Combet v Commonwealth [2005] HCA 61; 224 CLR 494; 80 ALJR 247; 221 ALR 621

High Court of Australia|2005-10-21|Before: Heydon JJ

For the reasons given earlier, the determinative question in the present matter is not, as the plaintiffs submitted, what is encompassed by "Higher productivity, higher pay workplaces" (Outcome 2). Rather, the Appropriation Act (No 1) 2005-2006 required that money issued out of the Consolidated Revenue Fund for a departmental item be applied only for the departmental expenditure of the entity.

Making an appropriation for a departmental item that may be applied only for an entity's departmental expenditure (not otherwise specified or identified) does not represent any radical departure from previous federal parliamentary practice. As the Portfolio Budget Statements for the Department said in its "User Guide", under present budget and accounting arrangements, "departmental items" are:

"Revenues, expenses, assets and liabilities that are managed by an agency or authority on behalf of the Government according to set government directions. Administered expenses include subsidies, grants and personal benefit payments and administered revenues include taxes, fees, fines and excises." (emphasis added)

As counsel for the defendants rightly submitted, it is important to recognise that the immediate predecessor to the present system of appropriations was the making of a single lump sum appropriation for "running costs" of a department. And there is a very long history of the federal Parliament making appropriations that are not more closely identified than as being for the purpose of departmental expenditure. Indeed, the very first Act passed by the federal Parliament (an Act to grant and apply out of the Consolidated Revenue Fund a specified sum to the service of the period ending on 30 June 1901) contained items such as "For the Maintenance of the Department of the Minister of Defence" which, although divided into sums of expenditure in each State, were not further allocated between purposes or activities. Further, as noted earlier, immediately before the adoption of the running costs system, the appropriation for the maintenance of departments contained a large sum not specified further than as "Administrative Expenses".

It is for the Parliament to identify the degree of specificity with which the purpose of an appropriation is identified[85]. It may readily be accepted that the constitutional provisions examined earlier in these reasons are to be understood as providing for what, in 1903, was said in relation to the House of Commons[86] to be "a comprehensive and continuous guardianship over the whole finance" of the Commonwealth. But the manner of exercising that guardianship, within the relevant constitutional limits, is to be determined by the Parliament. In that regard it is essential to recall, as Mason J pointed out in Victoria v The Commonwealth and Hayden[87], that:

"It has been the practice, born of practical necessity, in this country and in the United Kingdom, to give but a short description of the particular items dealt with in an Appropriation Act. No other course is feasible because in many respects the items of expenditure have not been thought through and elaborated in detail."

What is apparent from consideration of past practice is that at least since the mid-1980s the chief means of limiting expenditures made by departments of State that has been adopted in annual appropriation Acts has been to specify the amount that may be spent rather than further define the purposes or activities for which it may be spent. There is, therefore, nothing in the relevant constitutional framework or in past parliamentary practices which suggests some construction of the Appropriation Act (No 1) 2005-2006 different from the construction required by its text.

In view of the complexity of the arguments advanced in this case, it is convenient at this point to summarise the reasoning set out above.

The question posed by the plaintiffs is whether expenditure on advertising the Government's reform package falls within the figure of $140,131,000 appearing in that part of Sched 1 to the Appropriation Act (No 1) 2005-2006 which relates to the Department of Employment and Workplace Relations. That figure is in the "Departmental Outputs" column against Outcome 2 - "Higher productivity, higher pay workplaces". The answer is in the affirmative for the following reasons.

1. That figure is an integer in the total amount of $1,447,552,000 set out in Sched 1 in relation to the Department under the heading "Departmental Outputs"[88].

2. Therefore that total amount of $1,447,552,000 is a "departmental item". It is not an "administered item", because it is not set out opposite an outcome under the heading "Administered Expenses"[89].

3. Section 7(2) restricts the application of that departmental item of $1,447,552,000: it may only be applied "for the departmental expenditure" of the Department. But the Act imposes no narrower restriction on the scope of the expenditure[90].

4. In this respect s 7(2) is in contrast with the restriction imposed by s 8(2) on an administered item: an administered item may only be applied "for expenditure for the purpose of carrying out activities for the purpose of contributing to achieving" the outcome to which the amount is attributed[91].

5. Therefore it does not matter whether any part of the $140,131,000 (or the $1,447,552,000) is spent otherwise than on activities leading to higher productivity or higher pay workplaces (or activities forming part of either of the other two outcomes), so long as it is "departmental expenditure"[92].

6. That conclusion is supported by the terms of the note to the definition of "departmental item"[93].

7. The plaintiffs did not contend that expenditure of either $140,131,000 or $1,447,552,000 on advertising the reform package was not "departmental expenditure"[94].

8. The affirmative conclusion stated above is not affected by s 4(2)[95] or by issues relating to the audit of expenditure[96].

Because the present matter can be decided by dealing with the proper construction of the relevant statutory provisions, it is not necessary to consider whether the plaintiffs have standing to make the claims they do. Nor, given the conclusion that is reached about the construction of the Act, is it necessary to decide what forms of relief could be granted if the plaintiffs' central contention had been made good.

On that latter question of relief it is enough to make two points. First, the claim for injunction to restrain the future issuing of drawing rights encounters the very considerable difficulty identified by Jacobs J in Victoria v The Commonwealth and Hayden[97] of "carefully and precisely and exhaustively" defining the expenditures, and thus the drawing rights, in respect of which relief was granted. As Jacobs J said[98], that may be a "practical impossibility". Secondly, in so far as the plaintiffs would seek declarations that past expenditures, or drawing rights relating to past expenditures, were not authorised by a valid appropriation, there are evident difficulties in making a declaration in a proceeding brought under s 75(v) of the Constitution without granting relief under s 75(v). Moreover, there would also appear to be considerable difficulties in making a declaration which, in its effect, would declare that one or more of the defendants had committed an offence under s 26 of the Financial Management Act by requesting that an amount be debited against an appropriation without a valid drawing right. It is, however, not necessary to decide these questions about relief. The plaintiffs have established no basis for the grant of any of the relief claimed in their amended pleading or foreshadowed in oral argument.

For these reasons we joined in the orders, made on 29 September 2005, that the questions in the Special Case be answered in the manner indicated at the start of these reasons, namely:

(3) 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.

KIRBY J. These proceedings are brought pursuant to s 75(v) of the Constitution. That is the distinctive provision that assures "to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them"[99]. It ensures that the constitutional assumption of the rule of law[100] is rendered a reality in matters of federal concern.

The threshold issue in the proceedings is one of statutory construction. It is whether any item in the Appropriation Act (No 1) 2005-2006 (Cth) ("the Appropriation Act") authorised the withdrawal of money from the Treasury of the Commonwealth to pay for certain advertisements promoting proposed future changes to federal laws governing industrial relations. Such changes have not been introduced to, considered, still less enacted by, the Federal Parliament[101]. The plaintiffs assert (and the defendants deny) that the withdrawal, or proposed withdrawal, of such money is unlawful, as unsustained by the Appropriation Act or by any other law and is therefore forbidden by the Constitution [102]. Self-evidently, in assessing this assertion, this Court is not, as such, concerned with the wisdom or merits of the expenditure. It is concerned solely with its legality[103].

The issue of statutory construction presented cannot be resolved by reference only to the terms of the Appropriation Act. Regard must be had to the provisions of the Constitution, against the background of which the Appropriation Act is expressed[104], as well as centuries of constitutional history, including in Australia, concerning appropriation and the practice of parliaments, specifically the Federal Parliament, in giving effect to this law and history.

The proceedings also raise questions about the justiciability of the foregoing issues; the standing of the plaintiffs to obtain relief; the susceptibility of the plaintiffs' complaints to the provision of effective relief; whether any such relief should be refused on discretionary grounds; and who should pay the costs.

In Onus v Alcoa of Australia Ltd[105], Gibbs J cautioned against the determination of an issue of standing disjoined from a thorough appreciation of the issues of substance proffered for determination. The same caution applies to decisions on any question of justiciability which, in these proceedings (if it arises at all) is closely related to the issue of standing[106]. Similarly, the amenability of the issues to the formulation of relief and questions as to the provision of such relief can only be decided when the controversy is understood. For these reasons, although logically questions of justiciability and standing arise at the threshold, the arguments of all parties postponed the resolution of those questions until the matters of substance were considered and a view reached as to their disposition. This was a sensible course. It is one that I will follow in these reasons.

The plaintiffs have made good their challenge to the lawfulness of the withdrawal of money from the Treasury for the advertisements that they impugn. When the Appropriation Act and the items advanced to justify authorisation by the suggested appropriations are read, understood against the background of the Constitution, constitutional history and parliamentary practice, the propounded appropriations do not support the drawing of such money from the Treasury. The plaintiffs' complaints are justiciable. The second plaintiff, and probably the first, have standing. Appropriate relief can be framed. No discretionary barrier stands in the way of the issue of a constitutional injunction under s 75(v). The plaintiffs are entitled to relief together with their costs.

On 29 September 2005, a majority of this Court reached conclusions different to mine. Orders were made rejecting the plaintiffs' proceedings and ordering them to pay costs. I now state my reasons for coming to the opposite conclusion.

The parties to the proceedings: Many of the facts necessary to my reasons are set out by others[107]. The primary facts, and the sequence of events, were not in dispute. However, each side to the contest sought to provide a large number of factual items of limited relevance (or of no relevance at all) to the legal issues. It is necessary to sort out the few precious grains of litigious wheat from a great deal of chaff.

The first plaintiff (Mr Greg Combet) is Secretary of the Australian Council of Trade Unions ("ACTU"). This is the peak representative body for trade unions in Australia, many of them organisations of employees registered under federal law[108]. The defendants did not seek to draw any differentiation between Mr Combet and the ACTU, the objectives of which include the organisation and representation of the Australian workforce through industrial unions. The second plaintiff (Ms Nicola Roxon MP) is a member of the House of Representatives and of the Australian Labor Party ("ALP"). She is described in the special case as the Opposition spokesperson on legal issues or "Shadow Attorney-General".

The defendants are the Commonwealth, the Hon Kevin Andrews MP, a Minister of State with responsibilities for administering the Department of Employment and Workplace Relations ("the Department") and Senator the Hon Nicholas Minchin, also a Minister, with responsibilities for administering the Appropriation Acts and the Financial Management and Accountability Act 1997 (Cth) ("the FMA Act").

The advertising campaign: On 26 May 2005, the Prime Minister (the Hon John Howard MP) announced to the House of Representatives the intention of the Government to propose amendments to federal legislation on industrial relations. Amongst the legislative changes foreshadowed were alterations to the role of the Australian Industrial Relations Commission; changes to the law respecting the setting of minimum wages and conditions; amendment of unfair dismissal laws; and pursuit of "the goal of a national industrial relations system" in substitution for the mixture of federal and State regulation now applicable in most parts of Australia[109]. No discussion paper was issued. Nor was any call made for submissions, before or after the foregoing announcement. At the time of the announcement, and to the date on which these proceedings were decided[110], no Bill had been introduced into the Parliament to give effect to the "reform package" described by the Prime Minister.

In response to the Prime Minister's announcement, the ACTU initiated a national campaign of opposition to the foreshadowed legislation. This included a "National Week of Action" between 27 June 2005 and 1 July 2005; the holding of large rallies involving some employees who had absented themselves from work in order to attend the meetings; and the initiation of advertisements in the print and electronic media: the latter on television, radio and the internet. By inference, such advertising was funded by the ACTU or by private organisations and persons sympathetic to its causes. The ALP, in and out of the Parliament, supported the ACTU in opposition to the announced intended legislation. Ms Roxon took her part in this campaign. By inference, the political opposition was likewise privately funded.

In response, there were many public speeches and statements in defence of the proposals by the Minister, Mr Andrews. Exchanges of that type are the very kind of "free expression" of a political or governmental character implicit in the representative democracy of the Commonwealth established by the Constitution [111]. But it was at this point that events occurred which the plaintiffs depict as a shift from "free expression" to "publicly funded expression", in support of the Government's proposed laws; but without an appropriation for that purpose granted by the Parliament.

From 9 July 2005, advertisements began to appear throughout Australia, in a form exhibited by the plaintiffs in these proceedings, both in the print media and, after 23 July 2005, in radio broadcasts. Such advertisements were not funded by employers' industrial organisations equivalent to the ACTU, nor by private businesses, nor by the political parties whose members (including the named Ministers) have formed the Government of the Commonwealth, nor by individuals supporting the Government and its policies. Instead, the advertisements make it plain that they were (as the newspaper versions declared) "authorised by the Australian Government, Capital Hill, Canberra, ACT"[112].

The advertisements appear under the coat of arms of the Commonwealth and insignia of the "Australian Government". They refer to "our plan"; to the commitment that "we" give; and to what "we won't do". They repeat many of the points made in the Prime Minister's statement to the Parliament. The advertisements are not simply informative or descriptive. They are argumentative. Like those published by the ACTU, they are expressed in rhetorical language. The only difference is the source of the funding. The question in these proceedings is whether, in such circumstances, in advance of the passage (or even the introduction) of the "package" of promised legislation, the Federal Parliament had appropriated funds for such a use by the terms in which it enacted the Appropriation Act or any other law. By the special case, the Commonwealth was said to be considering the broadcast of advertisements on commercial television. By inference, these would be in a similar form and to a like effect, but more expensive.

Unless restrained by order of this Court, the Commonwealth proposes to pay for the Government's advertisements using public money drawn from the Treasury. Already, a delegate of Senator Minchin, in his capacity as Minister administering the FMA Act, has issued drawing rights under s 27 of that Act authorising one or more persons in the Department to make payments of public money in respect of the impugned advertisements. Unless restrained, delegates of that Minister could issue still further drawing rights to make payments of public money for further advertisements, ostensibly under the authority of the appropriations made for the departmental item for the Department in the Appropriation Act. The defendants propose that officers of the Department will draw money from the Treasury, in accordance with such drawing rights, to pay for the advertisements.

Relying on information contained in a letter from the defendants' solicitors, the plaintiffs contend that the initial cost of the Government's advertising campaign, together with some related expenditure, up to 24 July 2005, was at least $3.84 million. The plaintiffs invited the Court to infer that the total cost of the Government's "campaign" would be well in excess of this amount, given that the advertising is intended to be ongoing; that the cost of most radio advertising had not by 24 July 2005 fallen in; and that television advertising was under consideration. The precise cost, and likely future cost, of the Government's campaign is not ascertainable. But obviously it is most substantial[113].

A common question: The issues for determination are to be decided on the facts of the present case. However, the circumstances of the case are by no means unique. In recent years, at every level of government in Australia and in governments formed by members of all major political parties, publicly funded advertising campaigns on contentious and politically charged issues have become more common, whereas they were rare or non-existent in the past. This is not a reference to advertising to seek public input into the design of governmental policy, an indication of interest to join government bodies or an expression of views on the shape of legislation under contemplation. Nor is it a reference to advertising that informs its recipients of new legislative or other entitlements and responsibilities enacted by the Parliament or advertising in neutral terms on matters of general social concern (such as messages on road and boat safety, water conservation or the importance of voting or of jury duty). What is new is the expenditure on advertising on subjects "of major political debate and division in the community"[114], whereby public funds have been used to pay for the advertisements. The ultimate question is whether this can be done without the approval of the Parliament to an appropriation, granted with the necessary clarity for that purpose.

Expenditures for contested governmental advertising campaigns have emerged in recent years in other countries, presenting legal issues in some ways similar to those arising in this case. In Johanns v Livestock Marketing Association[115], the Supreme Court of the United States was divided on the lawfulness of a levy imposed for a promotional campaign concerning beef products. The case was the third in eight years that addressed whether a federal programme financing generic advertising violated the First Amendment to the United States Constitution. The specific issue before the Supreme Court was therefore different from the issues arising in this case.

However, in Johanns, Souter J recalled that one of the reasons behind the prohibition on the establishment of a State religion, adopted in the United States Constitution and copied in Australia, was Thomas Jefferson's 1779 observation that "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical"[116]. His Honour explained that this thinking had illuminated earlier decisions of the United States Supreme Court, to the effect that the free expression of political opinions "are at serious risk if the government can compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that it favors"[117].

Johanns was thus concerned with "targeted taxes". But are analogous reasons for strict scrutiny of legislation, said to authorise expenditures for the "propagation of opinions" that many in the community disbelieve, susceptible to equal vigilance by the Federal Parliament in this country and by this Court? If such expenditures are to be lawful, do the language and scheme of the Constitution and the expression of the appropriation statute require the authority to be expressed with clarity? Is this necessary, so that the provisions and assumptions of the Constitution are fulfilled; the legislative process is rendered transparent; and those in Government proposing, and in the Parliament supporting, such expenditures are made accountable to the electors of the Commonwealth, whose money they appropriate and expend for such purposes?

The resulting issue: The plaintiffs in these proceedings did not assert that the Federal Parliament could never appropriate, nor the Commonwealth spend, money on advertising campaigns. Nor did they assert that such expenditure would never be a "purpose of the Commonwealth", within s 81 of the Constitution. Instead, they argued that the Parliament had not, by the nominated items in the Appropriation Act, appropriated money for the advertising campaign, illustrated in the advertisements and transcripts evidenced in the case. It is in this way that the threshold issue for resolution became one of statutory construction[118]. However, it is a question of construction to be resolved against the background of the provisions of the Constitution and the conventions and assumptions to which those provisions give effect, read, in turn, with due regard to centuries of constitutional history, practice and principle.

Analysis of the issues in this case must therefore commence with the Appropriation Act and the legislative materials that supplement and explain its provisions. It must then address the provisions of the Constitution and considerations of constitutional history with which, in the absence of a clear indication to the contrary, the Appropriation Act and its provisions are to be taken to have conformed.

The contents of the Appropriation Act: In the world of statutes an Appropriation Act is a rare bird[119]. However, it is an Act of the Federal Parliament. Indeed, it is expressly envisaged as one of the laws which the Parliament must make[120]. It must therefore observe the constitutional requirements for the enactment of a law. When made, it is subject to examination by this Court, according to its terms, in a proceeding brought by a party with a requisite interest[121].

The Bill that became the Appropriation Act was introduced into the House of Representatives as Appropriation Bill (No 1) 2005-2006 (Cth). It was introduced, together with Appropriation Bill (No 2) 2005-2006 (Cth), on 10 May 2005. This was the occasion of the presentation to the Parliament of the Government's Budget. Accompanying the Bills were a number of budget papers. Under the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act"), such papers are available to this Court as material "not forming part of the Act [which] is capable of assisting in the ascertainment of the meaning of the provision"[122]. Specifically, the Court may have regard to such material for this purpose "to confirm that the meaning of the provision is the ordinary meaning conveyed by the text ... taking into account its context in the Act and the purpose or object underlying the Act"[123] and as a "relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted"[124].

The parliamentary practice of introducing at least two Appropriation Bills, leading to the enactment, if approved, of an Appropriation Act (No 1), and Appropriation Act (No 2), is the result, in Australia, of constitutional provisions that limit the powers of the Senate, relevantly, to amend "laws appropriating revenue or moneys for the ordinary annual services of the Government"[125]. Some of the history and practice of the Commonwealth and of the Federal Parliament in this regard is described in Brown v West[126].

As stated in the long title to the Appropriation Bill, in question in these proceedings, it 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 operative provisions of the Bill for the Appropriation Act were found in cl 15[127]. That clause provided that: "The Consolidated Revenue Fund is appropriated as necessary for the purposes of this Act". Schedule 1 to the Bill provided for "Services for which money is appropriated". The Schedule was divided into the several designated portfolio items of the Executive Government of the Commonwealth. That which is said to be relevant to the appropriation in issue in these proceedings is the entry for the "Employment and Workplace Relations Portfolio".

In accordance with a new federal budgetary practice the appropriations in the Schedule are expressed, relevantly, in terms of specified "Outcomes". The appropriations are then further subdivided into "Departmental Outputs" and "Administered Expenses". The relevant items of the Schedule are set out in the reasons of Gleeson CJ[128] and elsewhere[129]. I incorporate the Schedule by reference.

The substantive provisions of the Bill contained explanations of the differentiation between "departmental items" and "administered items"[130]. The differences are further explained in the Portfolio Budget Statements 2005-06: Employment and Workplace Relations Portfolio (the "PBS")[131]. The PBS is a budget related paper, issued with the relevant Appropriation Bill on its introduction into the Parliament. By cl 4 of that Bill such "Portfolio Budget Statements are hereby declared to be relevant documents for the purposes of section 15AB of the [Interpretation Act]"[132]. By virtue of this declaration, any doubt as to the use that might be made of the PBS in interpreting the Appropriation Act, pursuant to the universal provisions of the Interpretation Act, is laid at rest. The PBS is declared to be available. By reference to the PBS, it is made plain that "departmental outputs" relate to expenses controlled by the agency. On the other hand, "administered items" cover other expenses such as "subsidies, grants and personal benefit payments"[133].

By the defendants' amended defence in these proceedings, it is asserted that the impugned advertising campaign is to be paid for in reliance upon the departmental item for the Department. Specifically, the defendants relied on "Outcome 2". This refers to the outcome of "Higher productivity, higher pay workplaces". The defendants submitted that the impugned advertising campaign is inherent in, or incidental to, the outcome so described for which, by enacting the Appropriation Bill No 1, the Parliament has appropriated the necessary money, authorising such money to be drawn from the Treasury as the Constitution envisages, so as to pay for the advertisements published in support of the campaign[134].

The Appropriation Bill contained a number of clauses suggesting a measure of precision in the appropriations that it proposed to the Parliament. Thus, cl 4(2)[135] provided:

"If the [PBS] 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."

This provision demonstrates clearly enough the central importance of the PBS in elaborating, with the detail necessary to the activities of modern government, the general expressions of outcomes stated in the proposed law itself.

Likewise, the command of cl 7 of the Appropriation Bill was imperative[136]:

"(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. > > ...".

The instruction of specificity was carried forward in cl 8 of the Bill, notably cl 8(2)[137]:

"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."

Within the "departmental items" some measure of flexibility, also appropriate to the needs of modern government, was indicated in the definition of that expression in cl 3 of the Bill[138]. The phrase "departmental item" is there defined to mean "the total amount set out in Schedule 1 in relation to an entity under the heading 'Departmental Outputs'". A note is added which, although not part of the Bill, was designed to assist in understanding its purpose. The note reads:

"The amounts set out opposite outcomes, under the heading 'Departmental Outputs', are 'notional'. They are not part of the item, and do not in any way restrict the scope of the expenditure authorised by the item."

This indicates an apparent purpose to permit the transfer of sums for "departmental outputs" as between the several identified outcomes. However, contrary to the approach taken by Gummow, Hayne, Callinan and Heydon JJ ("the joint reasons")[139], it does not expand the nominated outcomes nor indicate approval for disregarding such outcomes in a way that would render parliamentary authority for the appropriation nugatory or meaningless.

The contents of the PBS: The general purpose of the PBS, relevant to the items concerning the Department, is stated in a covering letter, contained within it, addressed by the Minister, the second defendant, to the President of the Senate and the Speaker of the House of Representatives. The letter states:

"I present these statements by virtue of my Ministerial responsibility for accountability to the Parliament and, through it, the public."

The opening page of the PBS also contains a "User Guide", identifying the "Purpose of the Portfolio Budget Statements"[140]. The following appears in that guide:

"The purpose of the [PBS] is to inform Senators and Members of Parliament of the proposed allocation of resources to government outcomes by agencies within the portfolio. ... > > A key role of the [PBS] is to facilitate the understanding of proposed annual appropriations in Appropriation Bills No 1 and No 2 ... > > The [PBS] provide sufficient information, explanation and justification to enable Parliament to understand the purpose of each outcome proposed in the Bills."

In describing the "agency outcomes" the PBS states that "[t]his section 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"[141].

In supporting their arguments the defendants pointed with the greatest conviction to "Outcome 2". The parts of the PBS relevant to this outcome are extracted by McHugh J[142]. However, there is no item in Outcome 2, or the key priorities for 2005-2006, that identifies, directly or indirectly, the implementation of a major and costly advertising campaign designed to persuade its recipients of the merits of proposed future legislation. Neither by express language nor in general terms does such expenditure get the slightest mention. This may be unsurprising because, at the time the Appropriation Bill No 1 was presented to the Parliament, the details of such anticipated legislation were unknown, still less enacted. The advertising campaign had not yet commenced.

In a table (Table 3.1.2) showing the total resources for Outcome 2, expressed in thousands of dollars, two items are nominated which might have a remote connection with the advertising campaign. These are Output 2.1.1 "Workplace relations policy advice" ($19,085) and Output 2.1.2 "Workplace relations legislation development" ($5,851). The plaintiffs accepted that these appropriations were capable of extending to the development by the Department of the Government's anticipated "package" of legislation. But could these items amount to appropriations for the expensive advertising campaign? Neither by express language nor by any relevant general words, was such a "campaign" specified.

In Australia, to this time, the provision of policy advice and the development of legislation by a Department of State has not normally involved an advertising campaign directed at the public in advance of the enactment, or even the introduction, of such legislation. Occasionally, the public might be invited to make submissions on identified questions of public policy or on the contents of proposed legislation. No such invitations appeared in the advertisements complained of by the plaintiffs. The provision of policy and the development of legislation are governmental activities different in kind from publicly funded advertising campaigns for the purpose of public persuasion and to respond to a privately funded campaign by political opponents.

A contextual consideration, appearing in the PBS, lends support to this conclusion suggested by the language of the Appropriation Act read with the PBS. One of the Department's priorities for "Outcome 2" is identified as the promotion of nominated initiatives addressed to an ageing workforce[143]. Similarly, under the PBS item for "Outcome 1", express provision is made for a "communication strategy" in relation to a "Welfare to Work" programme[144]. An allocation for that strategy was itemised in the PBS[145]. It was spelt out in more detail in Budget Paper No 2[146]. That Budget Paper is explicit[147]:

"The Government will provide $29.0 million over four years to implement a communication strategy focusing on increasing workforce participation. The strategy will target the community as a whole and various groups, including people with disabilities, parents, mature age people and the long-term unemployed."

Similar examples of express identification of "communication strategies" may be found in the budget papers in relation to the proposed activities of other portfolios of the Government. One may search the budget papers high and low, in all of their detail, and not find any reference, with direct or indirect particularity, in relation to the advertising campaign or "communication strategy" impugned in these proceedings.

Many items referring to appropriations concerning much smaller amounts, with lesser significance and controversy, are spelt out with due detail so as to fulfil the asserted purpose of the PBS as declared by the Minister and explained in the "User Guide". But nothing is expressed that would have given the slighest clue to the Senators and Members of Parliament considering the Appropriation Bill No 1, read with the assistance of the budget papers including the PBS, that they were approving an appropriation for the purpose of a large-scale public advertising campaign in advance of the introduction of the legislation to which it related.

Two contextual considerations: Because these reasons may be read years from now when current circumstances are forgotten, it is appropriate to note two further contextual considerations that are relevant.

First, there has been a considerable growth in the past fifteen years of governmental expenditures on public advertising. In so far as such expenditures, by governments of differing political persuasions, have concerned contentious subjects of major political debate and differences in the community, they have been controversial. Their legality and propriety have been questioned[148].

Secondly, at the time that the Appropriation Bill No 1 was introduced into the Parliament and considered by the Senate, and at the time that the Bill passed all stages in the Parliament, so as to become the Appropriation Act (No 1) 2005-2006 (Cth) on 29 June 2005, the political parties whose members had formed, in coalition, the Executive Government of the Commonwealth, did not, in their own right, enjoy a majority of votes in the Senate. Any powers which the Senate may have had to request amendments to the Bill for that Act, for the deletion of an item considered outside the proper subject matter of Appropriation Act No 1, were not enlivened by the silence of the Bill on an item of large-scale public advertising, potentially of much industrial significance and political sensitivity.

Since the first Federal Parliament in 1901, the Senate has repeatedly returned Bills, including Bills relating to appropriations, requesting the House of Representatives to amend them or to delete or alter items to which the Senate has objected[149]. The first occasion on which this was done was on 14 June 1901 when the Consolidated Revenue (Supply) Bill 1901-1902 (No 1) (Cth) was returned by the Senate to the House of Representatives with the request that the House amend the Bill to show the items of expenditure comprised in the sums which the Bill purported to grant. In consequence of the Senate's request, the original Bill was not returned to the Senate by the House. A new and different Bill was forwarded. As requested by the Senate it showed the specified items[150]. The sufficient identification of proposed expenditures (especially those likely to be politically sensitive and controversial) is not relevant only to the achievement of parliamentary and public scrutiny, as stated in the PBS. It is also relevant to enlivening the residual powers of the Senate, under the Constitution, in respect of Appropriation Bills other than those identified which the Senate may not amend[151].

The operation of the FMA Act: It is uncontested that the third defendant has issued drawing rights (and may issue further such rights) under s 27 of the FMA Act, authorising officers of the Department to make payments of public money, purportedly under the authority of the appropriation made for the nominated departmental item in the Appropriation Act. Exhibited in the proceedings was an instrument signed by the Secretary of the Department, addressed to designated persons performing specified duties, affording them drawing rights "that authorise the payment of public money for the purpose specified in column 2 of Schedule 1" of the instrument. That purpose, as stated in that column, was "to meet expenses incurred by the Commonwealth under contracts and arrangements for or in relation to advertising regarding workplace relations reform".

The instrument specifies the "particular appropriation", upon which it relies, as being "that provided by Appropriation Act (No 1) 2005-2006 in respect of the departmental item for the Department of Employment and Workplace Relations".

The purpose of the regime set in place by s 27 of the FMA Act, in respect of the payment of money out of the Consolidated Revenue Fund, is to ensure compliance with the Constitution, with the law and practice governing appropriations and with the provisions made by, and under, the FMA Act [152]. The object is to prevent and counteract misappropriation by unauthorised, fraudulent and other means. The FMA Act provides for a number of offences that may be committed by persons who fail to act in this regard in accordance with law[153]. Such criminal sanctions are, however, and are expected to be, rarely invoked. Other sanctions include parliamentary scrutiny, both in the Houses of Parliament and in committees and examination of the accounts, normally after the expenditure, by the Auditor-General[154]. Obviously, the availability of these and other assurances for compliance with the law of expenditures of the Commonwealth[155], does not oust the jurisdiction and powers of this Court where compliance with a nominated appropriation is called into question[156].

Additional Appropriation Acts: Where an amount, provided in Appropriation Acts is insufficient to meet commitments falling due in a financial year, additional or supplementary appropriations may be sought from the Parliament in further Appropriation Bills[157]. This is regularly done in the practice of the Federal Parliament. Additionally, further Appropriation Bills may be proposed so as to reallocate funds previously appropriated for other purposes[158].

Furthermore, occasional additional Appropriation Bills are introduced for special purposes. This was done, for example, to appropriate funds to meet urgent requirements arising as a consequence of Australian involvement in the Gulf War in 1990; for special funds for book industry assistance; a welfare programme and for expenditure on environmental matters in 1999; for expenditure related to peace-keeping in East Timor[159]; and for the Tsunami disaster in the Indian Ocean States in 2004[160]. Such Bills are preceded by the announcement of a Governor-General's message recommending appropriation[161]. According to the practice of the House of Representatives, such Bills may be introduced without notice[162].

The facility for Supplementary Bills to provide for appropriations, that were not made at Budget time in Appropriation Acts (No 1) and (No 2), indicates that the Executive Government, faced with new or unexpected obligations not provided for in appropriations already approved by the Parliament, is not without remedy. Both on large and not so large items, it may seek supplementary appropriations. The impediments are those of politics and convenience, not of law.

Constitutional provisions: A number of provisions of the Constitution [163] must be noticed to derive the meaning to be assigned to the Appropriation Act, read with the relevant budget papers, including the PBS in relation to the Department.

By s 53 of the Constitution it is provided:

"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 not amend any proposed law so as to increase any proposed charge or burden on the people. > > 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."

By s 54 of the Constitution, provision is made for the contents of Appropriation Bills:

"The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation."

By s 56, the Constitution provides, relevantly, that a proposed law for the appropriation of revenue or moneys "shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor-General to the House in which the proposal originated". In respect of Appropriation Bill (No 1) 2005-2006 (Cth), by Message No 59 of 6 May 2005, the Administrator of the Commonwealth, Mr John Landy, deputising for the Governor-General, recommended to the House of Representatives, in accordance with s 56 of the Constitution, "that an appropriation be made for the purposes of 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". This was the Bill that, when enacted, became the Appropriation Act in question in these proceedings.

Three further constitutional provisions need to be noticed. By s 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". Once again, reference is made to "purposes", suggesting a constitutional requirement for sufficient identification, in appropriations, of the "purposes" concerned, so as to conform with the presupposition of s 81. The meaning of this provision was the subject of differences of opinion in Victoria v The Commonwealth and Hayden ("the AAP Case")[164]. In the present proceedings, the plaintiffs made no complaint that any expenditure would exceed the "purposes of the Commonwealth". However, they insisted on the need to identify such "purposes" in appropriations with sufficient clarity to ensure conformity with s 81.

Critical to the plaintiffs' case was s 83 of the Constitution. That section provides:

"No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law."

The reference to "by law" makes it plain that, in Australia, an Appropriation Act must be passed by both Houses of the Parliament so as to become "law"[165]. The Executive has no inherent power to appropriate money in the Treasury nor to draw money from the Treasury except under an appropriation granted by the Parliament. In this way, the ultimate control of public money resides in the Parliament, although the initiative for proposed appropriations belongs to the Executive Government, in accordance with s 56 of the Constitution [166].

This allocation of functions and responsibilities is not atypical of the arrangements existing in many countries that derive their constitutional traditions from England. However, the provisions concerning the powers of the Senate in relation to Money Bills (ss 53 and 54) and for the resolution of disagreements between the Houses of the Federal Parliament (s 57) are peculiar to Australia. In these proceedings, no consideration can be given to the meaning of the Appropriation Act in question, the effect of the appropriations there made and the identification of the "purposes" of such appropriations, without close attention to the foregoing constitutional provisions and to the place that they allocate to the Senate[167].

Constitutional history and purpose: The history that preceded the adoption of these Australian constitutional provisions reinforces the inference to be derived that a minimum standard of disclosure to the Parliament (including the Senate) is necessary to fulfil the postulates of the form of parliamentary government established by the Constitution.

In the AAP Case, Stephen J described the long struggle of the English House of Commons with the Plantagenet, Tudor and Stuart Kings for control by Parliament over the financial affairs of the kingdom[168]. The principle of appropriation of supply to the King for specific purposes first emerged in England in the fourteenth century; but was later denied. It re-emerged in 1665. However, the control over the raising of funds and of their expenditure was only finally achieved following the English Revolution of 1688[169]. The House of Lords was then left only with the power to withhold consent to Money Bills, not to propose or amend them. That was how things stood when the Australian Constitution was adopted and the respective powers of the Houses of the Federal Parliament were assigned[170].

Whatever differences may have existed within this Court in the AAP Case (mostly concerned with the question whether the "purpose" specified in the appropriation was a "purpose of the Commonwealth" within s 56 of the Constitution [171]) by the time the Court delivered its unanimous decision in Brown v West (where the "purpose of the Commonwealth" was uncontested), certain features of the Australian law governing federal Appropriation Acts were clearly established. The authority of Brown v West was not challenged by any party to these proceedings. It is a recent and unanimous decision of this Court. In my view it is correct. It applies to the issues in question here. It draws, as the Court acknowledged in that case, on the constitutional history of England that helps to explain the provisions governing appropriations contained in the Australian Constitution.

In Brown v West[172] this Court approved the remarks of Mason J in the AAP Case[173] when his Honour said:

"Section 83 in providing that 'No money should be drawn from the Treasury of the Commonwealth except under appropriation made by law', gives expression to the established principle of English constitutional law enunciated by Viscount Haldane in Auckland Harbour Board v The King[174]: 'no money can be taken out of the consolidated Fund into which the revenues of the State have been paid, excepting under a distinct authorization from Parliament itself'. An Appropriation Act has a twofold purpose. It has a negative as well as a positive effect. Not only does it authorize the Crown to withdraw moneys from the Treasury, it 'restrict(s) the expenditure to the particular purpose', as Isaacs and Rich JJ observed in The Commonwealth v Colonial Ammunition Co Ltd[175]."

This Court also upheld a principle that had been stated by Latham CJ in Attorney-General (Vict) v The Commonwealth[176]:

"[T]here cannot be appropriations in blank, appropriations for no designated purpose, merely authorizing expenditure with no reference to purpose."

And the Court gave effect to what Isaacs J had said still earlier in The State of New South Wales v The Commonwealth ("the Surplus Revenue Case")[177]:

"'Appropriation of money to a Commonwealth purpose' means legally segregating it from the general mass of the Consolidated Fund and dedicating it to the execution of some purpose which either the Constitution has itself declared, or Parliament has lawfully determined, shall be carried out."

To make these points doubly sure, this Court in Brown v West[178] added emphasis to the principle stated by Viscount Haldane in Auckland Harbour Board v The King[179] by expressly endorsing a passage in his Lordship's reasons which followed that already quoted:

"The days are long gone by in which the Crown, or its servants, apart from Parliament, could give such an authorization or ratify an improper payment."

Their Honours might also have added, as I do now, a further sentence in the Auckland Harbour Board Case that came immediately after those cited[180]:

"Any payment out of the consolidated fund made without Parliamentary authority is simply illegal and ultra vires, and may be recovered by the Government if it can, as here, be traced."

If these strong words of the Privy Council could be applied in 1924 to describe the constitutional arrangements of the United Kingdom and of New Zealand, how much more applicable are they to the requirements of the Australian Constitution, expressed in a written instrument stated in imperative terms, designed to make certain, and to immure from easy change, similar British constitutional precepts? The criterion, thus endorsed by this Court, is one of "distinct authorization from Parliament itself". To the extent that the Executive Government seeks to justify expenditures, except where there is "a distinct authorization", it challenges centuries of constitutional history. It departs from the provisions of the Australian Constitution designed to give that history effect. It detracts from the basic purpose of such provisions, being to assure to the people in Parliament the final say about the expenditure of public moneys. It weakens accountability of the Government to the Parliament in all such matters[181]. To conclude otherwise would be to depart from the principles endorsed in Brown v West. This Court should not retreat from the clear rule expressed in that case. Behind it stands a principle of comparative strictness required by the text of our Constitution, by centuries of history and by policies of good governance to which that text gives effect[182].

Ordinary annual services of government: There is an additional contextual consideration that may be traced to the Constitution which reinforces an inference that, in this case, the failure to identify a distinct appropriation for the purpose of the impugned advertising campaign meant that no "particular purpose" was established to authorise such expenditure under expressions in the Appropriation Act cast in general and non-particular terms.

This argument, which was elaborated by the State of Western Australia, intervening in support of the plaintiffs, latched onto the words "the ordinary annual services of the Government". That phrase appears in the second paragraph of s 53 of the Constitution. The words likewise have a long history in the practice of the Parliament of the United Kingdom in granting authorisation for appropriations of money for the recurring services of the Government.

The appropriation for the departmental item in question in this case is contained in an Act appropriating money out of the Consolidated Revenue Fund for the ordinary annual services of the Government[183]. I accept, as the State of Western Australia submitted, that it may be assumed that the Parliament intended that the appropriations provided for in the Act be appropriations for the "ordinary annual services of the Government", as that phrase is understood in the Constitution. In construing the Act, it is therefore relevant to consider whether expenditure on advertising for the proposed reforms falls within the ambit of that concept. In doing so, it is helpful to consider the meaning of the phrase "ordinary annual services of the Government" as it has been understood in its historical and constitutional context.

By the nineteenth century, in England, the estimates for the ordinary annual expenditure of the government comprised three main divisions: for the Army, the Navy and the Civil Services[184]. The estimates for the last category included public works and buildings, the salaries and expenses of civil departments, law and justice, education, science and the arts, foreign and colonial services, non-effective and charitable services, old-age pensions, labour exchange costs and insurance[185]. The general position was that the Crown in the United Kingdom was not restrained in presenting an estimate of expenses within these divisions[186]. Different procedures were followed in relation to expenditures falling outside the estimates for such ordinary annual expenditure of the Government. For other expenditures, explicit approval was sought, according to the nature of the demand.

It became accepted that expenditures for new purposes, not covered by the existing powers and functions of a governmental department or authority[187], or expenditures for novel purposes[188], or where the expenditure was required to be authorised for longer than a year or for an indefinite period[189] or was authorised on conditions[190] all required separate appropriation approval by Parliament. They could not be wrapped up in the recurrent estimates for the ordinary, annual expenditure of the Government when approaching Parliament for approval of appropriations.

Unsurprisingly, this emerging convention of the British Parliament was also reflected in the practice followed from the early days in the Australian colonies. In 1857, in South Australia, disputes arose as to the respective powers of each House of the legislature in relation to Money Bills. Ultimately, the Legislative Council resolved to waive the claim that it could deal with the details of the ordinary annual expenses of the Government, submitted in an Appropriation Bill in the usual form[191]. The resulting convention in South Australia encouraged the adoption of provisions in what are now the constitutions of the States of Australia, whereby the "ordinary annual services of the Government" are sometimes expressly and separately provided for[192].

It was against the background of this Imperial and colonial parliamentary practice that the language of s 53 of the federal Constitution was adopted, segregating specific categories of proposed laws that might not be amended by the Senate. Relevantly, these were proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.

During the Convention debates, leading to the adoption of the foregoing provisions of the Constitution, the phrase in question was not considered at any length. However, suggestions were made that the words were directed to a Bill which "simply appropriates revenue and carries out a settled policy involving no new departure"[193]. Or to a Bill which "simply covers the expenditure based upon a policy previously agreed to"[194]. It was also observed that the "ordinary expenditure of the year covers the expenditure of the various departments of the Commonwealth"[195]. The view was expressed in the Convention debates that a Bill for such ordinary annual services would not appropriate "extraordinary supplies"[196]. "Ordinary" services were distinguished "from special grants and from loan services"[197]. Shortly after Federation, Attorney-General Deakin expressed the opinion that the phrase "ordinary annual services of the Government" encompassed "[a]ppropriations for new buildings or additions when these are required in the ordinary course of departmental business"[198].

Obviously, the expression "ordinary annual services of the Government" should be given a broad and not a narrow meaning[199]. By the same token, the phrase is not completely open-ended. Nor, in a sparse constitutional text, can it be suggested that the words "ordinary" and "annual" are superfluous or devoid of meaning. Given the consequence of excluding the powers of amendment by the Senate (which is otherwise to have a power of amendment in respect of all proposed laws equal to that of the House of Representatives[200]) and given the practice of isolating appropriations for such services of the Government in the separate annual Appropriations Bill No 1, the adjectives "ordinary" and "annual" must be taken to be descriptive of limitations to be observed in the content of Appropriation Bills. Only such services enjoy the designated immunity from Senate amendment.

The 1965 Compact and new policies: In the Federal Parliament, the potential for serious disagreement between the two Houses and the Executive Government on what constitutes "ordinary annual services of the Government" was substantially resolved by an agreement between the interested parties, reached in 1965, as to what those words should be taken to mean. This agreement is known as the "Compact of 1965"[201].

The determination by the Houses of Parliament (and the Executive Government) of their respective understandings of the constitutional words is not, of course, conclusive. Ultimately, it is for this Court to give meaning to the words of the Constitution, where that step is required. However, especially as the phrase concerns the internal procedures of the Parliament, in respect of which deference is ordinarily accorded by courts to parliamentary understandings[202], it is proper for this Court to note the Compact of 1965. This Court has earlier endorsed reliance on the Compact and consequent parliamentary practice to assist in the interpretation of Appropriation Acts[203]. It may safely be assumed that the Appropriation Bill No 1, in issue in these proceedings, was presented to the Parliament and considered by each House, on the footing that it was intended to comply with that Compact. The defendants expended some effort in argument to suggest that the Compact of 1965 had been amended in a relevant way by later decisions of the Executive Government, agreed to by the Senate. However, this does not appear to be the way such developments were understood. Nor is it the way those developments are interpreted in contemporary statements of the Compact of 1965, at least so far as it affects the point of significance for the present proceedings[204].

As formalised by a resolution of the Senate in 1977, following a report by the Senate Standing Committee on Constitutional and Legal Affairs, chaired by Senator A N Missen[205], the Compact of 1965 reads[206]:

"That the Senate resolves: > > (1) 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. > > (2) That appropriations for expenditure on: > > (a) the construction of public works and buildings; > > (b) the acquisition of sites and buildings; > > (c) items of plant and equipment which are clearly definable as capital expenditure; > > (d) grants to the States under section 96 of the Constitution; and > > (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 or expenditure on the said matters shall be presented to the Senate in a separate Appropriation Bill subject to amendment by the Senate."

So far as "new policies" are concerned, as expressed in par (2)(e) of this resolution, it appears clear that the Compact of 1965 is still assumed to be in full operation. So much was accepted by this Court in Brown v West[207]. Addressing the suggestion that Supply Bill (No 1) of 1989-1990 had contained an appropriation for the purpose of supplementing the postal allowance for Senators and Members of Parliament, in issue in that case, this Court observed that such an argument would involve[208]:

"find[ing] in it an appropriation for the funding of a new policy which, by parliamentary practice, would be found only in a bill for special legislation or, at the least, in Appropriation Bill (No 2). It can therefore be taken that, ... as a matter of parliamentary practice, the Supply Act (No 1) 1989-1990 was not intended to include an appropriation for new policies".

By analogous reasoning, the plaintiffs, and Western Australia, submitted that, consistently with the Compact of 1965, and parliamentary practice based upon it, the initiation of a major advertising campaign, involving widespread promotion of as yet unknown and unenacted legislation, would amount to appropriation for expenditure on "new policies not previously authorised by special legislation". It would not find its place in Appropriation Bill (No 1), immune from Senate amendment. In accordance with the Compact, it would have to run the gauntlet of Senate scrutiny and the possibility of Senate amendment. It would have to do so, as stated in Brown v West, as an item in a "bill for special legislation or, at the least, in Appropriation Bill (No 2)".

Quite apart from the question whether such an advertising campaign would be so classified there is, in any case, much force in the submission of Western Australia that the proposed changes to federal industrial relations law, to which the advertising campaign was addressed, are themselves within the contemplation of "new policies not previously authorised by special legislation" and thus within the Compact of 1965. The changes are not concerned with limited amendment of present federal legislation, enacted by the Parliament. Instead, what appears to be intended is to "introduce a national system of workplace relations". So much is stated in the Commonwealth's advertisement, exhibited in the special case. By necessary inference, such a system would involve very significant changes to the States industrial relations systems and their replacement in an unspecified way by a "national system". It therefore appears that, pursuant to the intended changes, the Commonwealth proposes to provide services related to workplace regulation that are either entirely new, or of a kind currently provided by the States and not by federal institutions or laws. For this reason, if implemented, the reforms would not constitute services "ordinarily provided" by the Government of the Commonwealth. It follows that advertising to promote and publicise such reforms could not be described as an ordinary annual service of the Government or a service incidental thereto. It is therefore extremely unlikely that an item of appropriation for such expenditure would be found, or properly found, in Appropriation Bill No 1.

Until the Parliament has spoken upon it, it cannot be assumed that legislation to implement the foregoing scheme will be enacted. The Parliament of this country is not a rubber stamp of the Executive Government. As Professor Harrison Moore pointed out in the early days of the Commonwealth, the Senate in Australia is an unusually powerful upper house. It has commonly performed a distinctive function. It is "less easily 'led' by the Government". The "'Opposition' is not so clearly defined"[209]. If, as an outcome of parliamentary debate, the foreshadowed legislative "package" were defeated or significantly altered, federal expenditure on an advertising campaign to promote it, in advance of its passage, would have been wasted, in whole or part. It would not therefore lightly be assumed that the Federal Parliament intended, merely by general language in the Appropriation Act and its associated documents, to approve an appropriation for the advertising campaign challenged by the plaintiffs.

Interpretative principles: The plaintiffs did not challenge the constitutional validity of the Appropriation Act. To this extent, the present is a case closer to the construction question unanimously resolved in Brown v West[210] than to the validity question considered in the divided decision in the AAP Case[211]. The plaintiffs' argument accepted the validity of the Act. However, the plaintiffs submitted that, properly construed, the terms of the Act did not extend to appropriate moneys for the advertising campaign described in the materials, whether for the ordinary annual services of the Government or otherwise. The Act thus gave no lawful authority for the drawing of money from the Treasury of the Commonwealth for such a purpose.

The principle that a statute, enacted by the Parliament must be construed, so far as the words permit, to remain within the powers conferred, and conforming to the restraints imposed, by the Constitution is one deeply entrenched in the law of this country[212]. It is given encouragement, and support, by the command of the Parliament itself in s 15A of the Interpretation Act. By that section "[e]very Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth [but to] be a valid enactment to the extent to which it is not in excess of that power".

There are limits to the extent to which such interpretive provisions can save from invalidity over-reaching laws[213]. However, where the question presented is one initially of legislative construction, and the language permits of alternative constructions (one that is constitutionally valid and the other invalid), it can readily be assumed that the Parliament intended this Court to adopt the interpretation that involves no invalidity. The Parliament has said as much in s 15A.

The plaintiffs submitted that the language of the Appropriation Act in question here, passed when the foregoing Appropriation Bill was enacted by both Houses and given the Royal Assent, read with the PBS and other budget documents, and understood against the background of constitutional law and history, authority and principle, supported their contention. They suggested that the language of the Act and the PBS were unambiguous. Neither contained any reference to appropriation for the advertising campaign for proposed future legislation upon which the Executive Government had embarked. Accordingly, the Parliament had as yet given no assent to it. Alternatively, the plaintiffs argued that, if there were ambiguities in the language of the Appropriation Act, understood by reference to the PBS, by reason of the same considerations, a meaning and effect of that Act should be preferred that excluded appropriation for the advertising campaign to one that accepted the appropriation as sufficiently approved in terms of a generally expressed item, such as departmental "Outcome 2".

Absence of distinct authorisation: The parliamentary appropriation for the Executive Government's advertising campaign challenged by the plaintiffs was not made. The "distinct authorization from Parliament itself" was not given for the appropriation propounded in this case[214].

However much the requirement of specificity and distinctiveness of appropriations is blunted by Executive Government practice, and even parliamentary acquiescence, it cannot be denuded of meaning in Australia, given the constitutional provision that requires that appropriations must be for designated purposes. Parliamentary appropriations cannot be given in blank or with no reference to a purpose. The purpose must either be declared in the Constitution itself or lawfully determined by the Parliament. In the exigencies of modern government, it may be accepted that such purpose can be declared at a level of generality. However, that generality cannot be so vague and meaningless as to negate the significant constitutional consequences that attach to the designation of the appropriation and its purpose. Were this Court to permit a departure from this rule it would turn its back on the constitutional text, ignore the long struggles that preceded it, impermissibly diminish the role of the Senate, undermine transparency in government, diminish the real accountability of the Parliament to the electors and frustrate the steps taken by successive governments and Parliaments to enhance good governance in the legislative (and specifically financial) processes of the Parliament.

The facilitation of public scrutiny of economic policy and performance is the first stated object of the Charter of Budget Honesty which has been adopted by the Parliament[215]. It should be assumed that the Federal Parliament meant what it said in adopting that Charter. It should therefore be presumed that enactments, including those for appropriations, are intended to fulfil this commitment to honesty, transparency and accountability and to contribute to their observance in the budget processes of the Parliament.

Reasons for upholding the objections: When such tests are applied to the Appropriation Act in question here, there are many reasons to uphold the submissions of the plaintiffs and to reject those of the defendants.

First, it is highly doubtful that, conformably with the Constitution and the Compact of 1965, a provision for advertising of an as yet unenacted federal law, containing radical changes to existing federal law, could amount to (or would be taken by the Parliament to include) appropriation for the "ordinary annual services of the Government". Within the Compact of 1965, any such law would clearly involve "new policies not previously authorised by special legislation". Appropriations for expenditures on such policies would accordingly fall outside appropriations for the ordinary annual services of the Government. On the face of things, this analysis supports the submission that, in accordance with s 53 of the Constitution, the Compact of 1965 and the practice of the Federal Parliament, the provisions in Appropriation Bill No 1 did not cover the advertising campaign initiated by the Government and challenged by the plaintiffs. No other legislation has been nominated to afford a relevant appropriation. It is either the Appropriation Act or it is nothing. If this conclusion is correct, this Court should not struggle to read into the general language of the Appropriation Act, considered with the PBS and supporting documents, words which the foregoing make it unlikely to expect in such a context.

Secondly, when the words nominated by the defendants are examined, there is no particular item anywhere in the Appropriation Act that appropriates money to expenditure on a public advertising campaign in support of unenacted laws on the highly controversial and potentially divisive topics identified in the exhibited advertisements. This is significant in itself, but especially so when the items in the Appropriation Act, called in aid by the defendants, are contrasted with express provisions contained in that Act referring with particularity to the "promotion" of an identified policy or, specifically, communication and advertising. In such circumstances too, this Court would not struggle to turn the general language of the Act into the "distinct authorization from Parliament itself" that is required by settled constitutional law.

Thirdly, when the nominated general outcomes are read, and in particular Outcome 2 upon which the defendants most strongly relied, they fall far short of providing parliamentary authorisation for the advertising campaign challenged by the plaintiffs. Obviously, Outcome 2 ("Higher productivity, higher pay workplaces") is expressed at such a high level of abstraction that, unless confined within limits, it would lend itself to authorising the appropriation of moneys for clearly illegitimate purposes. Thus, the item could not extend to cover the payment of federal bonuses to private sector employees or corporate executives (promoting "higher pay") or subsidising holiday trips ("higher pay" and "higher productivity") or providing public transport or public health facilities ("higher productivity"). To give the vague and general outcome meaning, in a legal context that includes the high constitutional purposes that I have described, a boundary must be placed around the chosen words. Otherwise, by the choice of such language, the purpose of obtaining distinct parliamentary approval of appropriations proposed by the Executive Government would be set at nought[216].

It should not be assumed that the Federal Parliament, in the circumstances disclosed in the present proceedings, has abandoned that degree of "distinct authorization" involved in its constitutional function of "appropriation" so as to default in, or abdicate, the performance of that function. That would be constitutionally impermissible. Where necessary, courts must read the items for a particular appropriation as it will be presumed that the Parliament itself would do[217]. This is achieved by viewing the item in concrete terms, confined (where unexpressed and unelaborated) to those activities and services only that are necessarily inherent in the words chosen.

When this approach is adopted, there is nothing in the words "Higher productivity, higher pay workplaces" that suggests the institution of a substantial publicly funded advertising campaign in support of announced legislation, not yet enacted. Such a campaign is too remote from the achievement of "higher productivity" or "higher pay workplaces". Indeed, any linkage is tenuous in the extreme. Moreover, it is unsubstantiated on the documentary evidence placed before this Court[218].

Fourthly, this conclusion is reinforced by an awareness of the controversy, and suggested impropriety (and even illegality) of expenditures of public funds on such public advertising campaigns in the past and in support of policies not yet enacted by the Parliament[219]. Against the background of such controversies, it is reasonable to expect that explicit, or at least implicit, attention of the Parliament would be drawn in an Appropriation Bill to a proposal to institute such a substantial and costly advertising campaign. This Court, in defence of the principles of accountability of the Parliament to the electors, as the Constitution envisages, should continue to uphold a rule of particularity in such a case. If there is a choice of construction of the provisions of the Appropriation Act that has this effect and one that does not, it is the former that I would impute to the Parliament.

Fifthly, the defendants sought to minimise the significance of the PBS relevant to the Department and the detail outlined within it. This would not ultimately assist the defendants because, without the PBS, they are left with no more than the items identified in Schedule 1 to the Appropriation Act that are stated in such general terms that, for the foregoing reasons, they would not sustain a suggested appropriation as a "distinct authorisation" for a campaign of the kind, and for the purpose, that was launched.

This argument must, in any case, be rejected because of the clear contemplation in s 4 of the Appropriation Act that that Act was to be read with the PBS as "relevant documents" and that the PBS was to be used in assisting the ascertainment of the purposes for which the expenditure was authorised by the Parliament.

In achieving the purposes of appropriation contemplated by the Constitution, the PBS introduced a new and different problem for transparency and accountability. This is the inundation of the Parliament, the electors and (where applicable) this Court, with a vast mass of materials, commonly still expressed in vague generalities, that make practical examination of particular and distinct appropriations difficult or next to impossible. However, at least by reference to the PBS and other budgetary papers, interested experts, the specialised media and political critics within and outside the Executive Government, can identify items that may be considered debatable or objectionable[220]. By doing so, they render the Executive Government accountable to the Parliament. They may occasion legislative amendments including (as history shows) at the request of the Senate. They permit the branches of Government to play their respective roles, as the Constitution envisages.

These are arguments for adopting the submissions of the plaintiffs in respect of the functions of the PBS, so far as they elaborate the proposed activities and outcomes of the Department in issue here. They are reasons for rejecting the arguments of the defendants which would reverse the approach adopted by this Court in Brown v West. The defendants' approach to the meaning and effect of the Appropriation Act would approve a constitutional procedure of appropriation (and the drawing of funds pursuant to a grant) that is devoid of any meaning. This does not conform to the imperative language of the Constitution and especially the command of s 83.

In his reasons Gleeson CJ[221] suggests that the test is whether the identified "outcomes", concededly stated in very general terms, are so general as to be without meaning. With respect, this puts the bar too low. It overlooks the duty, traced ultimately to the Constitution, to identify a sufficient meaning to fulfil the purpose of an appropriation. Likewise, Gleeson CJ[222] rejects what he calls a "judge's intuition" as an insecure foundation for discerning a rational connection between an output and an income. But this cannot mean that judicial analysis is pointless because that is precisely what the rule of law requires. Otherwise, this Court might just as well renounce the function it has hitherto asserted to uphold the legislative and constitutional requirements in the matter of appropriation. Nor is it the Chief Justice's suggestion that such issues are political[223], persuasive or even relevant. All constitutional decisions have political consequences. That has never in the past stopped this Court from doing its duty[224].

In the interpretation of the appropriation law considered in Brown v West, this Court spoke with a unanimous voice. It should do so again in these proceedings. The question raised is closely analogous. The constitutional, historical and policy reasons for doing so are relevantly identical. True, there is not in this case a clash between an appropriation statute and an earlier federal law, said to be inconsistent as there was in Brown v West. But here, it is the very absence of any federal law that supports the proposition that the appropriation statute was not intended to authorise funds publicly to attack laws that the Parliament has earlier enacted and that remain in force until lawfully changed. This Court should make it clear that, if such an advertising campaign is ever to be permitted in such a case, using money drawn from the Treasury of the Commonwealth, it cannot occur "except under a distinct authorization from Parliament itself". And that was missing in this instance.

Conclusion: No valid drawing: The result is that there was no appropriation made by law, under the Appropriation Act or otherwise, to authorise the drawing of money from the Treasury of the Commonwealth for the advertising campaign described in the special case, as contemplated in the instrument signed by the Secretary of the Department. The Appropriation Act, of itself, "earmark[s]" money which, until disposed, remains the property of the Commonwealth[225]. However, such an Act discloses that the Parliament consents to the expenditure of the moneys raised from the people, appropriated for the purposes stated in the appropriation. Only then may the Executive Government, within the law, expend those moneys, being thereby given the "authority and opportunity" to do so[226].

As has been said many times, an appropriation law wears a double aspect[227]. It authorises expenditure. But by s 83 of the Constitution, it also forbids the drawing from the Treasury of moneys except in accordance with the appropriation law. It grants. And it restricts. Each aspect is equally important to the constitutional design.

The residual issues require decision: It is the issuance of drawing rights to meet expenses under a supposed appropriation, which does not on analysis exist, that enlivens past and prospective breaches of the law of the Constitution (as well as other federal law). It is those breaches, and any anticipated future such breaches of a like kind, that give rise to an entitlement to relief. That entitlement is subject to the residual issues in these proceedings. Are the challenges presented by the plaintiffs justiciable? Do they have standing to make them? Can the plaintiffs formulate orders for relief, in terms that will enjoin the unlawful expenditure and that only? Are there any residual discretionary reasons why relief should be refused in the circumstances? How should the Court provide for costs in the light of the resolution of all of the issues?

It is necessary to turn to these residual issues. However, before doing so, I will make some brief comments in relation to the reasons of Gleeson CJ and the joint reasons. In my view, the approaches adopted by the majority are seriously flawed.

The reasons of the Chief Justice: Neither Gleeson CJ[228] nor McHugh J[229] agrees in the construction of the Act adopted in the joint reasons. Both approach the question of statutory construction presented by the special case in the same manner as I do. However, Gleeson CJ comes to an outcome opposite to that reached by McHugh J and myself, finding that the appropriation in question falls within the terms of Outcome 2. The reasons why I reject this conclusion will be apparent from what I have already said.

It does not logically follow that, because the provision of legislative advice and the development of legislation fall within the scope of Outcome 2, advertisements for a public campaign to procure support for intended legislation also come within that outcome[230]. There is a clear difference between legislative and policy development, on the one hand, and political advertisements of the kind exhibited in this case, on the other. On no rational basis[231] can such advertisements be seen to promote "higher productivity or higher pay". Still less do they constitute "providing policy advice and legislation development services to government".

The interpretation in the joint reasons: The joint reasons strike out on a novel approach. They reject the construction of the Act advanced by the plaintiffs (and accepted by the defendants[232]). They hold that, because of a difference between the text of s 7 and s 8 of the Appropriation Act, an amount of money appropriated from the Consolidated Revenue Fund in respect of a departmental item is not limited to "expenditure for the purpose of achieving any of the nominated outcomes"[233]. That is, the designated outcomes do not restrict the expenditure of the appropriated amount in any way. The sole requirement imposed by the Act is that "a departmental item be expended only on 'departmental expenditure'". On this footing, the joint reasons dismiss the plaintiffs' "central contention". On that basis, they refuse the relief sought[234].

Assuming that this construction of the Act is correct, it would not follow that the plaintiffs' case must fail. Rather, the construction favoured in the joint reasons shifts the focus of the question for decision from a contest over the scope of the relevant "outcomes", to one over the meaning of the term "departmental expenditure". This is because, if it is accepted that a departmental item may only be expended on "departmental expenditure", two supplementary questions of construction arise. The first is, what meaning is to be given to the term "departmental expenditure"? The second is, does expenditure on advertising promoting the proposed changes to federal law fall within the term as so defined?

A defective procedure: Unsurprisingly, neither party to these proceedings made considered submissions on these issues. This is so because the basic approach to the Act put forward by the plaintiffs represented common ground. Although the interpretation now favoured by the joint reasons was briefly raised by members of the majority during argument[235], neither party was invited to provide supplementary submissions. Similarly, although it is true that the principal weight of the plaintiffs' case was placed on the proposition that the impugned expenditure did not fall within Outcome 2 (presumably because this was the justification suggested by the defendants), the plaintiffs also advanced the argument, in response to queries from the Bench in relation to the contrast between s 7(2) and s 8(2), that the phrase "departmental expenditure" must relate to one of the three relevant departmental outputs. During argument in chief[236], in response to a series of questions by Gleeson CJ[237], counsel for the plaintiffs, agreed that an appropriation for a departmental item could "move between" the three specified outcomes. He argued that "departmental expenditure" is not defined. In the context it meant expenditure on departmental items "on or for the purpose of departmental outputs"[238]. That interpretation of the Appropriation Act should be accepted. Indeed, it is accepted by Gleeson CJ who was presumably satisfied with the answers that his questions had elicited. Not so the joint reasons.

The absence of substantive argument, from the parties and the intervener, may explain why so little attention is given in the joint reasons to the meaning of the expression "departmental expenditure". The point was simply not examined before the Court in a way that subjected the propounded interpretation to the stringent analysis required by a case of this importance. Because the decision in the joint reasons turns on this construction of the Appropriation Act, I will make a number of observations about it. Necessarily, I must do so without the benefit of full submissions of the parties; scrutiny of the relevant Australian and other parliamentary procedures; and examination of any additional constitutional submissions by governmental parties that such an approach might have elicited, if it had been put on proper notice[239].

The phrase "departmental expenditure" is undefined in the Appropriation Act. That does not mean that it has no meaning, or that its meaning cannot be ascertained from the text, structure and context of the Act. "Expenditure" is defined in s 3 of the Appropriation Act to mean "payments for expenses, acquiring assets, making loans or paying liabilities". On one view, then, (and this appears to be the view accepted by the joint reasons) "departmental expenditure" is a virtually unconstrained concept. Its scope includes any money expended by the department on departmental expenses, assets, loans or liabilities. On this approach, the focus of the appropriation is the entity that performs the expenditure. It is not the subject matter of that expenditure. If money is expended by a department, it is "departmental expenditure" within the meaning of s 7 of the Appropriation Act. End of question.

Inconsistency with statutory scheme: Apart from the obvious circularity of this construction of the Appropriation Act, it presents many difficulties. First, it is not consistent with the scheme of the Appropriation Act itself, the accompanying budget papers and the explanatory material. As outlined earlier, these materials all indicate that the federal parliamentary appropriations system is designed to revolve around outcomes and outputs. No distinction is made in this regard between departmental items and administered expenses, whether in Schedule 1 of the Appropriation Act[240], the budget papers or the other materials. It would be an astonishing result if the Parliament, having gone to all the trouble of designing and implementing the complicated appropriations system which operates by reference to departmental outcomes, then proceeded to appropriate a great part of federal revenue in a manner falling outside that system that it had so painstakingly adopted.

Inconsistency with statutory provisions: Secondly, such a broad and unrestricted interpretation of "departmental expenditure" is contrary to the meaning of that term as indicated by the Appropriation Act. A note accompanying s 7(2) of that Act provides that:

"The acquisition of new departmental assets will usually be funded from an other (sic) departmental item (in another Appropriation Act)."

This note indicates that the meaning of "departmental expenditure" has (and is intended to have) distinct limits. If this were not the case, and the wide view of s 7 of the Act were accepted, as favoured in the joint reasons, the "acquisition of new departmental assets" would clearly fall within the scope of "departmental expenditure". It would therefore be authorised by an appropriation under s 7.

The note, with its reference to other items, would be redundant on this construction. By way of contrast, the note as expressed is consistent with an understanding of "departmental expenditure" which is informed not only by the relevant outcomes and outputs, but also by applicable parliamentary practice and the governing constitutional principle. Appropriation for capital expenditure on departmental assets is not usually considered to be expenditure for the "ordinary annual services of the Government"[241]. According to the Compact of 1965, such an appropriation should therefore be included in an Appropriation Bill No 2, which is subject to amendment by the Senate. Consistently with the note accompanying cl 7 of the Appropriation Bill (now s 7 of the Appropriation Act) it would therefore be expected that an appropriation for "departmental expenditure" under the Appropriation Act would not extend to the acquisition of important new departmental assets. Thus, contrary to the view embraced in the joint reasons, and consistently with the long-standing parliamentary practice revealed in the evidence, the note indicates that the phrase "departmental expenditure" is subject to expressed limits.

The joint reasons place great weight on the note accompanying the definition of "departmental item"[242]. However, as explained, the note indicates that a measure of flexibility has been incorporated into the appropriation system[243]. By s 7 of the Act, read with the definition of "departmental item", the Appropriation Act permits the transfer of sums between the identified outcomes for each departmental item. Significantly, the note only refers to the "amounts set out opposite outcomes". It does not refer to the outcomes themselves. Only the amounts are said to be "notional". Only the amounts are stated not to "restrict the scope of the expenditure authorised by the item". This suggests strongly that the "outcomes" are intended to be more than "notional". They are intended to "restrict the scope of the expenditure authorised by the item"[244].

With all respect, the note, therefore, provides no support for the contention in the joint reasons that the expressly specified outcomes are to be ignored in relation to departmental items. If that had been the Parliamentary purpose, it would have been easy enough, in the note accompanying the definition of "departmental item" or elsewhere, for the drafter to have indicated that neither the outcomes nor the related amounts restricted the scope of expenditure authorised by the item. Unsurprisingly, given the context, there is no such provision.

Inconsistency with constitutional doctrine: Thirdly, and most importantly, the interpretation of s 7 of the Appropriation Act accepted by the joint reasons in my view involves potential constitutional invalidity[245]. It posits an appropriation without a purpose sufficiently stated to satisfy the requirements of s 81 of the Constitution. In Attorney-General (Vict) v The Commonwealth Latham CJ, rejecting "appropriation in blank", stated that[246]:

"An Act which merely provided that a minister or some other person could spend a sum of money, no purpose of the expenditure being stated, would not be a valid appropriation act."

This settled constitutional doctrine was not challenged in these proceedings. It was accepted by both sides. An appropriation cannot therefore validly be made in such a way, only by reference to the person or entity to which the money is appropriated. A purported appropriation in such terms would be invalid for want of sufficiently identifying a "purpose". On this basis, if the term "departmental expenditure" is given an unrestricted meaning, the appropriation in s 7 amounts to an impermissible "appropriation in blank". Unless the term "departmental expenditure" is given more specific content, and unless its scope is limited by the specified outcomes (or by some other means), it is an appropriation by reference to the repository to which the money is appropriated, rather than an appropriation by reference to the purpose of the expenditure of that entity. Such an interpretation must be rejected because it would impute to the Parliament an intention to infringe the Constitution. No such intention should be accepted because none was asserted by any party and all indications in text, practice and history are that the opposite was the parliamentary purpose.

Meaning of "departmental expenditure": The Appropriation Act itself provides the tools required to give the term "departmental expenditure" (and hence the appropriation in s 7) the necessary constitutional purpose. Such tools are the outcomes and outputs identified in Schedule 1, and elaborated in the PBS.

It follows that "departmental expenditure" in the present context should be understood to mean expenditure by a department for the purposes of the outcomes specified in Schedule 1[247]. By virtue of s 4, such outcomes must be read in light of the information provided by the PBS. This interpretation avoids potential problems of constitutional invalidity. It gives support to parliamentary supervision of the Executive Government in financial matters (as mandated by the Constitution). It is consistent with the appropriations scheme established by the Parliament itself, as demonstrated by the Appropriation Act, budget papers and other explanatory material. It avoids treating such materials as an elaborate and immaterial charade. It attributes to the Parliament the purposes of good governance, financial transparency and accountability, repeatedly stated in federal laws and ministerial statements[248]. It follows that the impugned expenditure is not authorised by the relevant departmental item.

An unreasonable outcome: One final point should be noted in relation to the approach adopted in the joint reasons. It is undesirable that this Court should decide significant issues of statutory and constitutional law, such as those presented by the present proceedings, on a substantially unanalysed point of statutory construction. That point was only dealt with in passing, and then in response to isolated questions from the Court, with no notice so as to stimulate considered submissions. The issues presented by both of the parties in this case concerned matters important to Australia's system of parliamentary democracy. Such questions were properly argued before the Court[249]. The parties were well represented and they advanced considered arguments. It is the duty of this Court to grapple with the matter brought before it and to resolve that matter. True it is that the parties, including in cases involving the Constitution, cannot finally define the legal issues that the Court must decide[250]. However, if the Court is to embark on a different approach, it requires a sounder procedure than was followed in these proceedings.

This Court is the ultimate body reposed with the duty to interpret and uphold the Constitution. It has no higher responsibility or purpose. To dispose of these proceedings, as the joint reasons do, on an unconvincing interpretation of the Appropriation Act, alien to the Constitution and to Australian parliamentary practice, advanced by no party, hypothesised from the Bench and answered on the run, is an unreasonable way of concluding such an important controversy. It involves the Court in a departure from its own past unanimous authority[251] and from its clear constitutional duty in this case.

The issue of justiciability: To arrive at the orders that I favour, I am obliged to respond to the remaining arguments that the defendants advanced to resist the claims of the plaintiffs to relief. They were substantive arguments. It is necessary for me to address them.

The defendants did not assert that the issue of the lawfulness of a suggested expenditure, outside an appropriation, was inherently non-justiciable. However, they pleaded that the plaintiffs did not have standing. To that extent, they argued, there was no constitutional matter before the Court engaging its jurisdiction and powers[252]. It was in that sense only that the defendants contended that the issues presented by the plaintiffs were non-justiciable.

In the AAP Case[253], Barwick CJ dealt with the justiciability of those proceedings in terms that I regard as correct. If an Appropriation Act is beyond the powers of the Parliament, like any other statute with such a flaw, it is invalid. The power of this Court so to declare is, in such a case, "beyond question". It is "an essential feature of the Australian Constitution that the Court, in the exercise of the judicial power of the Commonwealth, not only may declare acts of the Parliament to be void but, when approached by a litigant with an appropriate interest in the statute or its operation, is under a duty to do so"[254].

It is true that an annual Appropriation Act has unique characteristics. It has been described as fiscal and not regulative in character[255] because it does not confer any legal rights or impose any duties on ordinary citizens. In some respects, an Appropriation Act therefore concerns matters internal to the workings of the Parliament. As such, a challenge to an Appropriation Act may raise difficulties of justiciability and standing according to the usual principles of judicial review[256]. However, as Professor Cheryl Saunders has observed, these characteristics are neither "so extreme nor so different from the norm as to isolate an Appropriation Act from the general body of statute law"[257]. Indeed, the annual Appropriation Act has an effective and crucial legal consequence: it authorises expenditure of the revenue of the Commonwealth that would otherwise be unconstitutional and hence unlawful[258].

There is no reason why an annual Appropriation Act, once enacted, should not be subject to judicial examination in the way that any other federal law may be, whether pursuant to a direct constitutional challenge or on a question of statutory construction (as in the present case). Given the essential role played by the annual Appropriation Acts in our system of government, there are strong reasons of principle and policy to support the proposition that an Appropriation Act, and the action of the Executive Government pursuant to such an Act, should be amenable to judicial supervision in the usual way. Any other conclusion would undermine a fundamental precept of our constitutional tradition that the Parliament controls the appropriation and expenditure of public monies[259]. To forbid judicial scrutiny at the suit of a person with a requisite interest would be to undermine a feature that lies at the heart of the Constitution [260].

In this case, constitutional invalidity is not, as such, in issue. But the meaning and effect of the Appropriation Act, as a law of the Commonwealth, are. The question of statutory construction so presented is justiciable. Defining the law that can be carried into effect (and, where relevant, pronouncing whether that law is valid or not) is part of the function of the judiciary essential to the federal form of government. Specifically, it is one of the duties of this Court under the Constitution [261]. I agree with the opinions of the majority of this Court in the AAP Case and with the opinion of the entire Court in Brown v West that no reason exists for placing Appropriation Acts in an exceptional position of "constitutional inviolability"[262] or of placing the meaning and effect of such laws outside of the scrutiny of this Court.

This Court also has the function and duty of pronouncing on the validity of the action of the Executive Government when it is challenged. In accordance with s 75(v) of the Constitution, it may decide the lawfulness of the acts and omissions of an officer of the Commonwealth and provide relief directed to such officer and to the Commonwealth as envisaged in that provision of the Constitution and in other federal law. In the AAP Case, Gibbs J suggested that the justification for review by the courts of the validity of acts of the Executive Government was conceptually stronger than in the case of review of the validity of legislation enacted by the Parliament[263]. However that may be, as it was developed, the challenge in these proceedings was not to the validity of the Appropriation Act. The plaintiffs upheld the Act. Indeed, they relied upon it. What was presented for decision was nothing more nor less than a determination of the meaning and effect of an Act. This is a standard task performed every day by this Court and other Australian courts.

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.

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.

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].

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].

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.

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.

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.

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.

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].

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.

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)".

At a glance

Court

Decision date

Before

Source

Judgment (464 paragraphs)

Parties

Legislation Cited (24)

Cases Cited (44)

Combet v Commonwealth [2005] HCA 61; 224 CLR 494; 80 ALJR 247; 221 ALR 621 (21 October 2005)