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Constitutional Law: The Scope Of The S.61 Commonwealth Executive Power Add in library

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The High Court of Australia has in its more recent decisions of Pape v Commissioner of Taxation (2009) 238 CLR 1, Williams v Commonwealth (2012) 288 ALR 410 (Williams No 1) and Williams v Commonwealth (2014) 309 ALR 41  (Williams No 2) sought to more clearly expound and refine the scope of the S.61 Commonwealth Executive power over earlier s.61 Executive power cases, so as to maintain faith with the constitutional arrangements and principles the High Court  considers as critical to the operation  of the Commonwealth Constitution.

Critically respond to the above statement in research essay format



The scope of the S.61 Commonwealth Executive power


The Commonwealth of Australia Constitution Act under Section 61 states that the Commonwealth has executive power given by law (Aroney, 2009). This power that is given to the Commonwealth is stays with the Queen and can be exercised by the Governor General who is the representative of the Queen. This power widens to include the preservation and implementation of the Constitution and also the laws regarding the Commonwealth. Section 61 has been located in Chapter II of the Constitution (Bastide, 2007). This provision of the Constitution provides that the drafters of the Constitution mask and not prescribe the working of the executive (Renfree, 1984).

This section further provides the people who can exercise this executive power. It further states that the power of the executive ranges from the maintenance as well as the execution of the Constitution and also the Commonwealth rules and regulations.  

The scope of this policymaking power of the Commonwealth recently went through a number of changes with regard to the cases of Williams v The Commonwealth of Australia & Ors (Williams v The Commonwealth of Australia & Ors, [2012]) and Pape v Commissioner of Taxation, (Pape v Commissioner of Taxation, [2009]) and Williams v Commonwealth (2014) (Williams v The Commonwealth of Australia & Ors, [2014]).

Critical Analysis

The High Court of Australia gave a landmark ruling in the case of Williams v The Commonwealth of Australia & Ors, with regard to the matters that are pending under section 61 of the Constitution of Australia. In another case of Pape v Commissioner of Taxation, , the matter was regarding the legality of the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) that provided an on-off payment with regard to the $900 to the Australian taxpayers (, 2015).

The contemporary times have witnessed considerable discussion regarding the policymaking power of the Commonwealth and the extent to which this power is independent of the Parliament (Spry, 1996). The debate with regard to the role of the Executive Government in the process of treaty making is such an example. Further, the executive can even without having the approval of the Parliament modify the allowances of the Parliamentarian or the members of the Executive.

Essentially, there are concerns that the decision-making power is gradually increasing and the power of the Parliament is slowly decreasing. Further there also have been suggestions that if the country of Australia became a Republic there were chances that the executive power would be increased even more.


Williams v Commonwealth

The High Court had decided in the given case of Williams v Commonwealth and this was a landmark decision on the administrative power of the Commonwealth. In the case an agreement for funding that existed between the Australian Commonwealth and Scripture Union of the Queensland, with regard to the services for chaplaincy at a Queensland State school. This provision was tested by a person who was the father of four students attending that school.

The challenge that was made by the father had based it’s root cause on the fact that the particular arrangement could not be supported by the provisions under 61 given in the Constitution.

On the issue a special case was submitted for determination. The questions that were raised was whether the father had a stand for challenging the Agreement for Funding, whether the Funding Agreement was illegal since it was not within the executive power given under the Commonwealth that is provided under Section 61 of the Constitution and prohibited under section 116 of the Constitution, whether the money drawn under the agreement was authorized in accordance to the Appropriation Acts and whether the payments made in accordance to the Agreement were ahead of the power given under section 61 of the Constitution or is banned under section 116 of the Constitution (Gerangelos, 2012).

The decision of the High Court was that the father had the stand to challenge whether the Funding Agreement was valid. Further the High Court had held that the Funding Agreement along with the payments that are made to the SUQ that was made under the Agreement was not valid since it was not within the power of the Commonwealth.

The High Court had further stated that when the statutory authority was not present, the provisions of Section 61 did not give the power to the Commonwealth to enter into Agreement for Funding or make any such tested payments. Further, the Court had in majority stated that the executive power of the Commonwealth under section 61 did not include the power of the Commonwealth to do what the Parliament would make the executive to do.

Additionally, the High Court collectively discharged that particular portion of the challenge. The decision of the High Court was that the school chaplain that was occupied by the SUO for providing services in the school does not have any office in the Commonwealth. Further with regard to the third question that was asked, the unanimous decision of the High Court was that the question itself was totally unnecessary (Selway, n.d.). With a majority of six judges, the High Court had favored the father in the case. However in a dissent, Justice Heydon had stated that the plaintiff did not have any stand with regard to the payments from the Consolidated Revenue Fund.


Pape v Commissioner of Taxation

The Decision-making power of the Commonwealth again came under scrutiny in the case of Pape v Commissioner of Taxation. In this case, the plaintiff was a lecturer in the field of law and also a attorney who had signified himself in the Court of law. The ground on which the case was challenged was that the with regard to the payments in the legislation, which is considered to be a tax bonus and the actual gift was not maintained by the power of taxation in the Constitution. The argument given by the Constitution was that the legislation was maintained by the amalgamation of the appropriation power provided in section 81 of the Constitution, section 51(ii) with regard to the taxation power, section 51(xxix) with regard to the external affairs power, section 51 (i) with regard to the power on trade and commerce and the power of implied nationhood.

Regarding the case, the primary issue was that whether the plaintiff could seek the relief that was claimed by him. The Commonwealth stated that the plaintiff had the contention that the payment that was made to him in accordance to the Bonus Act was contrary to law (Kumarasingham, 2014). However, it was submitted that the plaintiff did not have sufficient attention to disagree that the wider issue with regard to the Bonus Act was not lawful and was void when applied to the other people. However, the members of the Court did not accept the submission. The Court found that the sum of the bonus to be paid that was made to the plaintiff was indeed unlawful and this was due to the fact that the act was void and would be obligatory in future disagreements that concern the validity of the Bonus Act (LINDELL, n.d.). Additionally, if the tax bonus would be held invalid then the total billion tax bonus would also become invalid.

The standing of the plaintiff was fresh and that his financial interests would become affected in the negative manner in case he has success in the case. The Commonwealth had further argued that under section 81 of the Constitution the legislative power is given to Commonwealth for making laws in order to appropriate money. Further the Commonwealth argued that appropriation with regard to the Commonwealth was to be determined by the Parliament and that the power of the Parliament for making laws was unlimited. The High Court had collectively rejected the Commonwealth’s contention under section 81 of the Constitution (Brennan, 1997) which had provided the Commonwealth power to spend as well as appropriate money. One of the judges had held that the logic as well as the text concerning the sections 81 and 83 is contrary to the characterization as a source of the power of appropriation and the spending power.

The High Court further believed that the money used by the Commonwealth can be undertaken under two criteria. Firstly, through legislation executing the legislative power of the Commonwealth and secondly, the policymaking power of the Commonwealth. Additionally, the High Court states that the provisions of section 81 and 83 cannot individually provide the money spend by the Commonwealth.



Keeping aside the pronouncements of the High Court with regard to the provisions of the Constitution, the scholars have stated that this decision of the High Court raised a few questions with regard to the spending power of the Commonwealth and whether it is or is not supported by the legislation. Scholars have further stated that the Commonwealth has generally made lot of money in unlawful payments and it is one of the unusual cases where the decision of the High Court would ultimately change the way in which the government operates (Lawson, n.d.).

The case of Williams v Commonwealth, had an immense effect on the supervisory role that is in present played by the two Houses of Parliament and their respective committees along with the officers with regard to the contracts by the government and public money payment for instance, the Joint Committee of Public Accounts and Audit and Joint Parliamentary Standing Committee on Public Works.

It must be noted that even when the remedial legislation is to be upheld by any one of the houses, any regulations that specify the arrangements may be disallowed where the money is paid by the Commonwealth or those classes of arrangements which the government can enter, by either of them and this particular thing applies to the payment of the money that is made to the public funds. As a result of this, there arises the need to give both or any one of the Houses of Parliament the advice and guidance in accordance to the system and this would be provided in order to disallow the general regulations and the legislations.



As concluding remarks it may be stated that the decisions of the High Court in these two cases had a severe impact on the executive power of the Commonwealth. These two cases act as reminder for the Commonwealth that it is a fact that the Court has moved quite a distant with regard to uphold the central power which was evident in the Work Choices Case (New South Wales v Commonwealth, [2006]), it must also be noted that with regard to the federal limits on spending and expenditure and the exercise of the central power, it should be made with regard to the sanction given by the Parliament. The decision-making power of the Commonwealth that is exercised may not be adequate when it is exercised by the non-coercive governmental activity and do not interfere with the individuals rights and also do not breach the laws of the land.


References, (2015). The Executive Power of the commonwealth: its scope and limits – Parliament of Australia. [online] Available at: [Accessed 3 Mar. 2015].

Aroney, N. (2009). The constitution of a federal commonwealth. Cambridge, UK: Cambridge University Press.

Bastide, M. (2007). Judicial Supervision of Executive Action in the Commonwealth Caribbean.Commonwealth Law Bulletin, 33(2), pp.177-189.

Brennan, G. (1997). The Parliament, the Executive and the Courts: Roles and Immunities. [online] gtcentre. Available at: [Accessed 3 Mar. 2015].

Gerangelos, P. (2012). The Executive Power of the Commonwealth of Australia: Section 61 of the Commonwealth Constitution, 'nationhood' and the Future of the Prerogative. Oxford University Commonwealth Law Journal, 12(1), pp.97-131.

Kumarasingham, H. (2014). Prime Ministers in power: political leadership in Britain and Australia.Commonwealth & Comparative Politics, 52(3), pp.443-445.

Lawson, C. (n.d.). Regulating Executive Power Under the Australian Commonwealth Framework.SSRN Journal.


New South Wales v Commonwealth [2006]HCA p.52.

Pape v Commissioner of Taxation [2009]CLR 238, p.1.

Renfree, H. (1984). The executive power of the Commonwealth of Australia. Sydney: Legal Books.

Selway, B. (n.d.). All at sea — constitutional assumptions and 'the executive power of the commonwealth. [online] anu. Available at: [Accessed 3 Mar. 2015].

Spry, M. (1996). The executive power of the Commonwealth. [Canberra]: Dept. of the Parliamentary Library.

Williams v Commonwealth [2014]ALR 309, p.41.

Williams v The Commonwealth of Australia & Ors [2012]HCA p.23.


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