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Western Australian Student Law Review |
WILLIAMS V COMMONWEALTH: A STORM IN A TEACUP
GEORGINA MCLEOD[*]
Constitutional Law—Federalism—Responsible Government—Literalism—Federal Balance—Constitutional Interpretation—Corporations Power—Executive Power
In examining the extent to which executive power has been judicially coloured in light of ‘recent developments’,[1] the Hon Robert French AC stated that ‘[a]s appears from Williams (No 1) and Williams (No 2) the location of Commonwealth executive power [‘s 61’] in a federal constitution ... has a part to play’[2] when ascertaining its scope. Against the backdrop of preceding case law, the Williams judgments[3] marked an unorthodox shift from literalism’s formidable reign. The High Court in the Williams judgments appeared to ‘muddy’ the relatively settled waters of constitutional interpretation; a system that (until then) had been left relatively undisturbed. On its face, the shift was provocative, tempting one to question the extent to which the Williams judgments have and will continue to revolutionise the interpretive framework of the Commonwealth Constitution. However, a closer examination of the judicial reasoning indicates that at this stage there is little cause for concern. The nature of s 61 allows the Williams methodology to be contained to executive power alone, and rightly so. As such, pro-federalist considerations seem to have rediscovered a place in constitutional interpretation—one now capable of co-existence with the otherwise preserved literalist status quo.
This article will provide a binary examination of the judgments handed down in Williams (No 1)[4] and Williams (No 2)[5] (collectively, ‘Williams’). The first angle will acknowledge the considerable role played by federalism in sculpting the judicial construction of s 61 of the Commonwealth Constitution.[6] To that end, it will affirm the view held by the Hon Robert French that (along with conventions of responsible government) the federal ‘location of Commonwealth executive power ... has a part to play’[7] in the judicial interpretation of that power. In light of those considerations, this article will acknowledge the High Court’s heretical turn from the Engineers[8] methodology.[9] However, using WorkChoices[10] as a contemporary yardstick, this article will frame Williams as wholly consistent with its preceding literalist counterparts. This article will argue that, despite prima facie distinctions, when confined to their respective constitutional contexts, the two methods are consistent and capable of co-existing.
To magnify the significance of the Williams approach, it is imperative to briefly recount the High Court’s approach to constitutional interpretation as at federation. Until 1920, the Commonwealth Constitution was read in light of contemporary federal considerations—namely, the doctrines of reserved State powers and implied immunity of instrumentalities—respectively preserving residual State powers and sovereignty.[11] However, this practice was short lived and subsumed in Engineers by a new literalist methodology,[12] interpreting constitutional words according to their ‘natural sense’[13] as ‘affirmative grants of power’.[14] This landmark decision commenced a steady judicial turn away from federalist concerns—a pattern which in retrospect, confirmed a loss of power for the States in Workchoices.[15]
The issue in WorkChoices[17] was whether the Workplace Relations Amendment Act 2005 (Cth) (‘the Act’) fell within the scope of power conferred on the Commonwealth under s 51(xx) of the Commonwealth Constitution. Adopting the dissenting rationale of Gaudron J in Re Dinjan,[18] and later in Re Pacific Coal,[19] the majority held that where s 51(xx) provides for Commonwealth jurisdiction to legislate with respect to the ‘business functions and activities of constitutional corporations’, it inexorably follows that such power ‘also extends to the persons by and through whom they carry out those functions and activities and with whom they enter into those relationships’,[20] spilling into jurisdiction that until then had belonged to the States.
In upholding the Act,[21] the majority noted that their consensus was ‘favoured by a consideration of ... the course of authority in this Court since at least the demise of the reserved powers doctrine in 1920’.[22] Reiterating the Engineers sentiment and well-settled allowance for dual characterisation,[23] the majority claimed ‘it is necessary, always, to construe the constitutional text and to do that “with all the generality which the words used admit”’.[24] This application saw the continued rejection of the reserved powers doctrine, one that ‘no party sought to challenge’.[25]
Considering the plaintiff’s ‘federal balance’ proposition as lacking legitimacy, the majority were reluctant to give weight to such intangible ‘implications’.[26] In their view, saddling one’s position on a projection of the ‘framers’ intention’ was to ‘pursue a mirage’.[27] Rather, to constrain an otherwise positive conferral of power, one was required to validly source this limitation from within the instrument itself.[28] Their Honours claimed that asserting one’s case on the premise of the ‘federal balance’ held the ‘misleading implication of static equilibrium’.[29] In their view, the federal balance was not static. Rather, it was subject to disturbances of the kind that ‘occurred in ... Engineers [and the] result of the First World War’.[30] In saying that, the majority did not preclude any consideration of the ‘implications’ or ‘general nature and structure of the constitutional framework’,[31] as predicating the ‘continued existence [of States] as independent entities’.[32] However, they asked: where would one look to substantiate ‘content’[33] for that argument? That question was left open-ended and was one the plaintiff ‘made no attempt to define’.[34]
It was ironic that adherence to tradition in this case provided such controversial results for federalism.[35] WorkChoices consolidated the judicial status quo, construing s 51(xx) ‘with all the generality which the words used admit’,[36] with no real consideration for federal impacts in the process.[37] The result was an ‘unequivocally centralising’[38] Commonwealth monopoly over ‘virtually the entire body of workplace relations law in Australia’.[39]
Williams (No 1) concerned an impugned funding agreement between the Commonwealth and Scripture Union Queensland (SUQ)[40] under the National School Chaplaincy Programme initiative.[41] The central issue was whether the expenditure of public money could be legitimated by mere appropriation as a lawful exercise of executive power under s 61.[42] The Commonwealth’s ‘broad’[43] submission was that the executive’s constitutional capacity allowed it to contract and spend (subject to valid appropriation) like any ‘other legal person’.[44] In the ‘narrow’[45] alternative, the Commonwealth submitted that execution of the funding agreement ‘at least’[46] fell within the express conferrals of legislative power under ss 51, 52 and 122 (and those matters ‘peculiarly adapted to the government of the nation’).[47] Regarding the latter, executive conferrals via express heads of power were said to fall under the subject matter of s 51(xxiiiA). Further, the engagement with the SUQ (as a trading corporation) was accounted for under s 51(xx).[48] Contentiously construing s 61 through the lens of federal considerations and responsible government, however, a 6:1 majority rejected both submissions. Instead, the High Court found that executive power to contract and spend public money for general purposes must now (in most cases)[49] be mandated by validly enacted statute.[50]
Whereas in WorkChoices the majority proved reluctant to read down constitutional provisions in light of ‘a priori assumptions’,[51] the majority in Williams (No 1) was fuelled by such pro-federal concerns. As a precursor to his delivery, French CJ looked to whom he described as ‘one of the principal architects of the Commonwealth Constitution; Andrew Inglis Clark’.[52] Clark considered that ‘truly federal government [was the] preservation of the separate existence and corporate life of each of the component States of the Commonwealth’.[53] Such words were further consolidated by a reference to Alfred Deakin’s claim that ‘as a general rule, wherever the executive power of the Commonwealth extends, that of the States is correspondingly reduced’.[54] These views formed the blueprint upon which French CJ’s judgment was constructed, projecting his centralist concerns and the inverse relationship between the growth of Commonwealth power and diminution of the States.[55] Ultimately, in finding that the executive could not spend absent valid legislative authority, French CJ noted that the ‘text, context and purpose of s 61 [was] informed by its drafting history and the federal character of the Constitution’.[56]
Pursuant to its broad submission, the Commonwealth proposed an essentially ‘unchecked’ conception of executive power, with the caveat that such spending would be valid ‘unless and until Parliament otherwise provides’.[57] The general thrust of that argument was that although Parliament’s involvement would cease after appropriation, it could continue to exert control where expenditure fell within the legislative powers of the Commonwealth (a constitutional limit akin to its more narrow submission).[58] On this, however, Hayne J acknowledged that one way in which the parliament might ‘otherwise provide’, was via the incidental head of power in s 51(xxxix).[59]
Hayne and Kiefel JJ then considered the practical extent to which such an unbridled executive spending power, coupled with the incidental power could shift the federal balance,[60] and ‘encroach’[61] on the States if validated in circumstances falling short of a national emergency.[62] With that in mind, one of the primary concerns for the majority was how such unchecked spending power would outwardly affect the function of the grants power in s 96.[63] If all executive spending initiatives could be saddled by s 51(xxxix), such an allowance would ‘render s 96 otiose’.[64] This sentiment was echoed by Gummow and Bell JJ,[65] Kiefel J,[66] and Crennan J,[67] positing the ‘consent’[68] feature of s 96 as an integral component of cooperative federalism. For any grant made under s 96, the State must ‘accept it with its conditions’,[69] to (in theory) preserve the dignity of State autonomy. Conversely, if s 61 was to be read with s 51(xxxix) to short circuit spending power, that cooperative sentiment would be ‘obliterated’[70] as such law would be ‘capable of demanding obedience’,[71] and impeding the federal balance. In financial reality, States will likely accept financial incentives to carry out Commonwealth programs pursuant to s 96.[72] However, maintaining their constitutional capacity to refuse remained a feature the majority considered of federal interest to protect. Further, and from a purely structural perspective, Hayne and Kiefel JJ projected s 96 as an ‘immediate textual’[73] limitation for s 61. On that, their Honours considered s 96’s very presence to be an implication that executive power should (and would) be proportionately curtailed.[74]
Section 53 of the Commonwealth Constitution limits the Senate’s capacity to amend laws with respect to appropriation.[75] Thus, if appropriation legislation was all the executive required to validate expenditure, French CJ considered the extent to which that would further curtail the federal model, in boycotting the involvement of the ‘States’ house’.[76] The Senate was considered ‘a necessary organ’[77] by the majority, one which would be severely restrained if executive power could bypass its influence in that respect. However, perhaps that argument was moot—overlooking the extent to which partisan loyalty has already diluted the true effect of the Senate as a conduit for State concerns. French CJ did acknowledge this practical shortcoming, claiming that the ‘predicted evolution’[78] of partisanship has rendered the States almost ‘vestigial’[79] in that regard. Notwithstanding the views actually expressed within the chamber, however, his Honour insisted that this not speak to methods of construction as the Constitution ‘must still be understood by reference to the truly federal government’.[80]
From what has already been covered in this article, it is clear that federalism was a key factor in shaping the High Court’s interpretation of s 61, but it would be plainly incorrect to assume that it was the only one. Rather, considerations of responsible government across the bench were of equal if not greater significance in giving content to Commonwealth executive power. On this, Crennan J explored the weight of responsible government as at federation,[81] projecting the Constitution itself as evidence of those considerations (referring to ss 6, 7, 24, 51, 53, 54, and 56,[82] as well as the mechanisms for executive accountability provided for in chapter II).[83] In accordance with those provisions and in the spirit of legitimate democratic mandate, Hayne J also considered that expenditure should rightly remain confined to the legislative domain, for reasons of ‘sound governmental and administrative practice’,[84] (particularly in relation to ‘public monies’).[85] Further, as convention and constitutional provisions provide for executive accountability to parliament, and parliament necessarily controls expenditure, their Honours claimed that this should also inexorably limit the operation of s 61 within that domain.[86] Finally, the Senate was raised above in light of its potential (federal) curtailment as the ‘States’ house. Through the lens of responsible government, however, Gummow and Bell JJ also raised that same concern in terms of a compromise to necessary bicameral checks and balances.[87] Ultimately, Kiefel J drove the point home, noting that ‘considerations as to the supremacy of Parliament which underlie the doctrine of responsible government may [also] provide a basis for limiting executive power’.[88]
It is not the interest of this article to determine the varying extent to which the High Court apportioned weight to federal considerations and responsible government, but rather to highlight the interplay of both as factors giving weight to the construct of s 61. As a final point of note, Hume, Lynch and Williams effectively reconciled the relationship between those factors, claiming that in Williams (No 1):
federalism dictated the conclusion that the executive's extra-statutory power ... was constrained by the heads of legislative power; and in turn, responsible government dictated the conclusion that the power should be confined to circumstances where that legislative power has actually been exercised to support the executive action.[89]
Re-affirming what had been held two years prior, the majority in Williams (No 2)[90] rejected the Commonwealth’s submission that for all intents and purposes, the executive power of the federal Constitution (save for prescribed limitations) was the ‘same as British executive power’.[91] The content of that submission failed to acknowledge the fundamental federal difference between the jurisdictions of interest (an oversight firmly addressed by the majority in the same spirit with which they had distinguished Bardolph[92] in Williams (No 1)).[93] The ambit of British executive power, their Honours said, is construed in a unitary context, with no need to address State impact from any wide construction of executive power.[94] The Australian Commonwealth however, is and must remain bound to such considerations.[95] Conventions of responsible government were inherited from the British Commonwealth—so from that perspective alone, the Commonwealth’s analogy held up.
However, the majority’s ultimate refusal to accept the comparison was further support for the presence of an additional limiting factor—that being the ‘basal consideration’ of our federal Commonwealth.[96]
In WorkChoices, it appeared relatively settled that heads of power would be construed in ‘all their generality’,[97] subject to express constitutional limitations.[98] Conversely, the majority in Williams (No 1) was preoccupied with the preservation of ‘constitutional coherence’[99] against the backdrop of federalist concerns. Regarding the latter, the focus as to how s 96 and the Senate’s role would be affected by a wide view of s 61 was a clear demonstration of a shift in approach. However, to say that the Williams judgments were ‘inconsistent’ with the approach taken in WorkChoices would be a misinterpretation of events. The term ‘inconsistent’ denotes a presumption of incompatibility. The judgments do project different frameworks in construing various sections of the constitution, and to that end, they are distinct. However, they are not incompatible. This may seem like a semantic distinction, but in this context is a vital one. Where methods are not incompatible, they may be reconciled.
On this, the preliminary point to note is that Williams (No 1) considered s 61 to be a provision vastly distinct from the head of power contemplated in WorkChoices.[100] Where such provisions are so distinct, both textually and in practical effect, it is not a stretch to consider that their methods of judicial interpretation may require some diversity in practice. There would always have been danger in using Engineers for any organic construction of s 61 ‘in all its generality’.[101] In fact, s 61 is written ‘so generally’,[102] with such substantial effect in practice, that it would have been irresponsible of the High Court not to impose such limitations. Further to this, Isaacs J claimed:
it is the very generality of the words in s 61 that necessitates the search for limiting factors from outside that provision. [Conversely] there is less need to search for limiting factors [within] the heads of power: their limits are disclosed by the text of the powers themselves.[103]
Holding that view, it is theoretically possible to confine the Williams (No 1) approach to matters only in respect of s 61.
In all other contexts, the High Court may retain its Engineers orthodoxy where practical, as was demonstrated in Williams (No 2) where the joint judgment turned to consider ss 51(xxiiiA), 51(xx) and 51(xxxix). Interestingly, the Court’s consideration of these heads of power was not fuelled by the same pro-federal rhetoric that underpinned their concurrent examination of s 61.[104] In fact, with s 51(xxiiiA) receiving the most judicial attention in Williams (No 2) (at least by the majority), construction of the phrase ‘benefits to students’ merely followed precedent,[105] unburdened by federal considerations in doing so.[106]
Further, Williams (No 1) saw consideration of how s 96 would become ‘superfluous’[107] if s 61 were to be read pursuant to the Commonwealth’s submissions. In Huddart, Parker & Co Pty Ltd v Moorehead[108] Griffith CJ read s 51(xx) down in light of s 51(i). Stemming from his Honour’s approach, the plaintiffs in WorkChoices submitted that Griffith CJ’s methodology should be reflected in the current matter. They claimed that where s 51(xxxv) is limited in light of ss 51(i) and 51(vi), such limitations would cease to function if s 51(xx) was read to ‘support laws without those limitations’.[109] However, in WorkChoices the majority showed an unwillingness to read down s 51(xx) in light of the practical implications it would have for s 51(xxxv)[110] lacking the ‘express restrictions’[111] required after Engineers. This is a further example of diverse but not incompatible approaches. It merely speaks to the fundamental differences between ss 61 and 51.
Where, in WorkChoices, a reading of s 51(xx) allowed that head of power to spill into the scope of s 51(xxxv), the federal ramifications of this were not substantial. It was a horizontal implication, concerning power already vested within the Commonwealth. In Williams (No 2), however, s 96 stood amongst a small assortment of provisions contemplating continued State autonomy and thus, the approach to this provision was necessarily coloured by federal considerations. With the practical weight of s 61, federal implications and conventions of responsible government, those sections specifically warranted the application of this distinct approach. Framing Williams (No 2) as the exception then, such essential considerations can co-exist with Engineers methodology.
Finally, the decision in WorkChoices broadened the legislative scope so markedly that if executive power mirrored that capacity, then ‘there may have been little the executive could not achieve’.[112] From that more practical perspective, and in light of the federal considerations paved by earlier courts with respect to s 61,[113] the result in Williams (No 2) was realistically inevitable.
VII CONCLUSION
The first limb of this enquiry re-affirmed the words of the Hon Robert French—the federal location of the Commonwealth executive (along with considerations of responsible government) is fundamental in shading the parame ters of s 61. With a view to vertical federal implications and political accountability, the executive scope of the Commonwealth Constitution was necessarily coloured by its context. That enquiry then branched into a second limb, involving a justification of the Williams methodology against the backdrop of the WorkChoices decision (as a prototype of the preceding ‘Engineers’ status quo). On that, and in view of its distinctions, this article illustrated the extent to which reading down s 61 was an entirely consistent, necessary and pragmatic approach by the court—a very manageable shift, if appropriately confined to the executive scope.
[*] Georgina McLeod is a second year Juris Doctor student at the University of Western Australia.
[1] The Hon Robert French AC, ‘Executive Power in Australia—Nurtured and Bound in Anxiety’ [2018] UWALawRw 16; (2018) 43(2) University of Western Australia Law Review 1, 1.
[2] Ibid 22.
[3] Williams v Commonwealth [2012] HCA 23; (2012) 248 CLR 156; Williams v Commonwealth [2014] HCA 23; (2014) 252 CLR 416.
[4] Williams v Commonwealth [2012] HCA 23; (2012) 248 CLR 156 (‘Williams (No 1)’).
[5] Williams v Commonwealth [2014] HCA 23; (2014) 252 CLR 416 (‘Williams (No 2)’).
[6] Commonwealth of Australia Constitution Act 1900 (‘Commonwealth Constitution’).
[7] French, above n 1, 22.
[8] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 (‘Engineers’).
[9] David Hume, Andrew Lynch and George Williams, ‘Heresy in the High Court? Federalism as a Constraint on Commonwealth Power’ (2013) 41 Federal Law Review 71.
[10] New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1 (‘Workchoices’).
[11] Andrew Stewart and George Williams, Work Choices: What the High Court Said (The Federation Press, 2007) 8.
[12] Michelle Evans, ‘Engineers: The Case that Changed Australian Constitutional History’ (2012) 24 Giornale di Storia Costituzionale 65, 68.
[13] Engineers [1920] HCA 54; (1920) 28 CLR 129, 149 (Knox CJ, Isaacs, Rich and Starke JJ).
[14] Stephen McLeish, ‘Federal Implications Under the Australian Constitution’ (2014) 25 Public Law Review 172, 177.
[15] Stewart and Williams, above n 11, 8.
[16] Workchoices [2006] HCA 52; (2006) 229 CLR 1, 245 [612] (Kirby J).
[17] Ibid.
[18] Re Dinjan; Ex Parte Wagner [1995] HCA 16; (1995) 183 CLR 323, 365 (Gaudron J).
[19] Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346, 375 [83] (Gaudron J).
[20] Workchoices [2006] HCA 52; (2006) 229 CLR 1, 114 [177]–[178] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[21] Ibid 182 [422] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[22] Ibid 124 [208] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[23] Ibid 103 [142] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[24] Ibid 103 [142], 117 [185] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ), 202 [472] (Kirby J), citing R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd [1964] HCA 15; (1964) 113 CLR 207, 225–6 and Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479, 492 [16] (‘Grain Pool’).
[25] Ibid 118 [190] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[26] Ibid 120 [196] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[27] Ibid 97 [120] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[28] Ibid 119 [192] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[29] Ibid 73 [54] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[30] Ibid.
[31] Ibid 119 [194] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ), citing Melbourne Corporation [1947] HCA 26; (1947) 74 CLR 31.
[32] Ibid.
[33] Ibid 120 [195] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[34] Ibid 121 [197] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[35] James Allan and Nicholas Aroney, ‘An Uncommon Court: How the High Court of Australia has Undermined Australian Federalism’ [2008] SydLawRw 15; (2008) 30(2) Sydney Law Review 245, 246.
[36] Workchoices [2006] HCA 52; (2006) 229 CLR 1, 103–4 [142], 117 [185] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ), 202 [472] (Kirby J), citing R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd [1964] HCA 15; (1964) 113 CLR 207, 225–6 and Grain Pool (2000) 202 CLR 479, 492 [16].
[37] Allan and Aroney, above n 35, 281.
[38] Hume, Lynch and Williams, above n 9, 88.
[39] Allan and Aroney, above n 35, 281.
[40] Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156.
[41] Ibid 180–1 [5]–[6] (French CJ).
[42] Ibid 179 [2] (French CJ).
[43] Ibid 242 [176] (Hayne J).
[44] Ibid 191–2 [35] (French CJ).
[45] Ibid 242 [176] (Hayne J).
[46] Ibid 192 [36] (French CJ).
[47] Ibid 242 [176] (Hayne J).
[48] Ibid 187 [28] (French CJ).
[49] Cf Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156, 179–80 [4], 184–85 [22], 191 [34] (French CJ), 342 [484]–[485] (Crennan J), 370 [582]–[583] (Kiefel J).
[50] Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156, 187 [27], 192–3 [36]–[37], 216–7 [83] (French CJ), 236–9 [150]–[159] (Gummow and Bell JJ), 353 [524] (Crennan J).
[51] Hume, Lynch and Williams, above n 9, 88.
[52] Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156, 179 [3] (French CJ).
[53] Ibid 178 [1] (French CJ).
[54] Ibid.
[55] Shipra Chordia, Andrew Lynch and George Williams, ‘Williams v Commonwealth: Commonwealth Executive Power and Australian Federalism’ [2013] MelbULawRw 12; (2013) 37 Melbourne University Law Review 189, 203. See also Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156, 192 [37] (French CJ).
[56] Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156, 179 [4] (French CJ).
[57] Pursuant to Commonwealth Constitution s 51(xxxvi); Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156, 265–6 [236] (Hayne J).
[58] Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156, 266 [238] (Hayne J).
[59] Ibid.
[60] Ibid 267 [242] (Hayne J).
[61] Ibid 320 [581] (Kiefel J).
[62] Cf Pape v Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1.
[63] Chordia, Lynch and Williams, above n 55, 191.
[64] Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156, 267 [243] (Hayne J).
[65] Ibid 234 [143] (Gummow and Bell JJ).
[66] Ibid 373 [593] (Kiefel J).
[67] Ibid 348 [503] (Crennan J).
[68] Victoria v Commonwealth [1975] HCA 52; (1975) 134 CLR 338, 357–8 (Barwick CJ).
[69] Ibid 301, 357 (Barwick CJ).
[70] Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156, 270 [248] (Hayne J).
[71] Ibid.
[72] Chordia, Lynch and Williams, above n 55, 230.
[73] Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156, 270–1 [251] (Hayne J).
[74] Ibid 373 [592] (Kiefel J).
[75] Commonwealth Constitution s 53. See also Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156, 205 [60] (French CJ).
[76] Chordia, Lynch and Williams, above n 55, 205. See also Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156, 205–6 [60]–[61] (French CJ).
[77] Ibid.
[78] Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156, 205–6 [61] (French CJ).
[79] Ibid.
[80] Ibid.
[81] Ibid 350 [510] (Crennan J).
[82] Ibid 350 [511] (Crennan J).
[83] K M Hayne, ‘Executive Power’ (2017) 28 Public Law Review 236, 237. See also Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156, 350–1 [512]–[515].
[84] Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156, 281 [288] (Hayne J).
[85] Glenn Ryall, ‘Williams v Commonwealth—A Turning Point for Parliamentary Accountability and Federalism in Australia?’ Papers on Parliament No. 60, 2014.
[86] Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156, 351–2 [516] (Crennan J).
[87] Ibid 232–3 [136] (Gummow and Bell JJ).
[88] Ibid 370 [581] (Kiefel J).
[89] Hume, Lynch and Williams, above n 9, 91.
[90] Williams (No 2) [2014] HCA 23; (2014) 252 CLR 416.
[91] Ibid 468 [79] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
[92] New South Wales v Bardolph (1934) 52 CLR 455.
[93] Selena Bateman, ‘Constitutional Dimensions of State executive power: An Analysis of the Power to Contract and Spend’ (2015) 26 Public Law Review 255, 267. See also Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156.
[94] Williams (No 2) [2014] HCA 23; (2014) 252 CLR 416, 468 [79] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
[95] Ibid 469 [83] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
[96] Ibid 469 [82]–[83] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
[97] Workchoices [2006] HCA 52; (2006) 229 CLR 1, 117 [185] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[98] Hume, Lynch and Williams, above n 9, 90.
[99] Ibid.
[100] Ibid 91.
[101] Workchoices [2006] HCA 52; (2006) 229 CLR 1, 103–4 [142], 117 [185] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ), 202 [472] (Kirby J), citing R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd [1964] HCA 15; (1964) 113 CLR 207, 225–6 and Grain Pool (2000) 202 CLR 479, 492 [16].
[102] Hume, Lynch and Williams, above n 9, 91.
[103] Le Mesurier v Connor [1929] HCA 41; (1929) 42 CLR 481, 514 (Isaacs J).
[104] Shipra Chordia, Andrew Lynch and George Williams, ‘Williams v Commonwealth [No 2] Commonwealth Executive Power and Spending after Williams [No 2]’ (2015) 39 Melbourne University Law Review 307, 320.
[105] Williams (No 2) [2014] HCA 23; (2014) 252 CLR 416, 457–60 [38]–[48] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
[106] Chordia, Lynch and Williams, above n 104, 320.
[107] Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156, 269 [247] (Hayne J).
[108] Huddart, Parker & Co Pty Ltd v Moorehead (‘Parker) [1909] HCA 36; (1909) 8 CLR 330 as referred to in Workchoices [2006] HCA 52; (2006) 229 CLR 1, 122 [200].
[109] Workchoices [2006] HCA 52; (2006) 229 CLR 1, 112 [200] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[110] Ibid 123 [203] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[111] McLeish, above n 14, 178.
[112] Hume, Lynch and Williams, above n 9, 91.
[113] Williams (No 1) [2012] HCA 23; (2012) 248 CLR 156, 252 [198] (Hayne J).
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URL: http://www.austlii.edu.au/au/journals/WAStuLawRw/2019/7.html