Looking at the Executive Power through the High Court's New Spectacles

(2013) 35(2) Sydney Law Review

U. of Adelaide Law Research Paper No. 2013-02

30 Pages Posted: 11 Feb 2013 Last revised: 17 Jul 2013

See all articles by Gabrielle J. Appleby

Gabrielle J. Appleby

University of New South Wales (UNSW)

Stephen McDonald

Hanson Chambers; University of Adelaide - School of Law

Date Written: February 7, 2013

Abstract

Federation heralded a new constitutional order in Australia. The new Constitution carefully divided the legislative power between the two levels of government, but left the division of the executive power between them unclear. Since Federation it had generally been accepted, and reflected in the Commonwealth‘s policies and conduct, that the Commonwealth executive power includes the capacity to spend and contract, at least within the spheres of the Commonwealth‘s legislative competence, and perhaps beyond. The Australian understanding the Executive‘s responsibility for expenditure to Parliament mirrored our understanding of the responsibility of the British Crown to Parliament. In Williams v Commonwealth (2012) 86 ALJR 713, the majority of the High Court changed our understanding of the Commonwealth‘s executive capacities and the nature of the relationship between the Commonwealth Executive and Parliament. This article outlines the Williams decision on this point, and critically analyses the majority‘s use of the twin principles of federalism and responsible government to justify their conclusions. We then explore how Williams fundamentally changes the Australian understanding of the Commonwealth Executive. We conclude by considering the practical implications this has had, and may have, on executive spending at both Commonwealth and State levels.

Keywords: Constitutional Law, Executive Power, Federalism, Spending Power

JEL Classification: K10

Suggested Citation

Appleby, Gabrielle J. and McDonald, Stephen, Looking at the Executive Power through the High Court's New Spectacles (February 7, 2013). (2013) 35(2) Sydney Law Review ; U. of Adelaide Law Research Paper No. 2013-02. Available at SSRN: https://ssrn.com/abstract=2213652

Gabrielle J. Appleby (Contact Author)

University of New South Wales (UNSW) ( email )

Kensington
High St
Sydney, NSW 2052
Australia

HOME PAGE: http://www.law.unsw.edu.au/profile/gabrielle-appleby

Stephen McDonald

Hanson Chambers ( email )

56 Carrington Street
Adelaide, South Australia 5000
Australia
61 8 8212 6022 (Phone)
61 8 8231 3640 (Fax)

University of Adelaide - School of Law ( email )

Ligertwood Building
Adelaide 5005, South Australia SA 5005
Australia

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