|
Williams (No. 1) involved a constitutional challenge to the federal funding
of chaplaincy services in schools. This funding was provided pursuant to an
appropriation only, with no other statutory basis. Responding to the increase in
the government achieving, in effect, regulation through federal funding and
the distorting effects on the federal balance of powers, a majority of the Court
held that, with only some exceptions, Commonwealth spending must be
accompanied by authorisation in both the form of an appropriation and an
explicit statutory provision. This, the judges explained, was a necessary impli-
cation from the structure and limits of the Australian Senate, which has only
limited powers over appropriation legislation under section 53. Thus, to give
full effect to the doctrine that the government is responsible to both houses
of Parliament, it must seek statutory approval above and beyond appropria-
tions legislation for much of its spending (with some exceptions, for example
in relation to the ordinary services of government). This places the federal
executive in Australia in a markedly different constitutional position from that
in the United Kingdom, where the executive’s power to spend and contract
is unfettered, subject only to the requirement that it be authorised under an
appropriation.
This limitation on executive power had an immediate effect on the legis-
lative structuring of federal spending programs, with wide-ranging remedial
legislation rushed through to support more than 400 federal spending pro-
grams. The High Court has indicated that much of this remedial legislation is
likely to be invalid; the Court in Williams (No. 2)
60
struck down that part of the
scheme which purported to provide statutory authorisation for the national
school chaplaincy program on the basis that it lacked a connection to a federal
head of power.
In drawing the extra-textual limitation in Williams (No. 1), the majority of
the Court emphasised that the constitutional structure established in Australia
is a result of the unique combination of our constitutional history. The lim-
itation is overwhelmingly structural in nature, with the protections it offers
having little, if any, effect on individuals.
60
Williams v. Commonwealth (No. 2) (2014) 252 CLR 416.
Constitutional Implications in Australia
357
12.2. Resistance to Certain Constitutional
Implications by the Court
Despite this central role played by implications in Australian constitutional
law and discourse around the structures of the separation of powers, feder-
alism and representative and responsible government, there remains strong
resistance in Australia to broader implications involving the protection of indi-
vidual rights. Even in the context of principles of political democracy, since
Lange the High Court has consistently emphasised that it does not see such a
principle as creating a freestanding or true individual right.
61
Beyond any core
political rights to freedom of political expression and participation, the Court
has also consistently rejected claims brought before it in the form of implied
constitutional rights.
In the context of associational rights, such as the right to freedom of move-
ment and association, the Court has held that these rights are protected inso-
far as they involve association or movement for the purposes of facilitating
the democratic process, particularly freedom of access to the institutions of
government, including the seat of government.
62
Several justices in Kruger
held that this was implicit in the constitutionally prescribed system of respon-
sible and representative government, or in the logic underpinning the implied
freedom of political communication.
63
But beyond that, in the case of Tajjour,
the Court has found that the Constitution does not support the making of
any independent implication protecting a wider-ranging right to freedom of
association.
64
Similarly, for rights such as the right to equality or non-discrimination, the
Court has expressly held that the text and structure of the Constitution do not
support the making of any implications of this kind. In Leeth, where the issue
was one of the discriminatory application of federal sentencing laws across dif-
ferent states, a majority of the Court held that this was a form of discrimination
61
Of course, in a Hohfeldian sense this does create some form of individual right to freedom of
political expression, but there is debate as to the extent of this individual right or privilege: see
e.g., Adrienne Stone, ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of
Political Communication’ (2001) 25 Melbourne University Law Review 374. See also notes 1–2.
62
See e.g., Kruger v. Commonwealth (1997) 190 CLR 1, 115–16 (Gaudron J), 142 (McHugh J), 157
(Gummow J).
63
See especially Gaudron J.
64
Do'stlaringiz bilan baham: | 
