Express law No. 30

26 October 2005

The workplace relations advertising case

The plaintiffs
did not establish a basis for declarations or injunctions
preventing expenditure on an advertising
campaign from the departmental appropriation to the Department
of Employment and Workplace Relations (DEWR). The advertising
campaign was to promote the Government's workplace relations
reforms.

A majority of the High Court found that expenditure
for 'departmental items' under annual appropriation Acts
is
not required to be for any of the stated 'outcomes' for
the agency concerned. Instead, all that is required is
that the amount paid should be for the 'departmental expenditure'
of the agency.

Combet and Anor v Commonwealth and Ors

High Court of Australia,
29 September 2005 (order), 21 October 2005 (reasons), [2005]
HCA 61

The Australian Government began a print and radio
advertising campaign in support of proposed workplace relations
reforms
in mid-July 2005. The plaintiffs (the Secretary of the
ACTU and the Shadow Attorney-General) instituted proceedings
seeking to establish that the departmental appropriation
to DEWR would not support the expenditure on the advertising
campaign, and seeking to prevent the issuing of money from
the Treasury of the Commonwealth to pay for the campaign.

Argument before the Court focussed on whether the proposed
expenditure fell within Outcome 2 of the appropriation
to DEWR, namely 'higher productivity, higher pay workplaces'.

Decision

Four members of the High Court (Gummow, Hayne,
Callinan and Heydon JJ) in a joint judgment, concluded
that for
departmental items (as opposed to administered items),
it is not necessary to demonstrate that the expenditure
fell within the terms of a particular outcome (such as
outcome 2).

Rather, their analysis of the text of Appropriations
Act (No.1) 2005–2006 revealed that appropriations
for departmental items are unrestricted by the terms of
particular
outcomes. That expenditure is limited only by the requirement
that the amount to be spent is spent for 'departmental
expenditure'. It followed that all the Commonwealth needed
to demonstrate was that the advertising expenditure was
within the terms of 'departmental expenditure'.

The joint
judgment did not give detailed consideration to what might
be encompassed by 'departmental expenditure'.
In the present case it merely noted that the plaintiffs
had not contended that the advertising expenditure was
not 'departmental expenditure', and it followed that
the plaintiffs could not obtain the relief they sought.

In the course of their reasons, the judges joining in
the joint judgment expressed the view that appropriations
can
be made in extremely general terms, and that it is for
Parliament to determine how specific they are. They also
discussed the effect of the so-called 'Compact of 1965'
which is an agreement between the Senate and the Government
about what comprises the 'ordinary annual services of
the Government' in sections 53 and 54 of the Constitution,
and concluded that it is of little relevance as a tool
of construction in relation to appropriations legislation.

Implications

The most important implication of the decision
is that while administered expenditure under annual appropriation
Acts is confined by reference to the outcomes contained
in those Acts, departmental items are confined only
by reference to the concept of 'departmental expenditure'.

Questions that agencies may have on the possible implications
of the decision for the appropriations
framework may
be directed to Marc Mowbray d'Arbela at the Department
of
Finance and Administration, T 6215 3657, marc.mowbray-d'arbela@finance.gov.au.

Text
of the decision is available at:
http://www.austlii.edu.au/au/cases/cth/high_ct/2005/61.html

AGS
represented the defendants (the Commonwealth, the Minister
for Employment and Workplace Relations,
and
the Minister
for Finance and Administration). Kathryn Graham
(Senior General Counsel, Office of General
Counsel) was junior
counsel for the defendants.

For further information
please contact:

Kathryn Graham
Senior General Counsel
T 02 6253 7167 F 02 6253 7304
kathryn.graham@ags.gov.au

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