Opinion Number. 48



Key Legislation

CONSTITUTION, ss. 3, 48,51 (xxxvi), 66, 81, 83,84,89, 93 : A UDIT ACT 1901, s. 32

The Auditor-General

The Auditor-General asks for an opinion as to whether section 84 of the Constitution forms an appropriation sufficient to allow the issue of warrants under section 32 of the Audit Act 1901.

At a first view I was inclined to think that it was not; but as similar questions have arisen under other sections of the Constitution, it seems advisable to reconsider the point in view of all the provisions of the Constitution which may be deemed to create special appropriations.

Section 81 of the Constitution provides that:
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.

Section 83 provides that no money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law. Unless appropriation has been made the money cannot be 'legally available' under section 32 of the Audit Act. The question is, what appropriations are made by the Constitution itself.

An appropriation is a definite Parliamentary authority to spend money for a specified purpose. Annual Appropriation Acts usually enact that certain sums 'are hereby appropriated, and shall be issued and applied', to the purposes specified. Special or permanent appropriations are usually made by an enactment that payments for the specified purpose shall be 'charged on and payable (or paid) out of the Consolidated Revenue Fund'.

The Constitution contains two special appropriations in the usual form; namely, section 3, which provides that:
There shall be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Governor-General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds.
and section 66, which provides that:
There shall be payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for the salaries of the Ministers of State, an annual sum which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year.

No particular form of words is, however, necessary to constitute a special appropriation. It is enough that the legislature should clearly indicate its intention that expenditure for the specified purpose is authorized. Thus sections 89 and 93 of the Constitution, which provide that the Commonwealth shall according to prescribed rules credit revenue, debit expenditure, and pay balances monthly to the several States, constitute an authority for payment to which no Act of the Parliament can give any greater efficacy. They therefore amount to a special appropriation.

There are two other provisions in the Constitution which, though not following the usual formula, in my opinion constitute special appropriations, namely, section 48, which provides that:
Until the Parliament otherwise provides, each senator and each member cf 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.
and section 84, which provides that any officer of a transferred department who is retained in the service of the Commonwealth shall be entitled to retire on a pension or retiring allowance ascertained under the laws of his State, and which continues:
Such pension or retiring allowances shall be paid to him by the Commonwealth; but the State shall pay to the Commonwealth a part thereof . . .

The authority of the Constitution is above that of the Federal Parliament; it embodies the terms of a bargain made between the States and ratified by an Act of the Imperial Parliament. The Federal Parliament is unable of itself to modify the terms of that bargain; and an absolute direction for payment, contained in the Constitution, cannot be cancelled by the Parliament, and needs no confirmation by the Parliament. Such an absolute direction therefore amounts to a special appropriation.

Section 48 provides that 'until the Parliament otherwise provides' members of both Houses shall be entitled to an allowance. The Parliament may at any time, by virtue of section 51 (xxxvi), abolish this allowance; but until it does so, members are entitled to the allowance, and no further appropriation is needed.

Section 84 is somewhat stronger. It does not contain the words 'until Parliament otherwise provides'; it confers an absolute right on the officer to a definitely ascertainable sum; and it directs that sum to be paid to him by the Commonwealth.

Neither section 48 nor section 84 refers explicitly to the Consolidated Revenue Fund. Such mention is not however necessary for an appropriation. The one thing requisite is (see section 83) that there should be authority to draw money from the Treasury, and that of itself should be sufficient without further legislation.

Taking into consideration therefore the special character of the Constitution Act and the clear intention to appropriate which it embodies in these clauses I have come to the conclusion that sections 48 and 84 ought to be considered special appropriations.(1)

[Vol. l, p. 340]

(1) This opinion was published in Commonwealth of Australia, Pari. Papers 1903, Vol. II, p. 927.