Ziegert, Lotta --- "Does the Public Purse Have Strings Attached? Combet & Anor v Commonwealth of Australia & Ors" [2006] SydLawRw 19; (2006) 28(2) Sydney Law Review 387
* BA, LLB(Hons) University of Sydney. The author wishes to thank George Winterton for his invaluable advice. All opinions, and any errors, are the author’s own.
[1] (2005) 221 ALR 621 (hereafter Combet).
[2] A phrase taken from Isaacs J in Commonwealth v Colonial Combing, Spinning & Weaving Co Ltd [1922] HCA 62; (1922) 31 CLR 421 (hereafter Wool Tops Case) at 445, adapted in Brown v West (1990) 169 CLR 195 at 205.
[3] No precise figure was calculated: see Combet at 674 (Kirby J). The plaintiffs estimated the cost to be a minimum of $3.84 million at 24 July 2005, from information obtained in a letter from the defendants’ solicitors. McHugh J seems to accept this as a benchmark, at 632.
[4] Described by McHugh & Kirby JJ in their judgments: id at 632–633 (McHugh J); at 673 (Kirby J).
[5] Nicola Roxon, ‘Why We’re Off to Court,’ Herald Sun (28 Jul 2005).
[6] Combet, above n1 at 622 (McHugh J), 645 (Gleeson CJ), 652 (Gummow, Hayne, Callinan & Heydon JJ) and 671 (Kirby J).
[7] Roxon, above n5.
[8] Combet, above n1 at 677 (Kirby J).
[9] Id at 645 (McHugh J), 656 (Gummow, Hayne, Callinan & Heydon JJ) and 677 (Kirby J).
[10] See id at 653 (Gummow, Hayne, Callinan & Heydon JJ) for the precise nature of the relief sought.
[11] Id at 622 (Gleeson CJ); 633 (McHugh J), 652 (Gummow, Hayne, Callinan & Heydon JJ) and 657 and 660 (Kirby J).
[12] Id at 622 (Gleeson CJ), 671 (McHugh J), 675 (Gummow, Hayne, Callinan & Heydon JJ) and 633 652 and 675 (Kirby J).
[13] Gleeson CJ did not consider it necessary Id at 630, 654, 655 and 670 (Gummow, Hayne, Callinan & Heydon JJ).
[14] Id at 650–651 (McHugh J), where he considers that her role as Shadow Attorney–General may also give her standing; 705 (Kirby J).
[15] British Medical Association v Commonwealth [1949] HCA 44; (1949) 79 CLR 201.
[16] Real Estate Institute of NSW v Blair [1946] HCA 43; (1946) 73 CLR 213.
[17] Combet, above n1 at 650 (McHugh J). His Honour did not reach a final conclusion.
[18] Id at 706 (Kirby J).
[19] Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27.
[20] Bateman’s Bay v Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247.
[21] Combet, above n1 at 671, 706 (Kirby J). This approach was forecast by Geoffrey Lindell, ‘Parliamentary Appropriations and the Funding of the Federal Government’s Pre-Election Advertising in 1998’ (1999) 2 CLPR 21 at 25.
[22] Combet, above n1 at 651 (McHugh J).
[23] Id at 670 (Gummow, Hayne, Callinan & Heydon JJ); [1975] HCA 52; (1975) 134 CLR 338 at 412.
[24] Victoria v Commonwealth and Hayden [1975] HCA 52; (1975) 134 CLR 338 (hereafter AAP Case) at 393 (Mason J). There are, of course, at least two per year; but the remark arose in the context of whether an Appropriation Act serves normal legislative purposes, or merely indicates Parliament’s authorisation of expenditure, an issue that did not arise in this case. See Cheryl Saunders, ‘Parliamentary Appropriation’ in Cheryl Saunders (ed), Current Constitutional Problems in Australia (1982) at 24, 31.
[25] Combet, above n1 at 643 (McHugh J).
[26] Id at 622 (Gleeson CJ).
[27] Id at 628.
[28] Id at 629–630 (Gleeson CJ).
[29] Id at 658 (Gummow, Hayne, Callinan & Heydon JJ); also summary at 669.
[30] Id at 658.
[31] Id at 659; but compare Kirby J at 669.
[32] Id at 660, 669.
[33] Id at 660–661, 669.
[34] Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562. See for example, Juliet Curtin, ‘Never Say Never: Al-Kateb v Godwin’ [2005] SydLawRw 16; (2005) 27 Syd LR 355 at 359
[35] Combet, above n1 at 631, 645–646 (McHugh J).
[36] Id at 647.
[37] Id at 648.
[38] Id at 648 and 689 (Kirby J).
[39] Id at 698 and 701 (Kirby J).
[40] Id at 658–659 (Gummow, Hayne, Callinan & Heydon JJ).
[41] Id at 659–660.
[42] Id at 647 (McHugh J) and 698 (Kirby J).
[43] Quoted in id at 645 (McHugh J).
[44] Id at 647.
[45] Id at 679, 700 (Kirby J).
[46] Id at 636 ((McHugh J).
[47] Id at 636–644
[48] Id at 649, 650 (McHugh J).
[49] Id at 631; his Honour picks up this point again in 649–650.
[50] Id at 680, 694 (Kirby J).
[51] Id at 680.
[52] Id at 693.
[53] Id at 660 (Gummow, Hayne, Callinan & Heydon JJ).
[54] Id at 695 (Kirby J).
[55] Enid Campbell, ‘Parliamentary Appropriations’ [1971] AdelLawRw 7; (1971) 4 Adel LR 145 at 145; Saunders, above n24 at 1–4; Brown v West, above n2 at 208. Some of this is repeated in the judgment at 633 (McHugh J), and 684 (Kirby J).
[56] John Waugh, ‘Evading Control of Parliamentary Spending: Some Early Case Studies’ (1998) 9 PLR 28.
[57] Auckland Harbour Board v R [1924] AC 318 at 326.
[58] The Wool Tops Case, above n2 at 450 (Isaacs J); see Saunders, above n24 at 25. This case is no longer an authority on the validity of executive contracts.
[59] Brown v West, above n2 at 205; Waugh, above n56 at 28.
[60] Combet, above n1 at 654 (Gummow, Hayne, Callinan & Heydon JJ) and 683 (Kirby J).
[61] Id at 685–686, 696 (Kirby J).
[62] Auckland Harbour Board, above n57 at 327.
[63] Combet, above n1 at 686.
[64] Id at 692.
[65] Id at 691.
[66] Brown v West, n2 above; Lindell, above n21 at 24.
[67] Attorney-General (Victoria) v Commonwealth [1945] HCA 30; (1945) 71 CLR 237 (hereafter Pharmaceutical Benefits Scheme Case) at 253.
[68] Campbell, above n55 at 156–157; Saunders, above n24 at 29, 32 – both of course before Brown v West, above n2.
a course that had been taken previously to meet new requirements.
[69] Brown v West, above n2 at 208. Kirby J noted here there was an option of introducing additional Appropriation Bills if necessary,
[70] Combet, above n1 at 700 (Kirby J).
[71] AAP case, above n24 at 422.
[72] Ibid. A comment seemingly approved by Gleeson CJ at 623, who also notes the US Supreme Court also thought Congress had wide discretion to approve general appropriations in Cincinnati Soap Co v United States [1937] USSC 97; 301 US 308 at 321–322 (1936). See also the joint judgment at 668 (Gummow, Hayne, Callinan & Heydon JJ).
[73] Combet, above n1 at 660 (Gummow, Hayne, Callinan & Heydon JJ).
[74] Id at 668.
[75] Id at 626 (Gleeson CJ).
[76] Ibid.
[77] Id at 629.
[78] Id at 694, 695 (Kirby J).
[79] Id at 696; relying on Jacobs J in the AAP Case, above n24 at 411.
[80] Id at 622 (Gleeson CJ) and 691 (Kirby J).
[81] Id at 648 (McHugh J) and 692, 700–701 (Kirby J).
[82] Id at 630 (Gleeson CJ), 665 (Gummow, Hayne, Callinan & Heydon JJ) and 687 (Kirby J).
[83] Kirby J at 686, 690. Id 665 (Gummow, Hayne, Callinan & Heydon JJ).
[84] Saunders, n24 above, at 21 at 665 (Gummow, Hayne, Callinan & Heydon JJ) and 689 (Kirby J).
[85] Combet, above n1 at 665–666 (Gummow, Hayne, Callinan & Heydon JJ) and 690 (Kirby J).
[86] Id at 666 (Gummow, Hayne, Callinan & Heydon JJ) .
[87] Id at 667.
[88] Id discusses history from 665–667; conclusion drawn at 667.
[89] Id at 668, 664.
[90] Id at 630 (Gleeson CJ).
[91] Brown v West, above n2 at 211; quoted by Kirby J Id at 690.
[92] Id at 685, 693 (Kirby J).
[93] Id at 622, 625, 629–630 (Gleeson CJ) and 671 (Kirby J); interestingly, the joint judgment did not state this explicitly.
[94] Tony Harris, ‘Let Canberra Pay for Ads,’ Australian Financial Review (11 Oct 2005) at 62.
[95] Combet, above n1 at 622 (Gleeson CJ); this would have been difficult given the wide interpretation given to the phrase in the Pharmaceutical Benefit Scheme and AAP cases, nor was it in the plaintiffs’ interests to argue it. In 1998, after an inquiry into pre-election advertising for tax reform, the Auditor-General concluded the ads were for a valid purpose: see Lindell, above n21 at22.
[96] Combet, above n1 at 649 (McHugh J), 673 and 674 (Kirby J).
[97] Id at 675 (Kirby J), taken from Souter J in Johanns v Livestock Marketing Association 73 USLW 4350 (2005).
[98] Id at 673 (Kirby J).
[99] Lindell, above n21 at 21. Combet, above n1 at 680, 694 (Kirby J).
[100] Harris, above n94.
[101] Lindell, above n21 at 26.
[102] Gerard Brennan, ‘The Parliament, the Executive and the Courts: Roles and Immunities’ (1997)
[9] Bond LR 136 at 142.
[103] Saunders, above n24 at 36.
[104] Id at 13.
[105] Combet, above n1 at 686 (Kirby J).
[106] Id at 646 (McHugh J).
[107] Id at 699 (Kirby J).
[108] Id at 646–647 (McHugh J).
[109] Id at 662, 663–664 (Gummow, Hayne, Callinan & Heydon JJ).
[110] Id at 664.
[111] Id at 682 (Kirby J); Harris, a former Auditor-General, agrees, above n94. These mechanisms would also be of little use against such vague and open-ended criteria.
[112] Combet, above n1 at 696 (Kirby J).
[113] Id at 695–696.
[114] Id at 633 (McHugh J).
[115] Id at 697 (Kirby J).
[116] Id at 698.
[117] Id at 701.
[118] Ibid.
[119] Id at 632 (McHugh J).
[120] Id at 693 (Kirby J).
[121] Brennan, above n102 at 144.
[122] Harris, above n94.
[123] Kirby J tells the story Combet, above n1 at 681.
[124] See Joint Committee Report in Saunders, above n24 at 13. Saunders says the Senate has pressed requests ‘at least 11 times’ but this has been controversial at 19–20.