Opinion Number. 512

Subject

BORROWING BY COMMONWEALTH WHETHER TREASURER HAS POWER TO AUTHORISE PAYMENT FROM PUBLIC ACCOUNT WITHOUT APPROPRIATION : WHETHER ARRANGEMENT BY COMMONWEALTH FOR ADVANCE PAYABLE TO CREDITORS AMOUNTS TO PAYMENT FROM PUBLIC ACCOUNT

Key Legislation

AUDIT ACT 1901-1912, ss. 31,32,33.34

Date
Client
The Treasurer

The Treasurer forwards the following memorandum for advice:

The Departments have approached me for funds for payment of wages due on the 4th instant in accordance with decisions of Labour Boards and the State Arbitration Courts.

In view of sections 31, 32,33, 34 (2) of the Audit Act 1901-1909, it appears to me that I have no power to authorise or to arrange for the payment of such wages without a parlia-mentary appropriation.

As the matter is an important one, I should be glad of your opinion.

In my opinion the Treasurer has no power whatever to authorise the issue of any money from the Public Account until the money has been made legally available by appropriation.

I have carefully considered the question whether it would be possible to obviate the difficulty in any way by any alternative arrangement as, for instance, an arrangement with a bank to accommodate the Commonwealth by advancing money for the payment of these accounts. I have come to the conclusion that no such arrangement can lawfully be made. In whatever manner the payments were actually effected-whether through accounting officers or otherwise-the essence of such an arrangement would be a loan to the Commonwealth, and the payment would be payment of moneys from the Public Account.

In my opinion such payment would be against both the letter and the spirit of the Audit Act, as being an attempt to effect indirectly that which the Act expressly forbids to be done directly.

It therefore appears to me that the Treasurer cannot, either by express authoris-ation or by any arrangement, lawfully provide for the payment of wages to employees of the Commonwealth until moneys have been duly made available by parliamentary appropriation.(1)(2)

[Vol. 11, p. 286]

(1)But see Opinion No. 427.

(2)This Opinion was published in Commonwealth if Australia,Parl Papers 1914-1917,vol.III,p.1313.