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§ 350. “Appropriation Made by Law.”

With the temporary exception prescribed in the second paragraph of the section, the provision that no money shall be drawn from the Treasury “except under appropriation made by law” is absolute and general. Where no appropriation is effected by the Constitution itself, every appropriation—whether for expenditure for federal services, or for payments to the States—must be made by a law of the Federal Parliament.

Appropriations are of two kinds—special (or permanent) and annual. Those payments which it is not desirable to make subject to the annual vote of Parliament are specially appropriated, once for all, by a permanent Act. Such payments, for instance, are the salaries and pensions of Judges, the interest on the public debt, and certain endowments. Such, too, are the payments provided for in the “civil lists” set out in the Schedules to the Constitutions of the several colonies. But by far the greater bulk of the public expenditure is usually appropriated by annual votes comprised in the Appropriation Bill.

SPECIAL APPROPRIATIONS.—There are several sections of the Constitution which clearly constitute special appropriations. Among these are sec. 3, which declares that there shall be payable to the Queen out of the Consolidated Revenue Fund, for the salary of the Governor-General, an annual sum which, until the Parliament otherwise provides, shall be £10,000; sec. 48, which declares that, until the Parliament otherwise provides, every member of either House shall receive an allowance of £400 a year; and sec. 66, which declares that there shall be payable to the Queen, out of the Consolidated Revenue Fund, for the salaries of Ministers of State, an annual sum which, until the Parliament otherwise provides, shall not exceed £12,000 a year. The opinion has already been expressed (see Notes, § 347, supra) that sec. 82 does not constitute a special appropriation of the costs of collecting the federal revenue, or the general expenditure of the Commonwealth.

The view also appears to be justified, both as a matter of construction and by considerations of expediency, that the provisions of secs. 89 and 93, requiring the Commonwealth, after crediting revenue and debiting expenditure to the several States, to pay the balances monthly to the several States, amount to a special appropriation. It may indeed be argued that this is merely a direction to the Federal Parliament to appropriate the balances to the several States, and is not in itself an appropriation. This view, however, seems hardly satisfactory. The period of these payments is determined, and the amount is made ascertainable, by the Constitution itself. An appropriation by the Federal Parliament could do no more than confirm the provisions of the Constitution, and such confirmation seems quite unnecessary. Moreover, the payments are to be made monthly from the establishment of the Commonwealth; and the first payments will be due before the Federal Parliament can possibly meet. Sec. 83 makes provision for the payments necessary for maintaining the federal departments during that interval, and for holding the first federal elections, without any Parliamentary


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appropriation; but no such provision is made with regard to payments to the States; and it seems that the necessity for Parliamentary appropriation of these payments was not contemplated.

PROCEDURE.—The procedure in connection with the granting of supply is largely dependent on Standing Orders. The details of procedure differ in many respects in the different Legislatures within the Empire; but the general features are much the same, and it may be assumed that they will be followed in the Parliament of the Commonwealth. The Treasurer will first bring down into the House of Representatives the estimates of expenditure, with a message from the Governor-General (see sec. 56). In Committee of Supply, each vote or resolution in the Estimates, and each item therein, may be discussed, and may be reduced or omitted; but the Committee of Supply cannot increase any grant which has been recommended by the Governor-General. When the grants have been voted by the Committee of Supply, resolutions will be moved in Committee of Ways and Means, to the effect that, towards making good the supply granted, a certain sum be granted out of the Consolidated Revenue Fund. These resolutions having been reported and agreed to by the House, the Appropriation Bill will be introduced and passed, and forwarded to the Senate. (For the Senate's powers in regard to it, see sec. 53.) The Appropriation Act, when duly assented to, will give legal effect to the resolutions of the Committees. Upon a proper warrant from the Governor-General, which will give final validity to a grant of supply, the Treasurer will make the issues to meet those grants out of the Consolidated Revenue Fund. (See May, Parl. Practice, Ch. XXII.; Bourinot, Parl. Procedure, Ch. XVII.)

It is sometimes impracticable, owing to the conditions of Parliamentary business, to deal with the estimates before the financial year begins; and in order to meet the immediate demands of the Public Service, “votes on account” are authorized by Temporary Supply Bills as occasion may require. In the British Parliament, votes on account for the first months of the financial year are now the invariable practice; and they have also been frequently employed in the different Australian Parliaments. In Canada, on the other hand—where the Dominion Parliament meets in January, and the financial year ends on 30th June—they are rarely resorted to. (Bourinot, Parl. Procedure, p. 576.)

PRELIMINARY EXPENSES.—From the day of the establishment of the Commonwealth, revenue will be collected by the Federal Government, and expenditure will be incurred; but no statutory appropriation can be made until the Federal Parliament has met. During this interval, and for a month after the meeting of Parliament, the necessity for such appropriation is suspended to the extent of any payments necessary for the maintenance of the transferred departments and for the conduct of the federal elections. As to the question whether the expenses of elections for the Senate are to be borne by the Commonwealth, see note, § 74, supra.

Transfer of Officers351.

84. When any department352 of the public service of a State becomes transferred to the Commonwealth, all officers of the department353 shall become subject to the control of the Executive Government of the Commonwealth354.

Any such officer who is not retained355 in the service of the Commonwealth shall, unless he is appointed to some other office of equal emolument in the public service of the State, be entitled to receive from the State any pension, gratuity, or other compensation payable under the law of the State on the abolition of his office.




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Any such officer who is retained356 in the service of the Commonwealth shall preserve all his existing and accruing rights, and shall be entitled to retire from office at the time, and on the pension or retiring allowance, which would be permitted by the law of the State if his service with the Commonwealth were a continuation of his service with the State. Such pension or retiring allowance shall be paid to him by the Commonwealth; but the State shall pay to the Commonwealth a part thereof, to be calculated on the proportion which his term of service with the State bears to his whole term of service, and for the purpose of the calculation his salary shall be taken to be that paid to him by the State at the time of the transfer.

Any officer357 who is, at the establishment of the Commonwealth, in the public service of a State, and who is, by consent of the Governor of the State with the advice of the Executive Council thereof, transferred to the public service of the Commonwealth, shall have the same rights as if he had been an officer of a department transferred to the Commonwealth and were retained in the service of the Commonwealth.

CANADA.—Until the Parliament of Canada otherwise provides, all officers of the several provinces having duties to discharge in relation to matters other than those coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces, shall be officers of Canada, and shall continue to discharge the duties of their respective offices under the same liabilities, responsibilities, and penalties, as if the Union had not been made.—B.N.A. Act, sec. 130.

HISTORICAL NOTE.—The clause as drafted and passed at the Sydney Convention, 1891, merely provided that all officers of the transferred departments should become subject to the control of the Federal Executive, and that their existing rights should be preserved. Mr. Gordon moved to add “But the Commonwealth shall not be responsible for any pensions agreed to be paid by the States.” This was negatived. (Conv. Deb, Syd., 1891, pp. 801–2.)

At the Adelaide Session, 1897, the draft of 1891 was followed, except that in place of the provision as to existing rights the following words were added: “and thereupon every such officer shall be entitled to receive from the State any gratuity, pension, or retiring allowance payable under the law of the State on abolition of his office.” It was pointed out in Committee that different provision was needed for those who were retained and those who were not: also that accruing as well as existing rights ought to be preserved. The clause was postponed, and afterwards an amendment moved by Mr. Barton was agreed to, providing that officers not retained in the service should receive from the State the proper compensation on abolition of office, whilst officers retained should eventually be entitled to a retiring allowance to be paid by the Commonwealth and the State jointly. On Mr. Deakin's motion, words preserving the existing and accruing rights of such officers were added. (Conv. Deb. Adel., pp. 866–70, 1444–51.)

At the Melbourne Session, a suggestion by the Legislative Assembly of Western Australia, to insert the words “unless he is appointed to some other office in the State,” was considered, and formally negatived on the understanding that it would be considered by the Drafting Committee. (Conv. Deb., Melb., pp. 990–8.) A re-draft was subsequently adopted, the last paragraph being added (Conv. Deb., Melb., pp. 1899–1901); and the clause was further verbally amended after the fourth Report.




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