Brown v West [1990] HCA 7; (1990) 169 CLR 195 (1 March 1990)

HIGH COURT OF AUSTRALIA

BROWN v. WEST [1990] HCA 7; (1990) 169 CLR 195
F.C. 90/007

Constitutional Law (Cth)

High Court of Australia
Mason C.J.(1), Brennan(1), Deane(1), Dawson(1) and Toohey(1) JJ.

CATCHWORDS

Constitutional Law (Cth) - Executive power - Appropriation from consolidated revenue fund - Parliamentary allowances to be determined by Remuneration Tribunal - Determination of postal allowance - Whether residual executive power to increase allowance - Whether subsequent Supply Acts authorized increased allowance - The Constitution (63 and 64 Vict c 12), ss. 48, 81, 83, - Parliamentary Allowances Act 1952 (Cth), s.4 - Remuneration Tribunal Act 1973 (Cth), s.7(1), (4), (9)(b), (13) - Supply Act (No. 1) 1989-1990 (Cth), s. 3.

HEARING

1990, February 9, March 1. 1:3:1990
DEMURRER.

DECISION

MASON C.J., BRENNAN, DEANE, DAWSON AND TOOHEY JJ. The plaintiff is a member of the House of Representatives and is described in the statement of claim as "the member of the Federal Opposition generally responsible for matters pertaining to the laws of the Commonwealth." He brings proceedings to challenge the validity of a decision of the first defendant, the Minister of State of the Commonwealth for Administrative Services ("the Minister"), and of other members of the Government, to increase the postage entitlement for Senators and Members of the House of Representatives above the amount determined by the Remuneration Tribunal under the Remuneration Tribunal Act 1973 (Cth).

2. The pleadings show that the Minister for Industrial Relations (who is the Minister administering the Remuneration Tribunal Act) by letter dated 9 June 1988 requested the Tribunal to inquire into and determine or report on certain specified matters in relation to members of the Parliament, including "Postage". By Determination No.18 of 1988 the Tribunal determined that matter with effect from 1 January 1989, and by Determination No.23 of 1988 the Tribunal varied the original determination. Both determinations were duly laid before the Parliament and no resolution disapproving either determination was passed. The critical part of the original determination, unaffected by the variation, reads as follows:
"A senator or member shall, for parliamentary
or electorate business but not for party
business, be provided with a Postal Credit
Card which may be used for the following
purposes up to a total expenditure of $9,000
per year".
other members of the Government" (presumably, the Ministers of the Government) decided to increase the postage entitlements of Senators and Members of the House of Representatives (hereafter "members of the Parliament") above the entitlement so determined, but subject to the terms set out in the Tribunal's determinations. The decision, if valid, increased the amount of the postage entitlement in the case of Senators, by indexing the existing entitlement to movements in the standard mailing rate and, in the case of Members of the House of Representatives, by increasing the existing entitlement according to a formula which resulted in the sum of $9,000 being increased to $30,525 indexed to movements in the standard mailing rate. The plaintiff claims declarations, inter alia, that the Minister had no power to alter the existing postage entitlement or to apply the public moneys of the Commonwealth in providing an increased postage allowance. The same relief is claimed against the Commonwealth.

3. The amended defence admits the validity and the binding effect of the determinations made by the Remuneration Tribunal which determined the existing postage allowance, but the additional entitlements decided by the Ministers are said to be "at all times supplementary to, and subject to the same conditions of use as, the existing entitlement." The defendants plead that the application of the public money of the Commonwealth to provide the additional entitlements decided upon is "on the authority of the Executive and of the Supply Act (No.1) 1989-1990."

4. By par. 18 of the amended defence, it is pleaded that:

"The increased postage entitlements fall
within Item 1 of Division 120 of the
Schedule to the Supply Act (No.1) 1989-1990
and Schedule 3 to the Appropriation Bill
(No. 1) 1989-1990 ('Parliamentary and
Ministerial Staff and Services, Running
Costs') and Division 310 of the Schedule to
the Supply Act (No. 1) 1989-1990 ('Advance
to the Minister for Finance')."

The Supply Act (No. 1) 1989-90 (Cth) commenced on 8 June 1989, the day on which it received the Royal Assent. The Appropriation Bill (No. 1) 1989-90 was introduced into the House of Representatives on 15 August 1989. Upon the passage of that Bill in the Parliament and on its receipt of the Royal Assent on 5 December 1989, the Appropriation Act (No. 1) 1989-90 (Cth) commenced.

5. The plaintiff demurred to the amended defence "on the ground that the defendants have no power to apply public moneys of the Commonwealth by way of postage entitlement additional to that prescribed by the existing determination of the Remuneration Tribunal." Upon the pleadings, there are two questions of law on which the demurrer might turn: first, whether the executive power of the Commonwealth extends to the provision of a postage allowance supplementary to the postage allowance determined by the Tribunal; and second, whether the Supply Act (No.1) 1989-90 contains an appropriation for the purpose of supplementing the postal allowance determined by the Tribunal. The two questions are closely related, for an affirmative answer to the second question would bear upon the scope of the executive power.

6. There can be no doubt that the executive power of the Commonwealth extends to the provision of what is necessary or convenient for the functioning of the Parliament provided that funds for that purpose are appropriated by the Parliament. But it is not self-evident that the executive power extends to the discretionary provision of benefits having a pecuniary value to individual members of the Parliament who may draw upon the benefit as they will. There may be a difference between the provision of facilities for travel and assembly, which are essential to the functioning of the Parliament, and the discretionary allocation of a benefit having a pecuniary value to alleviate a pecuniary burden which members incur as an incident of office. There is much to be said for the view that the Parliament alone may make provision for benefits having a pecuniary value which accrue to its members in virtue of their office and which are not mere facilities for the functioning of the Parliament. The fact, noted by Stephen J. in Victoria v. The Commonwealth and Hayden ("the A.A.P. Case") [1975] HCA 52; (1975) 134 CLR 338, at p 384, that "the Crown and the executive have come to represent the same forces as control a majority in the lower house" strengthens, not weakens, that view. Historically, the members of the House of Commons were never paid by the Crown; if they were paid, the payment was made by their constituencies or their supporters: Erskine May, Parliamentary Practice, 20th ed. (1983), p 12. When, after the Parliament Act 1911 (U.K.), an appropriation was made for the purpose of paying members of Parliament in accordance with a resolution of the Commons, the money appropriated was not expendable at the Crown's discretion, as appropriated moneys usually are; it was held to be money which "the Crown is bound to devote ... to the object named in the statute": per Lord Atkinson in Hollinshead v. Hazleton (1916) 1 AC 428, at p 439. Thus, the allowance for Senators and Members of the House of Representatives prescribed by s.48 of the Constitution was, and was intended to be, transitional until the Parliament, not the Executive Government, should make other provision:

"Until the Parliament otherwise provides,
each senator and each member of the House of
Representatives shall receive an allowance
of four hundred pounds a year, to be
reckoned from the day on which he takes his seat."

The effect of this section in the circumstances of the present case depends on the meaning attributed to "allowance" and the width of the power conferred on the Parliament alone "otherwise" to provide. As we shall see, this case can be resolved without deciding the true construction of s.48, which can wait for another day. Apart from the possible operation of s.48, it may be that our Constitution provides such a separation of powers as would preclude any exercise of the executive power which takes the form of the discretionary conferring of benefits having a pecuniary value on individual members of the Parliament, not being mere facilities for the functioning of Parliament.

7. Whatever the scope of the executive power of the Commonwealth might otherwise be, it is susceptible of control by statute. A valid law of the Commonwealth may so limit or impose conditions on the exercise of the executive power that acts which would otherwise be supported by the executive power fall outside its scope. In the present case, its scope falls for consideration in the context of the Remuneration Tribunal Act, the Parliamentary Allowances Act 1952 (Cth) and the Supply Act (No.1) 1989-90. The plaintiff submits that a determination of the postage allowance made by the Tribunal under the Remuneration Tribunal Act precludes the provision of any allowance which is not in conformity with the determination unless there be other overriding statutory authority.

8. The entitlement of members of the Parliament to a postal allowance arose from the determinations of the Remuneration Tribunal, exercising its powers under s.7 of the Remuneration Tribunal Act, the relevant provisions of which read as follows:

"(1) The Tribunal shall, from time to
time as provided by this Part, inquire into,
and determine, the allowances (including
allowances in accordance with section 48
of the Constitution) to be paid out of the
public moneys of the Commonwealth to members
of the Parliament by reason of their
membership of the Parliament or by reason
of their holding particular offices, or
performing particular functions, in, or in
relation to, the Parliament or either House
of the Parliament.
...
(4) Where the Tribunal inquires into a
matter referred to in sub-section (1), (2)
or (3) -
(a) the Tribunal may also inquire into,
and either determine or report on,
any matter that is, or is considered
by it to be, significantly related
to the first-mentioned matter; and
(b) if the Minister, by a notice in
writing given to the Chairman,
requests the Tribunal to inquire
into, and either to determine or
report on, a matter specified in the
notice, being a matter that is, or
is considered by the Minister to be,
significantly related to the
first-mentioned matter, the Tribunal shall
inquire into the matter specified in
the notice and either determine or
report on that matter, as the case
may be, in accordance with the request.
...
(7) The Minister shall cause a copy of a
determination (other than a determination
referred to in section 7A) to be laid
before each House of the Parliament within
15 sitting days of that House after the
determination is received by him.
(8) If either House of the Parliament,
within 15 sitting days of that House after a
copy of a determination has been laid before
that House, passes a resolution disapproving
of the determination, then -
(a) if the determination has not come
into operation - the determination
shall not come into operation; or
(b) if the determination has come into
operation - the determination shall
not have any force or effect in
respect of a period on or after the
day on which the resolution was passed.
(9) Remuneration or allowances to which
a subsisting determination (subject to
an immaterial exception) applies shall,
notwithstanding the provisions of any other
law of the Commonwealth, of any law of a
State or Territory, of any instrument having
effect by virtue of such a law or of any
contract, but subject to the succeeding
provisions of this section -
...
(b) in any other case - be paid in
accordance with the determination
out of the Consolidated Revenue Fund.
...
(13) The Consolidated Revenue Fund is
appropriated for the purposes of sub-sections
(9) and (10)."

9. In response to a request by the Minister for Industrial Relations, expressed to be made pursuant to s.7(4)(b), to inquire into and determine or report on matters including "Postage", the Tribunal purported to make its determinations under s.7(4)(a) and (b). If the postage allowance as determined is truly "an allowance" within the meaning of that term in s.48 of the Constitution or is otherwise an allowance within the meaning of that term in s.7(1) - it is not necessary to decide these points - the power to determine the postage allowance flowed not from sub-s.(4)(b) but from sub-s.(1). However, the validity of the Tribunal's determinations is unaffected by mistaking the source of the power to make them: Moore v. The Attorney-General for the Irish Free State (1935) AC 484; R. v. Bevan; Ex parte Elias and Gordon (1942) [1942] HCA 12; 66 CLR 452, at p 487. Whether the power be found in sub-s.(1) or in sub-s.(4)(b), the power is "to determine" a postage allowance and that is the power which the Tribunal exercised and, by concession, exercised validly.

10. The Tribunal's power "to determine" an allowance (under sub-s.(1)) or a matter (under sub-s.(4)) is a power to determine what benefit should be enjoyed by members of the Parliament. Such a power may be exercised by determining what is the appropriate level of the benefit to be enjoyed, no more and no less. Or it may be exercised by determining an appropriate level of benefit to be enjoyed pursuant to the determination, contemplating the enjoyment of supplementary benefits derived from other sources. The manner in which the Tribunal has exercised its power in a particular case is to be ascertained chiefly by reference to the form of the determination but, prima facie, a determination specifies what is the appropriate level of benefit and excludes the possibility of supplementation. In this case, the determination specified the maximum level of the benefit to be enjoyed: "up to a total expenditure of $9,000 per year". The total expenditure was not flexible but fixed. An increase in the total expenditure is inconsistent with the express terms of the determination. The Tribunal's determination does not contemplate that, if the Executive Government so chooses, the total expenditure specified be supplemented.

11. The effect of that determination flows from the operation of statute upon it. A determination which comes into operation on a date specified by the Tribunal (s.7(5)), if not disapproved by either House of the Parliament, fixes the relevant benefit to which the members of the Parliament are entitled. Section 4 of the Parliamentary Allowances Act provides:

"There are payable to members such allowances
(including allowances in accordance with
section 48 of the Constitution) as are
determined by the Remuneration Tribunal
in pursuance of subsections 7(1) and (4)
of the Remuneration Tribunal Act 1973."

The moneys needed to meet the entitlements determined by the Tribunal - no more and no less - are appropriated for that purpose by s.7(9)(b) and (13) of the Remuneration Tribunal Act.

12. Putting to one side for the moment the provisions of the Supply Act (No.1) 1989-90, the operation of s.4 of the Parliamentary Allowances Act and s.7(9)(b) and (13) of the Remuneration Tribunal Act upon a determination which specifies the level of benefit to be enjoyed denies the existence of an executive power to increase that level. The statutes, operating upon the determination which fixes the total annual expenditure to be incurred by use of a postal credit card, give statutory force to the determination of the total expenditure. It is a necessary implication of a statutory fixing of the amount of total expenditure that there is no residual executive power to increase it. If there be no executive power to increase the amount, a fortiori there can be no power in a Minister, or in the Ministers as a group, to increase it. It has been argued that the ministerial decision to increase the amount of total expenditure is supportable as an exercise of prerogative power. If the argument be that a prerogative power exists outside the executive power, the short answer to the argument is that that power is curtailed by the operation of the relevant statutes in conjunction with the determination of the Tribunal: see Attorney-General v. De Keyser's Royal Hotel [1920] UKHL 1; (1920) AC 508; Barton v. The Commonwealth [1974] HCA 20; (1974) 131 CLR 477, at pp 488,491,501,508.

13. However, as we have seen, the amended defence places reliance on the Supply Act (No.1) 1989-90 and on the Appropriation Bill (No.1) 1989-90 which must now be examined. An appropriation made by a valid law is the necessary authority for the Executive Government to take moneys out of the Consolidated Revenue Fund: Attorney-General (Vict.) Ex rel. Dale v. The Commonwealth [1945] HCA 30; (1945) 71 CLR 237, at p 271. The constitutional principle "that no money can be taken out of the consolidated Fund into which the revenues of the State have been paid, excepting under a distinct authorization from Parliament itself" (Auckland Harbour Board v. The King (1924) AC 318, at p 326) is entrenched in our Constitution by ss.81 and 83:

"81. All revenues or moneys raised or
received by the Executive Government of the
Commonwealth shall form one Consolidated
Revenue Fund, to be appropriated for the
purposes of the Commonwealth in the manner
and subject to the charges and liabilities
imposed by this Constitution."
"83. No money shall be drawn from the
Treasury of the Commonwealth except under
appropriation made by law."

14. Subject to certain provisions in the Constitution which charge the Consolidated Revenue Fund of the Commonwealth with the payment of particular items of expenditure (the A.A.P. Case, at p 353), the power of appropriation is reposed solely in the Parliament. It is by ss.81 and 83 that our Constitution assures to the people the effective control of the public purse (to adapt a phrase of Isaacs J. in The Commonwealth v. Colonial Combing, Spinning and Weaving Co. Ltd. [1922] HCA 62; (1922) 31 CLR 421, at p 451).

15. The Parliament exercises its power of appropriation either by Acts which contain standing appropriations or by annual Appropriation Acts. Section 7 of the Remuneration Tribunal Act contains an appropriation of moneys out of the Consolidated Revenue Fund for the purpose of paying benefits to which members of the Parliament are entitled in accordance with the Tribunal's determinations and that appropriation stands from year to year. The Supply Act (No.1) 1989-90, on the other hand, contains appropriations for the diverse purposes of government for the financial year 1989-1990.

16. A Supply Act is, under modern parliamentary practice, an Act which appropriates the Consolidated Revenue Fund for use in a particular financial year pending the passing of an Appropriation Act. As Evatt J. explained in New South Wales v. Bardolph [1934] HCA 74; (1934) 52 CLR 455, at p 479:

"In truth, the modern Supply Acts ...
are not merely Supply Acts but also
Appropriation Acts so far as they operate
and extend. The constitutional practice is
that such Acts are subsequently embodied in
one Appropriation Act which deals with the
whole financial year. In this sense the
Appropriation Act replaces them, and they
cease to govern the situation."

The practice which Evatt J. described is followed by the Parliament of the Commonwealth. Section 3 of the Supply Act (No.1) 1989-90 contains an appropriation:

"(1) The Minister for Finance may issue
out of the Consolidated Revenue Fund and
apply for the services specified in the
Schedule, in respect of the financial
year ending on 30 June 1990, the sum of
$9,947,559,000.
(2) ...
(3) The Consolidated Revenue Fund is
appropriated to the extent necessary for the
purposes of subsection (1)."

In due course, the Supply Act (No.1) 1989-90 was followed by the Appropriation Act (No.1) 1989-90 which provides that, with certain exceptions, the sums authorized by s.3 of the Supply Act (No.1) are to be treated as having effect by virtue of the provisions of the Appropriation Act (No.1) and the total of the sums authorized by s.3 of the Supply Act (No.1) and by s.3 of the Appropriation Act (No.1) is appropriated and is to be taken to have been appropriated as from 1 July 1989 for the services expressed in Sched.3 of the Appropriation Act (No.1) in respect of the financial year that commenced on that date: s.4. In respect of each financial year a Supply Act (No.1) is followed by an Appropriation Act (No.1) and an Appropriation Act (No.3) which contains a supplementary appropriation to provide supply until the end of that financial year. In like manner, there is a Supply Act (No.2) followed by an Appropriation Act (No.2) and an Appropriation Act (No.4).

17. The distinction between the two categories of annual appropriations is to be accounted for by the provisions of ss.53 (second paragraph) and 54 of the Constitution:

"53. ...
The Senate may not amend proposed laws
imposing taxation, or proposed laws
appropriating revenue or moneys for the
ordinary annual services of the Government.
...
54. The proposed law which appropriates
revenue or moneys for the ordinary annual
services of the Government shall deal only
with such appropriation."

18. A.R. Browning, editor of House of Representatives Practice, 2nd ed. (1989), states the contemporary parliamentary practice adopted in the light of these provisions. Pursuant to certain principles stated by the Treasurer in 1965, the Bills which are treated as Bills for the ordinary annual services of the Government (the expenditure being described as "for the service of the year") are Appropriation Bill (No.1) introduced in August, Appropriation Bill (No.3) usually introduced in the following April, and Supply Bill (No.1) usually introduced in April or May to make an interim appropriation of funds for the service of the financial year next following until the ensuing Appropriation Act (No.1) commences: see pp 419-421. These Bills are not subject to amendment by the Senate. Appropriation Bill (No.2) contains appropriations for capital works and equipment, grants to States under s.96 of the Constitution and new policies not authorized by special legislation: p 421. This Bill relates to expenditure "in respect of the year", and the Senate and the House of Representatives consider that Appropriation Bill (No.2) is subject to amendment by the Senate: p 421. Each financial year Appropriation Act (No.4) and Supply Act (No.2) follow Appropriation Act (No.2) in the way in which Appropriation Act (No.3) and Supply Act (No.1) follow Appropriation Act (No.1): see Browning concerning the corresponding Bills, p 421.

19. Historically, the need of the Executive Government to seek annual appropriations of the Consolidated Revenue Fund "for the service of the year" or "in respect of the year" has been the means, and it remains one of the critical means, by which the Parliament retains an ultimate control over the public purse strings, but the Parliament foregoes its annually-exercised power over expenditure by government when a law containing a standing appropriation is enacted. Standing appropriations need not be included in annual appropriations. Browning (op.cit., p 410) reports that an estimated two-thirds of total expenditure from the Consolidated Revenue Fund is not by appropriations for the service of the year or in respect of the year, but by standing appropriations.

20. An appropriation, whether annual or standing, must designate the purpose or purposes for which the moneys appropriated might be expended. The principle was stated by Latham C.J. in Attorney-General (Vict.) v. The Commonwealth, at p 253:

"... there cannot be appropriations in blank,
appropriations for no designated purpose,
merely authorizing expenditure with no reference
to purpose."

And see The State of New South Wales v. The Commonwealth ("the Surplus Revenue Case") [1908] HCA 68; (1908) 7 CLR 179, at p 200, where Isaacs J. said:

"'Appropriation of money to a Commonwealth
purpose' means legally segregating it from
the general mass of the Consolidated Fund
and dedicating it to the execution of some
purpose which either the Constitution has
itself declared, or Parliament has lawfully
determined, shall be carried out." (Emphasis
added.)

The principle is of long standing, having its origin in the vote of "an enormous supply" in 1665 which was subjected to a statutory proviso requiring that the money raised should be applicable only to the purposes of the Dutch war: see Hallam, The Constitutional History of England, new ed. (1884), vol.ii, p 357; and Taswell-Langmead's English Constitutional History, 11th ed. (ed. T.F.T. Plucknett) (1960), pp 428-429.

21. In the A.A.P. Case it was common ground among all the judgments, save that of Stephen J., that the validity of the appropriation there in issue depended on the question whether the purpose stated by the Parliament in the Appropriation Act was a "purpose of the Commonwealth": see pp 360,367,372-373,392,406,417. Mason J. said (at p 392):

"Section 83 in providing that 'No money
should be drawn from the Treasury of the
Commonwealth except under appropriation made
by law', gives expression to the established
principle of English constitutional law
enunciated by Viscount Haldane in Auckland
Harbour Board v. The King (at p 326): 'no
money can be taken out of the consolidated
Fund into which the revenues of the State
have been paid, excepting under a distinct
authorization from Parliament itself'. An
Appropriation Act has a twofold purpose. It
has a negative as well as a positive effect.
Not only does it authorize the Crown to
withdraw moneys from the Treasury, it
'restrict(s) the expenditure to the
particular purpose', as Isaacs and Rich JJ.
observed in The Commonwealth v. Colonial
Ammunition Co. Ltd. ((1924) [1924] HCA 5; 34 CLR 198, at
p 224)."

Viscount Haldane followed the sentence quoted from the judgment in Auckland Harbour Board v. The King, at pp 326-327, with the observation that -

"The days are long gone by in which the
Crown, or its servants, apart from
Parliament, could give such an authorization
or ratify an improper payment."

22. The present case differs from the A.A.P. Case in this respect: there, the Appropriation Act specified the purpose of the appropriation and the question was whether the purpose specified was a purpose of the Commonwealth; here, the appropriation in Supply Act (No.1) 1989-90 on which the defendants rely expresses the purposes for which the money may be expended in very broad terms and the question is whether those purposes include the supplementing of the entitlement to a postage allowance determined by the Tribunal.

23. Included in the sum mentioned in s.3(1) of Supply Act (No.1) is an amount to be found in the Schedule under the heading "Department of Administrative Services" in Div.120 as follows:

"Division 120.-PARLIAMENTARY AND
MINISTERIAL STAFF AND
SERVICES
($)
1.-Running Costs (net appropriation-
see section 6) . . . . . . . . 24 674 000
2.-Property Operating Expenses. . 4 815 000
3.-Conveyance of Members of
Parliament and Others . . . . 9 458 000
4.-Visits Abroad of Ministers
(including personal staff)
and Others . . . . . . . . 1 440 000
5.-Other Services . . . . . . . . 643 000
Total: Division 120 41 030 000"

The words in brackets in sub-div.1 have no relevance to this case. (Sub-division 5 appears in the Appropriation Act (No.1) 1989-90 with two further lines:

"01. Compensation and legal expenses . . . .
02. Superannuation endowment
policies-Premiums paid . . . . . . .")

The Supply Act (No.1) 1989-90 also includes in the sum mentioned in s.3(1) an amount which the Schedule describes as "Advance to the Minister for Finance". That amount appears in Div.310 as follows:

"Division 310.- ADVANCE TO THE MINISTER
FOR FINANCE $
To enable the Minister for Finance:
(a) to make advances that will be
recovered during the financial
year, in respect of expenditure
that is expenditure for the ordinary
annual services of the Government;
(b) to make money available for expenditure:
(i) that the Minister for Finance
is satisfied is expenditure
that is urgently required and:
(A) was unforeseen until
after the last day on
which it was practicable
to include appropriation
for that expenditure
in the Bill for this Act
before the introduction
of that Bill into the House
of Representatives; or
(B) was erroneously omitted
from, or understated in,
the Bill for this Act; and
(ii) particulars of which will
afterwards be submitted
to the Parliament;
being expenditure for the
ordinary annual services of the
Government; and
(c) to make money available for
expenditure, being expenditure
for the ordinary annual
services of the Government,
pending authorisation under
section 32 of the Audit Act
1901 in relation to that
expenditure 170 000 000"

The Appropriation Act (No.1) 1989-90 contains Divisions corresponding with the relevant Divisions of the Supply Act (No.1) 1989-90. The total sum appropriated by the Appropriation Act (No.1) 1989-90 includes the sum appropriated by the Supply Act (No.1) 1989-90. The same amount appears in both Acts in respect of Div.310 - Advance to the Minister for Finance. The appropriations made by a Supply Act (No.1) are not made for any new purpose: the Supply Act, being an interim measure, is intended to maintain the status quo in the objects of government expenditure. The government's Estimates are considered by a committee of the whole before the Appropriation Act (No.1) is passed and, being a lynch-pin of the annual budget, they are extensively debated. By contrast -

"... supply bills differ from the main
Appropriation Bills in that there is no
Budget speech or Budget debate, as such.
Since the adoption by the Government of the
principles outlined by the Treasurer when
introducing the Supply Bill (No.1) 1965-66
..., only three supply bills have been
considered in the committee of the whole.
In every instance either leave has been
given for the third reading to be moved
forthwith or standing orders have been
suspended to enable a motion to be moved
'That the bill be now passed'": House of
Representatives Practice, 2nd ed. (1989),
p 426.

The Supply Act (No.1) 1989-90 itself limited the purposes of the appropriation it made. Section 3(2) provides:

"Except where the contrary intention
appears in the Schedule, amounts issued by
the Minister for Finance under subsection
(1) in respect of services of a particular
description (other than running costs or
recurrent expenditure) may be applied only
for purposes of a kind for which money
appropriated in respect of services of that
description in an Act appropriating money,
otherwise than by way of interim provision,
for the service of the financial year ending
on 30 June 1989 could lawfully have been applied."

It is inconsistent with the terms of s.3(2) of the Supply Act (No.1) to construe it as appropriating moneys for purposes to which funds appropriated "for the service of the (preceding) financial year" - that is, appropriations under Appropriation Acts (No.1) and (No.3) 1988-89 - could not have been applied. There is nothing in the pleadings to suggest that, prior to August 1989, the Government had ever sought or had ever been granted an appropriation either to provide a postage allowance to members of the Parliament or to supplement a postage allowance determined by the Tribunal.

24. To predicate of the Supply Act (No.1) 1989-90 that it contained an appropriation for the purpose of supplementing the postal allowance would be to find in it an appropriation for the funding of a new policy which, by parliamentary practice, would be found only in a bill for special legislation or, at the least, in Appropriation Bill (No.2). It can therefore be taken that, not only by reason of s.3(2) but also as a matter of parliamentary practice, the Supply Act (No.1) 1989-90 was not intended to include an appropriation for new policies.

25. It appears that, in the United Kingdom, Appropriation Acts have been used to override limits imposed by existing legislation (Erskine May, op.cit., p 791) but the basic consideration must be whether the Parliament, in making the appropriation in question, intends to override existing legislation. Though the terms in which an appropriation is made may, on one reading, appear to appropriate moneys in excess of the limits imposed by existing legislation, there may be insufficient indication of an intention to override that legislation. In such a case, it is erroneous to treat the appropriation as being made for a purpose inconsistent with the existing legislation. The Appropriation Act must be read in the context of the existing legislation which, unless repealed by the Appropriation Act, requires that the purposes to be found in the broad terms of the Appropriation Act be limited to accord with the existing legislation.

26. It would therefore be wrong to search in the Supply Act (No.1) for an appropriation for the purpose of supplementing a postage allowance determined by the Tribunal without having regard to the statutes (s.7(9)(b) and (13) of the Remuneration Tribunal Act and s.4 of the Parliamentary Allowances Act) under which the postage allowance is fixed. The broad terms of Div.120 of the Supply Act (No.1) 1989-90 are not expressed to override the limits on the appropriation found in s.7(9)(b) and (13) of the Remuneration Tribunal Act, that is, an appropriation limited to the amount needed to make payments "in accordance with the determination out of the Consolidated Revenue Fund". A general appropriation for "Running costs" in Div.120 of the Supply Act (No.1) 1989-90 (or in the Appropriation Act (No.1) 1989-90) reveals no intention to override and pro tanto to repeal the limits of the standing appropriation contained in s.7 of the Remuneration Tribunal Act. Nor does it appear that the "Advance to the Minister for Finance" in Div.310 is intended to affect existing legislation or to be an appropriation for purposes different from the purposes to be found in other parts of the Schedule to the Supply Act (No.1) or in existing legislation.

27. It follows that the Supply Act (No.1), on its true construction, neither confers any additional power on the Executive Government nor overrides any restriction on executive power imposed by the Remuneration Tribunal Act and the Parliamentary Allowances Act. Neither does the Supply Act (No.1) appropriate funds to supplement the postal allowance determined by the Tribunal. As the executive power does not extend to the supplementation of the postage allowance and no appropriation for that purpose was made by Supply Act (No.1) 1989-90, the demurrer must be allowed. The defence, it should be noted, does not place any reliance on the Appropriation Act (No.1) 1989-90.

28. There are difficulties, however, in the way of making the declarations which the plaintiff seeks. Although the plaintiff has an interest in knowing whether or not he is entitled to a supplementary allowance, there may be other persons who are not parties to these proceedings whose rights or liabilities would be affected by the making of the declarations sought by the plaintiff - in particular, Australia Post which presumably extends credit to the users of postal credit cards on the faith of a promise of payment by the Minister purporting to act for the Commonwealth. The desirable course to take in these circumstances is simply to allow the demurrer. As the Commonwealth has seen fit actively to contest the relief which the plaintiff seeks, O.26 r.12 of the High Court Rules will produce the effect which we think appropriate, namely, that both defendants should pay the plaintiff's costs. costs.

ORDER

Demurrer allowed.