Looking at the executive power through the high court's new spectacles

Abstract

Federation heralded a new constitutional order in Australia. The new Constitution carefully divided legislative power between the two levels of government, but left the division of 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 challenged 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 federal and state levels.