Opinion Number. 475

Subject

MATERNITY ALLOWANCE SOURCES OF POWER TO PAY : SCOPE OF POWER WITH RESPECT TO INVALID PENSIONS . WHETHER PENSION INCLUDES SINGLE PAYMENT : EXTENT OF APPROPRIATION POWER : EFFECT OF STATES' ENTITLEMENT TO SURPLUS REVENUE OF COMMONWEALTH : EXTENT OF POWER TO CREATE OFFENCES

Key Legislation

CONSTITUTION, s. 51 (ii), (xxiii); Chapter IV; s. 81 : SURPLUS REVENUE ACT 1910 : MATERNITY ALLOWANCE ACT 1912, ss. 10, II

Date
Client
The Treasurer

The Treasurer asks for any advice as to the constitutionality of-

  1. the payment of the proposed Maternity Allowance;
  2. the penal clauses of the Bill.(1)
  1. In my opinion the provision for the payment of the allowance is constitutional.
  2. In the first place I think that the allowance is an 'invalid pension' within the mean-ing of section 51 (xxiii). I think that the occasion of childbirth, involving, as it does, confinement and the need of nursing and medical attendance, and temporarily incapacitating a mother, is a period of invalidity within the meaning of that provision. The constitutional power clearly extends to temporary invalidity, and the precise dur-ation of the invalidity is immaterial. So is the fact that childbirth is a natural function and not a disease; the word 'invalid' covers every kind of physical incapacitation.

    Nor do I think that the fact of the payment, on the occasion of a birth, being a single payment and not a succession of periodical payments affects its character as a pension.

    But, independently of the above argument, I think that the Commonwealth Par-liament has-subject to the express limitations of the Constitution-plenary power to appropriate Commonwealth revenues and moneys to any purpose that it pleases.

    There is abundant textbook authority for a similar power of the Congress of the United States; see, for instance, Story's Commentaries, §§ 953 and following, §§ 1273-8.

    There is little judicial authority directly in point. In Field v. Clark 143 U.S. 649, the constitutionality of the Tariff Act of 1890 was attacked on the ground that it contained provisions for a bounty on sugar which was contended to be beyond the powers of Congress. But the Court declined to pronounce on the question of consti-tutional power, as it held the bounty clauses to be severable.

    In United States v. Realty Company 163 U.S. 427, the Court again declined to pro-nounce on the question of the validity of the bounty clauses (which had then been repealed), but upheld the validity of an Act of 1895 which appropriated money to unpaid claimants of the bounty.

    The American dicta are based to some extent on the particular wording of the clause of the U.S. Constitution which empowers Congress to impose taxes 'to pay the Debts and provide for the common Defence and general Welfare of the United States'; but most of the reasoning rests upon the unlimited powers of taxation, the absence of any limitation as to the power of appropriation, and the impossibility of supposing that it could have been contemplated that congressional appropriation should be subject to review by the Judiciary.

    In the Constitution of the Commonwealth, the Parliament is given power to make laws for the peace, order, and good government of the Commonwealth with respect to 'taxation'; and section 81 provides that all revenues and moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Rev-enue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by the Constitution.

    I do not think that there is any material difference, so far as the question under con-sideration is concerned, between the above provisions and those of the Constitution of the United States.

    It has been suggested, however, that there is a material difference in the fact that in the United States the States have no interest in the federal revenue, whereas under the financial clauses of the Commonwealth Constitution the States are entitled to a distri-bution of the surplus revenue of the Commonwealth-a right which has not been taken from them by the Surplus Revenue Act 1910.

    In my opinion the right of the States to the unappropriated surplus does not affect the question of the scope of the power of the Parliament to appropriate Commonwealth revenue.

    I think that the doctrine which is supported by the weight of legal opinion in the United States, and has been acted upon in that country, is both sound and applicable; and that the Parliament of the Commonwealth is unfettered in its power to appropriate revenue to any purposes it thinks fit.

  3. In my opinion the penal clauses of the Act are constitutional. Assuming that the al-lowance is an invalid pension, of course no question can arise as to the validity of the penal provisions. But independently of that, I think that the power to appropriate necessarily carries with it the power to make it an offence to obtain, by false statements or pretences or otherwise, payments from the revenue so appropriated.

[Vol. 10, p. 414]

(1) Enacted as the Maternity Allowance Act 1912.