Professor Twomey’s article adopts the orthodox approach of the legal establishment. It assumes that once the High Court has made a decision, that decision is obviously right and cannot be criticised.

Having been a practising lawyer for nearly 32 years, I take a different approach. The judiciary is just as fallible as everyone else, and their decisions should be examined with the same scrutiny as is applied to the politicians.

When this is done, it is apparent that High Court made appalling errors in the Williams school chaplains’ case. The Court could have held the expenditure invalid on uncontroversial grounds. Section 81 of the Constitution states that Commonwealth revenue must be appropriated “for the purposes of the Commonwealth”. There has always been disagreement about what this phrase meant. The Court could have said it meant the purposes for which the Commonwealth may make laws, or the purposes for which the Commonwealth may exercise functions under the Constitution. The Commonwealth has no specific power over education. Had the Court said that therefore the part of the Appropriation Act which authorised spending on chaplains was not “for the purposes of the Commonwealth”, I would have had no problem with the decision.

Instead, the Court’s decision held that the appropriation power in s.83 was not an independent spending power. In other words, just because Parliament had by law approved expenditure, that didn’t mean the Commonwealth could spend it. This was new. It held that expenditure not authorised by separate legislation in addition to the appropriation could only be justified under s.61, to which it then gave a disturbingly narrow interpretation. Prior to Williams, there had been a broad consensus that the Government could act in any area within the federal sphere. As Barwick put it in the AAP Case “the Executive may only do that which has been or could be the subject of valid legislation.” In his dissenting judgment in Williams at [2012] HCA 23 at [340] - [404], Justice Heydon records the prior support for this view which had been so extensive (notwithstanding the Pape decision) that when the Williams case commenced, all parties based their submissions on this view being correct. Yet that view was rejected.

The result has been a contraction in Commonwealth executive power - making it harder to govern just when a fractious public is already doing its best to make the country ungovernable.

Consider these absurdities. Several judges said that to allow the Government to spend money without separate legislation undermined Parliamentary scrutiny and the role of the Senate. What utter garbage. The Government only spent what it had been authorised to spend by an Appropriation Act, which of course must be passed by both Houses of Parliament. For five years Labor and the Coalition in both Houses voted to spend money on the school chaplains. Yet the judges pretended the Senate had been by-passed in some way.

Professor Twomey seems to have blindly accepted this rubbish. Her comment that the Commonwealth has “entered the shark infested constitutional waters of executive expenditure without parliamentary authorisation” is not what I expect from an impartial academic. It is a partisan rant which depends for its validity on treating a Senate vote in favour of an Appropriation Act as somehow not an authorisation.

Parliament showed what it thought of the Court’s reasoning by passing the legislation Prof. Twomey refers to, the amendment to the Financial Framework Legislation, within 8 days of the High Court’s decision. Professor Twomey says the Government rammed through this legislation; another partisan comment implying the Government was somehow riding roughshod over the Parliament. But the Government does not hold a majority in either House. There was broad support for the legislation. No divisions were called on the final vote in either House.

There is a message here for High Court judges and commentators who like to preach about responsible government. Those actually involved in responsible government; i.e., the people who have to make it work, do not think it is necessary for every program to be based on separate legislation, in addition to appropriation provisions.

Another absurdity was the dismissal of the argument that the Commonwealth, as a legal entity, has just as much right to contract and spend money as any individual does, subject to Constitutional limitations, and that this is a factor in determining the extent of executive power. The Court overlooked an elementary point: under our Constitution, executive power is not vested in a Government, it is vested in a person, the Queen, and is exercisable by another person, the Governor-General. The Queen always had the same common law rights as an ordinary citizen as well as her prerogative powers. To claim that the Crown is used in different senses does not explain why powers which once existed are no longer available to the Government.

Those open-minded enough to think that maybe judges aren’t always right can see more detailed comments on the Williams decision in Drafting Notes 62A2 to 62A5 and 62A13 to 62A15 to my Advancing Democracy model to change the Constitution: see http://www.advancingdemocracy.info/cmspage.php?pgid=142&pid=8

Professor Twomey is correct to say the amending legislation above is vulnerable to Constitutional challenge. Hopefully if a challenge is forthcoming the Government will challenge the Williams decision as plainly wrong. If the Court does not reverse it, Parliament should consider the removal of the judges. Why is it that judges are never held accountable for their decisions?

A final point to consider: disputes like this arise because we have a Constitution whose meaning is unclear on almost all the important points. Rather than engaging in the easy path of whingeing about the Government, thoughtful people should be advocating devising new rules which make things crystal clear. That is what the Advancing Democracy model would deliver: see http://www.advancingdemocracy.info.