour Organisation (ILO) to advance Australia's interests."
Earlier in these reasons I referred to the distinction between departmental items and administered items. As is clear from ss 7 and 8 of Act No 1, one distinguishing feature is that the amounts set out against departmental outcomes are "notional". Those sections give statutory effect to the procedures outlined in the Minister's letter of February 1999. Section 7 provides as follows:
"(1) For a departmental item for an entity, the Finance Minister may issue out of the Consolidated Revenue Fund amounts that do not exceed, in total, the amount specified in the item.
(2) An amount issued out of the Consolidated Revenue Fund for a departmental item for an entity may only be applied for the departmental expenditure of the entity.
(3) If:
(a)an Act provides that an entity must be paid amounts that are appropriated by the Parliament for the purposes of the entity; and
(b)Schedule 1 contains a departmental item for that entity;
then the Finance Minister, under subsection (1), must issue out of the Consolidated Revenue Fund the full amount specified in the item.
..."
Subject, therefore, to the disputed issue of standing, it follows that there is a matter before this Court, within the Constitution, apt for judicial resolution. It involves a controversy that is suitable for judicial determination and justiciable. To the extent that the defendants questioned the justiciability of the plaintiffs' proceedings, their arguments should be rejected.
Standing in federal causes:The defendants strongly contested the standing of the plaintiffs, and each of them. Although Western Australia intervened, the Attorney-General for that State did not (as he might have done) issue a fiat to the plaintiffs, or either of them, to permit them to bring the proceedings by his authority. Nor did the Attorney-General elect to bring the proceedings in the name of the State. Had this been done, on the present authority of this Court[264], the challenge to the plaintiffs' standing would have disappeared.
[264]Victoria v The Commonwealth (1926) 38 CLR 399 at 406-407; AAP Case (1975) 134 CLR 338 at 365-366 per Barwick CJ, 383 per Gibbs J, 401-402 per Mason J; Attorney-General (Vict); Ex rel Black v The Commonwealth (1981) 146 CLR 559 at 588-589.
It cannot be the case that serious questions concerning the meaning and operation of federal law in the Australian Commonwealth, as read in the light of the federal Constitution, can only be brought before the Judicature for resolution by the Commonwealth, by a State or Territory, by an Attorney-General or by a party with a financial or similar interest in the issue presented. That view of the standing of individuals to challenge federal laws and Executive acts takes too traditional and mercantile a view of the requirements of standing to be appropriate to a federal polity. It involves the unthinking importation into the resolution of federal constitutional and legal questions in Australia of judicial authorities on standing, originally devised in England for purposes quite different from those involved in deciding matters arising under the Australian Constitution and federal law[265]. For at least the past fifty years, this Court has repeatedly said that the principle of the rule of law underlies Australia's constitutional text and its operation[266]. Whilst the Commonwealth, the States, the Territories and (by tradition or statute) the Attorneys-General have standing to bring proceedings before this and other courts, concerning enforcement of the Constitution and challenges to federal Executive action, they are not alone in enjoying such rights. To hold this would be to undermine the commitment of the Constitution, and the Judicature which it creates, to upholding the rule of law for all persons, where the law is seriously challenged.
[265]AAP Case (1975) 134 CLR 338 at 391, 424-425.
[266] Since the Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193.
Sometimes, there will be no government willing to mount such a challenge. However, the Constitution is more than a congenial arrangement between governments. Its ultimate foundation rests on the assent of the citizens as electors of the Commonwealth. To them is reserved[267] the power of final concurrence in formal constitutional amendments[268]. With this in mind, there is a need to re-express the requirements of standing in constitutional and related litigation[269]. What has been said in other cases and other circumstances may not be equally applicable to proceedings brought by plaintiffs such as the present[270].
[267]Under the Constitution, s 128.
[268]See eg Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 138 per Mason CJ; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 70 per Deane and Toohey JJ.
[269]It has been suggested that the relator procedure is not appropriate to the Australian judicial system because of the function that Attorneys-General play as Ministers in the Executive Government: see AAP Case (1975) 134 CLR 338 at 425 per Murphy J.
[270]The unreality of relying on an Attorney-General to provide standing suggests the need for re-expression of the rules of standing in public law: Lindell at 26. See also Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 260-267 [33]-[48], 284-285 [107]-[109]; Re McBain (2002) 209 CLR 372 at 449-450 [206].
Seeking the relief of an injunction, as expressly provided by s 75(v) of the Constitution, involves an invocation of federal, indeed constitutional, jurisdiction. It would be a mistake to graft onto a claim for such relief, especially before this Court, all of the learning that was devised in respect of the provision of equitable relief in private litigation. Necessarily, in matters of public law, potentially there is an additional interest. This is the interest of the public generally to ensure the compliance of officers of the Commonwealth with the law, specifically the law of the Constitution and federal enactments that bind such officers.
It would be a serious misdescription to suggest that the only interests of the plaintiffs in these proceedings were "intellectual" or "emotional". Nor could it be said that the only interests of the plaintiffs are those of being members of the public, electors of the Commonwealth or taxpayers (assuming that such interests are not themselves sufficient for standing in proceedings of the present kind)[271].
[271]cf Flast v Cohen 392 US 80 (1968). See AAP Case (1975) 134 CLR 338 at 389; see also at 381.
The parliamentarian's standing:Take the second plaintiff, Ms Roxon, first. She is a member of the Federal Parliament, in the House of Representatives. She is therefore a person with a status repeatedly recognised by the Constitution[272]. As a Member of Parliament, she has a particular interest in ensuring obedience by the Executive Government to the requirements prescribed by the Constitution and by federal law[273]. In my view, this gives her a special interest in the subject matter of the present proceedings[274]. She is seeking to enforce a public right. She is claiming, in effect, that on the Executive Government's case and its actual or prospective drawing of funds, the law of appropriations has not been observed or may not be observed in the future unless this Court grants relief. She seeks confirmation that such law will now be observed and that any drawing of funds will only be made "under appropriation made by law"[275]. On any basis, this is a serious question apt for judicial decision. It is not raised by an intervener or someone with a vexatious or purely hypothetical interest in the resolution of the issue.
[272]Constitution, ss 24, 26, 27, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39 and 41.
[273]cf Cormack v Cope (1974) 131 CLR 432 at 459.
[274]See Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 511, 530-531, 547-548; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 37; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 558; Bateman's Bay (1998) 194 CLR 247; APLA Ltd v Legal Services Commissioner (NSW) (2005) 219 ALR 403 at 436 [116] per Gummow J, 469 [274]-[275] of my own reasons.
[275]Constitution, s 83.
The second plaintiff therefore has a sufficient special interest to sustain the proceedings that she has brought. I can reach this conclusion without deciding wider questions about the entitlement of taxpayers or electors of the Commonwealth or others more generally to bring proceedings under s 75(v) of the Constitution in federal causes.
Similarly, it is unnecessary for me to consider the second plaintiff's alternative argument that she enjoyed the identical standing as Mr Brown in Brown v West as "Shadow Attorney-General", that is the Opposition representative on legal affairs. The defendants argued that in Brown v West it was not Mr Brown's status as a Parliamentarian or "Shadow Minister", as such, but his personal interest in the existence, or absence, of a supposed additional postal allowance, that afforded him standing in that case. The only reason Mr Brown enjoyed that purported entitlement was because he was a Member of Parliament. However that may be, the words of Gibbs J in the AAP Case remain as true today as when they were written: "[W]hatever may be the position in the United States, where there is a complete separation of the executive from the legislative power, I would, in Australia, think it somewhat visionary to suppose that the citizens of a State could confidently rely upon the Commonwealth to protect them against unconstitutional action for which the Commonwealth itself was responsible"[276]. The broader arguments of the second plaintiff may one day be upheld in a proceeding such as the present. For present purposes, in relation to the meaning and effect of a law on appropriations, it is sufficient to accept the second plaintiff's interest as a Member of the Parliament to whom the contested Appropriations Bill, the PBS and budget papers were presented for approval and enactment and who seeks to keep the Executive Government within the law. This was a special interest.
[276]AAP Case (1975) 134 CLR 338 at 383; cf Bateman's Bay (1998) 194 CLR 247 at 262 [37]; Abebe v The Commonwealth (1999) 197 CLR 510 at 528 [32]; Truth About Motorways (2000) 200 CLR 591 at 611-612 [45]-[50] per Gaudron J, 629 [100] and 637 [122] per Gummow J, 659-660 [176]-[180] of my own reasons.
Standing of the union official: This conclusion disposes of the defendants' objections to standing and justiciability of these proceedings. If one of the plaintiffs has standing those questions, as presented, evaporate. However, I am not convinced that the first plaintiff, Mr Combet, lacked standing of his own to initiate the proceedings. Assimilating him (as the defendants accepted) to the ACTU, his interest in challenging the advertising campaign, funded from the public purse, was clearly related to the role that the ACTU was playing in the political and industrial debate concerning the proposed amendments to federal workplace relations laws. This was the subject of the advertising, the payment for which was in question.
The first plaintiff's interest in the proceedings is not ephemeral, purely intellectual or emotional. The first plaintiff, and the organisation he represents, have a real and substantial interest to curtail a purported reliance on an appropriation of public money for the Executive Government's advertising campaign. He, and the ACTU, have a direct interest to attempt to prevent the drawing of such money from the Treasury without lawful approval of a parliamentary appropriation for that purpose. Such an interest, whilst raising public law considerations, probably involves in this case the kind of mercantile and economic "special interests" often given weight in decisions on standing in private litigation. In the unequal battle between advertising privately funded by the ACTU and its supporters and advertising funded by the Executive Government from the Consolidated Revenue Fund, the winner is not hard to predict. As with the second plaintiff, it is unnecessary to consider whether the first plaintiff's status as a taxpayer, or an elector, would alone be sufficient to sustain his standing in the proceedings.
McHugh J, relying on British Medical Association v The Commonwealth[277] and The Real Estate Institute of NSW v Blair[278], holds that the first plaintiff like the ACTU does not have standing. However, these cases were decided more than fifty years ago, before this Court elaborated its views on the requirements of standing in public interest litigation. The cited decisions have been overtaken by subsequent developments of legal doctrine[279]. Therefore, for the foregoing reasons and based on the current law (as stated in Onus and similar cases), it is likely that the ACTU, as represented by the first plaintiff, has standing in this matter.
[277](1949) 79 CLR 201 at 257.
[278](1946) 73 CLR 213 at 224, 226, 228.
[279]See Onus (1981) 149 CLR 27 at 37; Bateman's Bay (1998) 194 CLR 247. In Shop Distributive and Allied Employees Association (1995) 183 CLR 552 at 557-558, this Court held that the union had a special interest sufficient to ground standing. It assumed that the interest of the union was the same as that of its members. See also Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 at 133-134 per Gummow J.
Conclusion: a decision is required:It follows that the second plaintiff had the legal standing necessary to bring the proceedings. The first plaintiff may also have had such standing but it is not necessary for me to reach a final conclusion on that question. The second plaintiff's standing disposes of that issue. The defendants' contentions to the contrary, and the related suggestion that, in consequence, the issues presented by the plaintiffs were non-justiciable, fail.
The provision of relief and discretion
Relief in earlier appropriation cases:The defendants submitted that the plaintiffs had found it impossible, within the words of Jacobs J in the AAP Case, to "identify any expenditure which is impugned and to frame a prayer for relief in terms which will enjoin that expenditure and that only"[280].
[280](1975) 134 CLR 338 at 411.
In formulating the suggested relief which they asked this Court to provide, the plaintiffs were mindful of the difficulty of doing so mentioned not only in the AAP Case but also in the closing words of this Court's reasons in Brown v West[281]. There, the Court acknowledged that there were difficulties in the way of making the declarations that Mr Brown had sought. Nevertheless, by necessary inference from the orders that ensued, this Court did not treat the proceeding in Brown v West as doomed to fail on the ground that the provision of relief was futile and its formulation impossible. On the contrary, the Court allowed the demurrer to the amended defence which had claimed that the additional entitlements for postal allowances were supported by "the authority of the Executive and … the Supply Act (No 1) 1989-1990"[282]. Clearly, therefore, this Court contemplated that, in the trial of the action in that matter, freed from the demurrer, relief could be framed which would uphold the plaintiff's application for a judicial determination. As appears from the report, the only relief sought in Brown v West was a declaration that the Minister had no power to alter the existing postage allowance or to apply the public moneys of the Commonwealth in providing an increased allowance. The same relief was claimed against the Commonwealth[283]. The report in Brown v West does not indicate that the plaintiff had sought an injunction.
[281](1990) 169 CLR 195 at 212-213.
[282](1990) 169 CLR 195 at 200.
[283](1990) 169 CLR 195 at 200.
Reformulation of relief: In the course of argument in the present proceedings, the plaintiffs reformulated the relief that they sought. They claimed a declaration that:
"The drawing of money from the Treasury of the Commonwealth for the purpose of making payments to meet expenses incurred by the first defendant under contracts and arrangements for and in relation to the advertisements referred to in sub-paragraph 11(a) and 11(b) of the special case is not authorised by the appropriation made in respect of the departmental item for the Department of Employment and Workplace Relations in Appropriation Act (No 1) 2005-2006 (Cth)".
Alternatively, or additionally, the plaintiffs sought a declaration that:
"The drawing rights issued by a delegate of the third defendant on 23 August 2005 under s 27 of the Financial Management and Accountability Act 1997 (Cth) are of no effect in so far as they purport to authorise the debiting of an amount against the departmental item [so described] for the purpose of making payments of public money to meet expenses incurred by the first defendant under contracts and arrangements for and in relation to the advertisements referred to in sub-paragraphs 11(a) and 11(b) of the special case".
These declarations identify, with the particularity demanded by Jacobs J in the AAP Case, the appropriation to which they are successively addressed.
The making of a bare declaration would have defects, even in proceedings of this kind[284]. However, there is sufficient evidence concerning the incurring of past obligations for expenditure of substantial public funds on the advertising campaign to warrant the issue of an injunction under s 75(v) of the Constitution. Such an injunction should be addressed to the third defendant restraining him, by himself or his delegates, from:
"Issuing any further drawing right under section 27 of the Financial Management and Accountability Act 1997 (Cth) purporting to authorise the payment of public money for the purpose of any advertisement promoting proposed amendments to the workplace relations laws of the Commonwealth in the form, or to the effect, of the advertisements referred to in sub-paragraphs 11(a) and 11(b) of the special case, on the authority of the departmental item for the Department of Employment and Workplace Relations in Appropriation Act (No 1) 2005-2006 (Cth)".
[284]But see Ainsworth v Criminal Justice Commission (1990) 175 CLR 564 at 581-582, 595-597.
So formulated, the declarations and injunction would give effect to the determination of serious issues of principle, drawing upon constitutional provisions that have been litigated in these proceedings. Where such questions are disclosed and resolved in favour of a party that has standing to bring them, it is essential that this Court, maintaining its constitutional function and upholding the public law of the Commonwealth, should fashion remedies appropriate to meet the case.
I agree with the remark of Gibbs J in the AAP Case, that earlier statements on the issue of standing "sometimes made under the influence of principles of private law" are "not entirely applicable to constitutional cases"[285]. The same comment must be made in respect of the fashioning of remedies. Where parties with a requisite interest demonstrate defects in compliance with federal statute law, as that law is understood in the light of the Constitution, it behoves this Court to say so and to afford relief that gives practical effect to the Court's conclusions[286]. To treat great disputes involving the meaning of the Constitution and the public law of the Commonwealth in the same way as inter partes private litigation involves a most serious error. It amounts to an abdication of this Court's central constitutional function. The writs referred to in the Constitution are not equitable remedies. Nor are they prerogative privileges. They are constitutional writs to uphold the public law of this nation. I will not be guilty of the error of narrowness or of so inadequate a conception of this Court's remedial purpose and powers.
[285](1975) 134 CLR 338 at 383.
[286]cf Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 367-371 [80]-[89]; cf at 356-360 [48]-[58].
Discretion and relief:Having reached the foregoing conclusions, it is enough to say that there are no discretionary reasons for refusing the identified relief to the plaintiffs. There is every reason for affording such relief. It resolves authoritatively the arguments which the parties and intervener have addressed to the Court in the matter. Its provision upholds the applicable Appropriation Act according to its terms. It conforms to the great design of the Constitution. It respects long-standing constitutional history. It defends the role of the Parliament, and specifically the Senate. It reinforces transparency, honesty and accountability in the expenditure of the money of the Commonwealth, raised from the people. It is conducive to good governance, which is a distinctive policy objective of the Commonwealth and its laws that we proclaim to other countries[287]. If such public advertising campaigns, as disclosed in these proceedings, are to be permitted in the future, they must, in my view, be expressly approved in an appropriation particularly authorised for that purpose by the representatives in the Parliament who will thereby be rendered accountable to the electors from whom, principally, the taxes are raised, just as the Constitution envisages.
[287]cf Ruhani v Director of Police (2005) 219 ALR 199 at 246 [202] fn 190.
Orders
Although the Court majority has rejected the plaintiffs' proceedings in terms of the orders announced on 29 September 2005, it follows from these reasons that I disagree. In my opinion, the questions raised in the special case for the opinion of the Full Court should have been answered as proposed by McHugh J.