Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Hansard source

Mr Speaker, you have, with respect, correctly identified the two issues that arise from this bill, namely, in the first case, the need for an appropriation for the bill and, also, the extension of a charge that results from the bill. You have identified that both issues, as a consequence of the bill, are enlarging the class of persons to whom an appropriation on the one hand and a charge on the other could apply.

In dealing with the second issue first—that is, in respect to a charge—the Leader of the House correctly identified that it is quite plain on its face that standing order 179(a) necessarily applies because it increases the scope of a charge, and it is noted in the memorandum from the Clerk that the incentive for employers to pay their superannuation contribution is that if they fail to do so or fail to do so in full they are liable for a superannuation guarantee charge. That is necessarily the case.

Dealing with the second issue with respect to appropriation, could I refer the House—and I have previously touched upon these issues, but perhaps not in great detail—to an advice of Sir Garfield Barwick, when he was the Attorney-General, on 20 February 1962. In the advice he in turn referred to the passage from the book, The British Budgetary System, by Sir Herbert Brittain, published in 1959. I quote from that:

Underlying the parliamentary procedure on supply is a rule of the House of Commons which is of fundamental importance. It is enshrined in a standing order, which, in its earliest form, was passed in 1706 and is which now, according to the relevant standing order that existed in the House of Commons, this House will receive no petition for any sum relating to public service or proposed upon any motion for a grant or charge upon the public revenue whether payable out of consolidated fund or out of money to be provided by parliament unless recommended from the Crown.

The significance of that is that it notes a principle going back to 1706. The Leader of the House has referred to the debates of our founding fathers—our constitutional fathers—who were well aware of that heritage and adopted the same principles in our Constitution. Indeed, the author, Sir Herbert Brittain, summarised:

Only the Crown therefore can initiate proposals for expenditure in the House. The Crown's right and responsibility in this respect are exercised by ministers in the government of the day.

That is reflected in standing order 180, which requires a message from the Governor-General, which message is given on the advice of the day.

The Clerk's advice appropriately refers to Pape's case by way of footnote. That was a recent decision of the High Court of Australia and that also confirmed the principle. I also refer to the fundamental principle described by the High Court in Combet's case, where the majority judgment of justices Gummow, Hayne, Callinan and Heydon noted that it is the executive government which begins the process of appropriation. This the executive government does by specifying the purpose of the appropriation by message to the House of Representatives.

Again, that message comes from the Governor-General. Similarly, in that case Justice Kirby referred to the discussion in the issue in Lane's Commentary on the Australian Constitution of 1997 and concluded that:

… the initiative for proposed appropriations belongs to the Executive Government, in accordance with s 56 of the Constitution.

Again, the will of the executive being referred to in the message of the Governor-General, with the Governor-General acting on the advice of the executive of the day. So, with respect, Mr Speaker, your ruling is entirely consistent with the standing orders but, more than that, it is entirely consistent with our Constitutional heritage.

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