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Unit: LS 220 Constitutional Law
Coordinator: Imtiaz Omar
Student: Bradley Bianchin
Student Number: 220071850
Word Count: 2986
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Title: Case Analysis; Pape v Commissioner of Taxation
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Introduction
1. The case Pape v Commissioner of Taxation1 was said to be a positive step for
Federalism2. The High Court ruled in favour of the Commonwealth, holding that the decision to pay working Australians through the Tax Bonus Act was constitutional. However, the decision from Pape could create consequences for
Parliamentary spending. The proposition that the Australian parliament can appropriate funds for whatever schemes it desires without regard to constitutional responsibility does not warrant support from the High Court.
2. The parties in Pape agreed to submit four questions to the High Court for
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determination, by way of a special case under the Rules of the Court. Questions 2
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and 3 are relevant to the discussions on Executive power and Appropriations,
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respectively. This paper will examine how the High Court relied on holdings
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from the previous decisions of AAP case3,and Davis v Commonwealth4 for
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explaining the scope of the Executive power of the Commonwealth and
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provisions relating to appropriations power.
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Question 3 (Appropriations Power)
3. Is payment of the tax bonus to which Mr Pape is entitled under the Bonus
Act supported by valid appropriation under sections 81 and 83 of the
Constitution?
1 Pape v Commissioner of Taxation [2009] HCA 23.
2 John Carrol
3 Victoria v The Commonwealth and Hayden [1975] HCA 52.
4 Davis v The Commonwealth [1988] HCA 63.
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French CJ
4. His honour considered the submissions regarding the appropriations power under ss 81 and 83 and determined that these sections may condition the executive power to spend money for the purpose of mitigating the global economic crisis on the national economy5. The Chief Justice further added that ss 81 and 83 do not provide the Commonwealth with a 'spending power', only the power to control public moneys. The power to expend the Consolidated
Revenue Fund must come from some other source6.
5. Chief Justice French preferred the narrow view of Barwick CJ and Gibbs J, that
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'purposes of the Commonwealth' are words of limitation 7, and rejected the wide
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view adhered to by McTiernan, Mason, and Murphy JJ8. French CJ agreed with
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approach from Gibbs J, who reasoned9:
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the power of appropriation was not general and unlimited but
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could only be exercised for purposes which the Commonwealth
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could lawfully put into effect in the exercise of the powers and
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functions conferred upon it by the Constitution.
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This was contrary to the view from Mason CJ, Deane and Gaudron JJ in Davis who propositioned that, "the validity of an appropriation act is not ordinarily susceptible to effective legal challenge"10. The French CJ rejected this
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Pape v Commissioner of Taxation [2009] HCA 23 [8].
Pape v Commissioner of Taxation [2009] HCA 23 [8].
Victoria v The Commonwealth and Hayden [1975] HCA 52 [360].
Pape v Commissioner of Taxation [2009] HCA 23 [93].
Victoria v The Commonwealth and Hayden [1975] HCA 52 [362].
Ibid.
4 proposition. 6.The approach from Mason J was particularly problematic for the French CJ, because on the one hand Mason J asserts the wide construction of 'purposes of the Commonwealth', that it is for the Commonwealth to determine what those purposes are11, but then he contradicts this view by stating that the Constitution does not allow the Commonwealth to have a wide operation to effect a radical transformation12. Consequently, the effect of holding to the wide construction of appropriations power would be to grant the Commonwealth unlimited power,
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which would disturb the distribution of powers.
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7. French CJ recognised the importance in Barwick CJ's reasoning 13 that "... the
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federal distribution of power for which the Constitution
