Victoria v The Commonwealth

Victoria v The Commonwealth - [1975] HCA 52 - HCA 1975 case summary — Zoe

[8]

"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.

[9]

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.

[16]

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.

[17]

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.

[22]

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.

[25]

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.

[27]

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.

[53]

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] .

[111]

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.

[114]

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.

[142]

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] .

At a glance

Court

Decision date

Before

Source

Judgment (221 paragraphs)

Parties

Cases Cited (1)