Responsible Government and Parliamentary Intention: The Impact of Wilkie v Commonwealth

Abstract

In Wilkie v Commonwealth; Australian Marriage Equality Ltd v Minister for Finance, the High Court of Australia upheld the validity of the arrangements through which the Australian Government conducted a postal survey on the question of whether same-sex marriage should be legalised. These arrangements involved the use of a power available to the Finance Minister in the Appropriation Act (No 1) 2017–2018 (Cth) to allocate a prescribed amount of money for certain purposes if a number of preconditions are satisfied. At first, the case appeared to one of straightforward statutory interpretation. However, the Court’s decision has broader implications for understanding the capacity of the executive arm of government to spend public funds. The Court’s reasoning appears to undermine prior High Court authority in relation to the issue of executive spending and responsible government. It is argued that the interpretation of the powers available to the Finance Minister to spend public moneys should be revisited in the context of these authorities.