Opinion Number. 1881

Subject

POWERS OF THE SENATEPOWER OF SENATE TO AMEND SOCIAL SERVICES CONSOLIDATION BILL: INTERPRETATION OF s 53 OF CONSTITUTION: WHETHER AN APPROPRIATION CONSTITUTES A ‘CHARGE OR BURDEN ON THE PEOPLE’: MEANING OF ‘CHARGE OR BURDEN ON THE PEOPLE’

Key Legislation

CONSTITUTION s 53

Date
Client
Sir Robert Garran, G.C.M.G. K.C.

Many thanks for the Opinion, Vol. 39, p. 98,1 on the two questions which we asked about the position of the Senate in relation to the current amendment of the Social Services Consolidation Bill. I was naturally glad to find that you reached, by your own characteristically lucid and learned routes, the same conclusions as those which we ourselves had done.

I have myself always felt strongly that, as a mere matter of language and apart from authority, the phrase ‘charge or burden on the people’ ought not to include even an appropriation, still less a provision for expenditure out of moneys already appropriated. Of course, as you say, the prohibition of upward amendment in the third paragraph must extend to laws which are not included in the prohibition against all amendment, as in the second paragraph. I have always supposed however, that this objection can be admitted without having to concede that ‘charge or burden’ includes appropriation. The fact is, or so it seems to me, that the concept of ‘charge or burden upon the people’ is wider than the concept of ‘laws imposing taxation’ in paragraph 2. This is expressly shown by the second sentence in the first paragraph. A provision for the imposition of a pecuniary penalty, or for the payment of fees for licences or services, should, I should think, be regarded as imposing a ‘charge or burden on the people’; but, as the section itself expressly says, a bill containing such a provision would not necessarily be a ‘proposed law imposing taxation’.

If this analysis is correct, it supplies, in the language of the section itself, some answer to the question which you discuss as to the reason for inserting the third paragraph at all, and also as to the reason for the wide general expression ‘any proposed law’.

Furthermore, if this analysis is correct, it would suggest that there is really nothing in the context of the expression to require the words ‘charge or burden on the people’ to have any wider meaning than its ordinary natural denotation—i.e. even to the extent of widening it so as to include appropriation bills.

I have passed on your Opinion to the Attorney who was very glad indeed to have it.

1 Opinion No. 1878.