¹ Commonwealth of Australia, Royal Commission on the Constitution of the Commonwealth, Report of Proceedings and Minutes of Evidence, (1927) Part 1, 72 [396] (Sir Robert Garran).

² Bob Dylan, ‘It's Alright, Ma (I'm Only Bleeding)’ Bringing it All Back Home (1965).

³ Sometimes referred to as traditional ‘command and control’ regulation: see, eg, Julia, Black, ‘Critical Reflections on Regulation’ (2002) 27 Australian Journal of Legal Philosophy 1, 2–3Google Scholar. See also definitions in Robert, Baldwin, Colin, Scott and Christopher, Hood, A Reader on Regulation (1998) 3Google Scholar and Robert, Baldwin and Martin, Cave, Understanding Regulation: Theory, Strategy and Practice (1999) 2Google Scholar.

⁴ Baldwin, Scott and Hood, above n 3, 3; Baldwin and Cave, above n 3, 2.

⁵ See, eg, Department of the Prime Minister and Cabinet, Australia 2020 Summit: Final Report (2008) Australia 2020 Summit, 309. <http://www.australia2020.gov.au/docs/final_report/2020_summit_report_full.pdf> at 1 April 2009; Senate Standing Committee on Finance and Public Administration, Parliament of Australia, Transparency and Accountability of Commonwealth Public Funding and Expenditure (2007) xi–xiii.

⁶ GST revenue grants under the Intergovernmental Agreement on the Reform of Commonwealth-State Financial Relations are distributed in accordance with ‘horizontal fiscal equalisation (HFE) principles': cl 8 of the Intergovernmental Agreement on the Reform of Commonwealth-State Financial Relations (A New Tax System (Commonwealth-State Financial Arrangements) Act 1999 (Cth) sch 2).

⁷ Australian Bureau of Statistics, Taxation Revenue 5506.0 2005–06 (2007) 4 <http://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/5506.02005-06?OpenDocument> at 1 April 2009.

⁸ In the 2007–08 budget year, the Commonwealth anticipated $245.611 billion in cash receipts: Peter, Costello and Nick, Minchin, 2007–08 Budget Paper No 1: Budget Strategy and Outlook 2007–08 (2007) 13-15Google Scholar.

⁹ Peter, Costello and Nick, Minchin, 2007–08 Budget Paper No 3: Federal Financial Relations 2007–08 (2007) 4Google Scholar.

¹⁰ See, eg, the overview of the Hawke and Keating programs and policies in higher education and schools in Russell, Mathews and Bhajan, Grewal, The Public Sector in Jeopardy: Australian Fiscal Federalism from Whitlam to Keating (1997) 622–44Google Scholar. See also the discussion of Howard policies in Andrew, Parkin and Geoff, Anderson, ‘The Howard Government, Regulatory Federalism and the Transformation of Commonwealth–State Relations’ (2007) 42 Australian Journal of Political Science 295Google Scholar.

¹¹ These sections are prefaced by the words ‘for the peace, order and good government of the Commonwealth'.

¹² Implied or express, under s 51(xxix) of the Constitution.

¹³ Section 96 grants have been discussed extensively elsewhere and are not the immediate concern of this paper. See, eg, A J, Myers, ‘The Grants Power: Key to Commonwealth–State Financial Relations’ (1970) 7 Melbourne University Law Review 549Google Scholar; Cheryl, Saunders, ‘Towards a Theory for Section 96’ (Pt I) (1987) 16 Melbourne University Law Review 1Google Scholar; Cheryl, Saunders, ‘Towards a Theory for Section 96’ (Pt II) (1988) 16 Melbourne University Law Review 699Google Scholar.

¹⁴ (Emphasis added).

¹⁵ Under the annual Appropriation Act (No 1) (Cth) and Appropriation Act (No 3) (Cth).

¹⁶ Under the annual Appropriation Act (No 2) (Cth), Appropriation Act (No 4) (Cth) and Appropriation (Parliamentary Departments) Acts (Cth).

¹⁷ These distinctions come from a compact of 1965 between the House of Representatives and the Senate ('the 1965 Compact’). The 1965 Compact has been amended on several occasions, most recently in 1999. I C, Harris (ed), House of Representatives Practice (5th ed, 2005) 415Google Scholar; Harry, Evans, Odgers’ Australian Senate Practice (12th ed, 2008) 284–7Google Scholar.

¹⁸ Currently provided for in Part 8 of the Financial Management and Accountability Act 1997 (Cth) and Part 4 of the Auditor-General Act 1997 (Cth). The Public Accounts and Audit Committee Act 1951 (Cth) establishes a Joint Standing Committee which supervises the Auditor-General: ss 5, 8.

¹⁹ Section 25 of the Auditor-General Act 1997 (Cth) provides that the Auditor-General may report to the Parliament on any matter at any time.

²⁰ Bryan Pape, ‘The Use and Abuse of the Commonwealth Finance Power’ (Paper presented at the Samuel Griffith Society Seventeenth Annual Conference, 10 April 2005, Coolangatta, Queensland) 15.

²¹ See, eg, Cheryl, Saunders and Kevin, K F Yam, ‘Government Regulation by Contract: Implications for the Rule of Law’ (2004) 15 Public Law Review 51, 52Google Scholar; Sue, Arrowsmith, ‘Government Contracts and Public Law’ (1990) 10 Legal Studies 231Google Scholar.

²² This raises questions about the source of jurisdiction of the courts (if any) in either the common law or in statute, the justiciability of decisions, grounds of review, the availability of plaintiffs with requisite locus standi and available remedies. See, eg, Chris, Horan, ‘Judicial Review of Non-Statutory Executive Powers’ (2003) 31 Federal Law Review 551Google Scholar.

²³ For a brief overview of the role of budgetary policy in the management of the economy, see Peter, Groenewegen, Public Finance in Australia: Theory and Practice (3rd ed, 1990)Google Scholar chs 2, 14, 18.

²⁴ See discussion in Saunders and Yam, above n 21, 57–9; Nick, Seddon, ‘The Interaction of Contract and Executive Power’ (2003) 31 Federal Law Review 541, 548Google Scholar; Colin, Howard, ‘Public Law and Common Law’ in D J, Galligan (ed), Essays in Legal Theory: A Collaborative Work (1984) 1, 24–5Google Scholar.

²⁵ Arrowsmith, above n 21, 234.

²⁶ Sections 7, 24 and 64 of the Constitution in conjunction with several other sections, embody the convention of responsible government in Australia: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 557–9.

²⁷ Saunders and Yam, above n 21, 61–2. See also Seddon, above n 24, 548.

²⁸ The annual appropriation legislation consists of the Appropriation Act (No 1) (Cth) which contains details for the ordinary annual governmental expenses; the Appropriation Act (No 2) (Cth) which contains appropriations for funds for expenditure on new policies, new capital expenditure, and grants to the States under s 96; the Appropriation Act (No 3) (Cth) and Appropriation Act (No 4) (Cth) which are passed as supplementary appropriations to the Appropriation Bills (No 1) and (No 2) (Cth) respectively; and the Supply Acts which are used where necessary as an interim measure in the event that the annual appropriation Acts are not passed by the start of the financial year. Appropriation legislation must be passed in accordance with the special procedure set out in ss 53, 54 and 56 of the Constitution.

²⁹ Originally adopted by the government in 1997 but fully implemented on 1 July 1999 in the Financial Management Legislation Amendment Act 1999 (Cth). See Maurice Kennedy, Cheques and Balances (Research Paper No 16 2001–02, Department of the Parliamentary Library, 2002), 33–4.

³⁰ ‘Outcomes’ are defined as ‘[w]hat does government want to achieve?’ whilst ‘outputs’ are ‘[h]ow does it achieve this?': see Department of Finance and Deregulation, Outcomes and Outputs Framework Guidance Document (2000), 3 <http://www.finance.gov.au/financial-framework/financial-management-policy-guidance/docs/OO-guide-2000.pdf> at 1 April 2009.

³¹ These are Budget Paper No 1: Budget Strategy and Outlook, Budget Paper No 2: Budget Measures, Budget Paper No 3: Federal Financial Relations and Budget Paper No 4: Agency Resourcing.

³² See ss 4, 7 and 8 and Schedule 1 of the Appropriations Act (No 1) 2007–08 (Cth). Note that s 4 makes Portfolio Budget Statements relevant documents for the interpretation of the Act pursuant to s 15AB of the Acts Interpretation Act 1901 (Cth).

³³ Kennedy, above n 29.

³⁴ Formerly estimates committees.

³⁵ Senate Standing Orders and Other Orders of the Senate 2006 (Cth) Standing Order 26; Evans, above n 17, 311. The committees also consider departmental annual reports and question responsible Ministers and officers.

³⁶ It has even been suggested that the lack of transparency inherent in this system may be used by the government to create ‘hollow logs’ of appropriated money from previous years which may be then used at the discretion of the government, in a manner which is completely unaccountable to Parliament. The way in which this could be done, Kennedy suggests, is through the use of ‘Special Accounts’ which are provided for, eg, in s 13 of the Appropriation Act (No 1) 2007–08 (Cth). This allows the government to credit amounts from the CRF into these accounts provided the purpose of the account is covered in the appropriation item. Once amounts are credited to these accounts, the expenditure is no longer governed by the terms of the relevant Appropriation Act, but the terms of the Special Accounts. The government can easily transfer the whole amount of the appropriation item into these accounts annually, whether or not the amounts are expended in a particular year, allowing ‘hollow logs’ to develop: Kennedy, above n 29, 42–3.

³⁷ Other methods of dealing with this in foreign jurisdictions include requiring supplementary appropriation legislation to be introduced to address this problem which may be of an exceptional character and may be introduced after the expenditure has occurred. See the discussion in Enid, Campbell, ‘Parliamentary Appropriations’ (1971) 4 Adelaide Law Review 145, 150–1Google Scholar.

³⁸ See, eg, Appropriation Act (No 1) 2007–08 (Cth) s 11.

³⁹ See, eg, discussion of the takeover in Commonwealth, Parliamentary Debates, Senate, 7 August 2007, 21–2 (Senator Nick Minchin). Following the change of government in 2008, the Rudd government indicated it would honour the funding commitment. After an attempt to find an organisation to manage, operate and administer the hospital through a tendering process in mid-2008 failed, on 28 August 2008 the Minister for Health and Ageing announced that an agreement had been reached with the Tasmanian government to manage the hospital, with the Commonwealth providing funding of up to $180 million over three years: Nicola Roxon, Minister for Health and Ageing, ‘Agreement for Management of Mersey Community Hospital Signed’ (Press Release, 28 August 2008). See also Department of Health and Ageing, Heads of Agreement for the Management, Operation and Funding of the Mersey Community Hospital (2008) <http://www.health.gov.au/internet/main/publishing.nsf/Content/mersey-community-hospital> at 14 April 2009.

⁴⁰ As occurred for example in the Northern Territory intervention under the Appropriation (Northern Territory National Emergency Response) Act (No 1) 2007–08 (Cth) and Appropriation (Northern Territory National Emergency Response) Act (No 2) 2007–08 (Cth).

⁴¹ Advance to the Finance Minister — Section 11 of Appropriation Act (No 1) 2007–2008 (Cth) No 3 of 2007–2008, 17 October 2007. This advance included other initiatives as well as the Mersey Hospital takeover.

⁴² See above Part II.

⁴³ This highlights an ongoing point of contention between the Senate and the House as to the correct interpretation of s 53 and what constitutes the ordinary annual services of government. The Senate Standing Committee on Finance and Public Administration most recently expressed concern about the ambiguity around the dichotomy between appropriations for the ordinary annual services of government and special expenditures in March 2007, and recommended seeking clarification on this matter with the government. The Senate appears to have adopted a diplomatic approach to negotiating a satisfactory view as to the split: Senate Standing Committee on Finance and Public Administration, above n 5, 41. In the Budget estimates hearings in May 2007, the Minister for Finance and Administration indicated he would respond to requests for clarification and the government would work towards identifying any appropriations that were not correctly classified in accordance with the 1965 Compact: Senate Chairs’ Committee, Parliament of Australia, Response to Finance and Public Administration Committee's Report on Transparency and Accountability of Commonwealth Public Funding and Expenditure (2007) 2. During the passage of the 2007–08 appropriation legislation, the Senate passed a resolution requesting the government to respond as soon as possible to the 2007 Finance and Public Administration Committee's report and to ‘resolve the outstanding issue reported on by the Appropriations and Staffing committee in its annual reports for 2005–06 and 2006–07 in relation to the ordinary annual services of the government and appropriation bills': Commonwealth, Parliamentary Debates, Senate, 20 March 2008, 1401 (Andrew Murray), 1410 (John Faulkner). An interim response was provided by the Minister for Finance and Deregulation on 6 April 2008, indicating a fuller response would be provided in the second half of 2008: letter from Lindsay Tanner, Minister for Finance and Deregulation, to Helen Polley, Chair of Senate Finance and Public Administration Committee, 6 April 2008, 2.

⁴⁴ (2005) 224 CLR 494 ('Combet’).

⁴⁵ The legislation had not been introduced to Parliament when the expenditures were made.

⁴⁶ The asserted outcome was Department of Employment and Workplace Relations Outcome 2: ‘Higher productivity, higher pay workplaces'.

⁴⁷ Combet (2005) 224 CLR 494, 530 (Gleeson CJ).

⁴⁸ Ibid 566–7 (Gummow, Hayne, Callinan and Heydon JJ).

⁴⁹ In accordance with s 56 of the Constitution; see above Part II.

⁵⁰ Geoffrey, Lindell, ‘The Combet Case and the Appropriation of Taxpayers’ Funds for Political Advertising — An Erosion of Fundamental Principles?’ (2007) 66 Australian Journal of Public Administration 307, 321Google Scholar.

⁵¹ Combet (2005) 224 CLR 494, 616 (Kirby J).

⁵² Lindell, above n 50, 315; John, Uhr, ‘Appropriations and the Legislative Process’ (2006) 17 Public Law Review 173Google Scholar; Lotta, Ziegert, ‘Does the Public Purse have Strings Attached? Combet & Anor v Commonwealth of Australia & Ors’ (2006) 28 Sydney Law Review 387, 399Google Scholar; Alexander Reilly, ‘Combet v Commonwealth — Appropriations and Advertising’ (Paper presented at the Gilbert + Tobin Centre of Public Law Constitutional Law Conference 2006, University of NSW, Sydney, 24 February 2006).

⁵³ The Committee recommendations included clearer, simpler specification of outcomes in measurable terms, reporting of unspent appropriations at the end of each financial year and return of unspent appropriations unless the Finance Minister determined there was good cause for the funds to be retained, and the re-introduction of requirements for approved expenditures to have a link and connection with the specified outcomes and purposes of the appropriations: Senate Standing Committee on Finance and Public Administration, above n 5, xi–xiii.

⁵⁴ Department of the Prime Minister and Cabinet, above n 5, 309; see also at 327–8, 346. The record of discussion notes that the delegates discussed the importance of ensuring the descriptions of budget appropriates must be more specific to strengthen executive accountability to Parliament and improve the Parliamentary process.

⁵⁵ Lindell, above n 50, 315.

⁵⁶ Senate Finance and Public Administration References Committee, Parliament of Australia, Government Advertising and Accountability (2005) 37.

⁵⁷ In ss 51 and 52 of the Constitution, which probably encompasses a ‘nationhood’ type power through the combination of ss 61 (the executive power) and 51(xxxix) (the incidental power) of the Constitution: see, eg, Davis v Commonwealth (1988) 166 CLR 79, 93 (Mason CJ, Deane and Gaudron JJ).

⁵⁸ Discussed in more depth in Part VI below.

⁵⁹ Cheryl, Saunders, ‘The Development of the Commonwealth Spending Power’ (1978) 11 Melbourne University Law Review 369, 369, 372, 407Google Scholar.

⁶⁰ Mr Thynne originally sought amendments to add an additional subparagraph to the legislative heads of power which read: ‘The appropriation of any moneys raised by the commonwealth for any purpose authorised by the constitution.’ This amendment was withdrawn at the suggestion of Sir Samuel Griffith, who suggested that it would be better suited as an amendment to finance clause 3 (now s 83). Official Record of the Debates of the Australasian Federal Convention, Sydney, 8 April 1891, 698–701 (Andrew Joseph Thynne, Inglis Clark and Sir Samuel Griffith).

⁶¹ Ibid 700 (Alfred Deakin).

⁶² Saunders, above n 59, 369.

⁶³ Including the external affairs power (s 51(xxix)) and more recently, the corporations (s 51(xx)) and defence (s 51(vi)) powers.

⁶⁴ Particularly after the income tax decisions of South Australia v Commonwealth (1942) 65 CLR 373 ('First Uniform Tax Case’) and Victoria v Commonwealth (1957) 99 CLR 575 ('Second Uniform Tax Case’) and the adoption of the Goods and Services Tax ('GST’) in 2000.

⁶⁵ Andrew, Petter, ‘Federalism and the Myth of the Federal Spending Power’ (1989) 68 Canadian Bar Review 448, 466Google Scholar.

⁶⁶ It has generally been accepted that there are no restrictions as to the subject matter of s 96 grants nor the types of conditions that may be attached to them, although the High Court has indicated that it is likely subject to the limitations contained in s 116. See A-G (Vic) ex rel Black v Commonwealth (1981) 146 CLR 559, 576 (Barwick CJ), 621 (Murphy J), 651 (Wilson J) ('DOGS Case’).

⁶⁷ The Liberal Party has always adopted a strong federalist platform. See Robyn Hollander, ‘John Howard, Economic Liberalism, Social Conservatism, and Australian Federalism’ (2008) 54 Australian Journal of Politics and History 85, 86–8. This may have contributed to limiting the use of the spending power due to the threat of potential political and legal challenge.

⁶⁸ In the Royal Commission on the Constitution of 1927 and by a Royal Commission into a similar allowance for child endowment and other family benefits in 1928: Commonwealth of Australia, above n 1, Part 3, 780 (Owen Dixon); Commonwealth of Australia, Royal Commission on Child Endowment or Family Allowances, Report of the Royal Commission on Child Endowment or Family Allowances (1928) 10–14.

⁶⁹ Saunders, above n 59, 397.

⁷⁰ Following the decision of Victoria v Commonwealth (1926) 38 CLR 399, the grants power was further widened in Deputy Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735, First Uniform Tax Case (1942) 65 CLR 373 and Second Uniform Tax Case (1957) 99 CLR 575.

⁷¹ Enacted under the Menzies government but extended by Curtin.

⁷² (1945) 71 CLR 237.

⁷³ Victoria v Commonwealth (1975) 134 CLR 338 ('AAP Case’).

⁷⁴ Appropriation Act (No 1) 1974 (Cth).

⁷⁵ This may be explained by the different view of federalism adopted by the Fraser Government in its ‘New Federalism Policy’ following the change of government in 1975: Mathews and Grewal, above n 10, 245. Another partial explanation is the ambiguity in the reasoning of the judgments in reaching the outcome.

⁷⁶ Hollander, above n 67, 93. Hollander points out other mechanisms, including reliance upon the corporations and external affairs power, pressure to pass uniform legislation, the GST and the increase in conditions on State grants. See also Parkin and Anderson, above n 10.

⁷⁷ In 2007–08, the budget paper indicates that payments directly to local governments will total $557 million: Costello and Minchin, above n 9, 2007–08 Budget Paper No 3. Direct funding to local government for roads is provided under the Auslink (National Land Transport) Act 2005 (Cth). Other, non-legislatively backed funding is also provided in the form of direct specific purpose grants for residential and community old age care services, home care, child care and personal preventative services (such as immunisation clinics). Additional grants are also available to local governments under federal schemes such as the Regional Partnerships Program. In 2005–06 approximately 43 per cent of successful Regional Partnerships Program grants were approved to local government: Department of Transport and Regional Services, 2005–06 Report on the Operation of the Local Government (Financial Assistance) Act 1995 (2007) 23.

⁷⁸ Concerns have been expressed elsewhere about the constitutionality of the Roads to Recovery, now Auslink roads program and the Regional Partnerships Program. See, eg, Pape, above n 20, 7–8.

⁷⁹ A number of direct grants are made under legislative schemes. These include the Medicare (Part II of the Health Insurance Act 1973 (Cth)) and pharmaceutical benefits schemes (Part VII of the National Health Act 1953 (Cth)). Other legislative schemes provide for direct grants which are not so clearly within the legislative competence of the Commonwealth, for example under the Health Care (Appropriation) Act 1998 (Cth) which provides health grants to States, hospitals and other persons for the purpose of providing health and emergency services or funding projects to improve health and emergency services. $42.01 million was appropriated for the five year period commencing 1 July 2003 under the Act. Another example is the health program grants made available under Part IV of the Health Insurance Act 1973 (Cth) to organisations for the funding of various approved health services and projects. Health program grants currently available include the Radiation Oncology Health Program Grant which reimburses the cost of expensive eligible radiation oncology equipment. See Department of Health and Ageing, Health Program Grants (HPG) (2007) <http://www.health.gov.au/internet/main/publishing.nsf/Content/health-roi-hpg-overview-index.htm> at 1 April 2009. There are also a number of non-legislative direct funding schemes. For example, funding to peak community and profession bodies in relation to HIV/AIDS, Hepatitis C and Sexually Transmitted Infections, the ‘More Doctors for Outer Metro Initiative Relocation Grant Program', the ‘Healthy Active Australia’ Community and School Grants Program, the ‘Round the Clock Medicare: Investing in After Hours GP Services Program’ and the ‘Bringing Nurses back into the Workforce Program': Department of Health and Ageing, Portfolio Budget Statements 2007–08 (2007).

⁸⁰ Higher Education Funding Amendment Act (No 2) 1992 (Cth).

⁸¹ Commonwealth, Parliamentary Debates, House of Representatives, 4 November 1992, 2625 (P J Baldwin, Minister for Higher Education and Employment Services).

⁸² Dr D A Kemp indicated that direct funding would be supported by the opposition on the basis that it would assist in avoiding the bureaucracy of the States and would also take away the opportunity of the more financially stretched of the States holding onto funds to earn interest: Commonwealth, Parliamentary Debates, House of Representatives, 10 November 1992, 3021 (Dr D A Kemp).

⁸³ The Commonwealth Grant Scheme, grants for ‘Other Purposes’ and grants for Commonwealth scholarships.

⁸⁴ HES Act 2003 (Cth) s 30–5. This amount is appropriated out of the CRF by s 238–12.

⁸⁵ HES Act 2003 (Cth) div 36.

⁸⁶ Providers are required to enter into a funding agreement with the relevant Minister under the HES Act 2003 (Cth) s 30–25. Section 30–25(3) sets out, without limiting, types of additional conditions the Minister may include in the funding agreement. These include for example the minimum numbers of Commonwealth supported places that must be made available for different disciplines.

⁸⁷ HES Act 2003 (Cth) s 36–60.

⁸⁸ HES Act 2003 (Cth) s 19–37 was inserted by the Higher Education Support Amendment (Abolition of Compulsory Up-front Student Union Fees) Act 2005 (Cth).

⁸⁹ HES Act 2003 (Cth) s 36–70. Guidelines are made under s 238–10.

⁹⁰ Legislative Instruments Act 2003 (Cth) s 42.

⁹¹ See Commonwealth Grant Scheme Guidelines (No 1) 2008 (Cth) (8 January 2008 compilation).

⁹² HES Act 2003 (Cth) s 33–17. The Higher Education Workplace Relations Requirements were inserted into the Higher Education Legislation Amendment (Workplace Relations Requirements) Act 2005 (Cth) but repealed under the Rudd government by the Higher Education Support Amendment (Removal of Higher Education Workplace Relations Requirements and National Governance Protocols Requirements and Other Matters) Act 2008 (Cth).

⁹³ Providers are divided into those listed in Table A of the HES Act 2003 (Cth) and those not, see s 16–15.

⁹⁴ Commonwealth Grant Scheme Guidelines (No 1) 2008 (Cth) (8 January 2008 compilation) para 7.5.

⁹⁵ Commonwealth Grant Scheme Guidelines (No 1) 2008 (Cth) (8 January 2008 compilation) para 7.15.

⁹⁶ Commonwealth Grant Scheme Guidelines (No 1) 2008 (Cth) (8 January 2008 compilation) para 7.15.

⁹⁷ Higher Education Support Amendment (Abolition of Compulsory Up-front Student Union Fees) Act 2005 (Cth).

⁹⁸ Department of Education, Science and Training, Voluntary Student Unionism Transition Fund for Sporting and Recreational Facilities Guidelines and Information for Applicants and Grant Recipients for the Second and Final Round of Funding, Including Application Form (2006–07) 9 <http://www.dest.gov.au/sectors/higher_education/programmes_funding/documents/Round_2_Sport_Rec_Guidelines_pdf.htm> at 1 April 2009.

⁹⁹ The Appropriation Act (No 1) 2006 (Cth) appropriated $1.276 billion for the Department of Education, Science and Training ‘Outcome 2', ‘Individuals achieve relevant skills and learning outcomes from post school education and training'. The Portfolio Budget Statement of the Department translates this output into various expenditures, including output 2.4, ‘resourcing', which included the $80 million for the ‘transition fund for sporting and recreation facilities construction and maintenance to support implementation of voluntary student unionism': Department of Education, Science and Training, Portfolio Budget Statements 2006–07 (2006) 64.

¹⁰⁰ Schools Assistance (Learning Together — Achievement Through Choice and Opportunity) Act 2004 (Cth). See also funding provided under the Indigenous Education (Targeted Assistance) Act 2000 (Cth).

¹⁰¹ Australian Technical Colleges (Flexibility in Achieving Australia's Skills Needs) Act 2005 (Cth) ss 5–7, 19.

¹⁰² Australian Technical Colleges (Flexibility in Achieving Australia's Skills Needs) Act 2005 (Cth) ss 18, 23.

¹⁰³ Department of Education, Science and Training, Portfolio Budget Statements 2007–08 (2007) 40–1.

¹⁰⁴ Department of Education, Employment and Workplace Relations, Commonwealth Programs for Schools Quadrennial Administrative Guidelines 2005 to 2008 — 2008 Update (2008) 232 <http://www.deewr.gov.au/schooling/funding/capitalgrantsprogram/documents/quad_admin_guidelines_2009.pdf> at 5 April 2009.

¹⁰⁵ Department of Education, Science and Training, Commonwealth Programmes for Schools Quadrennial Administrative Guidelines 2001 to 2004 (2004) 179 <http://www.dest.gov.au/NR/rdonlyres/393D7EFC-1848-4CF9-B9DF-63A3D08D1E4C/1465/Guidelines2004.pdf> at 1 April 2009.

¹⁰⁶ Department of Education, Science and Training, Commonwealth Programmes for Schools Quadrennial Administrative Guidelines 1997 to 2000 — 2000 Revision (2000) Part 3 at 28 <http://www.dest.gov.au/NR/rdonlyres/28095519-7B49-4F7F-9DBB-E77529D9CF83/1453/part3.pdf> at 1 April 2009.

¹⁰⁷ Department of Education, Employment and Workplace Relations, above n 104, 228.

¹⁰⁸ See generally Department of Education, Science and Training, National School Chaplaincy Programme Guidelines (2007) Australian Government <http://www.dest.gov.au/sectors/school_education/policy_initiatives_reviews/key_issues/school_chaplaincy_programme/default> at 1 April 2009.

¹⁰⁹ For example, those conditions set out in the HES Act 2003 (Cth), and those set out in guidelines, such as the National School Chaplaincy Programme Guidelines.

¹¹⁰ For example, the Minister has discretion to add conditions for both Commonwealth Grant Scheme Funding and Other Grants made under the HES Act 2003 (Cth), for funding out of the Voluntary Student Unionism Transition Fund and under the Australian Technical Colleges (Flexibility in Achieving Australia's Skills Needs) Act 2003 (Cth).

¹¹¹ House of Representatives Standing Orders and Sessional Orders 2008 (Cth) Standing Order 200; Senate Standing Orders and Other Orders of the Senate 2006 (Cth) Standing Order 164.

¹¹² Arrowsmith, above n 21, 234.

¹¹³ Other heads of power may include the external affairs power in s 51(xxix) of the Constitution as it relates to the implementation of treaties and the taxation power in s 51(ii). See, eg, Greg, Craven, ‘Commonwealth Power over Higher Education: Implications and Realities’ (2006) 1 Public Policy 1, 4–5Google Scholar.

¹¹⁴ This was accepted by the Full Federal Court in Quickenden v O'Connor (2001) 109 FCR 243. Leave to appeal was denied by the High Court: Quickenden v O'Connor (2002) 23(11) Leg Rep SL6.

¹¹⁵ State school institutions are established by State legislation. See, eg, Education (General Provisions) Act 2006 (Qld) ss 13–15. The governing bodies of private primary and secondary schools are usually incorporated, however, this is not always the case: see, eg, Education (Accreditation of Non-State Schools) Act 2001 (Qld) ss 11, 185.

¹¹⁶ Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271, 281 (Mason ACJ, Wilson, Brennan, Deane and Dawson JJ).

¹¹⁷ Craven, above n 113, 4; Letter of Advice from Minter Ellison to Australian Vice Chancellors’ Committee, 13 April 1999, 3 <http://www.universitiesaustralia.edu.au/archive/news/1999/avcc1299a.doc> at 1 April 2009.

¹¹⁸ It was initially considered as a power vested in the Commonwealth for self protection, for example, against subversion and sedition: Australian Communist Party v Commonwealth (1951) 83 CLR 1 ('Communist Party Case’); Burns v Ransley (1949) 79 CLR 101, 109–110, 116; R v Sharkey (1949) 79 CLR 121, 148–9. It was expanded by many of the judges in AAP Case (1975) 134 CLR 338 and adopted in Davis v Commonwealth (1988) 166 CLR 79.

¹¹⁹ Davis v Commonwealth (1988) 166 CLR 79, 110 (Brennan J). See also AAP Case (1975) 134 CLR 338, 362 (Barwick CJ), 397 (Mason J), 412–3 (Jacobs J); Commonwealth v Tasmania (1983) 158 CLR 1, 252 (Deane J) ('Tasmanian Dam Case’).

¹²⁰ Craven, above n 113, 7; Minter Ellison, above n 117, 3.

¹²¹ See, eg, Cheryl, Saunders, ‘Parliamentary Appropriation’ in Cheryl, Saunders et al (eds), Current Constitutional Problems in Australia (1982) 1Google Scholar; Saunders, above n 59; Enid Campbell, above n 37.

¹²² For example, under Edward III, supply was granted for ‘defence against the Scots’ in 1348 and in 1353 for continued ‘prosecution of the war.’ In 1390, taxes were directly split into supply – for example one quarter of a tax to the King for ordinary services of the Crown and three quarters for the war. See Frederic, William Maitland, The Constitutional History of England: a Course of Lectures Delivered by F W Maitland (1908) 184Google Scholar. See also Theodore, F T Plucknett, Taswell-Langmead's English Constitutional History: From the Teutonic Conquest to the Present Time (11th ed, 1960) 160Google Scholar.

¹²³ Two treasurers of war were appointed to receive the grant and to account to the Commons for it at the next Parliament: Annales Henrici IV, 379–80 as referred to in Plucknett, above n 122, 169.

¹²⁴ Extracted in Plucknett, above n 122, 186.

¹²⁵ Maitland, above n 122, 309.

¹²⁶ Colin, Rhys Lovell, English Constitutional and Legal History: A Survey (1962) 294Google Scholar.

¹²⁷ For example, in 1624, moneys were granted to be paid to commissioners named by Parliament for relief of the Palatinate to ensure their application to naval and military defence: Maitland, above n 122, 309; See also, ibid 294; Henry, Hallam, The Constitutional History of England from the Accession of Henry VII to the Death of George II (1846) 363Google Scholar.

¹²⁸ Plucknett, above n 122, 382–92.

¹²⁹ Maitland, above n 122, 309.

¹³⁰ Ibid.

¹³¹ Ibid 310.

¹³² As referred to in Plucknett, above n 122 and ibid 310.

¹³³ Believing that the bankers would be more inclined to provide the funds with its inclusion: Plucknett, above n 122, 428–9.

¹³⁴ Lovell, above n 126, 369.

¹³⁵ This concept had originally been included in the 1628 Petition of Right, drafted by Sir Edward Coke and presented to Charles I. Whilst Charles agreed to the document, he did not honour its terms.

¹³⁶ Maitland, above n 122, 310, 433.

¹³⁷ Established under Standing Orders of the House of Commons 1862 (UK) Standing Order 122, now substantially reproduced as Standing Orders of the House of Commons 2009 (UK) Standing Order 148. The Standing Order provided: ‘There shall be a select committee to be called the Committee of Public Accounts for the examination of the accounts showing appropriation of the sums granted by Parliament to meet the public expenditure, and of such other accounts laid before Parliament as the committee may think fit …'. See Fidelma, White and Kathryn, Hollingsworth, Audit, Accountability and Government (1999) 36Google Scholar; Committee of Public Accounts, Holding Government to Account: 150 Years of the Committee of Public Accounts 1857–2007 (2007) 10 <http://www.parliament.uk/documents/upload/PAC%20History%20booklet%20pdf%20version_P1.pdf> at 2 April 2009.

¹³⁸ White and Hollingsworth, above n 137, 36–7; Committee of Public Accounts, above n 137, 12.

¹³⁹ Committee of Public Accounts, above n 137, 12.

¹⁴⁰ SirWilliam, McKay (ed), Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament (23rd ed, 2004) 851Google Scholar.

¹⁴¹ An Act to Provide for the Administration of Justice in New South Wales and Van Diemen's Land 1828, 9 & 10 Geo, c 83 (emphasis added).

¹⁴² An Act for the Government of New South Wales and Van Diemen's Land, 5 & 6 Vict, c 76. Similar wording was used in the Australian Constitutions Act 1850, 13 & 14 Vict, c 59, s 14.

¹⁴³ An Act to Enable Her Majesty to Assent to a Bill, as Amended, of the Legislature of Victoria, to Establish a Constitution in and for the Colony of Victoria 1855, 18 & 19 Vict, c 55, s 44 (emphasis added).

¹⁴⁴ Section 39 was replaced by the Constitution (Consolidated Fund) Amendment Bill 1982 (NSW) which had the object of merging the Consolidated Fund and the General Loan Account. The reference to the appropriation for the ‘public service of New South Wales’ was removed in this amendment. However, s 45 still provides that the Consolidated Fund shall be subject to be appropriated to such specific purposes as may be prescribed by any Act in that behalf.

¹⁴⁵ Other relevant provisions are s 51(ii) of the Constitution, which gives the Commonwealth the power to make laws with respect to taxation and ss 53, 54 and 56 of the Constitution which provide the special procedure for the passage of money bills.

¹⁴⁶ John, M Williams, The Australian Constitution: A Documentary History (2005) 180Google Scholar (emphasis added).

¹⁴⁷ John, Quick and Robert, Garran, The Annotated Constitution of the Australian Commonwealth (1901) 811Google Scholar.

¹⁴⁸ Ibid.

¹⁴⁹ Ibid 666.

¹⁵⁰ Commonwealth, Parliamentary Debates, House of Representatives, 24 September 1912, 3324 (Andrew Fisher), 3335 (Billy Hughes).

¹⁵¹ On which he would later have to make constitutional judgment as the Chief Justice of the High Court.

¹⁵² Commonwealth, Parliamentary Debates, House of Representatives, 13 August 1923, 2634 (John Latham).

¹⁵³ Commonwealth of Australia, above n 1; Commonwealth of Australia, above n 68, 10–14.

¹⁵⁴ Commonwealth of Australia, above n 1, Part 1, 69 [383] (Sir Robert Garran); Commonwealth of Australia, above n 68, 10 [5].

¹⁵⁵ Commonwealth of Australia, above n 1, Part 1, 69–70 [383] (Sir Robert Garran).

¹⁵⁶ Ibid Part 3, 780 (Owen Dixon); Commonwealth of Australia, above n 68, 10–14.

¹⁵⁷ Pharmaceutical Benefits Case (1945) 71 CLR 237; AAP Case (1975) 134 CLR 338. Some members of the Court had previously touched upon the issue, but it had never arisen as a substantive dispute. The majority in A-G (Vic) ex rel the Victorian Chamber of Manufacturers v Commonwealth (1935) 52 CLR 533 ('Clothing Factory Case’) found that it was unnecessary to decide the ‘grave question’ as to whether s 81 enabled spending on matters outside of the legislative and executive competence of the Commonwealth: 559–60 (Gavan Duffy CJ, Evatt and McTiernan JJ). Justice Starke considered the issue and, drawing distinctions from the United States jurisprudence on the matter, concluded that the power did not enable the Commonwealth to appropriate funds for the purposes it saw fit, but was restricted to ‘the subjects assigned to, or departments or matters placed under the control of the Federal Government by the Constitution': 568 (Starke J). The comments of Barton and Isaacs JJ in New South Wales v Commonwealth (1908) 7 CLR 179 ('Surplus Revenue Case’) were described by Gibbs J in the AAP Case as supporting a narrow construction of the power: AAP Case (1975) 134 CLR 338, 373 (Gibbs J). Such constructions are slightly strained at best.

¹⁵⁸ For example, the Council of Australian Governments (COAG), an intergovernmental forum consisting of the Prime Minister, State Premiers, Chief Ministers of the Territories and the President of the Australian Local Government Association was established in 1992 to formalise the political negotiations that occur to give effect to cooperative federalism: See Council of Australian Governments, About COAG <http://www.coag.gov.au/about_coag/index.cfm> at 2 April 2009. Other Commonwealth-State Ministerial Councils have also been established.

¹⁵⁹ Although Rich J agreed with the judgment of Dixon J: Pharmaceutical Benefits Case (1945) 71 CLR 237, 264.

¹⁶⁰ Ibid 254.

¹⁶¹ Ibid 253.

¹⁶² Ibid 256–7.

¹⁶³ Ibid 266.

¹⁶⁴ Ibid 282.

¹⁶⁵ Whilst Dixon J did not decide the issue, he favoured this narrower view: ibid 271–2.

¹⁶⁶ Justice McTiernan dissenting.

¹⁶⁷ AAP Case (1975) 134 CLR 338, 393.

¹⁶⁸ Ibid 396.

¹⁶⁹ Ibid 410–11.

¹⁷⁰ Ibid 411–12.

¹⁷¹ Ibid 387, 390.

¹⁷² (1988) 166 CLR 79.

¹⁷³ Ibid 96.

¹⁷⁴ Pharmaceutical Benefits Case (1945) 71 CLR 237, 252 (Latham CJ); AAP Case (1975) 134 CLR 338, 417 (Murphy J).

¹⁷⁵ Pharmaceutical Benefits Case (1945) 71 CLR 237, 256 (Latham CJ), 273 (McTiernan J); AAP Case (1975) 134 CLR 338, 368–9 (McTiernan J). This view appears to have been first expressed by Sir Robert Garran: Commonwealth of Australia, above n 1, Part 1, 69 [383].

¹⁷⁶ AAP Case (1975) 134 CLR 338, 394–5 (Mason J), 418 (Murphy J).

¹⁷⁷ Ibid 420–1 (Murphy J); See also at 395–6 (Mason J).

¹⁷⁸ Ibid 360 (Barwick CJ).

¹⁷⁹ Ibid 374 (Gibbs J).

¹⁸⁰ Pharmaceutical Benefits Case (1945) 71 CLR 237, 266 (Starke J); ibid 374 (Gibbs J).

¹⁸¹ Pharmaceutical Benefits Case (1945) 71 CLR 237, 255 (Latham CJ), 265 (Starke J), 271 (Dixon J); AAP Case (1975) 134 CLR 338, 359 (Barwick CJ).

¹⁸² Pharmaceutical Benefits Case (1945) 71 CLR 237, 266 (Starke J); AAP Case (1975) 134 CLR 338, 355, 357–8 (Barwick CJ).

¹⁸³ AAP Case (1975) 134 CLR 338, 356–7 (Barwick CJ), 374 (Gibbs J).

¹⁸⁴ Constitutional Commission, Final Report of the Constitutional Commission (1988) vol 2, 833–4.

¹⁸⁵ Uhr, above n 52, 174.

¹⁸⁶ Ibid 173.

¹⁸⁷ See, for example, the proposed role of Parliament in the scrutiny of contracts in Saunders and Yam, above n 21, 62–5, 69.

¹⁸⁸ Colin Howard, Australian Federal Constitutional Law (3^rd ed, 1985) 140.

¹⁸⁹ The Court in Brown v West (1990) 169 CLR 195, 205 accepted that the constitutional convention is entrenched in the Constitution by ss 81 and 83.

¹⁹⁰ Communist Party Case (1951) 83 CLR 1, 262 (Fullagar J).

¹⁹¹ Only once, in this context, has a judge based a refusal to grant relief on standing alone: AAP Case (1975) 134 CLR 338, 387, 390 (Stephen J). Note that Murphy J expressed that he was inclined to agree with Stephen J on this point: at 424.

¹⁹² Ibid 366 (Barwick CJ), 381, 383 (Gibbs J), 402 (Mason J).

¹⁹³ Ibid 402 (Mason J).

¹⁹⁴ Ibid 387–8 (Stephen J).

¹⁹⁵ Combet (2005) 224 CLR 494, 556–7 [96]–[97] (McHugh J), 620 [308] (Kirby J).

¹⁹⁶ Ibid 621–2 [312] (Kirby J).

¹⁹⁷ Transcript of Proceedings, Combet v Commonwealth (High Court of Australia, Stephen Gagelar SC, 29 August 2005) 8 (emphasis added).

¹⁹⁸ Lindell, above n 50, 315 (emphasis added).

¹⁹⁹ Howard proposes a similar test, limited to Parliament. He proposes that Parliament must be in a position to form an opinion about the purpose and form it before the power to pass the law arises: ‘If Parliament has not been in that position it has not exercised its functions under the constitution, the purported approval is a nullity and the appropriation Act is the extent of the fault invalid': Howard, above n 188, 141.

²⁰⁰ Lindell, above n 50, 318.

²⁰¹ Such as the Mersey Hospital takeover.

²⁰² See above Part II.

²⁰³ AAP Case (1975) 134 CLR 338, 411 (Jacobs J).

²⁰⁴ Commonwealth v Colonial Ammunition Co Ltd (1924) 34 CLR 198, 224 (Isaacs and Rich JJ).

²⁰⁵ Constitutional Commission, above n 184, 834.

²⁰⁶ Ibid 831.

²⁰⁷ Ibid 834.

²⁰⁸ (1990) 169 CLR 195.

²⁰⁹ Ibid 200.

²¹⁰ Supply Act (No 1) 1989 (Cth).

²¹¹ Brown v West (1990) 169 CLR 195, 212.

²¹² This view was originally stated by Sir John Quick during debate on the Maternity Allowances Bill 1912 (Cth), where he asserted that the appropriations power was not limited, but that it did not authorise regulation in the area: Commonwealth, Parliamentary Debates, House of Representatives, 24 September 1912, 3353–4 (Sir John Quick). This view was adopted by Mason J in the AAP Case (1975) 134 CLR 338, 396 and earlier by Latham CJ in the Pharmaceutical Benefits Case (1945) 71 CLR 237, 256–7. It also appears to be the basis for the judgment in Davis v Commonwealth (1988) 166 CLR 79.

²¹³ AAP Case (1975) 134 CLR 338, 396 (Mason J).

²¹⁴ Pharmaceutical Benefits Case (1945) 71 CLR 237, 257 (Latham CJ).

²¹⁵ Peter, Hogg, Constitutional Law of Canada (5th ed, 2007) vol 1, 174Google Scholar–5 (emphasis added).

²¹⁶ (1957) 99 CLR 575.

²¹⁷ Ibid 605 (Dixon CJ).

²¹⁸ Nicholas, Seddon, Government Contracts (3rd ed, 2004) 55Google Scholar; Leslie, Zines, ‘The Inherent Executive Power of the Commonwealth’ (2005) 16 Public Law Review 279, 283–4Google Scholar. Contra Enid, Campbell, ‘Commonwealth Contracts’ (1970) 44 Australian Law Journal 14, 23Google Scholar; Enid, Campbell, ‘Federal Contract Law’ (1970) 44 Australian Law Journal 580Google Scholar.

²¹⁹ Arrowsmith, above n 21, 234.

²²⁰ Hogg, above n 215, 175, fn 50.

²²¹ Arrowsmith, above n 21, 234.

²²² For further discussion of this point, see Petter, above n 65, 461, 465.

²²³ In the same period, universities’ total income was $13.867 billion. Over 55 per cent of university funding came from the Commonwealth: National Tertiary Education Union, The Funding of Australian Universities 1996–2005: An Examination of the Facts and Figures (2007) <http://www.nteu.org.au/policy/submissions/discussionpapers07/fundingunis> at 28 March 2009.

²²⁴ This article will consider the position in the United States and Canada only, as these nations tend to be logical comparators due to shared common law systems, language and federalism. It is not intended to infer that other countries have not also had to consider these matters.

²²⁵ See, eg, Pennhurst State School & Hospital v Halderman, 451 US 1, 17 (1981).

²²⁶ Steward Machine Co v Davis, 301 US 548, 590 (1937) approved in South Dakota v Dole, 483 US 203, 211 (1987).

²²⁷ Donald, J Mizerk, ‘The Coercion Test and Conditional Federal Grants to the States’ (1987) 40 Vanderbilt Law Review 1159, 1169–70Google Scholar; Ryan, C Squire, ‘Effectuating Principles of Federalism: Reevaluating the Federal Spending Power as the Great Tenth Amendment Loophole’ (1998) 25 Pepperdine Law Review 869, 903–6Google Scholar; Laurence, H Tribe, American Constitutional Law (3rd ed, 2000) vol 1, 840–1Google Scholar; Kimberly, Sayers-Fay, ‘Conditional Federal Spending: A Back Door to Enhanced Free Exercise Protection’ (2000) 88 California Law Review 1281, 1299–301Google Scholar. Note the criticism of this position, advocating that the Court should find a condition overly coercive ‘if the state has no fair or rational choice, rather than no practical choice': Tonnis, H Venhuizen, ‘United States v American Library Association: The Supreme Court Fails to Make the South Dakota v Dole Standard a Meaningful Limitation on the Congressional Spending Power’ (2007) 52 South Dakota Law Review 565, 593Google Scholar.

²²⁸ South Dakota v Dole, 483 US 201, 212 (1987); James, V Corbelli, ‘Tower of Power: South Dakota v Dole and the Strength of the Spending Power’ (1988) 49 University of Pittsburgh Law Review 1097, 1122Google Scholar.

²²⁹ Chamber of Commerce of the United States v Brown, 128 S Ct 2408, 2415 (2008) (Stevens J for the Court): ‘It is equally clear that California may not indirectly regulate such conduct by imposing spending restrictions on the use of state funds.'

²³⁰ Although the matter is still subject to debate.

²³¹ Winterhaven Stables Ltd v A-G (Canada) (1988) 53 DLR (4^th) 413 (Alberta Court of Appeal) ('Winterhaven Stables’). See also the rather equivocal comments of Lord Atkin in A-G (Canada) v A-G (Ontario) (Reference Re Unemployment Insurance) [1937] AC 355, 366 regarding whether legislation is in substance legislation on a provincial matter. See also Brown v YMHA Jewish Community Centre of Winnipeg Inc [1989] 1 SCR 1532, 1540 [20] (L'Heureux-Dubé J) and Eldridge v A-G (British Columbia) [1997] 3 SCR 624, 647 (La Forest J). The debate in Canada has centred around federal grants to the provinces because of the absence of a grants power such as s 96 of the Constitution.

²³² The Canadian Supreme Court refused leave to appeal from this decision: Supreme Court of Canada, Bulletin of Proceedings, 14 April 1989, 905.

²³³ Winterhaven Stables (1988) 53 DLR (4^th) 413, 434. Cf Reference Re Canada Assistance Plan [1991] 2 SCR 525, 567 (Sopinka J), where his Honour indicated in obiter that the ‘simple withholding of federal money’ did not amount to regulation of that matter.

²³⁴ AAP Case (1975) 134 CLR 338, 398 (Mason J).

²³⁵ New South Wales v Bardolph (1934) 52 CLR 455, 496 (Rich J), 502 (Starke J), 508 (Dixon J with whom Gavan Duffy CJ agreed); cf the broader view taken at 524 (McTiernan J).

²³⁶ See, eg, Campbell, ‘Commonwealth Contracts', above n 218, 15–16; George, Winterton, Parliament, the Executive and the Governor-General: A Constitutional Analysis (1983) 45Google Scholar; Leslie, Zines, The High Court and the Constitution (1981) 207–8Google Scholar; J E, Richardson, ‘The Executive Power of the Commonwealth’ in Leslie, Zines (ed), Commentaries on the Australian Constitution (1977) 50, 76Google Scholar; Seddon, above n 218, 53–4; Dennis, Rose, ‘The Government and Contract’ in Paul, Finn (ed), Essays on Contract (1987) 233, 246Google Scholar.

²³⁷ Campbell, ‘Commonwealth Contracts', above n 218, 15–16.

²³⁸ Shrewsbury & Atcham Borough Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 148, [48] (Carnwath LJ), [74] (Richards LJ).

²³⁹ Winterton, above n 236.

²⁴⁰ Subscribers to this view include Seddon, above n 218, 58; Zines, above n 218, 279; Rose, above n 236, 246; J E Richardson, above n 236, 75–6; H E, Renfree, The Executive Power of the Commonwealth of Australia (1984) 471Google Scholar; H V, Evatt, The Royal Prerogative (1987) 227Google Scholar. Earlier court decisions in Clothing Factory Case (1935) 52 CLR 533 and Re K L Tractors Ltd (1960) 106 CLR 318 lend support to this view. See also obiter comments in New South Wales v Bardolph (1934) 52 CLR 455, 474.

²⁴¹ Campbell, ‘Commonwealth Contracts', above n 218, 23; Campbell, ‘Federal Contract Law', above n 214.

²⁴² See discussion above Part V, C, 2.

²⁴³ Winterton, above n 236, 39, 46. This view would be supported by the decision of Murphy J in the AAP Case (1975) 134 CLR 338.

²⁴⁴ Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 557–9.

²⁴⁵ Described variously as ‘powers of a national character', ‘powers attributable to the existence of the Commonwealth', ‘powers related to the functions of a national government', ‘powers to protect the existence of the Commonwealth', ‘sovereign power to govern a nation', ‘powers appropriate to the status of a nation', ‘powers necessary and proper for the purposes of the nation', ‘powers to protect and advance the nation’ and just the ‘nationhood power’ (this article adopts the latter term).

²⁴⁶ See above n 118.

²⁴⁷ George, Winterton, ‘The Limits and Use of Executive Power by Government’ (2003) 31 Federal Law Review 421, 426Google Scholar.

²⁴⁸ AAP Case (1975) 134 CLR 338, 397 (Mason J), 412–13 (Jacobs J).

²⁴⁹ Ibid 362 (Barwick CJ) (emphasis added).

²⁵⁰ Ibid 397–8 (Mason J), 412–13 (Jacobs J).

²⁵¹ Ibid 398 (Mason J).

²⁵² Ibid 364 (Barwick CJ).

²⁵³ Ibid 362 (Barwick CJ). See also at 378 (Gibbs J).

²⁵⁴ Davis v Commonwealth (1988) 166 CLR 79, 93–4 (Mason CJ, Deane and Gaudron JJ). See also at 104 (Wilson and Dawson JJ).

²⁵⁵ High Court of Australia, ‘Pape’ (Press Release, 3 April 2009).