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The Executive and Financial Powers of the Commonwealth: Pape v Commissioner of Taxation


Andrew McLeod


Lady Margaret Hall, University of Oxford; University of Sydney - Faculty of Law

2010

Sydney Law Review, Vol. 32, No. 1, pp. 123-140, 2010
Sydney Law School Research Paper No. 12/30

Abstract:     
Within the Australian constitutional system, two aspects of Commonwealth power have for decades remained elusive: the Commonwealth’s capacity to spend public moneys; and the scope and nature of executive power. A constitutional challenge to part of the Australian Government’s response to the global financial crisis provided an opportunity for the High Court to shed light on both issues. The challenge impugned Commonwealth payments to taxpayers designed to provide a rapid fiscal stimulus to the Australian economy. The Commonwealth principally defended the legislation that authorised the payments on the alternate bases of a substantive spending power founded in s 81 of the Constitution and the executive power vested by s 61. The High Court’s decision, Pape v Commissioner of Taxation (2009) 238 CLR 1, represents a radical reappraisal of the constitutional requirements for the valid appropriation and expenditure of Commonwealth funds and points to a fundamental reconsideration of the nature of executive power in Australia. This article presents a detailed examination of the decision and its implications for constitutional jurisprudence. It questions the approach adopted by the majority in construing executive power and contends that more careful consideration ought be given to British constitutional principle in future decisions.

Number of Pages in PDF File: 19

Keywords: constitutional law, executive power, appropriation, prerogatives, national emergency, nationhood power, taxation, global financial crisis

JEL Classification: K10, K22, K30, K34

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Date posted: April 19, 2012  

Suggested Citation

McLeod, Andrew, The Executive and Financial Powers of the Commonwealth: Pape v Commissioner of Taxation (2010). Sydney Law Review, Vol. 32, No. 1, pp. 123-140, 2010; Sydney Law School Research Paper No. 12/30. Available at SSRN: http://ssrn.com/abstract=2042286

Contact Information

Andrew McLeod (Contact Author)
Lady Margaret Hall, University of Oxford ( email )
Norham Gardens
Oxford, OX2 6QA
United Kingdom
University of Sydney - Faculty of Law ( email )
Faculty of Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia
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