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The stream cannot rise above its source: The principle of responsible government informing a limit on the ambit of the Executive Power of the Commonwealth

Olds, Michael (2016) The stream cannot rise above its source: The principle of responsible government informing a limit on the ambit of the Executive Power of the Commonwealth. Honours thesis, Murdoch University.

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Abstract

The Executive Power of the Commonwealth is shrouded in mystery. Although the scope of the legislative power of the Commonwealth Parliament has been settled for some time, the development of the Executive power has not followed suit.

Over the last decade, the High Court has developed jurisprudence on the Executive Power – largely invoking more questions than answers – and while not conclusively defining it, certainly suggesting that there are limits. This thesis argues that one limit is the principle of responsible government.

Responsible government requires that the Executive government be accountable to the Parliament. The accountability aspect allows Parliament to scrutinise the conduct of the Executive. This is of critical importance because the Executive has its own sphere of activity, acting through its non-statutory power, prerogative power and nationhood power. When the Executive acts, the activities necessarily require the expenditure of money. The money the Executive expends is not its own money, rather, it is public money in the Consolidated Revenue Fund.

This thesis examines two key cases of expenditure initiated by the Executive government; Pape, and the impugned Tax Bonus Act that provided the fiscal stimulus package in the wake of the 2008 Global Financial Crisis; and Williams, which was a contract between the Commonwealth Government and Scripture Union Queensland for funding under the National Schools Chaplaincy Programme.

Overall, this thesis highlights that as responsible government is entrenched in the Constitution, and the final say on all expenditure is provided by Parliament as representative of the people, the outcomes of the Pape and Williams cases point to the High Court limiting the ambit of the Executive Power by reference to the principle of responsible government.

Publication Type: Thesis (Honours)
Murdoch Affiliation: School of Law
Supervisor: Finlay, Lorraine
URI: http://researchrepository.murdoch.edu.au/id/eprint/35674
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