* A version of this paper was originally presented at the 2016 Australia-New Zealand Scrutiny of Legislation Conference, Perth, 11–14 July 2016.
1 Williams v Commonwealth (2012) 248 CLR 156; Williams v Commonwealth (No. 2) (2014) 252 CLR 416.
2 In the Australian context, it is clear that a key theme at the 1890s Convention Debates was a desire to ensure that the Commonwealth and the states would each be sovereign within their respective fields—each would be free to perform its functions and exercise its powers without interference, burden or hindrance from the other government. The Constitution was to be ‘an agreement among sovereign powers to give up some of their power to a new central body, but preserving their sovereignty over what they retained. The State was not subordinate to the Commonwealth, nor the Commonwealth to a State’: Leslie Zines, The High Court and the Constitution, 5th ed., Federation Press, Annandale, 2008, p. 1.
3 ‘If a bad government possesses all powers, all powers may be abused, but a national or regional government can use its powers, and the people can use their separate votes in electing those governments, to correct, to some extent, any misuse of the powers of either one’: Rosemary Laing (ed), Odgers’ Australian Senate Practice: As Revised by Harry Evans, 14th ed., Department of the Senate, Canberra, 2016, pp. 8–9.
4 Alexander Hamilton or James Madison, Federalist No. 51: ‘The structure of the government must furnish the proper checks and balances between the different departments’, New York Packet, New York, 8 February 1788.
5 Laing (ed), op. cit., p. 9; Senate Select Committee on the Reform of the Australian Federation, Australia’s Federation: an agenda for reform, June 2011, pp. 6–12; Federal-State Relations Committee (Parliament of Victoria), Australian federalism: the role of the States, October 1998, pp. 5–9.
6 Australasian Federal Convention 1897–98 (Second Session), Sydney, 17 September 1897, p. 784, (Richard Baker, South Australia).
7 Harry Evans, ‘The role of the Senate’, Papers on Parliament, no. 52, December 2009, pp. 93–4.
8 Harry Evans, ‘Federalism: an idea whose time has come?’, paper presented at the Samuel Griffith Society Conference, Canberra, 7–9 March 1997.
9 Evans, ‘The role of the Senate’, op. cit., p. 93.
10 ibid., pp. 94–5.
11 Debates of the Australasian Federal Convention 1897–98 (Second Session), Sydney, 10 September 1897, p. 335 (Alfred Deakin, Victoria).
12 Debates of the Australasian Federal Convention 1897–98 (First Session), Adelaide, 30 March 1897, p. 340 (John Cockburn, South Australia).
13 Victoria v Commonwealth (1975) 134 CLR 81, 122 (‘PMA Case’).
14 A recent example of this relates to consideration of the distribution of GST revenues to the states. While Western Australia has strongly supported changes to the distribution formula, other states such as Tasmania strongly support the existing system. This debate has been reflected in the Senate, while the issue has received comparatively little attention in the House of Representatives.
15 Campbell Sharman, ‘The Australian Senate as a States House’, Australian Journal of Political Science, vol. 12, no. 2, 1977, pp. 73–4.
16 Scott Brenton, ‘State-Based Representation and National Policymaking: The Evolution of the Australian Senate and the Federation’, Journal of Legislative Studies, vol. 21, no. 2, 2015, p. 274.
17 See, for example, Cheryl Saunders, The Constitution of Australia: A Contextual Analysis, Hart Publishing, Oxford, 2011, p. 120.
18 Paula Waring, ‘The Pursuit of State Interests in the Senate’, Papers on Parliament, no. 66, October 2016, pp. 139–59.
19 For example, an amendment to the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 (Cth), co-sponsored by Senator Eric Abetz (Liberal) and Senator Bob Brown (Greens), was passed by the Senate on 27 October 2009 to ensure that the government’s plan to close down the Federal Court registry services in Hobart could not proceed.
20 Recent examples of Senate inquiries relating to state matters include inquiries into the Perth Freight Link project (May 2016), Outcomes of the 42nd meeting of the Council of Australian Governments held on 1 April 2016 (May 2016), Regulation of the fin-fish aquaculture industry in Tasmania (August 2015), Privatisation of State and Territory assets and new infrastructure (March 2015), and the Select Committee on the Reform of the Australian Federation (June 2011).
21 For example, recently Tasmanian senators examined the take-up and efficacy of a Commonwealth wage subsidy scheme offered to Tasmanian employers and the Defence Materiel Organisation has been questioned extensively about the proposed construction of submarines in South Australia.
22 For example, the Commonwealth Grants Commission Amendment (GST Distribution) Bill 2015.
23 Recent examples include disallowance motions which sought to stop a ‘super trawler’ operating off the Tasmanian coastline, and to stop the declaration of the Coral Sea Conservation Zone because of its potential impact on Queensland fisheries.
24 For example, the Senate will often order ministers to table documents in the Senate relating to state issues, such as Commonwealth funding for state infrastructure projects.
25 Questions relating to the distribution of GST revenue to the states have been common in recent years.
26 J. R. Odgers, Australian Senate Practice, 6th ed., Royal Australian Institute of Public Administration, Canberra, 1991, p. 11; Sharman, op, cit., p. 68; Waring, op. cit., p. 158.
27 Campbell Sharman, ‘The representation of small parties and independents in the Senate’, Australian Journal of Political Science, vol. 34, no. 3, 1999, p. 360.
28 Waring, op. cit. p. 144.
29 Chief Justice Robert French, ‘Adding Value to Law Making’, speech delivered at the AustraliaNew Zealand Scrutiny of Legislation Conference: Scrutiny and Accountability in the 21st Century, Canberra, 6 July 2009, p. 1.
30 Debates of the Australasian Federal Convention 1897–98 (First Session), Adelaide, 13 April 1897, p. 490 (John Forrest, Western Australia).
31 ibid., pp. 499–500 (Richard O’Connor, New South Wales)
32 ibid., p. 490 (John Forrest, Western Australia).
33 ibid., p. 148 (Frederick Holder, South Australia).
34 Laing (ed), op. cit., p. 359.
35 ibid., pp. 359–60. As noted above, the Senate retains the power to reject all bills.
36 ibid., p. 362.
37 Bernhard Wise noted that the importance of section 54 is ‘rendered obvious when one notices that in more than half of the constitutions of the states of America this clause has been inserted as a constitutional amendment, owing to the grave and increasing difficulties arising from the practice of tacking to appropriation bills measures not appropriate to such bills … the States have generally provided a remedy for the evil by enacting that no law shall contain more than one subject, which shall be plainly expressed in its title’: Debates of the Australasian Federal Convention 1897–98 (Second Session), Sydney, 15 September 1897, pp. 539–540 (Bernhard Wise, New South Wales).
38 Debates of the Australasian Federal Convention 1897–98 (Third Session), Melbourne, 8 March 1898, p. 2081 (John Cockburn, South Australia).
39 Laing (ed), op. cit., p. 386.
40 Debates of the Australasian Federal Convention 1897–98 (Third Session), Melbourne, 8 March 1898, p. 2076 (William McMillan, New South Wales; Isaac Isaacs, Victoria).
41 Laing (ed), op. cit., p. 386.
42 The Northern Territory Emergency Response package of bills repeated this anomaly, as did bills to cover expenditure on an equine influenza outbreak.
43 Laing (ed), op. cit., p. 388. For example, any new policy in the education and training portfolio that relates to either (a) ‘improving early learning, schooling, student educational outcomes and transitions to and from school through access to quality child care, support, parent engagement, quality teaching and learning environments’ (outcome 1), or (b) ‘promoting growth in economic productivity and social wellbeing through access to quality higher education, international education, and international quality research, skills and training’ (outcome 2) would be regarded as ‘ordinary annual services of the government’.
44 Journals of the Senate, 22 June 2010, pp. 3642–3 [emphasis added].
45 In accordance with Senate standing order 24(1)(a)(v), the committee is required to report on bills that insufficiently subject the exercise of legislative power to parliamentary scrutiny
46 Senate Standing Committee for the Scrutiny of Bills, Fourth Report of 2016, 16 March 2016, p. 255.
47 Journals of the Senate, 17–18 March 2016, p. 4074; Commonwealth, Parliamentary Debates, Senate, 17–18 March 2016, p. 2709.
48 Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 2 of 2016, 24 February 2016, pp. 4–8; Senate Standing Committee for the Scrutiny of Bills, Fourth Report of 2016, 16 March 2016, pp. 253–5.
49 In accordance with Senate standing order 23(3)(d), the committee is required to ensure that a disallowable legislative instrument does not contain matter more appropriate for parliamentary enactment.
50 Williams v Commonwealth (2012) 248 CLR 156; Williams v Commonwealth (No. 2) (2014) 252 CLR 416.
51 See for example Senate Standing Committee on Regulations and Ordinances, Delegated legislation monitor, no. 5 of 2015, 12 May 2015, Financial Framework (Supplementary Powers) Amendment (2015 Measures No. 2) Regulation 2015 [F2015L00370], pp. 10–11 and Senate Standing Committee for the Scrutiny of Bills, Fourth Report of 2015, 25 March 2015, pp. 267–71, which commented that it seemed the initial expenditure in relation to the items provided for in the Financial Framework (Supplementary Powers) Amendment (2015 Measures No. 2) Regulation 2015 [F2015L00370] in the Health portfolio may have been inappropriately classified as ordinary annual services (and therefore included in Appropriation Bill (No. 3) 2014-15, which is not amendable by the Senate). See also Patrick Hodder, ‘The Williams decisions and the Implications for the Senate and its Scrutiny Committees’, Papers on Parliament, no. 64, January 2016, pp. 143– 59.
52 (2012) 248 CLR 156.
53 For a fuller account of the decision, see Glenn Ryall, ‘Williams v. Commonwealth—A Turning Point for Parliamentary Accountability and Federalism in Australia?’, Papers on Parliament, no. 60, March 2014, pp. 131–48.
54 The FFLA Act inserted section 32B of the FMA Act (now Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act)) to provide legislative authority for the government to spend monies on programs listed in Schedule 1AA (now Schedule 1AB) to Financial Management and Accountability Regulations 1997 (now Financial Framework (Supplementary Powers) Regulations 1997 ((FF(SP) regulations)).
55 Schedule 1AB of the now FF(SP) regulations. On 20 December 2013 the Financial Management and Accountability Amendment (2013 Measures No. 1) Regulation 2013 [F2013L02089] added Schedule 1AB to the FMA regulations. After this date arrangements, grants and programs have been specified under Schedule 1AB rather than Schedule 1AA. This was a technical change to avoid the need to group items under the administering department (as required under Schedule 1AA). See Financial Management and Accountability Amendment (2013 Measures No. 1) Regulation 2013 [F2013L02089], explanatory statement, pp. 1–2.
56 Correspondence from Senator the Hon. John Hogg, Chair of the then Senate Standing Committee on Appropriations and Staffing, to the Senate Regulations and Ordinances Committee, 17 March 2014. See Senate Standing Committee of Regulations and Ordinances, Delegated legislation monitor, no. 5 of 2014, 14 May 2014, appendix 3.
57 Noting the Scrutiny of Bills Committee’s responsibility to consider whether the exercise of legislative power is subject to sufficient parliamentary scrutiny (See Senate standing order 24(1)(a)(v)) and discussion of the Scrutiny of Bills Committee’s consideration of ordinary annual services above), which is supported by the scrutiny mandate of the Regulations and Ordinances committee to report on whether the exercise of delegated legislative power is more appropriate for parliamentary enactment (See Senate standing order 23(3)(d)).
58 See Senate Standing Committee on Regulations and Ordinances, Delegated legislation monitor, no. 5 of 2015, 12 May 2015, Financial Framework (Supplementary Powers) Amendment (2015 Measures No. 2) Regulation 2015 [F2015L00370], pp. 10–11. See also Senate Standing Committee for the Scrutiny of Bills, Fourth Report of 2015, 25 March 2015, pp. 267–71. Relatedly, the Scrutiny of Bills Committee drew to the attention of the Senate Appropriation Bill (No. 3) 2014– 2015, and commented that it seemed the initial expenditure in relation to the ‘Gold Coast Suns AFL Club – upgrade of Metricon Stadium facilities’ in the Health portfolio may have been inappropriately classified as ordinary annual services (and therefore included in Appropriation Bill (No. 3) 2014–2015, which is not amendable by the Senate).
59 Cheryl Saunders, ‘Australian Federal Democracy’, speech delivered for the Law Oration 2015, Victoria Law Foundation, Melbourne, 14 October 2015, http://www.victorialawfoundation.org.au/sites/default/files/attachments/vlf_law_oration_2015.pdf.
60 Williams v Commonwealth (No. 1) (2012) 248 CLR 156; Williams v Commonwealth (No. 2) (2014) 252 CLR 416 (Williams No. 2).
61 Saunders, ‘Australian Federal Democracy’. In addition, in Williams No. 2 the High Court clarified the meaning of the term ‘benefits to students’ in paragraph 51(xxiiiA) (the social welfare power) of the Constitution. Specifically, the Court held that the concept of ‘benefits’ to students was more precise than ‘(any and every kind of) advantage or good'. Williams v Commonwealth (No. 2) (2014) 252 CLR 416, 458 [43]. For something to come within the meaning of ‘benefits to students’ relief should amount to ‘material aid provided against the human wants which the student has by reason of being a student’. Williams v Commonwealth (No. 2) (2014) 252 CLR 416, 460 [46]. This is relevant to the consideration of the constitutionality of Commonwealth expenditure on the Prime Minister's Prizes initiative discussed below.
62 Anne Twomey, ‘Post-Williams Expenditure—When Can the Commonwealth and States Spend Public Money Without Parliamentary Authorisation?’, University of Queensland Law Journal, vol. 33, no. 1, 2014, pp. 9–10.
63 Andrew Lynch, ‘Commonwealth Spending After Williams (No 2): Has the New Dawn Risen?’, Public Law Review, vol. 26, no. 2, June 2015, p. 86.
64 Financial Framework (Supplementary Powers) Regulations 1997.
65 See Senate standing order 23(3)(a).
66 Senate Standing Committee on Regulations and Ordinances, Delegated legislation monitor, no. 15 of 2014, 19 November 2014, p. 6.
67 Cheryl Saunders and Michael Crommelin, ‘Reforming Australian Federal Democracy’, Meanjin Quarterly, vol. 74, no. 3, 2015, p. 8.
68 For example, in 2015 the committee questioned the Minister for Finance as to whether the constitutional heads of power identified by the minister (in this case the external affairs power and/or the executive nationhood power coupled with the express incidental power) actually supported the following new spending programs: Mathematics by Inquiry program (to create and improve mathematics curriculum resources for primary and secondary school students); and Coding Across the Curriculum program (to encourage the introduction of computer coding and programming across different year levels in Australian schools). In this instance, the committee continued to seek further information from the minister where it had received successive unsatisfactory responses. When the minister’s third response also failed to directly address the committee’s concerns the committee sought the minister’s explicit and positive assurance that, in exercising the powers delegated by the parliament in the making of the regulation, he was satisfied that there was sufficient constitutional authority for the exercise of that power. The committee ultimately concluded its examination of the matter after receiving a fourth response in which the minister assured the committee that the government’s legal advice confirmed that that the Mathematics by Inquiry and the Coding Across the Curriculum programs were supported by the external affairs power and/or the executive nationhood power (coupled with the express incidental power). See Senate Standing Committee on Regulations and Ordinances, Delegated legislation monitor, no. 12 of 2015, 12 October 2015, pp. 10–13, and Senate Standing Committee on Regulations and Ordinances, Delegated legislation monitor, no. 13 of 2015, 13 October 2015, p. 3.
69 In detail, the committee questioned the Minister for Finance, amongst other things, as to whether the constitutional heads of power identified by the minister (in this case the social welfare power; the external affairs power; and the executive nationhood power coupled with the express incidental power) actually supported the following new spending program: Prime Minister’s Prizes (to provide national prizes and awards to individuals and institutions, recognising achievement in science and innovation). As it was unclear how the funding of the ‘Prime Minister’s Prizes’ initiative may be regarded as providing ‘benefits to students’ within the scope of the social welfare power; or an activity peculiarly adapted to the government of a nation’; and as not able to be otherwise ‘carried out for the benefit of the nation’; the committee requested the advice of the Minister for Finance in relation to the legislative authority for this initiative. The minister’s response advised that the Prime Minister’s Prizes initiative had been revised and that it no longer included any expenditure that would rely on the students’ benefits power. The response argued that the revised initiative was supported by the executive nationhood power coupled with the express incidental power as it ‘provides national-level prizes and awards to recognise the nation’s most outstanding scientists and science teachers’ and ‘has national significance as part of the Commonwealth’s science strategy’. See Senate Standing Committee on Regulations and Ordinances, Delegated legislation monitor, no. 7 of 2016, 12 October 2016, p. 73.
70 See for example: Standing Committee on Regulations and Ordinances, Delegated Legislation Monitor, no. 4 of 2017, 29 March 2017, Financial Framework (Supplementary Powers) Amendment (Attorney-General’s Portfolio Measures No. 4) Regulation 2016 [F2016L01924] pp. 37–40; Financial Framework (Supplementary Powers) Amendment (Health Measures No. 4) Regulation 2016 [F2016L01751] pp. 41–53; Financial Framework (Supplementary Powers) Amendment (Infrastructure and Regional Development Measures No. 1) Regulation 2016 [F2016L01921] and Financial Framework (Supplementary Powers) Amendment (Infrastructure and Regional Development Measures No. 2) Regulation 2016 [F2016L01925] pp. 54–62.
71 Andrew Lynch and Tessa Meyrick, ‘The Constitution and Legislative Responsibility’, Public Law Review, vol. 18, 2007, pp. 163–4.
72 See for example: Senate Standing Committee on Regulations and Ordinances, Delegated legislation monitor, no. 6 of 2015, 17 June 2015, Financial Framework (Supplementary Powers) Amendment (2015 Measures No. 3) Regulation 2015 [F2015L00572] and Senate Standing Committee on Regulations and Ordinances, Delegated legislation monitor, no. 13 of 2015, 13 October 2015
73 Saunders, The Constitution of Australia, p. 241.
74 Victoria v Commonwealth (1926) 38 CLR 399 (‘Federal Aid Roads case’); South Australia v Commonwealth (1941) 65 CLR 373 (‘Uniform Tax case (No. 1)’); Victoria v Commonwealth (1957) 99 CLR 575 (‘Uniform Tax case (No. 2)’); Attorney-General (Vic) (ex rel Black) v Commonwealth (1981) 146 CLR 559 (‘DOGS case’).
75 Saunders, The Constitution of Australia, p. 242.
76 John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, Sydney, 1901, p. 869. For example, Dr Cockburn noted that if the clause were to be accepted ‘it would certainly sap the independence of the States by placing the Federal Parliament as a sort of Lord Bountiful over the States’: Debates of the Australasian Federal Convention 1897–98 (Third Session), Melbourne, 17 February 1898, p. 1119 (John Cockburn, South Australia).
77 ibid., pp. 870–1.
78 Cheryl Saunders, ‘Towards a theory for section 96: Part 1’, Melbourne University Law Review, vol. 16, no. 1, 1987, p. 18.
79 Commonwealth of Australia, Federal Financial Relations, 2016–17 Budget Paper No. 3.
80 Saunders, ‘Australian Federal Democracy’, p. 10.
81 ibid
82 Daniel Weight, ‘Parliamentary scrutiny of payments to the states and territories’, Budget Review 2015–16, Commonwealth Parliamentary Library, May 2015, p. 23, http://parlinfo.aph.gov.au/parlInfo/download/library/prspub/4036352/upload_binary/4036352.pdf;fileType=application/pdf .
83 Saunders, ‘Australian Federal Democracy’, p. 10. See also Saunders and Crommelin, op. cit. The Australian Education Act 2013 (Cth) is one example where the Commonwealth Parliament outlined some conditions attaching to financial assistance to the states in primary legislation (see especially Part 2 of that Act).
84 Senate Foreign Affairs, Defence and Trade Legislation Committee, Official Committee Hansard, 26 February 2015, pp. 181–7 (Senator Singh); Senate Foreign Affairs, Defence and Trade Legislation Committee, Official Committee Hansard, 6 May 2016, pp. 165–7 (Senator Brown).
85 Senate Community Affairs Legislation Committee, Official Committee Hansard, 22 October 2015, pp. 124–6 (Senator McLucas).
86 Senate Economics References Committee, Privatisation of state and territory assets and new infrastructure, March 2015, pp. 24–5.
87 In accordance with Senate standing orders 24(1)(a)(iv) and (v), the committee is required to report
on bills that inappropriately delegate legislative powers and insufficiently subject the exercise of
legislative power to parliamentary scrutiny.
88 Senate Standing Committee for the Scrutiny of Bills, Seventh Report of 2015, 12 August 2015, pp.
511–6; Ninth Report of 2015, 9 September 2015, pp. 611–4; Fifth Report of 2016, 3 May 2016, pp.
352–7.
89 See, for example, Appropriation Bill (No. 4) 2015-2016 (Cth) cl 14
90 Senate Standing Committee for the Scrutiny of Bills, Seventh Report of 2015, 12 August 2015, pp.
511–6; Ninth Report of 2015, 9 September 2015, pp. 611–4; Fifth Report of 2016, 3 May 2016, pp.
352–7.
91 Commonwealth, Parliamentary Debates, Senate, 12 October 2016, p. 85 (Senator Polley)
92 Outcome 3 relates to ‘strengthening the sustainability, capacity and diversity of regional economies
including through facilitating local partnerships between all levels of government and local
communities; and providing grants and financial assistance’.
93 Senate Standing Committee for the Scrutiny of Bills, Fifth Report of 2016, 3 May 2016, pp. 352–7
94 The specific information requested by the committee included: (a) the particular purposes to which
the money for payments to the States, Territories and local government will be directed (including a
breakdown of proposed grants by State/Territory); (b) the specific statutory or other provisions
which detail how the terms and conditions to be attached to the particular payments will be
determined; and (c) the nature of the terms and conditions attached to these payments. See Senate
Standing Committee for the Scrutiny of Bills, Eighth Report of 2016, 9 November 2016, p. 459.
95 Senate Standing Committee for the Scrutiny of Bills, Eighth Report of 2016, 9 November 2016,
p. 460.
96 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest No. 3 of 2017, 22 March
2017, p. 54.
97 Commonwealth, Parliamentary Debates, Senate, 23 June 2015, pp. 4265–7 (Senator Leyonhjelm).
Senator Leyonhjelm moved an amendment to Appropriation Bill (No. 2) 2015–2016 to lower the
debit limit for national partnership payments (one type of tied grants to the States) from $25 billion
to $11 billion: Journals of the Senate, 23 June 2015, pp. 2774–5. See also an amendment moved by
Senator Leyonhjelm (described by the senator as ‘symbolic’) to Appropriation Bill (No. 4) 2014–
2015. The amendment sought to remove authorisation to appropriate money for a $250,000 tied
grant to the states in the infrastructure and regional development portfolio: Journals of the Senate,
17 March 2015, pp. 2308–10.
98 Senate Standing Committee for the Scrutiny of Bills, Eighth Report of 2016, 9 November 2016,
pp. 462–4 (grants relating to dental services); Senate Standing Committee for the Scrutiny of Bills, Ninth Report of 2016, 23 November 2016, pp. 575–6 (grants relating to industry, innovation,
science and research programs).
99 Commonwealth, Parliamentary Debates, Senate, 12 October 2016, p. 85 (Senator Polley).