Victoria v The Commonwealth

The word "law" in the latter section must refer to a valid law. Such a law may be contained in the provisions of the Constitution itself or may be made by the Parliament in pursuance of a power derived from the Constitution. It is not essential in the present case to decide whether s. 81 is the only source of the power of the Parliament to pass an Appropriation Act, or whether, as Latham C.J. said in Attorney-General (Vict.); Ex rel. Dale v. The Commonwealth ("the Pharmaceutical Benefits Case") [18] , "each power to make laws with respect to a particular subject matter includes a power to make a law providing for the expenditure of money in relation to that subject matter". If the power of appropriation is conferred only by s. 81, it can be exercised only for the purposes specified in that section, that is, "for the purposes of the Commonwealth". If, on the other hand, the power is granted by other provisions of the Constitution, the words of s. 81, unless they are to be entirely disregarded, impose a limit on its exercise and, in effect, forbid an appropriation to be made except for a purpose of the Commonwealth. On either view, the question is, what is the meaning of the words "for the purposes of the Commonwealth" where they appear in s. 81?

This question was fully discussed in the Pharmaceutical Benefits Case [19] . There Latham C.J. and McTiernan J. held that "the purposes of the Commonwealth" within s. 81 are such purposes as the Parliament determines, and that the Courts have no power to declare that an Appropriation Act is invalid on the ground that the appropriation was made for an unauthorized purpose [20] . However, this view, that s. 81 does not impose any effective limitation on the purpose for which an appropriation may be made, and that the Parliament may appropriate moneys for any purpose whatever, was not accepted by Rich, Starke, Dixon, and Williams JJ., the other members of the Court. Both Starke J. and Williams J. were of the opinion that the words referred to the purposes of the Commonwealth as an organized political body [21] . Williams J. said that those purposes "must all be found within the four corners of the Constitution" [22] . Starke J. expressed himself rather more widely. He said [23] :

The purposes of the Commonwealth are those of an organised political body, with legislative, executive and judicial functions, whatever is incidental thereto, and the status of the Commonwealth as a Federal Government. And where else but from the Constitution and other acts conferring authority upon the Commonwealth can its purposes or functions be discovered? Those purposes include matters in respect of which it can make laws by virtue of the Constitution or any other Act, and they also include the exercise of executive and judicial functions vested in the Commonwealth by the Constitution or by any other Act. Among other purposes of the Commonwealth must also be included, I think, matters arising from the existence of the Commonwealth and its status as a Federal Government. 1. (1945) 71 C.L.R. 237. 2. (1945) 71 C.L.R., at pp. 254-256, 273-274. 3. (1945) 71 C.L.R., at pp. 266, 282. 4. (1945) 71 C.L.R., at p. 282. 5. (1945) 71 C.L.R., at p. 266.

Dixon J. (with whom Rich J. concurred) agreed that if the power of expenditure "is limited to matters to which the Federal legislative power may be addressed, it necessarily includes whatever is incidental to the existence of the Commonwealth as a state and to the exercise of the functions of a national government" [24] . He said [24] that he did not find it necessary to choose between the view that the power is so limited and the view that the Parliament is authorized to spend money without any limitation of purpose. But it is apparent that he did not favour the latter view: he expressly declined [25] to accept the suggestion that the Court should read into s. 81 the words "general welfare" (which appear in Art. 1, s. 8, of the Constitution of the United States) or the conception which those words are understood to embody and he concluded by saying that he adhered to the opinion that "the basal consideration would be found in the distribution of powers and functions between the Commonwealth and the States" [26] . The Pharmaceutical Benefits Case [27] cannot be regarded as a decision that an Act which appropriates money for a purpose other than a Commonwealth purpose is invalid, for the statute there challenged went beyond mere appropriation, but the judgments of a majority of the members of the Court strongly support the view that the power of appropriation is effectively limited by s. 81 of the Constitution. Support for that view may also be found in other dicta. In New South Wales v. The Commonwealth ("the Surplus Revenue Case") Isaacs J. said [28] :

"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. The use of the word "lawfully" in that passage indicates that Isaacs J. considered that not every determination made by Parliament of a purpose for which money should be expended would be lawful, or in other words that Parliament is not free to make an appropriation for any purpose that it selects. Barton J., who said that if the moneys drawn from the Treasury in that case were to become "surplus revenue", "they must have been either wholly unappropriated for any purpose of the Commonwealth, or appropriated for something which is not such a purpose - that is, illegally" [29] , was evidently of the same opinion. In Australian Woollen Mills Pty. Ltd. v. The Commonwealth [30] , the Court (constituted by Dixon C.J. and Williams, Webb, Fullagar and Kitto JJ.) in a joint judgment discussed whether the expenditure of moneys in subsidies to manufacturers on wool purchased and used for local manufacture was authorized by the Constitution. Their Honours said [31] : Section 81 of the Constitution authorizes the appropriation of the revenues and moneys of the Commonwealth for the purposes of the Commonwealth. The payment of "subsidies" would appear to be a payment of "bounties" within the meaning of the Constitution, but s. 51(iii.) authorizes only the making of laws with respect to bounties "on the production or export of goods", and the subsidies in question were not made payable on the production or export of goods - unless indeed we regard the subsidy as a subsidy "on" goods manufactured, a view which, in the last analysis, would be fatal to the plaintiff. The justification, however, for the appropriation of moneys for paying subsidies would probably, if challenged, be sought in the defence power, which is conferred by s. 51(vi.) No defence of lack of power having been raised, the matter need not be pursued further. The fact that the Court regarded it as necessary to seek in specified powers of the Commonwealth a justification for the appropriation clearly shows that it was thought that the power of appropriation was a limited one. 1. (1945) 71 C.L.R., at p. 269. 2. (1945) 71 C.L.R., at p. 269. 3. (1945) 71 C.L.R., at pp. 270-271. 4. (1945) 71 C.L.R., at pp. 271-272. 5. (1945) 71 C.L.R. 237. 6. (1908) 7 C.L.R. 179, at p. 200. 7. (1908) 7 C.L.R., at p. 193. 8. (1954) 92 C.L.R. 424. 9. (1954) 92 C.L.R., at p. 454.

The balance of judicial opinion is heavily in favour of the view that the power of appropriation is not general and unlimited but may be exercised only for purposes which can in law properly be described as "purposes of the Commonwealth" - purposes which the Commonwealth can lawfully put into effect in the exercise of the powers and functions conferred upon it by the Constitution. Quite apart from authority I consider that view to be correct. It would be contrary to all principles of interpretation to treat the words "for the purposes of the Commonwealth" in s. 81 as adding nothing to the meaning of the section. The words do not in their ordinary sense have the same meaning as "for any purpose whatever" or "for such purposes as the Commonwealth may think fit". They appear in a Constitution by which specific powers of legislation were conferred upon the Commonwealth and the general powers of the colonies which became the States were, with certain exceptions, continued. Throughout the whole of the Constitution, including the chapter in which s. 81 appears, the expressions "the Commonwealth" and "State" are used to refer to the respective bodies politic rather than to the people forming a particular community. In this context the words "the purposes of the Commonwealth" in s. 81 naturally refer to purposes for which the Commonwealth, as a political entity, is empowered by the Constitution to act. This construction is supported by s. 83 - the power can only be exercised by a law validly passed. It derives further support from s. 94, whose practical effect has been greatly weakened by the decision in the Surplus Revenue Case [32] , but which was apparently intended to secure payment to the States of the surplus revenue of the Commonwealth, for if the power of appropriation were unfettered a surplus could hardly have been expected ever to arise. The construction that I suggest is correct is also supported by the fact that it was thought necessary to give the Commonwealth specific power to make laws with respect to bounties on the production or export of goods (s. 51(iii.)) and to grant financial assistance to any State (s. 96), although it is true that the object of those provisions may have been respectively to ensure that bounties should be uniform throughout the Commonwealth and that the Commonwealth should have power to attach terms and conditions to grants which, even without the enactment of s. 96, it would have had power to make.

In the Pharmaceutical Benefits Case [33] Latham C.J. placed considerable reliance on the fact that there appears in s. 51(xxxi.) the phrase "any purpose in respect of which the Parliament has power to make laws" and concluded that the different words of s. 81, "the purposes of the Commonwealth", should be given a different meaning [34] . Speaking generally, it is true that where in the same statute different words are used it is presumed that the words were intended to convey different meanings. That presumption is in my opinion not a very weighty one, particularly in the case of a statute such as the Constitution, and it certainly does not justify a construction of s. 81 which would have the result that the material words of that section should be given no effect or read in a sense quite different from their natural meaning. Of course, the purposes of the Commonwealth may be executive or judicial as well as legislative, and an appropriation may validly be made for a purpose for which no law has in fact been enacted, but as Latham C.J. pointed out laws may be made with respect to executive and judicial purposes, so that "legislative purposes could be held to include the other purposes mentioned" [35] . It therefore seems correct to say that "purposes of the Commonwealth" are purposes for which the Commonwealth has power to make laws - purposes which however are not limited to those mentioned in ss. 51 and 52 but which, as was pointed out by Starke J. [36] and Dixon J. [37] in the Pharmaceutical Benefits Case, may include matters incidental to the existence of the Commonwealth as a state and to the exercise of its powers as a national government.

1. (1945) 71 C.L.R. 237. 2. (1945) 71 C.L.R., at pp. 252-253. 3. (1945) 71 C.L.R., at p. 252. 4. (1945) 71 C.L.R., at p. 266. 5. (1945) 71 C.L.R., at p. 269.

It may be objected that this construction will lead to practical difficulties, having regard to the nature of an Appropriation Act, and in particular to the fact that it may not be practicable for the Parliament to set out in such an Act in full detail the particulars of the purposes for which an appropriation is to be made. However, the suggested difficulties may at least be minimized by the fact that the power of appropriation has to be construed liberally rather than narrowly and that, as Dixon J. said in the Pharmaceutical Benefits Case "in discharging our duty of passing upon the validity of an enactment, we should make every reasonable intendment in its favour" [38] . In my opinion, it is not necessary that an Appropriation Act should set out such particulars as would establish that every purpose referred to is a Commonwealth purpose; if a purpose referred to could be a purpose of the Commonwealth - that is, if it does not appear on the face of the Act that the purpose is one with which the Commonwealth could not possibly be concerned - it should in my opinion be assumed, in the absence of proof to the contrary, that the appropriation is valid.

It is true that it follows from what I have said that the Commonwealth has no power to make any grant for a purpose which is not a Commonwealth purpose - except a grant to a State, since under s. 96 financial assistance may be granted to a State for any purpose, or for no specified purpose.

In the present case the question that then arises is whether the purposes of the Australian Assistance Plan are "purposes of the Commonwealth" within the meaning I have suggested. The Plan is not the subject of any legislation other than the Appropriation Act itself. That Act deals with it only briefly in the following words of Item 4 of Div. 530 of the Second Schedule:

Australian Assistance Plan - $ 01. Grants to Regional Councils for Social Development 5,620,000 02. Development and evaluation expenses 350,000 5,970,000

However, the Commonwealth, by its defence, admitted that "the purpose of the Plan is and was at all material times to assist, in the manner set out in the Discussion Paper and a Document issued by the Government of the Commonwealth in October 1973 entitled "Guidelines for Pilot Programme - Australian Assistance Plan" (here called "the Guidelines"), in the development, within a nationally co-ordinated framework, of integrated patterns of welfare services, having regard to and recognizing the existing responsibilities for welfare services of the Commonwealth, the Government of the Commonwealth, the States, the Governments of the States, Municipalities, Municipal Governments and voluntary agencies". Some of the contents of the Discussion Paper and the Guidelines are set out in the judgment of the Chief Justice and I need not restate them. It is enough to say that the Plan provides that there should be set up throughout the Commonwealth Regional Councils for Social Development. These Councils, whose constitution is imprecisely defined, will employ staff and will be entitled to receive substantial grants. The Councils have a very wide discretion as to how the moneys available to them may be spent. Chapter 4 of the Discussion Paper contains a schedule of personal welfare services which may attract grants under the Australian Assistance Plan; the schedule includes, inter alia, child development services, including day care services; professional counselling services to assist families, including budget advisory services, home management advice and legal advice, domiciliary services, including home help; services to assist adolescents, including youth clubs; senior citizens centres; accommodation for aged, transients, homeless families, "at risk" youth, alcoholics and single mothers; and financial assistance, including emergency financial relief, crisis accommodation services and holiday grants for low income families and emergency care in the home. However, the Councils are not limited to these welfare services and it seems right to say that under the Plan the Councils are free to spend the public moneys granted to them for whatever purposes related to social welfare they may think desirable. In fact Councils of this kind have been established in the State of Victoria.

A letter of 1st July 1973, under cover of which the Discussion Paper was presented to the Minister, refers to "the development of a new project to assist the planning and provision of welfare services in Australia". On behalf of the Commonwealth, it was submitted that the aim of the Plan was to obtain information to enable the Government to consider what legislation it might introduce to provide the welfare services most beneficial to the community. It was said that the Parliament might itself legislate to provide welfare services under pars (vi.), (xxi.), (xxii.), (xxiii.), (xxiiiA.), (xxvi.), (xxvii.), and (xxxix.) of s. 51 and under s. 122 and also under the power which arises from its position as a national Parliament, and that it might provide grants to the States for welfare services under s. 96, and that the purpose of the Plan was to inform the Executive as to which of these powers should be exercised, in an endeavour to ensure that the welfare services provided by the Government of the Commonwealth combine harmoniously with those provided by others, and that the States should be encouraged by means of grants to provide necessary services that the Commonwealth cannot provide. It is true that the Plan is of a flexible, experimental and evolutionary kind, and that it is apparently intended that it should be modified whenever experience shows that to be desirable. However, with all respect to the learned Solicitor-General for the Commonwealth, it is quite unreal to suggest that the Plan has no wider purpose than to obtain information for the purpose of enabling the Parliament to legislate on matters within its powers. The framers of the Plan obviously intended that the Regional Councils should provide the public with a wide variety of welfare services on quite a large scale. It is clear from repeated references in the documents that it was intended that the Councils should decide what projects for social welfare should be put into effect and should in fact give effect to them. In other words, it was intended that the Councils should provide social welfare services as well as plan for them. Some indication of the scale of the services to be provided is given by the amount appropriated for the purposes of the Plan for one year. Moreover, it is quite apparent that under the Plan, the Councils may use their moneys in providing services although the Parliament would have no power to legislate for the provision of such services. Some of the paragraphs of s. 51, to which reference has been made, would appear to have little or no relevance to the present question, but under other paragraphs it is possible that the Parliament might legislate to provide some of the services mentioned, at least for particular classes of persons. No doubt under s. 122 the Parliament could legislate to provide social welfare services for the inhabitants of the Territories, but the Plan is not limited to or primarily concerned with the Territories. The legislative power that is said to be incidental to the exercise by the Commonwealth of the functions of a national government does not enable the Parliament to legislate with respect to anything that it regards as of national interest and concern; the growth of the Commonwealth to nationhood did not have the effect of destroying the distribution of powers carefully effected by the Constitution. Indeed, the Pharmaceutical Benefits Case [39] decided that the existence of the Commonwealth and its status as a national government did not provide the Parliament with power to enact the social welfare legislation which was challenged in that case. However widely the powers of the Commonwealth to legislate with regard to social welfare may be thought to extend, this Plan goes far beyond them - indeed, under the Plan, the Councils would be free to devote the whole of the funds available in providing services which could not possibly be the subject of valid Commonwealth legislation. The Plan cannot be justified as an inquiry for the purpose of determining what grants should be made to the States; it is not limited to a mere inquiry, and in any case under the Plan the moneys are not paid to the States but to the Regional Councils set up by the Plan itself.

It should be unnecessary to say that the decision of this matter does not in any way depend on the merits or demerits of the Plan - the whole question is whether the purposes of the Plan are "purposes of the Commonwealth". For the reasons I have given, in my opinion they are not. It is not possible to sever the Plan into valid and invalid purposes, so as to save part of it. The Appropriation Act, in so far as it makes an appropriation for the purposes of the Plan, is invalid.

It follows from what I have said that the expenditure of the moneys of the Commonwealth for the purposes of the Plan would be unlawful. According to s. 61 of the Constitution, the executive power of the Commonwealth "extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth". Those words limit the power of the Executive and, in my opinion, make it clear that the Executive cannot act in respect of a matter which falls entirely outside the legislative competence of the Commonwealth. A view consonant with that which I have expressed has previously received acceptance in this Court: see The Commonwealth v. Colonial Combing, Spinning and Weaving Co. Ltd. [40] ; The Commonwealth v. The Australian Commonwealth Shipping Board [41] . The Constitution effects a distribution between the Commonwealth and the States of all power, not merely of legislative power. We are in no way concerned in the present case to consider the scope of the prerogative or the circumstances in which the Executive may act without statutory sanction. Once it is concluded that the Plan is one in respect of which legislation could not validly be passed, it follows that public moneys of the Commonwealth may not lawfully be expended for the purposes of the Plan.

1. (1922) 31 C.L.R. 421, at pp. 431-432, 437-441. 2. (1926) 39 C.L.R. 1, at p. 10.

There is no doubt in my mind that the questions that I have been discussing are justiciable. It has long been established that this Court has the power and the duty to decide whether legislation, whether passed by the Parliament of the Commonwealth or by the legislature of a State, is in accordance with the provisions of the Constitution which is, to use the words of Marshall C.J. in Marbury v. Madison [42] , "the fundamental and paramount law of the nation". As Fullagar J. said in Australian Communist Party v. The Commonwealth [43] , the principle of Marbury v. Madison [44] is accepted in our system as axiomatic. The duty of the Courts in giving effect to that principle was thus explained in Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [45] :

In a federal form of government a part is necessarily assigned to the judicature which places it in a position unknown in a unitary system or under a flexible constitution where Parliament is supreme. A federal constitution must be rigid. The government it establishes must be one of defined powers; within those powers it must be paramount, but it must be incompetent to go beyond them. The conception of independent governments existing in the one area and exercising powers in different fields of action carefully defined by law could not be carried into practical effect unless the ultimate responsibility of deciding upon the limits of the respective powers of the government were placed in the federal judicature. No reason exists for placing appropriation laws in a special position of constitutional inviolability. In Marbury v. Madison, Marshall C.J. said [46] : In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey? It is our duty to give effect to ss. 81 and 83 as much as to any other provision of the Constitution. The same principle requires us to pronounce on the validity of executive action when it is challenged. Indeed, some might think that the justification for the review by the courts of the constitutional validity of executive acts is even stronger than in the case of legislation. The duty of the courts to determine whether acts of the executive go beyond constitutional power has been clearly recognized in two notable cases in the United States. In Youngstown Sheet and Tube Co. v. Sawyer [47] , the Supreme Court struck down an executive order issued by the President professedly for the purpose of securing a continuing supply of steel during the Korean War. More recently, in United States v. Nixon [48] , the Supreme Court unanimously overrode a claim by the President to executive privilege and in so doing reaffirmed [49] the statement in Marbury v. Madison [50] that "it is, emphatically, the province and duty of the judicial department, to say what the law is". No different view has been taken in Australia. In Attorney-General (Vict.); Ex rel. Victorian Chamber of Manufactures v. The Commonwealth, Starke J. (who dissented in the result) said: "In the last resort it is for the Courts to determine whether the legislative and executive acts of the Commonwealth are within the powers conferred by the Constitution" [51] . Similarly, in Attorney-General (Cth) v. The Queen and the Boilermakers' Society of Australia, Viscount Simonds said that "in a federal system the absolute independence of the judiciary is the bulwark of the constitution against encroachment whether by the legislature or by the executive" [52] . 1. (1803) 1 Cranch 137, at p. 177 [2 Law. Ed. 60, at p. 73]. 2. (1951) 83 C.L.R. 1, at p. 262. 3. (1803) 1 Cranch 137 [2 Law. Ed. 60]. 4. (1956) 94 C.L.R. 254, at pp. 267-268. 5. (1803) 1 Cranch, at p. 179 [2 Law. Ed. at p. 74]. 6. (1952) 343 U.S. 579 [96 Law. Ed. 1153]. 7. (1974) 418 U.S. 683 [41 Law. Ed. 2d 1039]. 8. (1974) 418 U.S., at p. 703 [41 Law Ed. 2d, at p. 1061]. 9. (1803) 1 Cranch, at p. 177 [2 Law. Ed., at p. 73]. 10. (1935) 52 C.L.R. 533, at p. 566. 11. [1957] A.C. 288 at p. 315; (1957) 95 C.L.R. 529, at p. 540.

The final question is whether the State of Victoria or its Attorney-General had the necessary standing to institute these proceedings. It was said on behalf of the Commonwealth that an Appropriation Act is a mere authority to release money from the Treasury and that the State and its citizens are not concerned with the expenditure of the funds of the Commonwealth. It was pointed out that the Act imposes no duties upon, and creates no rights in, the citizens of the State and does not conflict with any legislation of the State or affect the exercise by the State of any of its powers. Finally, it was said that the principles upon which this Court has acted in determining whether a State or its Attorney-General has sufficient standing to institute legal proceedings are too narrow to permit the plaintiffs to sue in the present case.

In my opinion it is involved in the very nature of the Constitution that either the Commonwealth or a State should have standing to institute legal proceedings when the other has exceeded its constitutional authority. It seems to me that the Constitution, in defining the powers of the respective bodies politic, assumes that a remedy will be available to one of those bodies if another trespasses beyond the boundaries within which the Constitution has confined it. It is true that in the Pharmaceutical Benefits Case Dixon J. said [53] :

The settled doctrine of this Court was accurately expressed by Gavan Duffy C.J., Evatt and McTiernan JJ. in Attorney-General (Vict.) v. The Commonwealth [53a] , when they said: "In our opinion, it must now be taken as established that the Attorney-General of a State of the Commonwealth has a sufficient title to invoke the provision of the Constitution for the purpose of challenging the validity of Commonwealth legislation which extends to, and operates within, the State whose interests he represents". That statement of principle was sufficient for the purposes of that case but in my opinion it was not intended to be, and cannot be regarded as, exhaustive. For example, it would not cover circumstances such as those of Tasmania v. Victoria [54] ; similar legislation of the Commonwealth would in my opinion be open to challenge by Tasmania although it did not extend to or operate within that State. The statements made in earlier cases as to the circumstances in which the Attorney-General of a State has standing to challenge legislation of the Commonwealth on the ground that it is beyond power have, of course, been made in relation to the particular facts of those cases. The special position of an Appropriation Act has nowhere been considered except in the Pharmaceutical Benefits Case [55] and, since the majority of the Court in that case considered that the statute there under consideration was more than a mere Appropriation Act, the decision that the Attorney-General was entitled to maintain the action does not directly govern the present case, although it is certainly not adverse to the contention that the State and its Attorney-General have standing in the present case. If it were necessary to show that the State or its inhabitants are injured by a statute or by executive action in order to establish that the State has sufficient standing to challenge the legislation or executive act, in my opinion it should be held that the State of Victoria is injured by an invalid appropriation of Commonwealth funds. Such an unlawful appropriation deprives the State of the opportunity, however slight it may be, to share in surplus revenue under s. 94. Moreover, if the provisions of the Australian Assistance Plan had been enacted in statutory form by the Parliament, and if the Regional Councils had carried on their activities in Victoria under the assumed powers of such a statute, there could have been little doubt that the State of Victoria or its Attorney-General would have had standing to restrain what might be regarded as a usurpation of the State's administrative authority - cf. Attorney-General (N.S.W.) v. Brewery Employés Union of New South Wales [56] . If that is so it is impossible to accept that similar unconstitutional action could not be restrained if committed without any statutory sanction. It is only a short step to hold that unlawful expenditure for the purpose of promoting such unconstitutional activities should similarly be restrained. 1. (1945) 71 C.L.R. at pp. 272-273. 2. (1935) 52 C.L.R. 533, at p. 556. 3. (1935) 52 C.L.R. 157. 4. (1945) 71 C.L.R. 237. 5. (1908) 6 C.L.R. 469, at p. 557.

Reference was made to the decision of the Supreme Court of the United States in Massachusetts v. Mellon [57] , where it was held that a State had no standing to challenge the validity of an Act of the Congress of the United States which appropriated moneys for purposes said to be purely State purposes. It was said that the State could not sue on its own behalf, because the Court was not called upon to adjudicate any rights of person or property, or rights or dominion over physical domain, or quasi-sovereign rights actually invaded or threatened [58] . A further claim by the State, that it might sue as the representative of its citizens, was rejected in the following words [59] :

It cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof. While the State, under some circumstances, may sue in that capacity for the protection of its citizens it is no part of its duty or power to enforce their rights in respect of their relations with the federal government. In that field it is the United States, and not the State, which represents them as parens patriae, when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status. In more recent cases, challenges by the States to congressional legislation, some of which did not appear to invade the rights of the States, have been entertained by the Supreme Court (South Carolina v. Katzenbach [60] ; Oregon v. Mitchell [61] ). It is not for me to consider whether what the Supreme Court did in those cases affects the authority of what it said in Massachusetts v. Mellon [57] . However, whatever 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. However that may be, in my opinion Massachusetts v. Mellon states the law in a way which has not been accepted in Australia, and is inconsistent with decisions of this Court, as Starke J. pointed out in the Pharmaceutical Benefits Case [62] . 1. (1923) 262 U.S. 447 [67 Law. Ed. 1078]. 2. (1923) 262 U.S., at pp. 484-485 [67 Law. Ed., at p. 1084]. 3. (1923) 262 U.S., at pp. 485-486 [67 Law. Ed., at pp. 1084]. 4. (1966) 383 U.S. 301 [15 Law. Ed. 2d 769]. 5. (1970) 400 U.S. 112 [27 Law. Ed. 2d 272]. 6. (1923) 262 U.S. 447 [67 Law. Ed. 1078]. 7. (1945) 71 C.L.R., at p. 266.

There is in my opinion no authority that binds us to hold that either the State of Victoria or its Attorney-General has no standing in the present case. In my opinion each has a locus standi, although I would incline to the view that the State itself is the more appropriate plaintiff. I do not find it necessary to bring this case within the statements made in earlier decision, although, as I have indicated, that is possible. Those earlier statements, which were sometimes made under the influence of principles of private law that are not entirely applicable to constitutional cases, were not intended to lay down rules that would govern every case. I would base my conclusion on the fact that the Constitution, by defining the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, must be taken to have given to the Commonwealth and to each State a right to the observance of the constitutional limits and a standing to obtain such remedy as is necessary to secure their observance.

For these reasons I consider that the proceedings were appropriately brought and that the plaintiffs' demurrer to the defence of the Commonwealth and the Minister should be allowed.

In these proceedings the State of Victoria and its Attorney-General seek a declaration that the Appropriation Act (No. 1) 1974-1975 is ultra vires the Parliament of the Commonwealth insofar as it appropriates by one subdivision of the appropriations for the Commonwealth Department of Social Security almost $6 million for a purpose described as "Australian Assistance Plan". An injunction is also sought restraining expenditure for the purposes of that Plan. The Commonwealth and the Minister of that Department are defendants.

The defendants have denied that either plaintiff has standing to commence or prosecute this action. It is appropriate to determine this question of standing, if not the closely allied question of justiciability, before considering, if at all, the merits of the plaintiffs' attack upon validity.

It is necessary to examine with some care precisely what it is which is here said to be ultra vires. By its legislation what Parliament has done is to authorize the Treasurer to issue out of the Consolidated Revenue Fund - s. 4 - this large amount for the service described in Div. 530/4.01 and 4.02 of the Second Schedule of the Act, the Australian Assistance Plan. In doing so it has, in purported compliance with s. 83 of the Constitution, "made by law" an appropriation of funds.

Appropriation Acts represent one aspect of the legislature's control over the executive arm of government in matters financial, that concerned with the expenditure of government revenue as distinct from the raising of that revenue. The exercise of this control has long been regarded as a fundamental principle of parliamentary democracy on which is said to be grounded "the whole law of finance, and consequently the whole British constitution" - Redlich, Procedure of the House of Commons (1908), vol. 3, p. 114; however the present importance of appropriation by Parliament, when the Crown and the executive have come to represent the same forces as control a majority in the lower house, may be rather different from what it formerly was and may now lie principally in the opportunity which it affords for criticism by the Opposition and for scrutiny by the public.

What is presently complained of is not any circumvention by the executive of the legislature's control of expenditure but rather the allegedly ultra vires character of the authorization which has been given in the course of exercising that control; ultra vires because, so it is said, the purpose assigned in the Second Schedule of the Act to the impugned appropriation is not within federal competence. Thus the process of parliamentary control of expenditure, a process characteristic of parliamentary democracy in general, is said to have given rise to a peculiarly federal problem, the need to restrict within its proper limits the actions of one entity of the federation, the federal government. The character of the legislation itself, an appropriation of sums out of consolidated revenue for the service of a particular year, is not, of course, challenged as being beyond federal legislative power but it is said that if the particular object of an item of appropriation is beyond power, however the ambit of that power is to be determined, then to appropriate money to it is likewise beyond power.

Because the plaintiffs attack the Appropriation Act on grounds of ultra vires a misleading colour may tend to be given to these proceedings; they tend to be assimilated to proceedings, familiar in this Court, in which it is said that by the enactment of particular legislation the legislative powers of the Commonwealth have been exceeded. In fact rather different issues are raised; the real substance of the plaintiffs' complaint must be, not that the Commonwealth has exceeded its legislative competence but rather that, by the manner in which it is proposing to spend its revenues, it is exceeding its spending powers, which are not necessarily restricted to its heads of legislative power.

It is important to notice why it is that in these circumstances the plaintiffs, in prosecuting their attack upon what they claim to be a threatened ultra vires spending of money by the Commonwealth, focus their attack upon an exercise of the legislative power to appropriate, which does not in itself immediately result in any expenditure at all but merely dedicates money to a particular purpose and for a limited time, the financial year in question.

In the long history of the struggle by the Commons with Plantagenet, Tudor and Stuart kings for control of the financial affairs of the Kingdom it was in the form of Acts of Parliament that there evolved a mechanism for the control both of the raising of funds and of their expenditure, only achieved in full after the Revolution of 1688. But it was a quite special form of Act of Parliament which was developed for this purpose, one in which the three entities, the Commons, the Lords and the Crown, did not play their accustomed roles; instead the role of the Commons was quite predominant. In 1661 the Commons reiterated its objection to the initiation of money bills by the Lords, a complaint initially expressed early in the 15th century; in 1665 the principle of appropriation of supply for specific purposes was re-established by the Commons after its initial emergence in the 14th century and its subsequent demise; in 1671 the Commons resolved that money bills should not be amended by the Lords and in 1678 it resolved that it alone might originate such bills. All this occurred between Rebellion and Revolution; after the Revolution the Lords were left only with a power to withhold assent to money bills. Even that power was effectively deprived of meaning by the Parliament Act of 1911, under which a money bill not passed by the Lords might be presented for Royal Assent and become an Act of Parliament without the assent of the Lords.

The adoption of an Act of Parliament, rather than, for instance, a resolution of the Commons, as the mode of Commons control lies perhaps in the gradual development of that control and in the use of a familiar procedure to achieve a new end. Section 83 of the Constitution, by its reference to "appropriation made by law", adopts this practice of appropriation by Act of Parliament.

When an item in an Appropriation Act is attacked as ultra vires it is not in any real sense the Commonwealth Parliament's legislative power that is attacked but rather the taking of the first step in the expenditure of moneys on a particular purpose. As was said by Isaacs and Rich JJ. in The Commonwealth v. Colonial Ammunition Co. Ltd. [63] when speaking of the parliamentary appropriation of moneys:

The object of Parliament in such a case is financial, not regulative. In doing that, it is not concerned with general legislation, and is acting wholly alio intuitu This peculiar character of Appropriation Acts was, until 1963, made the more apparent by the then standing orders governing parliamentary procedure on money bills. Under that procedure, borrowed from what is still the British practice, the passage of an Appropriation Bill in the lower house was a mere formality, all significant proceedings being conducted in committee of the whole (Jay & Mathews, Government Accounting in Australia (1968), pp. 10-11). Lord Palmerston described an Appropriation Bill passed under that procedure as no more than "a form that is required by the Constitution, and not a Bill to give rise to any discussion" (Todd, Parliamentary Government in England (1867), vol. 1, p. 529). 1. (1924) 34 C.L.R. 198, at p. 224.

It is, then, with this special type of Act of Parliament that the present proceedings are concerned. It is an Act which, while a necessary precondition to lawful disbursement of money by the Treasury, is not in any way directed to the citizens of the Commonwealth; it does not speak in the language of regulation, it neither confers rights or privileges nor imposes duties or obligations. It only permits of moneys held in the Treasury being paid out, upon the Governor-General's warrant, to departments of the Government. Its importance is essentially confined to the polity in question, here the federal polity; the control which, by its means, is exercised by the legislature over proposed government expenditure is of significance within the framework of that polity but has no direct effect upon the powers or interests of the other component parts of the federation, the States.

How then can the present plaintiffs, the State of Victoria and its Attorney-General, have any standing to complain of this legislative authorization of proposed federal expenditure? The answer is, in my view, that they cannot. The State itself has no concern with the mode of expenditure of federal revenue unless it be associated with some claim to surplus revenue of the Commonwealth under s. 94 of the Constitution, but the present proceedings are no more appropriate to raise any such claim than were those in Attorney-General (Vict.); Ex rel. Dale v. The Commonwealth ("the Pharmaceutical Benefits Case") [64] ; I would adopt what Latham C.J. there said [65] . The plaintiffs did not seek to support standing by reference to surplus revenue, no doubt both because of the Commonwealth's use of trust funds, sanctioned in New South Wales v. The Commonwealth [66] and exemplified, in refined form, in s. 7 of the present Appropriation Act and because, in any event, the very large deficit budgeted for effectively eliminates it from consideration.

1. (1945) 71 C.L.R. 237. 2. (1945) 71 C.L.R., at p. 247. 3. (1908) 7 C.L.R. 179.

The citizens of the Commonwealth, as federal taxpayers, certainly have, in the colloquial sense, a very real interest in how moneys collected from them are disbursed; not so much because they contributed a part of that money but rather because its very expenditure is likely to increase their future tax liability. In some jurisdictions this has been held to accord to individual taxpayers sufficient standing to sue; thus in Flast v. Cohen [67] the Supreme Court recognized the standing of an individual taxpayer. Consistently with Frotheringham v. Mellon [68] , it denied standing where challenged spending was merely said to go beyond the general taxing and spending power of Congress conferred by s. 8(1) of Art. 1 of the Constitution but recognized it where the impugned spending was alleged to exceed specific constitutional limitations upon that power. This is not, however, an action by a taxpayer; the question of a taxpayer's standing to sue when ultra vires spending is alleged has, to date, only been adverted to by this Court in passing reference: Pye v. Renshaw [69] ; Fishwick v. Cleland [70] ; Logan Downs Pty. Ltd. v. Federal Commissioner of Taxation [71] . A full consideration of the question must await the appropriate case.

1. (1968) 392 U.S. 83 [20 Law. Ed. 2d 947]. 2. (1923) 262 U.S. 447 [67 Law. Ed. 1078]. 3. (1951) 84 C.L.R. 58, at p. 83. 4. (1960) 106 C.L.R. 186, at p. 199. 5. (1965) 112 C.L.R. 177, at pp. 186-187.

What then of the standing of the Victorian Attorney-General, as distinct from that State itself? If he be regarded as protecting "on behalf of the Crown those rights and functions with which the King, guided solely by his State representatives and advisers, is invested in respect of the State" (the Union Label Case (per Isaacs J.) [72] ) he can be in no better case than the State itself, which, as I have already said, has no relevant interest in the spending of federal moneys. But if he may also be regarded as entitled to sue as parens patriae, on behalf of his Victorian public and in respect of some injury to their public rights, can he thereby, and independently of any rights of his State, derive sufficient standing? I think not.

In expressing this view I need not go so far as did Higgins J. in his dissenting judgment in the Union Label Case [73] . His Honour would have confined an Attorney-General to his particular public, in this case the public of Victoria, so that federal legislative or executive action affecting the public of Australia as a whole would be the concern of the federal Attorney-General and not of any State Attorney-General. A view identical to that of Higgins J. was adopted by the United States Supreme Court in Massachusetts v. Mellon [1] a case which was heard at the same time as Frotheringham v. Mellon [2] and which appears still to be the prevailing view in that Court (Ohio v. Wyandotte Chemicals Corporation [3] and American Jurisprudence (2d) vol. 72, p. 486, par. 91).

1. (1908) 6 C.L.R., at p. 597. 2. (1923) 262 U.S., at pp. 485-486 [67 Law Ed., at p. 1084]. 3. (1923) 262 U.S. 447 [67 Law. Ed. 1078]. 4. (1971) 401 U.S. 493, at p. 512 [28 Law. Ed. 2d 256, at p. 270].

It is instead enough to rely upon what has been described by Dixon J. in the Pharmaceutical Benefits Case as "the settled doctrine of this Court" [4] . That doctrine was expressed by Gavan Duffy C.J., Evatt and McTiernan JJ. in Attorney-General (Vict.) v. The Commonwealth when they said [5] :

In our opinion, it must now be taken as established that the Attorney-General of a State of the Commonwealth has a sufficient title to invoke the provision of the Constitution for the purpose of challenging the validity of Commonwealth legislation which extends to, and operates within, the State whose interests he represents . This doctrine was also expressly approved of by the Chief Justice in the Pharmaceutical Benefits Case [6] ; he then also spoke of a State Attorney-General's right to seek a declaration of invalidity as arising where federal legislation involved an invasion of a purely State field of legislative power and therefore interfered with the public rights of citizens of the State. 1. (1945) 71 C.L.R., at p. 272. 2. (1935) 52 C.L.R. 533, at p. 556. 3. (1945) 71 C.L.R., at pp. 247-248.

The doctrine, while it is expressed in terms recognizing, rather than restricting, locus standi, contains a significant limitation; it describes those laws which may be so challenged by a State Attorney-General as laws which extend to and operate within his State. In the Union Label Case Isaacs J. had made use of a similar concept when he spoke of a law the provisions of which were "constantly operating in New South Wales, and assuming to govern the conduct of residents of that State " [7] . Griffith C.J. in that case had relied for a State Attorney-General's standing upon the injurious effect which the claimed exercise of some public function would have upon the public of his State [8] . O'Connor J. likewise relied upon injurious effect and the hampering of State citizens' freedom to trade [9] .

1. (1908) 6 C.L.R., at p. 558. 2. (1908) 6 C.L.R., at p. 499. 3. (1908) 6 C.L.R., at p. 553.

In the Pharmaceutical Benefits Case both Latham C.J. [10] and McTiernan J. [11] expressly reserved the question of locus standi in the case of a federal Appropriation Act; however the former, in doing so, drew attention to the views of the Supreme Court in Massachusetts v. Mellon [12] , in which the standing of a State Attorney-General was, in like circumstances, denied, and to the observation of Sir Harrison Moore that appropriations of public money took nothing out of the pockets of the people and were rather burdens on the Crown or the revenue. These reservations were there appropriate enough since the Pharmaceutical Benefits Case [13] was concerned with legislation which went considerably beyond the bare appropriation of moneys and did not call for any decision as to standing of a State Attorney-General where a simple federal Appropriation Act was in question. It was in those circumstances that Dixon J. referred to the Attorney-General's traditional duty to protect public rights and to a State Attorney-General accordingly having standing to sue for a declaration wherever his public "is or may be affected" by an ultra vires act on the part of Commonwealth or State [14] . He thus rejected the Commonwealth's submission to the contrary which relied upon the fact that "but little" exertion of coercive power was involved and that there was neither prejudice to rights or immunities enjoyed as of common right nor invasion of a field already occupied by existing State legislation. The other judgments in the case in no way cast doubt upon the doctrine to which I have referred. Rich J. [15] relied for his conclusion that the Attorney-General and standing upon his reasons in two earlier decisions of the Court in which he had upheld standing upon the basis, in the first, of legislative interference with a freedom to trade conferred upon an Attorney-General's public by the Constitution (Tasmania v. Victoria [16] ) and in the second upon the basis of allegedly ultra vires Commonwealth trading activities competitive with the activities of citizens of a State (Attorney-General (Vict.) v. The Commonwealth [17] ). It was upon these two cases and the Union Label Case [18] that Starke J. also relied in holding competent the Attorney-General's action [19] . Williams J. described the action as one concerned with alleged infringement of the public right of Victorian citizens not to be subjected to ultra vires federal legislation [20] and referred to the question for the Court as being whether or not the public in each of the States was entitled to the benefits and subject to the obligations imposed by the legislation [21] .

1. (1945) 71 C.L.R., at p. 248. 2. (1945) 71 C.L.R., at p. 276. 3. (1923) 262 U.S. 447 [67 Law. Ed. 1078]. 4. (1945) 71 C.L.R. 237. 5. (1945) 71 C.L.R., at p. 272. 6. (1945) 71 C.L.R., at p. 264. 7. (1935) 52 C.L.R. 157, at p. 171. 8. (1935) 52 C.L.R., at p. 561. 9. (1908) 6 C.L.R. 469. 10. (1945) 71 C.L.R., at p. 266. 11. (1945) 71 C.L.R., at p. 277. 12. (1945) 71 C.L.R., at p. 278.

In the light of the foregoing I conclude that where the federal legislation which is impugned is no more than an Appropriation Act, whose provisions not only do not extend to and operate within any State and do not affect, still less interfere with, public rights but have no ordinary law making function at all, not purporting to govern the conduct of the citizens of any State or of the Commonwealth and having no injurious effect upon their trading activities or other rights, the Attorney-General of a State has no standing to sue. There is here nothing which can operate so as to "hamper the freedom of citizens of the State" (per O'Connor J., in the Union Label Case [22] ) because what is complained of is not truly an instance of law making but rather an example of the exercise of fiscal control over the executive by the legislature.

To express this conclusion is to acknowledge that, whatever might be the outcome of appropriate proceedings brought by an individual federal taxpayer or by the Commonwealth Attorney-General, the allegedly ultra vires expenditure by the Commonwealth of its own funds which this Appropriation Act is said to authorize may not be attacked in a declaratory action instituted by the Attorney-General of another political entity, the State of Victoria. So expressed, the proposition accords well enough with concepts of inter-governmental relationships within a federation and does, I think, no violence to, but rather conforms with, the previous work of this Court, referred to by Dixon J. in the Pharmaceutical Benefits Case [23] , of applying to our federal system a doctrine developed in the English unitary system.

The question of justiciability is necessarily closely associated with that of standing and in a number of the precedent cases in this Court, including the Pharmaceutical Benefits Case [24] , justiciability was argued and was dealt with in the reasons of members of the Court. In the present case we heard no argument on justiciability; this fact, coupled with the circumstances that if proceedings impugning an Appropriation Act were to be brought by a federal taxpayer quite different considerations might arise, leads me to conclude that no general proposition as to the justiciability of allegedly ultra vires spending by the Commonwealth should be stated. To deny standing to the plaintiffs is sufficient to dispose of these proceedings.

The first question for decision is whether the power of the Commonwealth Parliament to appropriate by statute moneys standings to the credit of Consolidated Revenue is unlimited and extends to any purpose which the Parliament may select as a purpose of the Commonwealth (the view taken by Latham C.J. and McTiernan J. in the Pharmaceutical Benefits Case [24] ) or whether it is more narrowly confined to purposes conforming to the powers and functions entrusted to the Commonwealth as a national government under the Constitution (the view which, subject to some variations, was taken by the other members of the Court in the same case).

The precise source of the Commonwealth's power to appropriate has been the subject of much discussion - see the Report of the Royal Commission on the Constitution (1929), pp. 137-139. It has been thought by some that s. 81 of the Constitution is not the source of the appropriation power and that the section assumes the existence of a legislative power to appropriate elsewhere conferred by the Constitution, as, for example, by s. 51(xxxix.) or by the specific grants of legislative power to be found in the Constitution, including in particular ss. 51, 52 and 122. The consequence, according to the proponents of this view, is that the power of appropriation is limited to "what can be done by the enactment of a valid law" (Pharmaceutical Benefits Case [25] ). Others have considered that s. 81 is the source of the power or that it defines the extent and scope of an implied power to appropriate by its use of the words "for the purposes of the Commonwealth" (Pharmaceutical Benefits Case [26] ).

1. (1945) 71 C.L.R., at p. 271. 2. (1945) 71 C.L.R., at pp. 252-254, 265, 273, 281-282.

The weight of opinion in the Pharmaceutical Benefits Case [1] was that s. 81 defined the scope and extent of the power, a view confirmed by the observation of the Court in Australian Woollen Mills Pty. Ltd. v. The Commonwealth [2] , where Dixon C.J., Williams, Webb, Fullagar and Kitto JJ. said that the section "authorizes the appropriation of the revenues and moneys of the Commonwealth for the purposes of the Commonwealth". See also Attorney-General (Vict.) v. The Commonwealth [3] ; the Second Uniform Tax Case [4] .

1. (1945) 71 C.L.R. 237. 2. (1954) 92 C.L.R. 424, at p. 454. 3. (1935) 52 C.L.R. 533, at pp. 567-568. 4. (1957) 99 C.L.R. 575, at p. 655.

In ascertaining the meaning of "for the purposes of the Commonwealth", which is the critical expression in s. 81, it is necessary to keep in mind the function and purpose of an Appropriation Act. 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 [5] : "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. [6] .

1. [1924] A.C. 318, at p. 326. 2. (1924) 34 C.L.R. 198, at p. 224.

Their Honours, after noting that an Appropriation Act is "financial, not regulative", continued [7] : "It neither betters nor worsens transactions in which the Executive engages within its constitutional domain, except so far as the declared willingness of Parliament that public moneys should be applied and that specified funds should be appropriated for such a purpose is a necessary legal condition of the transaction." An Appropriation Act therefore is something of a rara avis in the world of statutes; its effect is limited in the senses already explained; apart from this effect it does not create rights, nor does it impose duties.

The case for confining the expression "for the purposes of the Commonwealth" to activities which fall within the exercise of powers legislative, executive and judicial, committed to the Commonwealth under the Constitution has its attractions, based largely as it is, on important considerations stemming from the distribution of powers and the consequential division of functions between the Commonwealth and the States. The existence of an unlimited power of appropriation would, it was said, be quite inappropriate to, and inconsistent with, the distribution of powers so carefully contrived by the Constitution. A limited power of appropriation would play a powerful part in keeping the Commonwealth within the bounds assigned to it by that instrument.

Likewise, the existence of s. 94 of the Constitution, which provides for the distribution to the States of the surplus revenue of the Commonwealth, was urged as an additional reason for restricting Commonwealth appropriations to purposes falling within the area of responsibility assigned to the Commonwealth under the Constitution. The application of the section was curtailed when this Court decided in New South Wales v. The Commonwealth [8] that it gives the States no interest in moneys appropriated but not expended. So construed the section allows the Parliament to give priority to appropriations for Commonwealth purposes, even by means of permanent or standing appropriations to trust accounts into which moneys are paid from Consolidated Revenue pursuant to the authority conferred by the appropriation. As the section merely assumes, without stipulating, that there will be a surplus, the entitlement which it gives to the States to participate in the distribution of surplus revenue leaves them very much at the mercy of the Commonwealth.

In this situation the more limited is the Commonwealth's power of appropriation the greater is the prospect that the States have of securing by a distribution of surplus revenue a financial provision which is more commensurate with their needs. Conversely, if the power of appropriation is unlimited, the smaller will be the amount of a surplus available for distribution to the States. This observation is subject to the important qualification that even if the power of appropriation be unrestricted, its exercise is necessarily influenced by the limited scope of the Commonwealth's legislative, executive and judicial powers, a matter to be discussed later.

However, the support which these considerations give to the plaintiffs' case are, I think, outweighed by other factors which point to an opposite conclusion.

The annual appropriations are a central feature of the financial arrangements made for the government of the country. It is not lightly to be supposed that the framers of the Constitution intended to circumscribe the process of parliamentary appropriation by the constraints of constitutional power and thereby to expose the items in an Appropriation Act to judicial scrutiny and declarations of invalidity. Consequences more detrimental and prejudicial to the process of Parliament would be difficult to conceive. Any item in the Act would be subject to a declaration of invalidity after the Act is passed, even after the moneys in question are withdrawn from Consolidated Revenue and perhaps even after the moneys are expended, for an appropriation, if it be unlawful and subject to a declaration of invalidity, does not cease to have that character because acts have taken place on the faith of it.

The adverse consequences of a narrow view of s. 81 do not stop at this point. 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. How is the short description of an item contained in the schedule to the Act to serve as the fulcrum of constitutionality? If it fails to throw sufficient illumination on the area of doubt, is the Court to have regard to supplementary material, as it has been invited to do in this case, and if so, to what material will it have recourse? These questions, which to my mind admit of no satisfactory solution, illustrate the problems inherent in the narrow construction offered by the plaintiffs and the hazards attending the processes of Parliament if that construction is accepted.

Another consequence of the plaintiffs' view of s. 81 is that it would deprive the Commonwealth of the power to make grants for purposes thought to be deserving of financial support by government, yet standing outside the area of Commonwealth power, and not involving any exercise of the Commonwealth's executive power. Over the years there have been many instances of appropriations made by the Parliament to persons and bodies and for purposes which appear to have little, if any, connexion with the functions and powers of the Commonwealth under the Constitution. On the plaintiffs' argument these appropriations are invalid. The consequence would be that public money has been illegally withdrawn from the Treasury and paid away. And for the future the Commonwealth, subject to the authority which s. 122 provides, could make such grants only through the agency of the States under s. 96.

Although some have discovered in s. 96 of the Constitution a power to make grants to the States which would not otherwise exist, the section should in my view be seen as a provision which puts beyond question the power of Parliament to attach conditions to grants made to the States, as to which doubts would certainly have existed had explicit provision not been made. But it could scarcely be doubted that in the absence of s. 96 the Parliament would have enjoyed the power to make unconditional grants to the States. So much at least would be implied from the relationship subsisting between the Commonwealth and the States as constituent elements in the federation and the possession by the Commonwealth of its taxation and other financial powers. The presence of s. 96 is therefore not a reason for confining s. 81 as the plaintiffs would suggest.

The far-reaching interpretation given to the appropriation power of Congress by the Supreme Court of the United States supplies no reason for reaching a contrary view. It has been held that "the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution" (United States v. Butler [9] ; Helvering v. Davis [10] ). However, Art. 1, s. 8, cl. 1 of the United States Constitution associates the appropriation power with the power to tax. It empowers Congress to tax and to appropriate "to provide for the general welfare of the United States". The words of Art. 1, s. 8, cl. 1 were held to overcome the federal considerations which had been advanced by Madison to support the contrary opinion. It has been said that the Supreme Court has not conceded to Congress a power to appropriate without any limitation. Alexander Hamilton and Story J., whose view was accepted by the Supreme Court, considered that the power extended only to matters of national, not local, welfare (see United States v. Butler [11] ). Cardozo J. thought that an appropriation might be judicially reviewable when "it was a display of arbitrary power, not an exercise of judgment" (Helvering v. Davis [12] ).

1. (1935) 297 U.S. 1, at p. 66 [80 Law. Ed. 477, at p. 488]. 2. (1937) 301 U.S. 619 [81 Law. Ed. 1307]. 3. (1935) 297 U.S., at p. 67 (80 Law. Ed., at p. 489]. 4. (1937) 301 U.S., at p. 640 [81 Law Ed., at p. 1315].

Whether these qualifications amount to a significant limitation on the power of Congress is not altogether clear. When an appropriation is to be characterized as a matter of local, rather than national, welfare or as a display of arbitrary power, rather than an exercise of judgment, is by no means easy to ascertain. Apt though these qualifications may be to the appropriation power of Congress there is no basis for their introduction into our Constitution which is differently expressed. And in the ultimate resort the point remains that even if these qualifications were thought to be appropriate to the power conferred by s. 81 they fall far short of the limitations which the plaintiffs seek to introduce.

It follows, then, that I would give to the words "for the purposes of the Commonwealth" in s. 81 the meaning ascribed to them by Latham C.J. in the Pharmaceutical Benefits Case [13] , that is, for such purposes as Parliament may determine.

But this is not to say that the Commonwealth has an unlimited executive power or that a statutory appropriation provides lawful authority for the engagement by the Commonwealth in particular activities. An appropriation, as I have explained, has a limited effect. It may provide the necessary parliamentary sanction for the withdrawal of money from Consolidated Revenue and the payment or subscription of money to a particular recipient or for a particular purpose but it does not supply legal authority for the Commonwealth's engagement in the activities in connexion with which the moneys are to be spent. Whether the Commonwealth can engage in any specific activities depends upon the extent of the Commonwealth's legislative, executive and judicial powers.

Here, no legislation having been enacted to give effect to the Australian Assistance Plan, we must look to the executive power. In the words of s. 61, the executive power of the Commonwealth "extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth". Although the ambit of the power is not otherwise defined by Ch. II it is evident that in scope it is not unlimited and that its content does not reach beyond the area of responsibilities allocated to the Commonwealth by the Constitution, responsibilities which are ascertainable from the distribution of powers, more particularly the distribution of legislative powers, effected by the Constitution itself and the character and status of the Commonwealth as a national government. The provisions of s. 61 taken in conjunction with the federal character of the Constitution and the distribution of powers between the Commonwealth and the States make any other conclusion unacceptable. Moreover, it is a view of the executive power which is confirmed by the past decisions of this Court (see The Commonwealth v. Colonial Combing, Spinning and Weaving Co. Ltd. ("the Wooltops Case") [14] ; The Commonwealth v. Australian Commonwealth Shipping Board [15] ).

1. (1922) 31 C.L.R. 421, at p. 432. 2. (1926) 39 C.L.R. 1, at p. 10.

However, in ascertaining the potential scope of the power there are several important considerations which need to be kept steadily in mind. First, the incidental power contained in s. 51(xxxix.) taken in conjunction with other powers, notably s. 61 itself, adds a further dimension to what may be achieved by the Commonwealth in the exercise of other specific powers. So in Burns v. Ransley [16] and The King v. Sharkey [17] , ss. 24A, 24B and 24D of the Crimes Act 1914-1946 Cth were held to be supported by the combination of ss. 51(xxxix.) and 61. Secondly, the Commonwealth enjoys, apart from its specific and enumerated powers, certain implied powers which stem from its existence and its character as a polity (Australian Communist Party v. The Commonwealth [18] ). So far it has not been suggested that the implied powers extend beyond the area of internal security and protection of the State against disaffection and subversion. But in my opinion there is to be deduced from the existence and character of the Commonwealth as a national government and from the presence of ss. 51(xxxix.) and 61 a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation.

1. (1949) 79 C.L.R. 101. 2. (1949) 79 C.L.R. 121. 3. (1951) 83 C.L.R. 1, at pp. 187-188.

It is in the exercise of this capacity that the Commonwealth has established the Commonwealth Scientific and Industrial Research Organization to undertake scientific research on behalf of the nation. The Science and Research Act 1951, as amended, is an exercise of the power conferred by s. 51(xxxix.) and s. 61 or perhaps of implied power. So also the Commonwealth may expend money on inquiries, investigation and advocacy in relation to matters affecting public health, notwithstanding the absence of a specific legislative power other than quarantine - see the Pharmaceutical Benefits Case [19] . No doubt there are other enterprises and activities appropriate to a national government which may be undertaken by the Commonwealth on behalf of the nation. The functions appropriate and adapted to a national government will vary from time to time. As time unfolds, as circumstances and conditions alter, it will transpire that particular enterprises and activities will be undertaken if they are to be undertaken at all, by the national government.

However, the executive power to engage in activities appropriate to a national government, arising as it does from an implication drawn from the Constitution and having no counterpart, apart from the incidental power, in the expressed heads of legislative power, is limited in scope. It would be inconsistent with the broad division of responsibilities between the Commonwealth and the States achieved by the distribution of legislative powers to concede to this aspect of the executive power a wide operation effecting a radical transformation in what has hitherto been thought to be the Commonwealth's area of responsibility under the Constitution, thereby enabling the Commonwealth to carry out within Australia programmes standing outside the acknowledged heads of legislative power merely because these programmes can be conveniently formulated and administered by the national government.

In this respect s. 96 has a dual significance. On the one hand it indicates that the executive power, like the appropriation power, extends to the investigation and formulation of policies to be expressed in conditions to be attached to grants made to the States. On the other hand its presence confirms what is otherwise deducible from the Constitution, that is, that the executive power is not unlimited and that there is a very large area of activity which lies outside the executive power of the Commonwealth but which may become the subject of conditions attached to grants under s. 96.

The appropriation in question is contained in the appropriations for the Department of Social Security in the Second Schedule to the Appropriation Act (No. 1) 1974-1975. It is under "Division 530. - Administrative " and is expressed as follows:

4. • Australian Assistance Plan - $ 01. Grants to Regional Councils for Social Development 5,620,000 02. Development and evaluation expenses 350,000 5,970,000

The Treasurer may issue out of the Consolidated Revenue Fund and apply for the services specified in Schedule 2, in respect of the year ending on 30 June 1975, the sum of $2,863,510,000.

According to the Commonwealth's defence the purpose of the Australian Assistance Plan which was announced by the Minister for Social Security on or about 30th August 1973

is and was at all material times to assist, in the manner set out in the Discussion Paper and a Document issued by the Government of the Commonwealth in October 1973 entitled "Guidelines for Pilot Programme - Australian Assistance Plan" in the development, within a nationally co-ordinated framework, of integrated patterns of welfare services, having regard to and recognising the existing responsibilities for welfare services of the Commonwealth, the Government of the Commonwealth, the States, the Governments of the States, Municipalities, Municipal Governments and voluntary agencies. This statement of the purpose of the Assistance Plan is taken from par. 1.1 of Discussion Paper No. 1 which endeavours to express more comprehensively, if not more coherently, the aim of the Plan.

It would be an unrewarding exercise to recapitulate the principal elements in the Plan as they emerge from the documents. It is sufficient to say that it is not confined, as the defence might suggest, to the co-ordination on a national basis of welfare services otherwise provided and to be provided. It makes provision for the establishment and financing of Regional Councils for social development throughout Australia. The pilot programme records that in the first full year twenty-nine bodies received administrative grants only and a further six Councils received capitation grants for expenditure on social welfare services covering a wide range of social welfare activities including such activities as family day care programmes, parent education programmes, family counselling services, home help and housekeeper services, provision of community and other centres. The function of the Regional Councils is to stimulate interest in activity in the broad field of social development.

The pilot programme provides for four types of grant to Regional Councils. They are: (1) Initiating grants for the formulation of Councils which are to be made available in regions other than the thirty-five already funded. (2) Administrative grants of up to $40,000 per annum to the thirty-five Councils already established for staff salaries and administrative costs. (3) Capitation grants not exceeding an amount calculated on the basis of $2 per head of population in the region to be paid to the six full pilot regions. The actual amount of the grant is determined after consideration of projects for expenditure within the schedule of welfare services referred to in Ch. 4 of Discussion Paper No. 1 submitted by the council. (4) Grants for community development officers to be employed by a local authority, welfare organization in the region or even by the Council itself.

The elements of the Plan have not yet been enshrined in legislation. At this time it exists as an administrative scheme only. However, the pilot programme contemplates that enabling legislation will be introduced into the Parliament. Plainly enough the legislation contemplated is not an exercise of the power conferred by s. 96. Nowhere in the documents is it suggested that the scheme is to be administered by or through the States. Likewise, despite the Solicitor-General's vigorous asseverations to the contrary, it seems clear that the programme is not an experimental programme conducted with a view to determining or formulating a policy according to which s. 96 grants might be made to the States.

The documents indicate that the elements of the scheme are to be a direct responsibility of the Commonwealth, acting not through the States and their agencies, but independently of them. They also show that, although the pilot programme is experimental in the sense that alterations to the programme will be made in the light of experience gained, the Plan as such has been put forward and adopted as a continuing social welfare scheme. So it is that the establishment of regional councils has not been undertaken as an experiment but as a deliberate step in a social welfare scheme which calls for the setting up of regional councils throughout Australia, operating not under the aegis of the States, but independently of and perhaps in competition with them and their institutions.

In the light of what I have already said as to the extent of the appropriation power, the Appropriation Act, in so far as it relates to item 530.4, the item in question, is a valid exercise of that power conferred by s. 81. However, in my view the activities which call for the expenditure of this money, the elements which comprise the scheme known as the Australian Assistance Plan, stand largely, if not wholly, outside the boundaries of the executive power of the Commonwealth. I acknowledge that some part of the moneys appropriated could find their way into the hands of citizens in the form of pensions within the meaning of s. 51(xxiii.) and (xxiiiA.), but this is consequential upon the establishment and operation of the regional councils which, as I understand it, is central to the creation of the bureaucratic organization envisaged by the Australian Assistance Plan. The carrying into execution of that Plan is in my view outside the realm of the executive power of the Commonwealth and should be restrained by injunction subject to the question of the plaintiffs' locus standi.

The fact that the item of appropriation under consideration appears in the list of appropriations for the Department of Social Security has no relevance to the question whether the implementation of the Australian Assistance Plan falls within the executive power of the Commonwealth. That the money in question is given to the department does not bring the establishment or the activities of the Regional Councils within the ambit of constitutional power.

The question as I see it is whether the plaintiffs have standing to challenge activities of the Commonwealth standing outside the area of its executive power, involving as they do the expenditure of money which has been appropriated for that purpose. As we are not concerned with a challenge by a State or its Attorney-General to the validity of a Commonwealth law operating in the State it is idle to appeal to the principle established by Attorney-General (N.S.W.) v. Brewery Employés Union of New South Wales [20] , and expressed by Gavan Duffy C.J., Evatt and McTiernan JJ. in Attorney-General (Vict.) v. The Commonwealth in these words [21] :

the Attorney-General of a State of the Commonwealth has a sufficient title to invoke the provision of the Constitution for the purpose of challenging the validity of Commonwealth legislation which extends to, and operates within, the State whose interests he represents. 1. (1908) 6 C.L.R. 469. 2. (1935) 52 C.L.R. 533, at p. 556.

It is equally irrelevant to appeal to the principle said to be enunciated by the Supreme Court of the United States in Massachusetts v. Mellon [22] , that a State lacks standing to challenge the validity of an appropriation of funds by Congress.

The real interest of the States, so it seems to me, is that they are constituent elements in the federation and that the federation is one in which there is a division of powers and a consequential allocation of responsibilities between the Commonwealth and the States. As such they have an interest in the observance of the Constitution and in ensuring that the Commonwealth keeps within the bounds assigned to it by the Constitution. Ultra vires acts on the part of the Commonwealth, that is, acts exceeding constitutional power, whether legislative or executive, are in truth intrusions into the area of responsibility left to the States by the Constitution and are in this sense prejudicial to the interest of the States under the Constitution and as constituent elements of the federation. To this interest may be joined the prospective interest which they have in the distribution of surplus revenue under s. 94; it is an interest which entitles them to seek relief from this Court.

If the situation were otherwise it is not easy to see how relief could be obtained against the commission of ultra vires acts of this kind by the Commonwealth. The activity in question creates no cause of action in the individual citizen and the individual taxpayer has no interest at all in funds standing to the credit of Consolidated Revenue. His interest in challenging the validity of what is proposed to be done is less direct than that of the States.

The final comment which should be made is that if the traditional procedure had been followed and legislation had been enacted to give effect to the Australian Assistance Plan, the States would in my opinion have had standing to challenge it according to the principle stated in Attorney-General (N.S.W.) v. Brewery Employés Union of New South Wales [23] as a law operating in the States and in this respect I would draw no distinction between a State and its Attorney-General. Yet it is suggested that because the Plan lacks the customary statutory clothes, the States lack standing to challenge its want of constitutional authority. It is an argument which should be rejected.

In the result I would refuse the declaration sought but I would grant an injunction restraining the defendants from carrying into effect the Australian Assistance Plan and from expending the moneys appropriated for the purpose of carrying the Plan into effect.

The Appropriation Act (No. 1) 1974-1975 in Div. 530 of the Second Schedule, more particularly in par. 4 of that division, contains the following

4. • Australian Assistance Plan - $ 01. Grants to Regional Councils for Social Development 5,620,000 02. Development and evaluation expenses 350,000 5,970,000

The State of Victoria objects to these appropriations in so far as they purport to authorize the expenditure of some part of the sum so appropriated within the State of Victoria. It has commenced proceedings in this Court against the Commonwealth of Australia and the Minister for Social Security claiming a declaration that the said Appropriation Act in so far as it provides that the said sum of $5,970,000 is appropriated from the Consolidated Revenue Fund for the Australian Assistance Plan is beyond the powers of the Parliament of the Commonwealth and is void and of no effect and an injunction restraining the defendants and each of them from expending any of the moneys of the Commonwealth in pursuance of or for the purposes of the Australian Assistance Plan.

The statement of claim alleges that on or about 30th August 1973 the Minister for Social Security purported to establish the "Australian Assistance Plan" and that pursuant to the said Plan the Minister since September 1973 has purported to establish Regional Councils for Social Development and in particular has established such Councils within the State of Victoria. It is claimed that he plans and intends that each of the said Regional Councils should employ a social planner, a secretary and other staff to be known as a "Secretariat for Social Planning". The statement of claim then alleges that save that the said Regional Councils are to plan and provide social welfare services within the community and are to establish the said Secretariats for Social Planning the purposes of the Plan are not defined. It is then alleged that the establishment of the said Plan and the establishment of the said Regional Councils and the said Secretariats is unauthorized and in particular (without limiting the generality of the foregoing) is not authorized by any Act or Resolution of the Parliament of the Commonwealth and further is not authorized by any proclamation or order by the Governor-General whether under any Act of the Parliament of the Commonwealth or otherwise howsoever and further is not authorized by any regulation, rule or by-law whether under any Act of the Parliament of the Commonwealth or otherwise howsoever.

Paragraph 7 of the statement of claim then alleges the appropriation in the Appropriation Act to which I have referred and in par. 8 claims that in so far as that Act provides that the sum of $5,970,000 is appropriated and is deemed to have been appropriated from the Consolidated Revenue Fund of the Commonwealth as from 1st July 1974 for the said Plan in respect of the financial year 1974-1975 the said Act is beyond the powers of the Parliament of the Commonwealth and is void and of no effect. Paragraph 9 alleges that pursuant to the said Plan the Minister has purported to authorize and has directed the payment of and has caused to be paid part of the said sum of $5,970,000 to Regional Councils for Social Development within the State of Victoria for the purposes of such Councils using such moneys to plan and to provide social welfare services within the community and for the further purpose of such Councils using such moneys to establish and pay for the said Secretariats for Social Planning. The next paragraph alleges that the Minister threatens and intends to continue so to do. It is then claimed that the expenditure of moneys of the Commonwealth in pursuance of the said Plan is contrary to law and is beyond the power of the Commonwealth.

It is understandable that on the basis of those allegations the submissions of the Solicitor-General for Victoria should have been directed primarily to the claim that an appropriation is bad unless the purposes thereof flow from and are governed by legislation of the Commonwealth independent of and separate from the actual appropriation of moneys, and to the claim that no purpose is stated for the appropriation of the said sum of $5,970,000.

It does not appear to me that there is any substance in either of these submissions. It cannot be said that the appropriation is one without purpose because the purpose, good or bad, is distinctly stated. It is a purpose of paying moneys to Regional Councils for Social Development, the establishment of which is alleged in the statement of claim itself. It also appears from the terms of the appropriation that the money may be paid to the Regional Councils for the purposes of the Australian Assistance Plan, and, again, the establishment of that Plan is alleged in the statement of claim. The moneys so appropriated may within the terms of the appropriation be so expended. No greater particularity is required for the purposes of an appropriation. Provided that purposes are stated it is a matter for the Parliament how minute and particular shall be the expression of purposes in any particular case.

Nor is it correct that Parliament may only appropriate moneys in respect of a purpose which is already the subject of legislation of the Australian Parliament. The Constitution does not say so and there is no place for such an implication. The argument overlooks the wide area in which moneys may be expended by the Executive Government, that is to say, by the Queen exercising her prerogative through the Governor-General on the advice of the Executive Council. When moneys are voted to the Queen by Parliament for the purposes declared by the Parliament, it falls within the prerogative to determine whether or not those moneys will be expended for that purpose and how, within the expression of the purpose to which the moneys have been appropriated, the expenditure will be made. Legislation is only needed when Parliament chooses to replace or affect the prerogative powers by legislation which either extends or limits or simply reproduces in the form of executive or other authority the powers previously comprehended within the prerogative. The exercise of the prerogative of expending moneys voted by Parliament does not depend on the existence of legislation on the subject by the Australian Parliament other than the appropriation itself. This exercise of the prerogative is in no different case from other exercises of the prerogative which fall within the powers of the Executive Government of the Commonwealth under s. 61 of the Constitution. If legislation were a prerequisite it would follow that the Queen would never be able to exercise the prerogative through the Governor-General acting on the advice of the Executive Council; she would always exercise executive power by authority of the Parliament. This cannot be suggested. It would, if correct, result in an inability of Australia to declare war, make treaties, appoint officers of State and members of the public service of the Commonwealth and do all the multitude of things which still fall within the prerogative, unless there was a general or special sanction of an Act of Parliament.

The Constitution envisages the exercise of the prerogative through the Governor-General in those matters appertaining to the Government of the Commonwealth in its provision by s. 61 that the executive power of the Commonwealth extends to the execution and maintenance of the Constitution. Except so far as the Constitution makes particular provision in respect of matters otherwise within the prerogative, the prerogative remains unaffected. It was always intended that, subject to the Constitution and its expression of the subject matters of Commonwealth power, to a large extent the prerogative would be exercised on all matters of Australian concern by the Crown on the advice of Australian Ministers rather than on the advice of United Kingdom Ministers. The extent of its exercise on such advice has throughout the years of federation been a growing extent. The area of its exercise on the advice of Australian Ministers is limited by the terms of the Constitution. Primarily its exercise is limited to those areas which are expressly made the subject matters of Commonwealth legislative power. But it cannot be strictly limited to those subject matters. The prerogative is now exercisable by the Queen through the Governor-General acting on the advice of the Executive Council on all matters which are the concern of Australia as a nation. Within the words "maintenance of this Constitution" appearing in s. 61 lies the idea of Australia as a nation within itself and in its relationship with the external world, a nation governed by a system of law in which the powers of government are divided between a government representative of all the people of Australia and a number of governments each representative of the people of the various States.

It does not follow that any subject matter of the exercise of the prerogative which is properly exercisable through the Governor-General on the advice of the Executive Council cannot be the subject of legislation of the Parliament which may deny or limit or replace the prerogative by legislative provision. The same is true of any executive power expressly conferred by the Constitution, though of course the exercise of either executive or legislative power is subject to the provisions of the Constitution. The power to legislate in respect of matters falling within the prerogative arises under s. 51(xxxix.) in so far as it does not arise under any other particular head of power. Alternatively the course of power is the inherent sovereignty of the Australian Parliament in all subject matters which lie within the province of the Government of the Commonwealth of Australia. The Parliament is sovereign over the Executive and whatever is within the competence of the Executive under s. 61, including or as well as the exercise of the prerogative within the area of the prerogative attached to the Government of Australia, may be the subject of legislation of the Australian Parliament. However, although the Parliament may legislate in respect of any subject matter which is within the prerogative so far as it is exercisable through the Governor-General on the advice of the Executive Council, it does not follow that legislation is necessary before a prerogative power is exercised.

It would therefore appear to me that the statement of claim alleges no fact or matter which would entitle the plaintiffs to the relief which they seek. For all that appears therein the Minister might be setting up Regional Councils for Social Development with the Secretariat described in the statement of claim, and might have established the Australian Assistance Plan, for purposes fully related to subject matters of Commonwealth power within s. 51. It would appear, however, that the defendants preferred not to see the action go off upon this limited ground because in their defence they identify and describe the purposes of the Australian Assistance Plan so far as it had been formulated at the time. The defence alleged that the purpose of the Plan was to assist, in the manner set out in two documents - the Discussion Paper No. 1 and "Australian Assistance Plan - Guidelines for Pilot Programme" - in the development within a nationally co-ordinated framework of integrated patterns of welfare services, having regard to and recognizing the existing responsibilities for welfare services of the Commonwealth, the Government of the Commonwealth, the States, the Government of the States, municipalities, municipal governments and voluntary agencies. They claimed that throughout Australia there was a very large diversity of welfare services, a need to co-ordinate such services, a need for further welfare services and in particular for the personal welfare services referred to in Ch. 4 of the said Discussion Paper No. 1, and a need to ensure that existing welfare services, including those provided by the Commonwealth of Australia, were rendered as effectively as possible. It was also claimed that there was a need to ensure that the Commonwealth of Australia was fully informed of needs for welfare services in the various regions of Australia and a need to secure the participation of local residents and groups in the planning and provision of welfare services. It was claimed that these matters were of national importance and concern to the federal Executive Government, the Parliament and the nation as a whole.

There was still nothing so far in the pleadings to indicate that the appropriation would involve expenditure upon or in respect of any subject matter outside the powers of the Australian Parliament; but the plaintiffs demurred to the whole of the defence and in so doing incorporated in the demurrer the Discussion Paper and the Guidelines which had been referred to in the defence. So by a somewhat tortuous but nevertheless useful path the necessary material came before the Court. It became clear that the Australian Assistance Plan was in course of evolution but in the course of this evolution the Social Welfare Commission, a commission established by the Social Welfare Commission Act 1973, had embarked upon the trial programmes by the establishment of Regional Councils and the provision of funds to those Councils. It may therefore be taken that the Australian Assistance Plan as at present evolved is that which appears from the Discussion Paper and the Guidelines.

The stated aim of the Australian Assistance Plan is to assist in the development, at a regional level within a nationally co-ordinated framework, of integrated patterns of welfare services, complementary to income support programmes and the welfare-related aspects of health, education, housing, employment, migration and other social policies having regard to the following matters:

That the existing responsibilities of State and local governments, voluntary agencies and the Australian Government are recognised.

That assistance should be available for planning and developmental programs.

That the development of regional planning systems is to be encouraged.

That every effort is made to avoid duplication and overlapping of services.

That local residents and welfare consumer groups are encouraged to participate in the planning and provision of welfare services.

That continual evaluation and monitoring of all programs occur to ensure their flexibility, adaptability and appropriateness in light of changing patterns of social need.

The Discussion Paper states that the primary emphasis of the Australian Assistance Plan is in the areas of planning, programme development and social policy evaluation, whereas the provision of complementary casework services is seen to arise from within this basic framework and may be under other auspices, for example, a State Department of Social Welfare or a migrant counselling service. The functions of Regional Councils for Social Development are expressed as follows: To relate to any regional planning bodies concerned with physical planning, health planning, education planning, housing planning, etc.

To continually evaluate and monitor the social needs of the region, and to report on these to the State and the Australian governments.

To devise plans for welfare service provision to meet the needs of the region, in consultation with, and having regard to the autonomy of Australian, State, local government and non-government agencies.

To advise and assist local government bodies and non-government agencies in the carrying out of appropriate welfare policies as requested.

In particular, to advise the Australian Government on the development of its own departments' services in the region, and on the allocation of grants and subsidies to bodies within the region.

The Discussion Paper envisages that the Regional Council for Social Development should have a staff consisting of a Director of Social Planning, a Project Officer and secretarial assistance. Under the heading "Resources" appears the matter which as the hearing developed became the matter upon which the plaintiffs and the interveners particularly relied. The paragraph is as follows:

Under the Australian Assistance Plan money would be available from the Australian Government to be spent in the region, at the discretion of the Regional Council for Social Development. Two specific forms of funding are envisaged:

A specific grant of up to $10,000 per annum for individual local government areas which would be paid either to the local government authority or to a local welfare co-ordinating committee to employ a Community Development Officer.

Responsibilities of this staff person (who would require secretarial support) envisaged within the grant, would include: information giving; assessment of local needs; advice on implementing social welfare programs; recommendations on the development of new services; activities designed to foster a sense of community involvement; participation in committee work; training of welfare personnel.

This grant would not automatically be available to all local government areas throughout Australia, but to those areas seen as having a special need, or where the region comprises more than one local government area.

(b) Block grants to be spent in the area by eligible bodies (as defined below) which may be applied to any or all of the capital or maintenance costs of those services outlined in Chapter 4. It is suggested that grants will be available on a basis of $2 per capita per local government area, but that a system of "needs" weighting should operate. Such a system could be similar to that developed by the United Kingdom Government for educationally disadvantaged areas.

Chapter 4 of the Discussion Paper is the schedule of personal welfare services which may attract grants under the Australian Assistance Plan. The main headings of the schedule are child developmental services, services to assist families, services to assist adolescents, services to assist aged persons, accommodation for special categories and associated welfare programmes, financial assistance of limited kinds, information services, community health and welfare centres and research and evaluation projects. Very many of these services do not fall within any particular subject matter of Commonwealth power in respect of the community generally although most, if not all, of them would fall within a subject matter of Commonwealth power related to certain classes in the community, for example, migrants, people of any race for whom it is deemed necessary to make special laws, members of the Commonwealth Public Service and members or former members of the Defence Forces.

With this material before the Court, the argument proceeded to a further stage. Part of the expenditure by the Government pursuant to the appropriation would under the Australian Assistance Plan in this pilot phase, as it has been called, be by way of capitation grants to the Regional Councils. These Councils could spend the grants so made on any or all of the capital or maintenance costs of the services outlined in Ch. 4 of the Discussion Paper and many of those services would in the case of persons who did not otherwise fall within a class comprehended in a subject matter of Commonwealth power be outside any particular head of Commonwealth power. Part of the expenditure might, and probably would, thus be on matters which, viewed in isolation, did not fall directly within a subject of general Commonwealth power. In this situation, it is submitted, the whole appropriation is bad and an injunction may be granted by the Court restraining expenditure generally. The basis of the submission is an analogy between the appropriation and the expenditure pursuant thereto and the principles which govern the construction of legislation of the Australian Parliament which imposes duties and obligations. Such legislation is not valid if it may in its execution transcend the limits of power or if part thereof is within power and an inseverable part is beyond power. It is submitted that, just as legislation will be invalid if it may inseverably operate on a matter or in a matter beyond power as well as on matters or in matters within power, so an appropriation will be wholly beyond power if some part thereof, not severable in the appropriation from the remainder, may be expended in respect of matters which do not fall within the power of the Commonwealth to legislate generally. This is a very far-reaching submission and would invalidate a very large number of items in any Appropriation Act.

But it is in my opinion a submission which cannot be sustained. It does not give weight to the nature of the relief which may be granted by the Court. The submission must depend on the invalidity of the actual appropriation of moneys. It can have no weight if it is the threatened expenditure alone which can be impugned. In my opinion the appropriation by the Commonwealth Parliament of moneys of the Commonwealth to the purposes stated in the Appropriation Act cannot by itself be the subject of legal challenge. The appropriation is a matter internal to the Government of the Commonwealth. It may not make valid anything which cannot be validated. That depends on the breadth of the Commonwealth power of appropriation and expenditure expressed in s. 81 and on the meaning of the words therein "for the purposes of the Commonwealth". However, even when those words are given a limited meaning it does not follow that the Appropriation Act or any part thereof can be declared invalid. The appropriation is no more than an earmarking of the money, which remains the property of the Commonwealth. All it does is to disclose that the Parliament assents to the expenditure of the moneys appropriated for the purposes stated in the appropriation. The Crown may then within the law governing appropriation of its money expend those moneys. It is given "the authority and the opportunity" so to do (The Commonwealth v. Colonial Ammunition Co. Ltd. [24] ).

There must be an appropriation by Parliament. Section 81 requires that revenue or moneys be appropriated in the manner imposed by the Constitution and under s. 83 the appropriation must be made by law. This is the expression in our Constitution of the requirement established in English constitutional law that the revenues raised by authority of Parliament must be voted to the Crown by Parliament. Section 83 is not in itself a limitation on the power of the Parliament to appropriate moneys and should not be read as meaning "by a law on a subject matter in respect of which the power is otherwise conferred on the Parliament to legislate". The section does not say that and there is no need for such an implication. The limitation, if any, is to be found in the words "purposes of the Commonwealth" in s. 81.

Although the appropriation made on the message from the Governor-General is clearly evidence of an intention to expend the moneys for the purposes stated in the appropriation, relief can only be given in respect of so much of the expenditure pursuant to the appropriation as lies outside the purposes for which an appropriation can be made. The appropriation cannot make lawful that which is unlawful but it does nothing which can attract to its operation the principles which have been developed in respect of Commonwealth legislation creating rights, obligations and duties. It is for a plaintiff to identify any expenditure which is impugned and to frame a prayer for relief in terms which will enjoin that expenditure and that only.

There is no analogy between the validity of legislation and the validity of expenditure. In the former case it is the intention of the Parliament which is the subject of scrutiny and if the Parliament discloses an intention that its legislation shall apply or be capable of applying inseverably to matters and things within power and to matters and things outside power then the whole legislation is inseverably invalid. On the other hand, if the Executive Government expends or proposes to expend money the only relevant act or intention is that of expending or proposing to expend particular sums. No question of any "overall" intention can arise. There is in law no "scheme" of expenditure as there can be a scheme of legislation. It follows that any relief granted by the court against an illegitimate expenditure would need carefully and precisely and exhaustively to delineate those expenditures in respect of which relief is granted. The practical impossibility of so doing may well prevent the granting of relief by way of quia timet injunction or even by way of declaration. The complex interrelation between the heads of power within the competence of the Commonwealth would make it very difficult to frame relief except in general and therefore impermissible terms. Clearly much of the proposed expenditure of $5,970,000 would fall within Commonwealth power in respect of social welfare generally or in respect of the social welfare of particular groups or classes of persons. No form of relief appropriate only to so much of the sum of $5,970,000 as may be claimed to be proposed expenditure beyond Commonwealth power has been, or apparently could be, formulated. No argument was presented to the Court which would require such a formulation.

For these reasons alone the plaintiffs have made out no case for relief even on the assumption that some part of the proposed expenditure may be beyond Commonwealth power. That assumption, however, does not appear to me to be correct. Moneys may be appropriated and therefore expended pursuant to that appropriation "for the purposes of the Commonwealth". It appears to me that the view of the majority of the Court in Attorney-General (Vict.) v. The Commonwealth [25] was that the power of appropriation was limited by the nature and purposes of the Government of the Commonwealth but that, on the other hand, the purposes of the Commonwealth may not only fall within a subject matter of general or particular power prescribed in the Constitution but may also be other purposes which now adhere fully to Australia as a nation externally and internally sovereign: cf. per Starke J. [26] . The growth of national identity results in a corresponding growth in the area of activities which have an Australian rather than a local flavour. Thus, the complexity and values of a modern national society result in a need for co-ordination and integration of ways and means of planning for that complexity and reflecting those values. Inquiries on a national scale are necessary and likewise planning on a national scale must be carried out. Moreover, the complexity of society, with its various interrelated needs, requires co-ordination of services designed to meet those needs. Research and exploration likewise have a national, rather than a local, flavour.

1. (1945) 71 C.L.R. 237. 2. (1945) 71 C.L.R., at p. 266.

In two ways the Australian Assistance Plan is in substance within the powers of the Commonwealth. First, it is an expenditure of money in the exercise by the Commonwealth of its executive power to formulate and co-ordinate plans and purposes which require national rather than local planning and of its legislative power to appropriate its funds accordingly. Secondly, in so far as the proposed expenditure does not fall directly within a specific power of the Commonwealth it is an expenditure of money which is incidental to the execution by the Commonwealth of its wide powers respecting social welfare. A considerable part of the proposed expenditure falls or may fall directly within Commonwealth power either in respect of specific subject matter or in respect of particular classes of persons but in so far as some expenditure may be outside Commonwealth powers in respect of specific subject matters or in respect of particular classes of persons it seems to me that the expenditure falls within the incidental power in s. 51 (xxxix.). The purposes of the Commonwealth certainly include all the purposes comprehended within the subject matters of s. 51 in respect of which the Commonwealth may legislate, including the subject matter comprised in s. 51 (xxxix.). The purposes of the Commonwealth include purposes comprehended within the Commonwealth power in respect of matters incidental to the execution of the legislative power to appropriate and the executive power to expend moneys for the purposes of the Commonwealth. Moneys may therefore be appropriated and expended for that purpose as well as for purposes wholly comprehended within the other subject matters of Commonwealth power. Appropriation and expenditure of moneys for the purposes of the Commonwealth may therefore be made for purposes comprehended within the power of the Commonwealth in respect of matters incidental to the execution of the legislative power to appropriate and the executive power to expend moneys for purposes comprehended within other subject matters of power. In every case it is ncessary to determine whether the expenditure, if it is not for the purposes of the Commonwealth in what may compendiously in the light of this analysis be described as a primary sense, is nevertheless incidental to the execution of the power to expend moneys for the purposes of the Commonwealth in that primary sense. Matters incidental to the execution of an executive power are not limited to matters either adjectival or ancillary to the execution of that power. That is to say the "incidental" subject matter of s. 51(xxxix.) may be a matter of substance and not merely a matter in aid of or procedural to the relevant substantive power itself. The latter power is contained within the grant of the substantive power itself because it is incidental to, an incident of, the subject matter of power. But a distinction must be drawn between what is incidental or incident to the subject matter of a power and what is a matter incidental to the execution of a power. Compare Le Mesurier v. Connor [27] . The distinction reflects a recognized difference in the meanings of the word "incidental". The word may be used to describe a side occurrence which, though not essential to the main action, may be expected to arise in connexion with the main action. It may also be used to describe a side occurrence with stress on its independence of the main action. The distinction is so made in Fowler's Modern English Usage (1954 reprint), p. 264, where it is also observed that a tendency has arisen to use the adjective "incident" to describe the former and "incidental" to describe the latter. Thus the Oxford Dictionary defines the adjective "incident" first as "liable or apt to befall or occur to; likely to happen; hence, naturally appertaining or attaching". On the other hand, it defines "incidental" first as "occurring or liable to occur in fortuitous or subordinate conjunction with something else of which it forms no essential part". This, it seems to me, is the distinction between the implied incidental power and the express power in s. 51(xxxix.). Whatever is incident (in the above sense) to the subject matter of power comes within the ambit of the main power. It is incident to that power in that it naturally appertains and attaches to that power. However, what is incidental to the execution of a main power includes every matter which occurs or is liable to occur in subordinate conjunction with the execution of that power, even though it forms no essential part of the main power itself. It is subordinate but just as importantly it is in conjunction. Thus a subject matter incidental to the execution of a power may have a wider ambit than the power implied in respect of the incidents of a subject matter of power. It is itself a subject of legislative power (per Dixon J. in British Medical Association v. The Commonwealth [28] ) and that is so even though it only exists in subordinate conjunction with the execution of a main power. Whether or not a particular expenditure or proposed expenditure which does not fall within any particular subject matter of power nevertheless falls within this incidental power will depend on the facts and circumstances surrounding that proposed expenditure. Often it will be a matter of degree. Cf. Burton v. Honan [29] .

1. (1929) 42 C.L.R. 481, at p. 497. 2. (1949) 79 C.L.R. 201, at p. 274. 3. (1952) 86 C.L.R. 169, at p. 179.

Subject matters of social welfare which fall outside those matters the subject of express power in other placita of s. 51 are not incidental to those matters of express power. If they were, then the Commonwealth would have plenary power to legislate upon them. But it will be a matter incidental to the execution of a power to appropriate and expend moneys of the Commonwealth upon those subject matters to appropriate and expend moneys upon other subjects of social welfare in subordinate conjunction with expenditure upon those subject matters.

The proposed 1974-1975 expenditure of the Commonwealth, classified in the 1974-1975 Budget papers as expenditures upon welfare, health and social security, but not including education, are the largest expenditures by classification which it makes. The total for the relevant year is $4,673,000,000 out of a total budgeted expenditure of $16,274,000,000. See Hansard , House of Representatives, First Session - First Period, p. 1295. The Executive Government has taken the view that these expenditures are unco-ordinated among themselves and are unco-ordinated with social welfare expenditures made independently by and in the various States. It has also determined that it is desirable to involve people at community level in the devising and planning of welfare services. The claim that planning for co-ordination and rationalization of welfare services and expenditure thereon is beyond power has hardly been pressed. Where it is claimed that the Commonwealth has transgressed the limits of power is in including within the funds made available at community level amounts by way of the so-called "capitation grants" which may be expended on aspects of social welfare other than aspects within the limits of express powers conferred in s. 51. It has not been established that payment of these "capitation grants" is not incidental to the execution of the power to appropriate and expend moneys for the purposes comprehended within the Commonwealth powers contained in s. 51(xxiii.) and (xxiiia.) as well as the powers possessed by the Commonwealth in respect of particular groups and classes of persons in the community for whose social welfare the Commonwealth may generally provide. In my opinion no cause of action is disclosed by the pleadings and I would dismiss the action.

This case concerns the scope and use of the national spending power.

For the financial year ending 30th June 1975, the total budget outlays were estimated at $16,274 million (1974-1975 Budget Paper No. 1, at p. 3).

The State of Victoria and its Attorney-General claim that the Appropriation Act (No. 1) 1974-1975, so far as it assigns a sum of almost $6,000,000 of the Consolidated Revenue Fund for purposes described as "the Australian Assistance Plan", is invalid. They seek to restrain the second defendant, who was the Minister for Social Security at the time, from expending any of the sum for that purpose.

The Appropriation Act (No. 1) 1974-1975 is a general appropriation Act for the ordinary annual services of the Government as contemplated by s. 54 of the Constitution. There are other general annual appropriation Acts, as well as special and permanent appropriation Acts.

The Treasurer may issue out of the Consolidated Revenue Fund and apply for the services specified in Schedule 2, in respect of the year ending on 30th June 1975, the sum of $2,863,510,000. This authorization is in addition to the sums authorized by s. 3 of the Supply Act (No. 1) 1974-1975, bringing the total of sums authorized to be issued out of the Consolidated Revenue Fund to $4,667,794,000.

That sum was appropriated and deemed to have been appropriated from 1st July 1974 for the services expressed in the Second Schedule in respect of the financial year commencing on that date (s. 4).

The Second Schedule of the Act contains the challenged item in the form:

4. • Australian Assistance Plan - 1974-75 1973-74 Appropriation Expenditure $ $ $ 01. Grants to Regional Councils for Social Development 5,620,000 1,700,000 764,030 02. Development and evaluation expenses 350,000 130,500 108,297 5,970,000 1,830,500 872,327

I will not trace the history of the pleadings or the details of the Australian Assistance Plan which have been set out in other judgments.

Briefly, the plaintiffs contend that in regard to the particular appropriation: (1) the Act was not an appropriation for purposes of the Commonwealth within s. 81 of the Constitution; (2) it was not sufficiently specific to amount to an appropriation; (3) it went beyond appropriation; (4) even if the appropriation were valid, the expenditure of the amounts was not lawful without separate validating legislation.

The defendants opposed these contentions, and also contended that neither the plaintiff State nor its Attorney-General had standing to pursue the matter before this Court.

If the plaintiffs' contentions were accepted, it would mean that the Parliament's use of its appropriations power has been unconstitutional since federation (see the evidence of Solicitor-General Garran in the Report of the Royal Commission on the Constitution (1929), at pp. 69-70).

I will deal with the contentions under the headings of The Purposes of the Commonwealth; Specification of the Appropriation; Is the Act Confined to Appropriation? Necessity for Separate Legislation; and Standing.

I agree with the opinion expressed by Latham C.J. in the Pharmaceutical Benefits Case (Attorney-General (Vict.); Ex rel. Dale v. The Commonwealth [30] ), that Parliament is the authority to determine what purposes are the purposes of the Commonwealth.

The plaintiffs contend that the "purposes of the Commonwealth" in s. 81 are restricted to those purposes for which the Commonwealth is empowered to make laws under other sections of the Constitution, e.g., ss. 51, 52 and 122.

A number of considerations lead me to reject this contention.

Firstly, nothing in the Constitution warrants the limitation on the appropriation power of the Parliament which the plaintiffs contend exists.

Secondly, when such a limitation was intended, it was expressed as in s. 51(xxxi.) which provides:

The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws. On familiar rules of interpretation, the expression of the limitation in one part of the instrument is a good reason for rejecting its implication in another part.

Thirdly, it would be quite impossible to conduct the finances of the country if the appropriation power was so limited. This view was put powerfully, persuasively and, in my opinion, irrefutably, by Solicitor-General Garran to the Royal Commission on the Constitution in 1929 (see the Report of the Royal Commission on the Constitution, p. 71). He stated: "in interpreting a Constitutional document, that is one of the weightiest arguments which can be used to show that it was not the intention." (See also his views recorded in the Report of the Royal Commission on Child Endowment and Family Allowances, (1929), p. 10, par. 5.)

"Purposes of the Commonwealth" as determined by the Parliament over the years in the Appropriation Acts include a wide variety of purposes to be furthered by many programmes and activities. Some of these have been conducted by the Executive Government (under s. 61), some by statutory corporations established by Parliament (under s. 51 including (xxxix.)), some by States, some by other bodies and persons. The expenditure on many of these has been authorized by general Appropriation Acts, others by special or permanent Appropriation Acts.

From the material supplied to the Court and an examination of the Appropriation Acts, it appears that there were many current programmes (that is, in 1974-1975), some of which had been in operation for many years and which are not clearly referable to any head of legislative power in the Constitution other than s. 81.

These include substantial appropriations in the Departments of Education, Tourism and Recreation, Science, Health, Housing and Construction, Agriculture, Special Minister of State, Prime Minister, Media, Urban and Regional Development, Environment and Conservation, Labor and Immigration, and Social Security.

To ascertain whether these appropriations are referable to one of the enumerated powers (other than s. 81) would involve exhaustive inquiry into the boundaries of the enumerated powers.

The appropriation for those purposes not within the scope of the enumerated powers would, on the plaintiff's contention, be unconstitutional. Hundreds of items of appropriation since federation and many hundreds of millions of dollars would have been unlawfully appropriated and spent.

The chilling effect that such an interpretation would have on governmental and parliamentary initiatives is obvious. It is not a formula for operating a Constitution. It is one for stultifying government. If the surplus revenue issue is re-opened, the States would be encouraged to challenge items of appropriation in order to enhance the possibility of surplus revenue.

This would lead to constant conflict, unless Australian Governments and Parliaments retreated to the conservative position of avoiding any appropriation which was at all doubtful. They would suffer from the absence of advisory judicial jurisdiction.

The observations of Solicitor-General Garran (Report of the Royal Commission on the Constitution (1929), loc. cit.) on the impossibility of financing government would be borne out.

It follows that Parliament may determine that the purposes of the Commonwealth include promotion of scientific research (in the social as well as the physical sciences), cultural activities, sport, education and health.

It may determine that the purposes include the general management of the economy or any aspects of it such as levels of employment or the value of the currency. To that end it may appropriate for expenditure where it wishes, and is not restricted to spending in confined areas such as those covered by the legislative powers with respect to banking, insurance, or inter-State trade and commerce.

It may determine (as it has) that expenditure in areas of social welfare is one of the purposes of the Commonwealth and appropriate for that purpose.

The purpose of the appropriation to the Department of Social Security for the Australian Assistance Plan includes support of voluntary agencies (Regional Councils for Social Development) to inquire and report and expend moneys for social welfare. Parliament has determined that this is a purpose of the Commonwealth.

The appropriation is within the powers of the Parliament and the spending is authorized by the Appropriation Act and the consequential executive powers (s. 61). There is no need to justify it by referring to any one or more of the enumerated legislative powers of the Parliament. If it were necessary, I think that support can be found in a number of such powers.

It is clear that the Australian Government is and will be involved in the expenditure of vast sums of money in various forms of social welfare.

Legislative power has been exercised to provide invalid and old-age pensions (under s. 51(xxiii.)), maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services, benefits to students and family allowances (under s. 51(xxiiiA.)). Legislative power has also been exercised to provide social welfare for Aborigines and other peoples (under s. 51(xxvi.)). There are other responsibilities (actual and potential) for social welfare of persons such as members and ex-members of the defence forces and the public service and migrants under other legislative powers.

Experience has been that there is a bewildering, inefficient and costly proliferation of social welfare services provided by the Australian Government and by State and local government and private agencies and persons.

In my view, it would be incidental to the execution of the powers vested by the Constitution in Parliament and in the Australian Government for legislation to be passed authorizing the inquiry and report envisaged by the Australian Assistance Plan (see Lockwood v. The Commonwealth [31] ). The inquiry and report could be made by an officer of the Australian Government or by a private person engaged by it. It could equally be done by the system of regional councils. If Parliament wished, it could authorize the establishment of a system of regional councils in order to assist it in the discharge of its responsibilities in social welfare, including the expenditure of any moneys appropriated by Parliament (see Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association [32] , and s. 14 of the Social Welfare Commission Act 1973, the validity of which is undisputed).

1. (1954) 90 C.L.R. 177. 2. (1908) 6 C.L.R. 309.

In the United States of America, Congress has adopted a similar course in using the power under Art. 1, s. 8 of the Constitution "to provide for the general Welfare of the United States" uninhibited by the restricted scope of its other powers. The famous controversy between Hamilton (who favoured the wide view) and Madison (who favoured the narrow view) over Congressional power, has been resolved in favour of Hamilton's view by the Supreme Court. In United States v. Butler it was said [33] : " the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution."

1. (1936) 297 U.S. 1, at p. 66 [80 Law. Ed. 477, at p. 488].

This decision was referred to in Helvering v. Davis [34] , which upheld the validity of federal laws providing for old age pensions (see also Cleveland v. United States [35] and "The Constitution of the United States of America, Analysis and Interpretation", Senate Document No. 92-82, p. 136).

1. (1936) 301 U.S. 619 [81 Law. Ed. 1307]. 2. (1945) 323 U.S. 329 [89 Law. Ed. 274].

In Helvering's Case, the Court concluded that Congress had validly attempted to deal with a problem which was truly "national in area and dimensions" [36] . The criterion suggested was stated thus [37] :

The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground or certainly a penumbra in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the Nation. What is critical or urgent changes with the times. (See also Charles C. Steward Machine Co. v. Davis [38] .) 1. (1936) 301 U.S., at p. 644 [81 Law. Ed., at p. 1316]. 2. (1936) 301 U.S., at pp. 640-641 [81 Law. Ed., at p. 1315]. 3. (1937) 301 U.S. 548 [81 Law. Ed. 1279].

In our Constitution, there is no requirement of generality as distinct from particularity in "the purposes of the Commonwealth". The phrase is equivalent to the national purposes. As Latham C.J. said in the Pharmaceutical Benefits Case [39] :

I see no reason for limiting the words "the purposes of the Commonwealth" to governmental purposes in the sense of the discharge of legislative, judicial or executive functions. The word "Commonwealth" in this section refers to the people who, by covering cl. 3 of the Constitution, are "united in a Federal Commonwealth under the name of the Commonwealth of Australia". 1. (1945) 71 C.L.R., at p. 256.

In my opinion, the only constitutional limitations upon the scope of the spending power are those arising from constitutional prohibitions such as those in ss. 92, 116 and 117. Section 81 would not authorize spending in contravention of any such prohibitions.

Section 81 of the Constitution provides that all revenue or moneys shall form one Consolidated Revenue Fund and are to be appropriated for the purposes of the Commonwealth "in the manner" imposed by the Constitution. No money is to be drawn from the Treasury except under appropriation by law (s. 83).

Provisions regarding "the manner" of imposition are in ss. 53, 54, 55 and 56.

The appropriation is not to be made by a law imposing taxation (s. 55).

Sections 53, 54 and 56 provide that the form of the proposed law must be such that it can be seen that the appropriation proposed by the law has been recommended by the message of the Governor-General to the House of Representatives, and that if the appropriation is for the ordinary annual services of the Government, it deals only with such appropriation. The provisions are outside the concern of this Court, which is with laws, not proposed laws (Osborne v. The Commonwealth [40] ).

The subject of specification has been discussed by Professor Campbell in "Parliamentary Appropriations", Adelaide Law Review, vol. 4 (1971-1972), at pp. 154-155. She refers to State v. Moore [41] where the Supreme Court of Nebraska stated:

Having in view the origin and history of appropriations, as well as the general lexicographic meaning of the word, to "appropriate" is to set apart from the public revenue a certain sum of money for a specified object, in such manner that the executive officers of the Government are authorized to use that money, and no more, for that object and for no other. The Supreme Court of Arizona made a similar statement in Crane v. Frohmiller [42] : in order to constitute a valid appropriation by the Legislature, it must, if the appropriation is to be paid from the general fund, fix at least a maximum amount beyond which such appropriation may not go, although, if the payment is to be made only from a special fund which is itself limited in amount, no limit need be stated in the act authorizing the expenditure and specifying for what purpose the money is to be expended. In the Pharmaceutical Benefits Case it was the view of Latham C.J. that a statute would not operate as an appropriation Act unless it defined the purpose for which the money might be spent. He said [43] : there cannot be appropriations in blank, appropriations for no designated purpose, merely authorizing expenditure with no reference to purpose. 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. 1. (1896) 69 N.W. 373, at p. 376. 2. (1935) 45 P. (2d) 955, at p. 959. 3. (1945) 71 C.L.R., at p. 253.

In my view, the Constitution does not require any particular degree of specification of the purpose. With purposes such as defence, intelligence gathering or the advance account to the Treasurer it would be highly inconvenient if it did.

The purpose of any appropriation may be indicated generally. "One-line" appropriations are valid.

Whether a proposed law for appropriation in such form would be acceptable to the Houses of Parliament is another question. Scrutiny of the estimates and comparison of past expenditure with past appropriations is deeply embedded in parliamentary practice. How that is done is to be resolved by Parliament itself. The Constitution does not restrict Parliament in handling its financial business to observe any precise specification of the purpose.

In "The Constitution of the United States, Analysis and Interpretation", op. cit., at pp. 376-377, it is said that in the United States, the Supreme Court:

has also recognized that Congress has a wide discretion with regard to the extent to which it shall prescribe details of expenditures for which it appropriates funds and has approved the frequent practice of making general appropriations of large amounts to be allotted and expended as directed by designated government agencies. Citing as an example that Act of June 17, 1902 where all moneys received from the sale and disposal of public lands in a large number of States and territories were set aside as a special fund to be expended under the direction of the Secretary of the Interior upon such projects as he determined to be practicable and advisable for the reclamation of arid and semi-arid lands within those States and territories, the Court declared: "The constitutionality of this delegation of authority has never been seriously questioned". (Cincinnati Soap Co. v. United States [44] ). 1. (1937) 301 U.S. 308, at p. 322 [81 Law. Ed. 1122, at p. 1132].

If specification is required, item 530 is sufficiently specific. The degree of specification conforms entirely to legislative practice in regard to appropriations in Australia and elsewhere.

The Act is simply a general Appropriation Act. It is clearly intended as a law which appropriates revenue or moneys for the ordinary annual services of the Government (Constitution s. 54).

Section 54 directs that a proposed law for appropriating shall deal only with that appropriation. The item gave legislative recognition to the Australian Assistance Plan and to its scheme of Regional Councils for Social Development. It appropriated the sums mentioned, for expenditure for the purposes mentioned. The Act does not go beyond appropriation as did the Pharmaceutical Benefits Act 1944 that dealt with matters (other than appropriation), which were held to be outside the legislative powers of the Parliament. In this Act there is no attempt to exercise coercive or "police power" even of an incidental nature.

Is Separate Legislation Necessary to Validate Expenditure of Appropriated Moneys?

Again the contention of the plaintiffs, if correct, means that almost seventy-five years of Federal parliamentary practice has been incorrect. Over the years hundreds of appropriations have been made and expended on a variety of purposes without separate legislation additional to the appropriation. Separate legislation is not necessary. In some cases it may be desirable and the Parliament has enacted such legislation. For example, "the purposes of the Commonwealth" as determined by Parliament include those for which the Commonwealth Scientific and Industrial Research Organization was established under the Science and Industry Research Act 1949-1973. Section 25 of that Act provides:

There are payable to the Organisation such moneys as are appropriated by the Parliament for the purposes of expenditure by the Organisation under this Act Apart from any other sources of constitutional support, that Act is valid as an exercise of the incidental power s. 51 (xxxix.) in relation to appropriation "for the purposes of the Commonwealth".

The Australian Institute of Marine Science Act 1972-1973 has similar provisions and is valid on the same basis.

So also with the numerous programmes, activities and involvement of the Commonwealth directly or through agencies or by assistance to private persons or bodies.

The incidental power, s. 51(xxxix.), in my opinion, enables legislation to effectuate the expenditure of the moneys, the appropriation of which has been determined by Parliament to be "for the purposes of the Commonwealth" and for which there is no other source of power in the Parliament. Such legislation may be directed to ensuring that the moneys appropriated are spent for the purpose of the appropriation. Such legislation may provide for the expenditure by the Executive Government, or by a corporation or other agency established by the Parliament, or by some other body or person. But such legislation, (not being authorized by a plenary head of legislative power) may not be plenary. Ordinarily it may not impose obligations on persons generally or be coercive (except in a very limited area, for example, to deter misappropriation).

It is unnecessary in the conclusions which I have reached to decide upon the objection to the plaintiffs' standing to proceed. I am inclined to agree with what has been said by Stephen J. in his reasons in this case that the State of Victoria and its Attorney-General have no standing.

If it were claimed that the appropriation or the expenditure were in breach of any constitutional prohibition, then the position might be different.

The tendency to exaggerate the standing of an Attorney-General to challenge legislation or administrative action has been to the detriment of private litigants (see S. M. Thio, Locus Standi and Judicial Review (1971), p.9). The necessity in many cases of a proceeding by an Attorney-General at the relation of others is not appropriate to the operation of our judicial system, especially as the Attorneys-General of Australia and of the States are Ministers of State.

If the Attorney-General of a State is not parens patriae in respect of federal legislation (see Massachusetts v. Mellon [45] ; Florida v. Mellon [46] ) it is inappropriate except in special circumstances for the Attorney-General of Australia to act in this role in view of his function in defending federal legislation. In my opinion, in the adaptation of procedures to modern circumstances, the requirements of standing in individual and representative actions need to be liberalised.

1. (1923) 262 U.S., at p. 486 [67 Law. Ed., at p. 1078]. 2. (1927) 273 U.S. 12, at p. 18 [71 Law. Ed. 511, at p. 515].

Whether the State would have sufficient standing to challenge an Act which is, in truth, an appropriation Act and nothing more, is a matter which was reserved in the Pharmaceutical Benefits Case by Latham C.J. [47] and by McTiernan J. [48] . I prefer to reserve the question for a case where it is necessary for me to reach a concluded view.

1. (1945) 71 C.L.R., at p. 248. 2. (1945) 71 C.L.R., at p. 276.

The disputed appropriation is valid. There is no basis for an injunction to restrain expenditure pursuant to the appropriation.

The plaintiffs' demurrer should be overruled and the action dismissed with costs.