Northern Suburbs General Cemetery Reserve Trust v The Commonwealth

[1993] HCA 12

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

NORTHERN SUBURBS GENERAL CEMETERY RESERVE TRUST v. THE COMMONWEALTH OF AUSTRALIA

(1993) 176 CLR 555

11 March 1993

Constitutional Law (Cth)

Constitutional Law (Cth)—Powers of Commonwealth Parliament—Taxation—Training guarantee charge—Whether fee for services—Whether penalty—Charges paid to Commonwealth to be paid into Fund—Whether appropriation from Consolidated Revenue Fund—Whether standing appropriation—The Constitution (63 &64 Vict. c. 12), ss. 51(ii), 54, 81, 83—Training Guarantee Act 1990 (Cth)—Training Guarantee (Administration) Act 1990 (Cth), ss. 33, 34—Audit Act 1901 (Cth), s. 62A(3), (6).

Decisions

MASON C.J., DEANE, TOOHEY AND GAUDRON JJ. This demurrer raises for decision the validity of the Training Guarantee Act 1990 (Cth) ("the Act") and the Training Guarantee (Administration) Act 1990 (Cth) ("the Administration Act"). The long title of the Act, which comprises seven sections only, describes it as an "Act to impose a charge equal to any shortfall in the amount spent by employers on training employees". The Act does little more than impose and fix the amount of the charge ((1) ss.5, 6). The Act incorporates the Administration Act and provides that it is to be read as one with the Act ((2) s.3. As to the effect of such a provision, see Moore v. The Commonwealth (1951) 82 CLR 547, at p 565; State Chamber of Commerce and Industry v. The Commonwealth (The Second Fringe Benefits Tax Case) (1987) 163 CLR 329, at pp 344-345.). The long title of the Administration Act describes it as an "Act relating to the establishment and administration of the Training Guarantee Scheme, and for other purposes". The relationship between the two Acts is therefore similar to that between an Act imposing taxation and an Act dealing with the imposition of taxation, the division of operation guarding against any violation of the provisions of s.55 of the Constitution ((3) See Moore v. The Commonwealth (1951) 82 CLR , at pp 565, 572-573, 579-580; Re Dymond (1959) 101 CLR 11, at p 18.).

2. The objects of the Administration Act, as stated in s.3 of that Act, are as follows:

"(1) The principal objects of this Act are to increase, and improve the quality of, the employment related skills of the Australian workforce so that it works more productively, flexibly and safely, thereby increasing the efficiency and international competitiveness of Australian industry.

(2) Other objects of this Act include: (a) improving the quality of employment related training provided by employers by encouraging the adoption of structured training; and

(b) encouraging further employer investment in employment related training; and

(c) ensuring a more equitable distribution of effort in relation to employment related training among employers; and

(d) accelerating change in industry perceptions of the value of employment related training."

Sub-section (3) states that those objects are to be achieved "by guaranteeing a minimum level of expenditure by employers on quality employment related training". Although it will be necessary later in these reasons to explain the method by which this guarantee is implemented, in short it can be stated that the Act and the Administration Act define a minimum amount that each employer is notionally required to expend in training its workforce. The Act and the Administration Act then impose on the employer a liability to pay to the Commonwealth the amount by which the employer's actual expenditure falls short of that minimum amount. The moneys received by the Commonwealth in discharge of that liability are designated for expenditure on workforce training purposes.

The scheme of the Act and the Administration Act
3. The Commissioner of Taxation has the general administration of the Act and the Administration Act ((4) Administration Act, s.37). In conformity with s.3(3) of the Admistration Act, Pt 3 (ss.24-31), headed "ELIGIBLE TRAINING EXPENDITURE AND PROGRAMS", contains provisions directed at determining the amount an employer expends in a year on "quality employment related training". The provisions of the Part enable a determination to be made of an employer's "net eligible training expenditure".

4. Again, in conformity with s.3(3) of the Administration Act, Pt 2 (ss.10-23), headed "LIABILITY AND NOTIONAL LIABILITY TO PAY TRAINING GUARANTEE CHARGE", contains provisions directed at calculating an employer's "guarantee(d) minimum level of expenditure ... on quality employment related training". Section 15 of the Administration Act defines an employer's "minimum training requirement" as a percentage of the employer's annual national payroll once that payroll exceeds a threshold amount.

5. Section 14 of the Administration Act then defines the "training guarantee shortfall" of an employer in a year as the employer's minimum training requirement less the employer's net eligible training expenditure. If that calculation would result in an amount less than zero, the training guarantee shortfall is taken to be zero.

6. Sections 5 and 6 of the Act provide:

"Imposition of Charge

5. Charge is imposed on any training guarantee shortfall of an employer in a year. Amount of Charge 6. The amount of training guarantee charge payable on a training guarantee shortfall of an employer in a year is an amount equal to the amount of the shortfall."

Section 11 of the Administration Act provides:

"Subject to this Act, training guarantee charge imposed on an employer's training guarantee shortfall in a year is payable by the employer."

However, notwithstanding s.5 of the Act and s.11 of the Administration Act, training guarantee charge is a personal obligation imposed on an employer by reason of a training guarantee shortfall and not a charge in the technical sense imposed on a training guarantee shortfall.

7. Part 6 (ss.40-53) of the Administration Act provides for: (1) the annual lodgment of a training guarantee statement by each employer; and (2) the annual assessment by the Commissioner of each employer's training guarantee shortfall and the charge payable thereon. Part 7 (ss.54-70) provides procedures for objection to, review of and appeal from assessments of liability. Part 8 (ss.71-83) provides for the collection and recovery of the charge. Section 76(1), which is in that Part, provides:

"Training guarantee charge when it becomes due and payable:

(a) is a debt due to the Commonwealth and payable to the Commissioner in the manner and at the place prescribed; and

(b) may be sued for and recovered in a court of competent jurisdiction by the Commissioner or a Deputy Commissioner suing in his or her official name."

8. Part 4 (ss.32-36) of the Administration Act deals with the Training Guarantee Fund ("the Fund"). Section 32 establishes the Fund and provides that it is a trust account for the purposes of s.62A of the Audit Act 1901 (Cth). Section 33 provides:

"There are to be paid into the Fund: (a) amounts paid to the Commonwealth under this Act (other than amounts paid in satisfaction or partial satisfaction of penalties imposed by courts); and

(b) amounts paid to the Commonwealth for the purposes of the Fund; and

(c) money appropriated by law for the purposes of the Fund; and

(d) interest from the investment of money in the Fund."

Section 34(1) provides:

"Subject to this section, money in the Fund may be applied for the purposes of: (a) reimbursing the Commonwealth for: (i) the costs of administering this Act during any
period; and

(ii) costs incurred by the Commonwealth during any period in collecting, compiling, analysing and publishing information about the operation of this Act; and

(b) making payments under training guarantee agreements; and

(c) refunding any overpaid amounts under section 50 or any amounts paid into the Fund in error."

The remainder of Pt 4 provides for the making of agreements with the States for the distribution of moneys in the Fund. We shall refer to these agreements later.

The facts and the issues
9. The plaintiff, whose sole business is the management of the Northern Suburbs Cemetery at Ryde in New South Wales, incurred in the financial year commencing on 1 July 1990 a liability under the Act to pay an amount equal to a training guarantee shortfall of $916. By writ of summons and amended statement of claim served on the Commonwealth, it seeks a declaration that the Act, the Administration Act and the Training Guarantee (Administration) Amendment Act 1991 (Cth) exceed the power of the Parliament of the Commonwealth of Australia and are invalid, and injunctive relief. The plaintiff alleges that the Acts are not laws with respect to taxation within the meaning of s.51(ii) of the Constitution and are not otherwise supported by any other head of legislative power; that ss.32 and 33 of the Administration Act contravene s.81 of the Constitution; and that s.34 of the Administration Act contravenes s.54 of the Constitution.

10. The Commonwealth demurred to the whole of the amended statement of claim on the ground that each Act is, in its entirety, a valid law of the Commonwealth. Further, the Commonwealth contends that the alleged contravention of s.54 of the Constitution is not justiciable. Finally, it contends that ss.32, 33 and 34 are, if invalid, in any event severable from the remainder of the Administration Act. The argument that the plaintiff lacks standing to challenge the validity of the Administration Act on the grounds of want of compliance with ss.54 and 81 of the Constitution was not pressed at the hearing of the demurrer.

Are the Act and the Administration Act supported by s.51(ii)?
11. It is beyond question that the Act imposes a compulsory levy, exacted by the Commonwealth itself and enforceable by law. And s.34 of the Administration Act provides that the moneys so collected are to be applied for certain enumerated public purposes. In Air Caledonie International v. The Commonwealth ((5) (1988) 165 CLR 462, at p 466-467), this Court affirmed that it "suffice(s) to stamp an exaction of money with the character of a tax" if those positive attributes are present in combination with the negative attribute identified by Latham C.J. in Matthews v. Chicory Marketing Board (Vict ) ((6) (1938) 60 CLR 263, at p 276), namely, that the levy is "not a payment for services rendered". But, as the Court emphasized in Air Caledonie, this proposition is not to be applied as an exhaustive definition of a tax ((7) (1988) 165 CLR , at p 467). In particular, the negative attribute "not a payment for services rendered" should be seen "as intended to be but an example of various special types of exaction which may not be taxes even though the positive attributes ... are all present" ((8) ibid) for the reason that the presence of other characteristics may indicate that the exaction is not in its true character a tax. The plaintiff pointed to three suggested characteristics of the Act and the Administration Act which, it said, indicate that the liability to pay the charge is not a tax in the Constitutional sense.

12. It is convenient to deal with these three matters in an order different from the order in which they were presented in argument.

Fee for services
13. The plaintiff submits that the statutory imposition of the liability to pay the charge is not a law with respect to taxation because the charge is a fee for services or at least akin to a fee for services. The amount of the charge an employer is liable to pay is an amount which bears a direct relation to the employer's expenditure on employment related training. And the Administration Act permits the charge paid to the Commonwealth to be expended on employment related training. But is the charge so paid a fee for the training on which it is so expended?

14. As stated earlier, s.34(1) of the Administration Act provides that money in the Fund (which may include money paid to the Commonwealth in discharge of an obligation to pay the charge) "may be applied for the purposes of ... (b) making payments under training guarantee agreements". Section 35 provides for the making of training guarantee agreements. They are "agreements ... about making payments out of the Fund to (a) State or Territory and the expenditure of those payments, or amounts attributable to those payments, in relation to eligible training programs" ((9) Administration Act, s.35(1)). An agreement is of no effect unless the State or Territory agrees "to ensure that the payments (under the agreement), or amounts attributable to the payments, are expended only in relation to eligible training programs" ((10) s.35(2)(b)(ii)). But the Administration Act imposes no requirement that the State or Territory agree to expend the money paid under an agreement on eligible training programs for those employers who have paid money to the Commonwealth in discharge of an obligation to pay the charge. True it is that the State or Territory must agree that it "supports the Training Guarantee Scheme" ((11) s.35(2)(a)) and agree to distribute payments made to it under the agreement on the advice of a body containing representatives of the State or Territory, employers and trade unions ((12) s.35(2)(b)(i)). But these requirements fall a long way short of requiring either that the money received be expended on the provision of eligible training programs or that the money received be expended in relation to eligible training programs for those employers who have incurred a liability to pay the charge. There is therefore no statutory warrant for concluding that the charge paid is a fee for services. The Administration Act does not by its terms establish any sufficient relationship between the liability to pay the charge and the provision of employment related training by the ultimate expenditure of the money collected to regard the liability to pay the charge as a fee for services or as something akin to a fee for services.

Legislative purpose not to raise revenue
15. The plaintiff argues that the liability to pay the charge is not a tax because the raising of revenue was not among the objects of the Act and the Administration Act. For, as Windeyer J. said in Fairfax v. Federal Commissioner of Taxation ((13) (1965) 114 CLR 1, at p 19):

"Taxes are ordinarily levied to replenish the Treasury, that is to provide the Crown with revenue to meet the expenses of government. That is the prime purpose of income tax."

It is certainly the case that the raising of revenue is not among the objects enumerated in s.3 of the Administration Act. And, if those objects are achieved, no revenue will be raised by the Act and the Administration Act since each employer will expend on "quality employment related training" an amount equal to its minimum training requirement leaving no chargeable training guarantee shortfall. To that extent, the Act and the Administration Act do not express a purpose corresponding to that stated by Windeyer J. The plaintiff argues that the correct characterization of the charge is as a penalty imposed to ensure or encourage the achievement of the enumerated statutory objects.

16. The answer to the plaintiff's argument is that, when attention is given to the legislative scheme in its entirety, s.3 does not appear to be an exhaustive statement of the statutory objects. Plainly enough, one object of the legislative scheme, readily discernible from its provisions, is to impose on an employer who does not expend on quality employment related training an amount equal to its minimum training requirement a liability to pay the charge. In this respect, the imposition of the liability to pay the charge is a secondary object of the scheme, albeit one to be implemented only in the event that an employer does not expend on quality employment related training an amount equal to its minimum training requirement. But the fact that the revenue-raising burden is merely secondary to the attainment of some other object or objects is not a reason for treating the charge otherwise than as a tax ((14) ibid., per Kitto J. at p 12, citing J.W. Hampton and Co. v. United States (1928) 276 US 394.). One might as well suggest that a protective customs duty is not a tax because its primary object is the protection of a particular local manufacturing industry from overseas competition.

17. If a law, on its face, is one with respect to taxation, the law does not cease to have that character simply because Parliament seeks to achieve, by its enactment, a purpose not within Commonwealth legislative power. In Osborne v. The Commonwealth ((15) (1911) 12 CLR 321), the Court rejected a challenge to the validity of the Land Tax Act 1910 (Cth) and the Land Tax Assessment Act 1910 (Cth) which was based on the ground that their object was to prevent residents owning large areas of land or to prevent landholders from residing out of Australia or to prevent absentees from holding land in Australia ((16) ibid., at p 345). Subsequently, in Radio Corporation Pty. Ltd. v. The Commonwealth, Latham C.J. (with whom Rich, Starke and McTiernan JJ. agreed) said ((17) (1938) 59 CLR 170, at pp 179-180):

"After Osborne v. The Commonwealth, it is difficult to contend that an Act relating to taxation is invalid because it is designed for the purpose of carrying out a policy of the Commonwealth Parliament which affects matters which are themselves not directly within the legislative power of the Parliament."

18. Fairfax v. Federal Commissioner of Taxation likewise demonstrated that, in the characterization of a law with respect to taxation, the legislative purpose has limited relevance. That case concerned the validity of statutory provisions which denied to trustees of superannuation trusts the general exemption from liability to income tax on the investment income of the trust, unless the investments of the trust contained a specified proportion of Commonwealth and other public securities. Kitto J. said ((18) (1965) 114 CLR , at p 13. This passage was approved in The Second Fringe Benefits Tax Case (1987) 163 CLR , at p 354.):

"The legislative policy is obvious and may be freely acknowledged: it is to provide trustees of superannuation funds with strong inducement to invest sufficiently in Commonwealth and other public securities. The raising of revenue may be of secondary concern. But the enactment does not prescribe or forbid conduct. Its character is neither fully nor fairly described by saying that it makes trustees of superannuation funds liable to pay for failing to do what the legislature wishes. To adapt the language of Higgins J. in R. v. Barger ((19) (1908) 6 CLR 41, at p 119), the substance of the enactment is the obligation which it imposes, and the only obligation imposed is to pay income tax. In substance as in form, therefore, the section is a law with respect to taxation."

19. The plaintiff seeks to derive some support from Moore v. The Commonwealth. In that case there was a challenge to the validity of the Wool Sales Deduction (Administration) Act 1950 (Cth), the Wool Sales Deduction Act (No.1) 1950 (Cth) ("the No.1 Act") and the Wool Sales Deduction Act (No.2) 1950 (Cth) ("the No.2 Act"). Together the No.1 Act and the No.2 Act imposed an obligation on wool producers and brokers to pay to the Commissioner of Taxation one-fifth of the sale value or the appraised value of wool held by the brokers for disposition. When payment was made, a deduction certificate was issued to the producer. Section 10 of the Wool Sales Deduction (Administration) Act required the Commissioner to credit the amount of the certificates issued to a producer in a year against the producer's liability to income tax for that year. Dixon, Webb, Fullagar and Kitto JJ. held that the three Acts were laws dealing with taxation and thus were laws with respect to taxation within s.51(ii) of the Constitution, but none of them was a law imposing taxation. That was because, as Fullagar J. pointed out, the exactions were "by way of payment in advance on account of future liability to pay income tax" ((20) (1951) 82 CLR , at p 576; see also per Dixon J. at pp 568-569; Webb J. at pp 573-574; Kitto J. at pp 580-582.). The deductions to be made from the proceeds of the sale of wool and from the appraisal of wool were to be applied in satisfaction of a liability, if any, to income tax arising under the annual income tax Acts; otherwise, the deductions were to be refunded. In that context, the majority of the Court was readily able to conclude that neither the No.1 Act nor the No.2 Act imposed taxation but both were directed to the collection of tax imposed by the annual income tax Acts. In that respect, Dixon J. observed that "the legislation is framed with an evident intention that the liability should not be a tax" ((21) ibid., at p 568. In reaching this conclusion, his Honour seems to have been influenced by the short and long titles of the Acts which contain no reference to the imposition of tax. His Honour drew attention to the situation that the legislation had been framed upon analogy to an assessment Act and Acts dealing specifically with liability upon analogy to taxing Acts. But his Honour went on to say that this was because it was feared "that it would be argued that in spite of the avoidance of the terminology of taxation there was an imposition of a tax or taxes": ibid., at p 569.).

20. Here, the situation is very different. Apart from the liability imposed by the Act to pay the charge, there is no liability to pay tax otherwise arising. Consequently, it is not possible to treat the provisions relating to the imposition of the liability to pay the charge as provisions which are related to a tax otherwise imposed. The imposition of the liability to pay the charge must be characterized in its own right.

21. The characterization of the charge is complicated by the circumstance that the legislature has not stated whether the charge is a tax or a penalty when it could easily have done so. But, in the ultimate analysis, the considerations pointing to a tax rather than a penalty are decisive. Neither the Act nor the Administration Act mandates or proscribes conduct of any kind. The legislative provisions do not make it an offence to fail to spend the minimum training requirement; nor do they provide for the recovery of civil penalties for such a failure. Consequently, the charge is not a penalty because the liability to pay does not arise from any failure to discharge antecedent obligations on the part of the person on whom the exaction falls ((22) MacCormick v. Federal Commissioner of Taxation (1984) 158 CLR 622, per Gibbs C.J., Wilson, Deane and Dawson JJ. at p 639.). The fact that the legislature has singled out those who do not spend the minimum training requirement as the class to bear the burden of the charge and to quantify the amount of the liability by reference to the shortfall does not deprive the charge of the character of a tax.

22. The law "'fairly answers the description of a law "with respect to" one given subject-matter appearing in s.51' regardless of whether it is, at the same time, more obviously or equally a law with respect to some other subject-matter" ((23) Re F; Ex parte F (1986) 161 CLR 376, per Mason and Deane JJ. at pp 387-388, citing with approval Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. (1982) 150 CLR 169, per Stephen J. at p 194.). Accordingly, the conclusion that the Act and the Administration Act are laws with respect to taxation is unaffected by the omission of the purpose of raising revenue from the statement of legislative objects.

Non-compliance with s.81
23. The plaintiff's principal argument is that the imposition of the liability to pay the charge should not be characterized as the imposition of a tax because to do so would bring about a result contrary to the mandate in s.81 of the Constitution that "(a)ll revenues or moneys raised or received by the Executive Government of the Commonwealth" be paid into the Consolidated Revenue Fund. This argument is based on the requirement in s.33(a) of the Administration Act that amounts paid to the Commonwealth under the Administration Act (other than amounts paid in satisfaction or partial satisfaction of penalties imposed by courts) be paid into the account established by s.32(1) called the Training Guarantee Fund. The Court should be slow, it was said, to impute to the Parliament an intention not to comply with s.81 by characterizing the liability to pay the charge as a tax.

24. The plaintiff's argument on this point consists of two propositions: (1) that the Training Guarantee Fund ("the Fund") is something different and apart from the Consolidated Revenue Fund; and (2) that, contrary to s.81, s.33 directs that moneys paid to the Commonwealth are to be paid directly into the Trust Fund, rather than directly into the Consolidated Revenue Fund and then, by way of appropriation effected by s.33, into the Fund. In our view, the first proposition is correct, but the second is not.

25. Section 81 of the Constitution must be read with s.83 which relevantly provides ((24) cf. United States Constitution, Art.1, s.9(7): "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law".):

"No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law."

That section expresses the principle that parliamentary authority is required for the expenditure of any moneys by the Crown. The reference to "the Treasury of the Commonwealth" extends to any fund or sum of money standing to the credit of the Crown in right of the Commonwealth.

26. The Audit Act comprehensively regulates the manner in which the funds or sums of money standing to the credit of the Commonwealth are dealt with and in which those dealings are recorded for accounting purposes. The Audit Act requires that the public moneys of the Commonwealth ((25) See the definition of "public moneys" in s.2(1)) should be held in the bank accounts opened and maintained by the Minister for Finance in accordance with agreements made by him or her with any bank or banks pursuant to s.20 ((26) See s.20(3)). The Minister is authorized to open and maintain bank accounts bearing the designation "Commonwealth Public Account" ((27) s.21(1)(a)) and these together constitute the Commonwealth Public Account for the purposes of the Audit Act ((28) s.21(3)). The Minister is also authorized to open and maintain bank accounts other than those constituting the Commonwealth Public Account, each bearing a designation that describes the purpose or purposes of the account ((29) s.21(1)(b)).

27. The Minister is required to pay daily into the Commonwealth Public Account all public moneys received by him or her ((30) s.23). Officers who collect or receive public moneys are required by s.22 to pay such moneys to the Minister; into the Commonwealth Public Account; to such person as the Minister directs; or to the credit of another account with a bank as directed by the Minister.

28. For accounting purposes, in addition to the Consolidated Revenue Fund, the Audit Act provides for the keeping of separate accounts called "the Loan Fund" ((31) s.55) and "the Trust Fund" ((32) s.60) within the Commonwealth Public Account. However, the Audit Act appears to contemplate that moneys standing to the credit of the Consolidated Revenue Fund may be held in bank accounts other than those constituting the Commonwealth Public Account ((33) See s.22(d) which would appear to authorize a direction by the Minister for payment into a bank account opened and maintained under s.21(1)(b).).

29. There are no fiscally separate moneys which can be identified as constituting each of the three accounts, the Consolidated Revenue Fund, the Loan Fund and the Trust Fund. At least in the case of the Loan Fund and the Trust Fund, the moneys are all kept within the bank accounts constituting the Commonwealth Public Account but they are regarded as separate for accounting purposes ((34) Australia, Parliament, Joint Committee of Public Accounts, Thirty-Fourth Report, The Trust Fund, 4 December 1957, par.16.).

30. In accordance with this scheme, s.60 of the Audit Act requires that a separate account be kept of all moneys which may be placed to the credit of the Trust Fund under such separate heads as may be directed by the Minister. Section 62A provides for the establishment of Trust Accounts, all moneys standing to the credit of which are deemed to be moneys standing to the credit of the Trust Fund ((35) s.62A(3)). Section 62A(5) provides:

"The following moneys may be paid to the credit of the Trust Account to which they relate: (a) All moneys appropriated by law for the purposes of any Trust Account;

(b) All moneys received from the sale to any person or Department of any articles purchased or produced, or for work paid for, with moneys standing to the credit of a Trust Account; and

(c) All moneys paid by any person for the purpose of any Trust Account."

Section 62A(6) provides that "(m)oneys standing to the credit of a Trust Account may be expended for the purposes of the account".

31. We were informed by counsel for the Commonwealth that, when a payment of the charge is received on behalf of the Commissioner, the amount is deposited into one of many bank accounts established by the Minister under s.21(1)(b) which do not form part of the Commonwealth Public Account. Ordinarily, before the end of the next business day, a cheque is drawn on that bank account for the amount of the payment or for an amount that includes the payment. The cheque is drawn in favour of the Commonwealth Public Account and sent to the Reserve Bank and there credited to one of the bank accounts that constitute the Commonwealth Public Account. Ordinarily, before the end of the next business day, the Commissioner informs the Department of Finance about the nature of the amounts included in the cheque. The Department of Finance makes an entry in the computerized Commonwealth Central Ledger, crediting the amount under the primary classification "Trust Fund" ((36) The other primary classifications are "Consolidated Revenue Fund" and "Loan Fund".) and subclassification "Training Guarantee Trust Account". The moneys remain in the Commonwealth Public Account bank accounts until drawn from them for the purposes of Commonwealth expenditure. The "Training Guarantee Trust Account" entries in the Central Ledger, like the entries under other classifications and subclassifications in the Central Ledger, are a record of moneys credited and debited to the bank accounts constituting the Commonwealth Public Account. But there is never an entry in the Central Ledger under the primary classification "Consolidated Revenue Fund" in respect of payments of the charge.

The historical antecedents of s.81
32. From the Revolution of 1688 until 1787, it was the practice in Great Britain for specific taxes to be assigned to specific items of expenditure. In time, the results became chaotic. Thus, the Statute 27 Geo. III c.13 recited in its preamble:

"(T)he present Mode of charging and computing the several Duties of Customs and Excise, and other Duties under the Management of the Commissioners of Excise in England and Scotland respectively, is in many Instances intricate and complicated, and productive of much Embarrassment to the Persons who are to pay the same, as well as of great Perplexity in the Accounts of the Publick Revenue".

That Act, as well as consolidating the many Acts providing for "the several Duties of Customs and Excise", established the Consolidated Fund ((37) s.47) "comprehending all the different Branches of the Revenue" ((38) Preamble) into which was to flow "every Stream of the Public Revenue, and from whence shall issue the Supply for every Public Service" ((39) Great Britain, The Thirteenth Report of the Commissioners appointed to Examine, Take, and State the Public Accounts of the Kingdom, March 1785, p 60.). Thus, "(t)he produce of particular taxes was no longer appropriated to particular heads of expense" ((40) Anson and Berriedale Keith, The Law and Custom of the Constitution, 4th ed. (1935), vol.2, p 179.). The constitutions of the self-governing Australian colonies adopted this approach ((41) New South Wales: New South Wales Constitution Act 1855 (N.S.W.) (17 Vict No.41) (Sched.1 of 18 and 19 Vict c.54 (Imp )), s.47; Queensland: Constitution Act 1867 (Qld) (31 Vict No.38), s.34; Tasmania: Consolidated Revenue Fund Act 1873 (Tas.) (37 Vict No.8); Victoria: Constitution Act 1855 (Vict ) (Sched.1 of 18 and 19 Vict c.55 (Imp.)), s.44; Western Australia: Constitution Act 1899 (W.A.) (52 Vict No. 23), s.64.). And Professor Harrison Moore was able to write ((42) The Constitution of the Commonwealth of Australia, 2nd ed. (1910), p 522.):

"The Constitution (in ss.81 and 83) thus adopts the results of English and Colonial experience. A Consolidated Fund has long commended itself in preference to the assignment of specific taxes to specific charges."

This aspect of s.81 does not appear to have been the subject of specific consideration at the Convention Debates ((43) Corresponding text appeared in the first draft Bill produced at the Sydney Convention in 1891 (Ch 4, s.1). The differences in the text as enacted are minor: see Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901), p 811.).

Legislative history
33. That s.33(a) effected a standing appropriation of the Consolidated Revenue Fund was certainly the view of the Minister as expressed in his second reading speech on the Administration Bill. He said ((44) Australia, House of Representatives, Parliamentary Debates (Hansard), 10 May 1990, at p 296.):

"Revenue collected under the training guarantee will be placed in a special trust account under a standing appropriation from the Consolidated Revenue Fund."

The Explanatory Memorandum ((45) Australia, House of Representatives, Training Guarantee (Administration) Bill 1990, Training Guarantee Bill 1990, Explanatory Memorandum, pp 57-58.) is less clear, even to the point of confusing the matter:

"Clause 32 : Establishment of Fund

By subclause (1) of this clause, the Training Guarantee Fund is established.

By subclause (2), the Training Guarantee Fund is to be a trust account for the purposes of section 62A of the Audit Act 1901. This means that moneys standing to the credit of the Training Guarantee Fund will be deemed to be moneys standing to the credit of the Trust Fund. The Trust Fund is one of the three separate funds that make up the Commonwealth Public Account. The other two funds are the Consolidated Revenue Fund and the Loan Fund. Clause 33 : Payments into Fund

This clause identifies the amounts that shall be paid into the Training Guarantee Fund. Because the first payments by employers are not expected to be received for 15 months after the commencement of the scheme and the costs of administering the scheme are to be reimbursed from the Fund ... it will be necessary initially for an appropriation to be made from Consolidated Revenue. The following payments are to be made into the Fund:

. amounts paid to the Commonwealth in respect of training guarantee charge and additional training guarantee charge payable under clause 75 or Part 9; and

. amounts paid to the Commonwealth for the purposes of the Fund, e.g. voluntary payments and donations; and

. money appropriated by law for the purposes of the Fund i.e., from the Consolidated Revenue Fund; and

. interest from the investment of money in the Fund. Amounts paid in satisfaction or partial satisfaction of penalties imposed by courts will be paid into the Consolidated Revenue Fund and not into the Training Guarantee Fund."

The Explanatory Memorandum is not inconsistent with an intention that "amounts paid to the Commonwealth in respect of training guarantee charge" be paid into the Consolidated Revenue Fund and then appropriated to the Fund. But there are some slight indications that this was not intended. In particular, the Memorandum states that amounts paid in satisfaction of penalties imposed by courts "will be paid into the Consolidated Revenue Fund and not into the Training Guarantee Fund". By way of contrast, the Memorandum omits to state that amounts of charge when received will be paid into or credited to the Consolidated Revenue Fund. But it would be wrong to draw much from the sketchy outline contained in the Memorandum. There is certainly not enough there to contradict the statement made in the second reading speech.

34. In the result, three factors require the conclusion that the language of s.33(a) in fact was intended to effect an appropriation from the Consolidated Revenue Fund to the Trust Fund. First, it is not lightly to be presumed that the Parliament intended a contravention of s.81. Secondly, there is the clear expression of the intention of the Minister in the second reading speech. And, thirdly, s.33(a) of the Administration Act should not, in the absence of some compelling reason, be interpreted in such a way as to depart from (and to that extent impliedly to repeal) the provisions of the Audit Act authorizing the crediting of moneys to a Trust Account. As the Audit Act is intended to regulate comprehensively the handling of Commonwealth public moneys, clear words would be required to effect a variation of the authorized means of dealing with public moneys. Since on no view do the payments referred to in s.33(a) fall within par.(b) or par.(c) of s.62A(5) of the Audit Act, s.33(a) should be interpreted as effecting a standing appropriation from the Consolidated Revenue Fund to the Trust Fund and thus as complying with s.62A(5)(a). It may be that the procedures referred to by counsel for the Commonwealth which take place when the charge is collected do not correspond to what is required by s.81 of the Constitution. That is a matter for the Department of Finance and the Auditor-General. It does not reflect on the validity of s.33(a).

35. Of course, s.33(a) does not in terms provide authority for the expenditure of moneys standing to the credit of the Trust Fund. One must look elsewhere for the "appropriation made by law" which s.83 of the Constitution requires. That authority is to be found in s.34(1) of the Administration Act and, if need be, s.62A(6) of the Audit Act. Are the requirements of s.54 complied with?

36. Section 54 of the Constitution provides:

"The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation."

The question then is whether the appropriation so made is an appropriation for the ordinary annual services of the Government. According to the traditional view, a failure to comply with the dictates of a procedural provision, such as s.54, dealing with a "bill" or a "proposed law" is not contemporaneously justiciable and does not give rise to invalidity of the resulting Act when it has been passed by the two Houses of the Parliament and has received the royal assent ((46) Quick and Garran, op cit., p 674; Osborne v. The Commonwealth (1911) 12 CLR , at pp 336, 351-352, 355-356, and cf. at p 373; Air Caledonie International (1988) 165 CLR , at pp 468, 471.). Sections 53 to 55 inclusive have their origin in the resolution of the House of Commons of 3 July 1678 ((47) Journals of the House of Commons, vol.9 (3 July 1678), p 509. See also Journals of the House of Commons, (5 July 1860), p 360; House of Commons Parliamentary Debates (Hansard), 5 July 1860, col.1383; Journals of the House of Commons, (1910), p 95. See generally Erskine May, Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 21st ed. (1989), p 743.):

"That all Aids and Supplies, and Aids to his Majesty in Parliament, are the sole Gift of the Commons: And all Bills for the Granting of any such Aids and Supplies ought to begin with the Commons: And that it is the undoubted and sole Right of the Commons, to direct, limit, and appoint, in such Bills, the Ends, Purposes, Considerations, Conditions, Limitations, and Qualifications of such Grants; which ought not to be changed, or altered by the House of Lords"

and the resolution of the House of Lords of 9 December 1702 in response to House of Commons' abuse of this privilege by tacking ((48) Journals of the House of Lords, vol.17, (9 December 1702), p 185.):

"That the annexing of any Clause or Clauses to a Bill of Aid or Supply, the Matter of which is foreign to, and different from, the Matter of the said Bill of Aid or Supply, is Unparliamentary, and tends to the Destruction of the Constitution of this Government."

But even if the failure to comply with s.54 were a ground of invalidity, it is clear that the appropriation is a standing appropriation and that, therefore, the Administration Act does not appropriate money for the ordinary annual services of the Government. So much is established by Brown v. West ((49) (1990) 169 CLR 195, at pp 206-208). Accordingly, the argument based on s.54 of the Constitution must fail. Conclusion

37. The demurrer must be allowed and the action dismissed.

BRENNAN J. I am in general agreement with the reasons for judgment of the majority but I would state my own reasons for concluding that s.33 of the Training Guarantee (Administration) Act 1990 (Cth) ("the Administration Act") complies with s.81 of the Constitution.

2. Historically, public revenue has been vested in the Crown ((50) Halsbury's Laws of England, 4th ed., vol.8, par.1364.), but the raising ((51) Petition of Right (1627), s.8; Bill of Rights (1688), s.1; Maitland, The Constitutional History of England, (1908), pp 307-309; Attorney-General v. Wilts United Dairies (1922) 91 LJKB 897, at p 900.) and expenditure ((52) Auckland Harbour Board v. The King (1924) AC 318, at pp 326-327; Maitland, op cit., pp 309-310.) of public revenue have long been under the control of Parliament. In England, Parliamentary control of the raising and expenditure of public revenue became a constitutional principle. The keeping of public revenue after its receipt and the keeping and auditing of public accounts are distinct but related topics which the Parliament of the United Kingdom addressed in 1787. Prior to 1787 -

"it had been the practice to assign specific taxes to specific charges, with the result that the public accounts became extremely complicated. ... In 1787 was established the Consolidated Fund into which was 'to flow every stream of the public revenue and from whence to issue the supply for every public service'. ((53) Great Britain, Thirteenth

Report of the Commissioners appointed to Examine, Take, and State the Public Accounts of the Kingdom, March 1785, p 60.) The produce of particular

taxes was no longer appropriated to particular heads of expense." ((54) Anson and Berriedale Keith, The Law and Custom

of the Constitution, 4th ed. (1935), vol.2, p 179.) This reform was effected by statute ((55) (1787) 27 Geo.III c.13, ss.47 and 48) which directed that revenue of the several categories therein mentioned should "be carried to, and constitute a Fund, to be called The Consolidated Fund". Subsequently, the Consolidated Fund Act 1816 (U.K.) ((56) 56 Geo.III c.98, s.1. When Ireland became independent the necessary changes were made.) directed that all "Rates, Duties, Taxes, Receipts, Sums of Money and Revenues" should "be carried to, and ... be and become, and ... form and constitute One General Fund, ... called the Consolidated Fund of the United Kingdom of Great Britain and Ireland". The moneys which form the Consolidated Fund of the United Kingdom are paid into an account with the Bank of England called the "Account of Her Majesty's Exchequer" ((57) Halsbury, op cit., par.1369). When the Constitutions of the several Australian Colonies were enacted, consolidated funds under Parliamentary control were established but the respective statutes ((58) New South Wales: New South Wales Constitution Act 1855 (N.S.W.) (17 Vict No.41) (Sched.1 of 18 and 19 Vict c.54 (Imp.)), s.47; Victoria: Constitution Act 1855 (Vict ) (Sched.1 of 18 and 19 Vict c.55 (Imp.)), s.44; Queensland: Constitution Act 1867 (Q.) (31 Vict No.38), s.34; Tasmania: Consolidated Revenue Fund Act 1873 (Tas.) (37 Vict No.8), s.2; Western Australia: Constitution Act 1899 (W.A.) (52 Vict No.23)), s.64.) omitted any direction that the public moneys of the colony should "be carried to" the Fund. Nor does such a direction appear in s.81 of the Constitution.

3. Section 81 does not purport to deal with the manner in which the moneys forming the Consolidated Revenue Fund ("the CRF") shall be kept nor does it purport to deal with the keeping and auditing of the public accounts. These topics are left, subject to ss.83 and 97, for the Parliament to regulate. They are regulated by the Audit Act 1901 (Cth). But the Audit Act "cannot control the construction of the Constitution" ((59) per Griffith C.J. in The State of New South Wales v. The Commonwealth (1908) 7 CLR 179, at p 190.). What s.81 is concerned to do is to identify the moneys which form the CRF and to prevent their application otherwise than in accordance with an appropriation by the Parliament for the purposes of the Commonwealth. Following the English precedents, s.81 prescribes the sources of the CRF in the widest terms: "All revenues or moneys raised or received by the Executive Government of the Commonwealth". Although a reference to "moneys" had been deleted from the draft of the Constitution with a view to excluding loan moneys from the CRF ((60) Official Record of the Debates of the Australasian Federal Convention, Adelaide, (1897), pp 834-835, and Melbourne, (1898), p 900.), the word was reinserted in the drafting of the final Bill ((61) Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901), p 811.). As it stands, s.81 appears to stamp the character of the CRF on all Commonwealth revenue raised and all moneys received by the Executive Government, irrespective of source ((62) This was the view of Mr Owen Dixon, K.C. (as he then was) in his evidence given to the Royal Commission on the Constitution, Minutes of Evidence, pp 779-780 (cited in Enid Campbell, "Parliamentary Appropriations", (1971) 4 Adelaide Law Review 145, at p 149).). It is not necessary to determine the categories of moneys which form the CRF; it is sufficient to note that, so soon as the proceeds of a tax are "received by the Executive Government", they are, by force of s.81, part of the CRF. They cannot be disbursed unless appropriated.

4. An appropriation is not a withdrawal of money from the CRF: it is "in form, a grant to the Sovereign, and the Appropriation Acts operate as an authority to the Treasurer to make the specified disbursements" ((63) The State of New South Wales v. The Commonwealth (1908) 7 CLR , at p 190.). The actual withdrawal of money from the CRF requires a prior valid appropriation. Apart from those particular provisions of the Constitution that impose on the Commonwealth pecuniary liabilities which amount or may amount to appropriations pro tanto of the CRF (ss.3, 48, 66, 72(iii), 84, 85(iii), (iv), 87, 89, 93, 94 and 105) ((64) per Barwick C.J. in Victoria v. The Commonwealth and Hayden (1975) 134 CLR 338, at p 353; Brown v. West (1990) 169 CLR 195, at p 205.), an appropriation of the CRF must be made by the Parliament on the initiative of the Executive Government (s.56) and by a law originating in the House of Representatives: s.53. Once a law appropriates moneys for the purposes of the Commonwealth, s.83 authorizes the actual withdrawal of moneys within the limits of the appropriation "from the Treasury of the Commonwealth". The "Treasury of the Commonwealth" in s.83 is, clearly enough, the repository of the CRF: it is a term which embraces every bank, office, institution or place in which any part of the CRF is or may be kept. Section 83 forbids any person having possession, custody or control of any moneys which form part of the CRF from disbursing them without the warrant of an appropriation so that they are no longer in the proper possession, custody and control of the Commonwealth. Sections 81 and 83 (subject to any appropriation effected by the Constitution itself) thus give effect to the constitutional principle "that no money can be taken out of the consolidated Fund into which the revenues of the State have been paid, excepting under a distinct authorization from Parliament itself" ((65) Auckland Harbour Board v. The King (1924) AC , at p 326, cited in Brown v. West (1990) 169 CLR , at p 205.).

5. The critical question is whether ss.33 and 34 of the Administration Act validly appropriate the moneys falling within pars (a) and (b) of s.33, that is to say -

"(a) amounts paid to the Commonwealth under this Act (other than amounts paid in satisfaction or partial satisfaction of penalties imposed by courts); and

(b) amounts paid to the Commonwealth for the purposes of the Fund".

Appropriations are of two kinds - standing (or special) and annual ((66) Brown v. West (1990) 169 CLR , at pp 205-206; Quick and Garran, op cit., p 814.). An appropriation of either kind must specify the purpose for which it is made ((67) Brown v. West (1990) 169 CLR , at p 208) for it must be made for a purpose of the Commonwealth, however general the purposes of the Commonwealth may be ((68) As to which, see Victoria v. The Commonwealth and Hayden). It is of the nature of an appropriation that it appropriates either a sum certain or a sum calculable by reference to specified criteria. There can be no appropriation in gross, authorizing the withdrawal of whatever sum the Executive Government may decide in the exercise of an unfettered discretion. That is not to say that a discretionary judgment may not have a part to play in fixing the amount of the sum appropriated, but the amount must be referable to a criterion other than mere discretion. Thus, it is no objection to validity that the amount appropriated is quantified by reference to the revenue derived from a particular source ((69) As Madden C.J. held in Fisher v. The Queen, Bull v. The Queen (1901) 26 VLR 781, at p 800, declining to follow the dictum of Stawell C.J. in Alcock v. Fergie (1867) 4 WW and a'B.(L) 285, at p 318.). There is no legislative formula which must be followed in order to make a valid appropriation. If a law grants to the Executive Government a right to withdraw a sum of money from the CRF and to apply that money to the purpose of the Commonwealth stated in that law, it is in form an appropriation.

6. It was not submitted in this case that the purposes to which the Training Guarantee Fund may be put are not "purposes of the Commonwealth". Here, s.33(a) and (b) specify the amounts to be paid into the Training Guarantee Fund, but s.33 is not in terms an appropriation: it merely directs the payment into the Training Guarantee Fund of the several amounts therein specified. Section 32(2) declares the Training Guarantee Fund to be "a trust account for the purposes of section 62A of the Audit Act 1901". The moneys standing to the credit of such a trust account are deemed by s.62A(3) of the Audit Act "to be moneys standing to the credit of the Trust Fund" established by Pt IX of the Audit Act. The Audit Act establishes the Commonwealth Public Account (s.21), the Loan Fund (Pt VIII) and the Trust Fund, describing each of the Loan Fund and the Trust Fund as a "separate account" (ss.55, 60). The moneys standing to the credit of those "accounts" are "revenues or moneys raised or received by the Executive Government of the Commonwealth" within the meaning of that phrase in s.81 of the Constitution. Although the use of the term "Fund" may suggest that the moneys standing to the credit of the Loan Fund and the Trust Fund are not part of the CRF ((70) For example, s.50AB of the Audit Act calls for the preparation of a financial statement for each Fund.), I would hold that, for the purposes of s.81 of the Constitution, the Commonwealth Public Account, the Loan Fund and the Trust Fund "form one Consolidated Revenue Fund" until the moneys standing to the credit of those respective accounts are disbursed pursuant to an appropriation. It follows that s.33 of the Administration Act merely prescribes the amount of the moneys which are to be credited to the Training Guarantee Fund. Section 34(1)(a) prescribes the amounts which are to be debited against the Training Guarantee Fund. The amounts prescribed by s.34(1)(a), being costs incurred by the Commonwealth, ascertained on the basis which the Minister for Finance considers appropriate under s.34(2), do not leave "the Treasury of the Commonwealth". Presumably, on being debited to the Training Guarantee Fund, they are credited to the Commonwealth Public Account and form part of the mass standing to the credit of that account.

7. The only amounts which are authorized to be disbursed from the CRF are the amounts mentioned in s.34(1)(b) and (c), being the balance left after deducting the amounts prescribed by s.34(1)(a) from the amounts credited to the Training Guarantee Fund pursuant to s.33. The disbursement of this balance for the purposes stated in the Administration Act is authorized by that Act and, being so authorized, a withdrawal of that balance, in part or in whole, is made "under appropriation made by law". It is a question of interest but not of practical difficulty in this case whether the appropriation of moneys standing to the credit of a trust account established under s.62A of the Audit Act is effected by the Act which directs that the moneys be credited to the particular trust account for expenditure on the purposes of that account or is effected by s.62A(6) of the Audit Act which expressly authorizes the expenditure of moneys standing to the credit of a trust account for the purposes of that account. In my opinion, the former is the preferable view, though it may leave s.62A(6) with little or no work to do. It is difficult to envisage a case where s.62A(6) would authorize expenditure from the Trust Fund for a purpose that had not already been statutorily approved.

8. In The State of New South Wales v. The Commonwealth ((71) (1908) 7 CLR 179), where the surplus revenue of the Commonwealth under s.94 of the Constitution was ascertained by reference to "the balance" calculated under s.89, the Court considered the character of the moneys appropriated for the purpose of a trust fund. Griffith C.J. held that once Parliament authorizes the withdrawal of a sum of money from the CRF for the purposes of a trust fund, the Appropriation Act "operate(s) as a provisional setting apart or diversion from the Consolidated Revenue Fund of the sum appropriated by the Act" ((72) ibid., at pp 190-191. It is the appropriation for the execution of the purposes prescribed by Parliament, not payment to the credit of a trust fund, that makes a difference: per Isaacs J., at p 202, but cf. his Honour's description at p 201 of a trust account as "a branch of a separate fund".). As Griffith C.J. went on to point out ((73) ibid., at p 191):

"So far, therefore, as regards the ascertainment of a surplus for any given period, all moneys the expenditure of which during that period is authorized must be taken into account in making up the provisional balances."

That is because "expenditure" in s.89(ii) of the Constitution includes not only money appropriated and withdrawn from the Treasury but money which, having been appropriated, may lawfully be withdrawn from the Treasury ((74) "authorized as well as actual disbursements": ibid., per Griffith C.J. at p 191; see also pp 194, 202, 205.) by officers charged with the duty of disbursing public moneys pursuant to the Audit Act. In the present case, the amounts mentioned in s.34(1)(b) and (c) are appropriated and may be withdrawn. On withdrawal, of course, they cease to be part of the CRF but those sums, together with the amount mentioned in s.34(1)(a), are items of "expenditure" for the purposes of s.89(ii) of the Constitution from the time when they are credited to the Training Guarantee Trust Fund.

9. I would hold, for the reasons given by the majority, that the training guarantee charge imposed by the Training Guarantee Act 1990 (Cth) is a tax. I would also hold that the moneys paid to the Commissioner under s.76 of the Administration Act, being "revenues or moneys raised or received by the Executive Government", form part of the CRF from the moment when they are received and that those moneys, though they are immediately credited to the Training Guarantee Fund, remain part of the CRF until they are disbursed. The disbursement of moneys pursuant to s.34(1)(b) is authorized by an appropriation of the CRF effected by the combined operation of ss.33 and 34. That appropriation and any consequential disbursement are within ss.81 and 83 of the Constitution.

10. As to the plaintiff's objection that the terms of the Administration Act reveal a failure to comply with s.54 of the Constitution, I would add but one observation to what the majority has written. Section 54 relates to the passage of a Bill, not to the validity or effect of the Act when passed and assented to.

11. I agree with the orders their Honours propose.

DAWSON J. The plaintiff claims that the Training Guarantee Act 1990 (Cth) ("the Taxing Act") and the Training Guarantee (Administration) Act 1990 (Cth) ("the Assessment Act") have no valid operation. The Commonwealth, as defendant, challenges this claim by way of demurrer.

2. The two Acts adopt the traditional procedure to comply with the requirement of s.55 of the Constitution that laws imposing taxation shall deal only with the imposition of taxation. The Taxing Act imposes a charge which the Commonwealth seeks to support under s.51(ii) of the Constitution as a tax. A charge, called in the Assessment Act "the training guarantee charge", is imposed upon "any training guarantee shortfall of an employer in a year": s.5. The charge is not really a charge upon the shortfall at all, the amount of the charge being the amount of the shortfall: s.6. Thus, if the charge is a tax, the Taxing Act does no more than impose the tax and fix the rate. However, without more, the Taxing Act is incomprehensible and, in order to learn the true nature of the charge, it is necessary to go to the Assessment Act which deals with its incidence, assessment and collection. For this reason the Taxing Act provides that the Assessment Act is incorporated and to be read as one with the Taxing Act: s.3.

3. It is only necessary to describe in broad outline the scheme which emerges from the Assessment Act. The principal objects of that Act are said to be to increase and improve the quality of the employment related skills of the Australian workforce so that it works more productively, flexibly and safely, thereby increasing the efficiency and international competitiveness of Australian industry: s.3(1). The objects of the Act are, under s.3(3), to be achieved by "guaranteeing" a minimum level of expenditure by employers on "quality employment related training". A "minimum training requirement", being, subject to a threshhold, a percentage of the employer's payroll in any one year, is to be calculated and the training guarantee charge is the amount by which the net eligible training expenditure of the employer (which is defined in s.24(1)), falls short of this minimum training requirement: ss.14, 15. The shortfall is the training guarantee shortfall and the amount of the shortfall is the amount of the charge imposed upon the employer by the Taxing Act. In effect, then, the training guarantee charge is the amount by which the employer's eligible expenditure on training falls short of a minimum amount calculated in accordance with the Act. The amount of the charge (or shortfall) is a debt due to the Commonwealth, payable to the Commissioner of Taxation: s.76.

4. A Training Guarantee Fund ("the Fund") is established (s.32(1)) and is constituted a trust account for the purposes of s.62A of the Audit Act 1901 (Cth) (s.32(2)). Section 33 of the Assessment Act provides:

"There are to be paid into the Fund: (a) amounts paid to the Commonwealth under this Act (other than amounts paid in satisfaction or partial satisfaction of penalties imposed by courts); and

(b) amounts paid to the Commonwealth for the purposes of the Fund; and

(c) money appropriated by law for the purposes of the Fund; and

(d) interest from the investment of money in the Fund."

5. In defining "net eligible training expenditure" (s.24), the Assessment Act speaks of "eligible training programs", which it also defines (s.27). Under s.35 the Minister administering the Act may enter into agreements, called "training guarantee agreements", with a State or Territory concerning the making of payments out of the Fund to the State or Territory and the expenditure of those payments, or amounts attributable to those payments, in relation to eligible training programs.

6. Section 34(1) provides:

"Subject to this section, money in the Fund may be applied for the purposes of: (a) reimbursing the Commonwealth for: (i) the costs of administering this Act during
any period; and

(ii) costs incurred by the Commonwealth during any period in collecting, compiling, analysing and publishing information about the operation of this Act; and

(b) making payments under training guarantee agreements; and

(c) refunding any overpaid amounts under section 50 or any amounts paid into the Fund in error."

7. The argument put by the plaintiff is that the charge imposed by the Taxing Act is not a tax so that neither that Act nor the Assessment Act falls within the power of the Commonwealth Parliament to make laws with respect to taxation ((75) Constitution, s.51(ii)). The Commonwealth does not seek to rely on any other legislative power and it follows that, if the plaintiff's argument is correct, the legislation is beyond power. The plaintiff also submits that, if the training guarantee charge is a tax, with the consequence that the Taxing Act and the Assessment Act are laws with respect to taxation, then the Assessment Act offends s.81 of the Constitution by requiring the amount of the charge to be paid directly to the Training Guarantee Fund in contravention of the requirement that all moneys or revenues raised or received by the Government of the Commonwealth form one Consolidated Revenue Fund to be appropriated for the purposes of the Commonwealth. The plaintiff further argues that, if the charge is a tax, the Assessment Act contravenes ss.54 and 55 of the Constitution.

8. The training guarantee charge is clearly a compulsory levy by a public authority (i.e. the Commonwealth) imposed for public purposes and enforceable by law. Those are the ordinary characteristics of a tax ((76) See Lower Mainland Dairy Products Sales Adjustment Committee v. Crystal Dairy Ltd. (1933) AC 168, at p 175; Matthews v. Chicory Marketing Board (Vict ) (1938) 60 CLR 263, at p 276.), although there are statutory impositions possessing these characteristics which are not taxes. A penalty is one and a fee for services is another. Obviously the charge is not a penalty since the liability to pay the impost does not arise from any failure to discharge antecedent obligations ((77) See MacCormick v. Federal Commissioner of Taxation (1984) 158 CLR 622, at p 639.). It is with the latter category that the plaintiff seeks to align the charge in this case. It argues that the training guarantee charge, although perhaps not strictly a fee for services, is sufficiently akin to a fee for services to distinguish it from a tax.

9. In Air Caledonie International v. The Commonwealth ((78) (1988) 165 CLR 462) this Court referred to s.53 of the Constitution which says that a proposed law shall not be taken to impose taxation by reason only of its containing provisions for, amongst other things, the payment of fees for services. It observed ((79) ibid., at pp 469-470.):

"In one sense, all taxes exacted by a national government and paid into national revenue can be described as 'fees for services'. They are the fees which the resident or visitor is required to pay as the quid pro quo for the totality of benefits and services which he receives from governmental sources. It is, however, clear that the phrase 'fees for services' in s.53 of the Constitution cannot be read in that general impersonal sense. Read in context, the reference to 'fees for services' in s.53 should, like the reference to 'payment for services rendered' in the ... judgment of Latham C.J. in Matthews v. Chicory Marketing Board ((80) (1938) 60 CLR , at p 276), be read

as referring to a

fee or charge exacted for particular identified services provided or rendered individually to, or at the request or direction of, the particular person required to make the payment."

The principal purpose of the Training Guarantee Fund, into which the amount of the training guarantee charge is paid, is to make payments under training guarantee agreements with the States and Territories. The amounts paid are then to be used by the States and Territories in relation to eligible training programs. The employees of an individual employer upon whom the charge is levied might or might not benefit from a training program financed by a State or Territory. If a training program may be characterized as a service it is not a particular service rendered to a particular employer by reference to the charge levied upon him. A particular employer may derive no more benefit from payments made under training guarantee agreements than is derived by employers or the community in general from having a better trained workforce upon which to draw. The training guarantee charge is not a charge "exacted for particular identified services provided or rendered individually to, at the request or direction of" the employer required to make the payment. It cannot, therefore, be said to be a fee for services or akin to a fee for services in any sense which would prevent it from being a tax.

10. The plaintiff seeks to support its argument by submitting that the imposition of the charge is not for the purpose of raising revenue. The object of the legislation would be achieved, it is said, if every employer to whom it applied were to expend sufficient upon training his employees to ensure that there was no shortfall and, hence, no charge. Such moneys as are raised are to be paid into the Training Guarantee Fund which, so the argument goes, is to be expended upon those forms of training which, had they been initiated at the expense of the employer upon whom the charge is imposed, would have eliminated the charge. Upon the plaintiff's argument the legislation is designed to provide a facility for employers who choose not to provide the facility themselves.

11. But to say that the legislation is not designed to raise money is somewhat elliptical. In so far as it operates to impose the charge, the clear intent of the legislation is to raise revenue and to do so for the purpose of expenditure under training guarantee agreements. The fact that the wider object of the legislation is to encourage employers to pay for training programs themselves and so avoid the charge does not alter the true nature or character of the impost. After all, any protective tariff ultimately aims to eliminate the activity which gives rise to its incidence, yet a protective tariff is clearly a tax. There is more than a hint of Barger's Case ((81) R. v. Barger (1908) 6 CLR 41) in this aspect of the plaintiff's argument, but that case, if it survived Osborne v. The Commonwealth ((82) (1911) 12 CLR 321), was laid to rest in Fairfax v. Federal Commissioner of Taxation ((83) (1965) 114 CLR 1. See also Murphyores Incorporated Pty. Ltd. v. The Commonwealth (1976) 136 CLR 1, at p 23.). In Fairfax the Court rejected ((84) (1965) 114 CLR , at p 11; see also pp 16, 18) the doctrine that "a law which purports to provide for a tax upon behaviour is in substance not a law with respect to taxation if it exhibits on its face a purpose of suppressing or discouraging the behaviour and is to be explained more convincingly as a means to that end than as a means to provide the Government with revenue". The same reasoning applies where the purpose of the law is to encourage rather than discourage behaviour. As Windeyer J. put it ((85) ibid., at p 18):

"The Commonwealth Parliament may use its power to make laws with respect to taxation in order to promote some purpose that it desires to promote. The law is not thereby rendered invalid. The question is only: is it properly described as a law with respect to taxation? ... A law with respect to taxation may do no more than exempt from a tax that would otherwise be exigible persons or transactions that answer certain descriptions or fulfil certain conditions." ((86) See

also Radio Corporation Pty. Ltd. v. The Commonwealth (1938) 59 CLR 170, at pp 179-180.)

12. The further submission which the plaintiff makes to support its argument that the charge is not a tax is that it is arbitrary. That submission is based upon s.18A of the Assessment Act, sub-s.(1) of which provides that the training guarantee charge is not payable by an employer for a year if, under the regulations, the employer is taken to be an eligible outstanding trainer for that year or for a three-year period that includes that year. Under sub-s.(2)(a) of that section regulations may be made empowering the Minister or a person specified in the regulations to make decisions about eligible outstanding trainer status. Clearly it is intended that the regulations should set out the relevant criteria by which eligible outstanding trainer status is to be determined. If that were not clear from sub-s.(1) itself, it appears from sub-s.(2) which goes on to speak of applicants for eligible outstanding trainer status obtaining certificates about compliance with relevant criteria.

13. In MacCormick v. Federal Commissioner of Taxation ((87) (1984) 158 CLR , at p 640) it was pointed out that, for an impost to satisfy the description of a tax, it must be possible to differentiate it from an arbitrary exaction and that this can only be done if there are ascertainable criteria by reference to which the liability to pay the impost is imposed. It is conceivable that, where exemption from liability to pay an impost may be arbitrarily or capriciously granted, the impost itself may be arbitrary in the sense that liability to pay it is as much dependent upon the absence of exemption as upon the satisfaction of those criteria by reference to which the liability to pay is imposed. But that is not this case. Here, s.18A clearly envisages regulations which set out the relevant criteria for determining when an employer is to be taken to be an eligible outstanding trainer and, in those circumstances, that section does not authorize the granting of exemption upon any arbitrary or capricious basis.

14. For these reasons, it is my view that the training guarantee charge imposed by the Taxing Act, being a compulsory levy by a public authority imposed for public purposes and being enforceable by law, is a tax within the meaning of s.51(ii) of the Constitution.

15. The plaintiff contends that the training guarantee charge, if a tax, would result in the contravention of s.81 of the Constitution. As I understand it, the submission is put in order to assist the argument that the charge ought not be characterized as a tax rather than as an independent ground of invalidity. Nevertheless, it is necessary to examine the plaintiff's contention. Section 81 provides:

"All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution."

That section should be read in conjunction with s.83 which provides in part:

"No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law."

16. The plaintiff argues that s.33(a) of the Assessment Act requires the payment of the training guarantee charge directly into the Training Guarantee Fund thereby by-passing the Consolidated Revenue Fund ((88) See also s.33(b)). This, however, is to mistake the effect of ss.32, 33 and 34 of the Assessment Act.

17. The Consolidated Revenue Fund corresponds with the Consolidated Fund in the United Kingdom which was first constituted by statute in 1787 ((89) 27 Geo.III c.13, ss.47, 48). Before then, particular taxes were assigned to particular charges and the result was unnecessarily complicated. The situation was resolved by the constitution of a Consolidated Fund in which all public moneys were blended and became available for appropriation by Parliament.

18. The same purpose is served by the Consolidated Revenue Fund in this country. Its function is basic. It is to ensure that all revenues raised or received (no matter into whose hands or what account they come) form part of the one fund from which they may be appropriated only by law.

19. All public moneys comprise the Commonwealth Public Account ((90) Australia, Parliament, Joint Committee of Public Accounts, Thirty-fourth Report, The Trust Fund, (1957), p 7.). And, by virtue of the Audit Act, public moneys include the Consolidated Revenue Fund, the Loan Fund and the Trust Fund ((91) See Audit Act, s.2(1), definition of "public moneys"; s.55). These funds are treated by the Audit Act as being separate so that moneys forming part of the Trust Fund or the Loan Fund do not form part of the Consolidated Revenue Fund ((92) See fn.(91). See also ss.21A, 25(5), 32, 50, 50AA, 50AB, Pt VIII (Loan Fund), Pt IX (Trust Fund).). Thus the Audit Act provides:

"55(1) A separate account shall be kept of all moneys raised by way of loan upon the public credit of the Commonwealth, other than moneys raised by way of advances made by banks in pursuance of agreements under section 20. (2) The account referred to in sub-section (1) shall be called the Loan Fund and shall be kept under such separate heads as are specified in the several Acts under the authority whereof the moneys were raised. ... 60 A separate account, to be called the Trust Fund, shall be kept of all moneys which shall be placed to the credit of that fund under such separate heads as may be directed by the Minister."

However, while these funds are treated separately for accounting purposes, the moneys comprising them are not kept separately and together they comprise the Commonwealth Public Account.

20. The view that loan moneys do not form part of the Consolidated Revenue Fund, so that loan moneys may form part of the Loan Fund without an appropriation from the Consolidated Revenue Fund, is based partly upon the history of the drafting of s.81 and partly upon a construction of that section in which the word "moneys" is read ejusdem generis with the word "revenues" ((93) See Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901), p 811.). There is no occasion in this case to question that view ((94) But see Report of and Evidence before the Royal Commission on the Constitution of the Commonwealth, (1927-1929), p 779.). But it is necessary to examine in more detail the position of the Trust Fund.

21. As I have said, the Training Guarantee Fund is constituted a trust account for the purposes of s.62A of the Audit Act. By virtue of s.62A(3) of that Act, all moneys standing to the credit of that account are deemed to be moneys standing to the credit of the Trust Fund. Because moneys placed to the credit of the Training Guarantee Fund under s.33(a), and therefore to the credit of the Trust Fund, constitute "revenues or moneys raised or received by the Executive Government of the Commonwealth" for the purposes of s.81 of the Constitution, they must initially form part of the Consolidated Revenue Fund and must therefore, having regard to s.81 of the Constitution, be appropriated to the Trust Fund before they can be regarded as constituting part of that Fund. The fact that the Trust Fund is separate from the Consolidated Revenue Fund is demonstrated by The State of New South Wales v. The Commonwealth ("the Surplus Revenue Case") ((95) (1908) 7 CLR 179) in which it was held that moneys appropriated out of the Consolidated Revenue Fund to the Trust Fund, although not actually disbursed, are "expenditure" within the meaning of s.89 of the Constitution and do not form part of the "surplus revenue" payable under s.94 to the States. Whilst s.33(a) of the Assessment Act does not expressly state that the amounts which are to be paid into the Training Guarantee Fund under that paragraph are to be paid out of the Consolidated Revenue Fund and does not expressly appropriate that fund accordingly ((96) Cf., e.g., Higher Education Funding Act 1988 (Cth), s.60(2)), that must be the effect of that paragraph. The amounts paid to the Commonwealth under the legislation in question must, by virtue of s.81 of the Constitution, form part of the Consolidated Revenue Fund when received and payment into the Training Guarantee Fund can only be from the Consolidated Revenue Fund. That payment is authorized by s.33(a) and, since no particular form of words is required to constitute an appropriation, that paragraph constitutes the necessary permanent appropriation.

22. However, appropriation to the Trust Fund only places money to the credit of that fund (i.e. to the credit of a separate trust account). That appropriation does not itself contain any authority for the expenditure of the money in the sense of payment out of the Treasury ((97) See Attorney-General (Vict ) v. The Commonwealth ("the Pharmaceutical Benefits Case") (1945) 71 CLR 237, at p 249.) of which the Trust Fund forms part. That authority must, under s.83 of the Constitution, be provided by a further appropriation made by law. Under s.62A(1) of the Audit Act the Minister may establish trust accounts within the Trust Fund and define the purposes for which they are established. A permanent appropriation is then to be found in sub-s.(6) of s.62A which provides:

"Moneys standing to the credit of a Trust Account may be expended for the purposes of the account."

23. It may be seen that s.32 of the Assessment Act, rather than the Minister, establishes the Training Guarantee Fund as a trust account under s.62A of the Audit Act. And the purposes to which money credited to that trust account may be applied are stated in s.34(1) of the Assessment Act. The better view would seem to be that payment out of the Training Guarantee Fund for the purposes of that fund is therefore authorized by s.62A(6) of the Audit Act. There is, however, an argument that s.34(1), in addition to defining the purposes of the Training Guarantee Fund, is itself an appropriation of money out of that fund. In either case, there is a permanent appropriation satisfying the requirement of s.83 of the Constitution that no money shall be drawn from the Treasury except under appropriation made by law. Accordingly the Assessment Act breaches neither s.81 nor s.83 of the Constitution.

24. Upon this analysis, it is apparent that the plaintiff must also fail on its further submission that the Assessment Act contravenes s.54 of the Constitution because it appropriates revenue or moneys for the ordinary annual services of the Government at the same time as it deals with other matters. Section 54 provides that a proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation. An appropriation may be special (i.e. standing or permanent) or annual. The plaintiff's submission is based upon the assumption that the Assessment Act appropriates money from the Training Guarantee Fund for the ordinary annual services of the Government. As I have endeavoured to explain, the better view is that the Assessment Act does not appropriate money from the Training Guarantee Fund. Upon that view, the appropriation of money from that fund to reimburse the Commonwealth for the costs of administering the Act during any period - one of the purposes to which money in the Training Guarantee Fund may be applied under s.34(1) - is effected not by any provision of the Assessment Act but by s.62A(6) of the Audit Act. However, whether the appropriation is by s.62A(6) of the Audit Act or by s.34(1) of the Assessment Act, it is, in any event, a standing appropriation and is not an appropriation for the ordinary annual services of the Government. As this Court pointed out in Brown v. West ((98) (1990) 169 CLR 195, at p 207):

"Historically, the need of the Executive Government to seek annual appropriations of the Consolidated Revenue Fund 'for the service of the year' or 'in respect of the year' has been the means, and it remains one of the critical means, by which the Parliament retains an ultimate control over the public purse strings, but the Parliament forgoes its annually-exercised power over expenditure by government when a law containing a standing appropriation is enacted. Standing appropriations need not be included in annual appropriations."

It is therefore unnecessary to deal with the further question of whether, in any event, contravention of s.54 is a ground of invalidity or whether, in referring to a "proposed law", it involves merely a non-justiciable question of order, regulation or procedure as between the two Houses of Parliament inter se or as between Parliament and the Crown ((99) See Quick and Garran, op cit., pp 664, 674; Osborne v. The Commonwealth (1911) 12 CLR , at pp 336, 351-352, 355-356, cf. p 373.).

25. Finally, the plaintiff sought to call in aid s.55 of the Constitution upon the basis that the incorporation of the Assessment Act with the Taxing Act would offend the provisions of s.55 if the training guarantee charge were a tax. That is to say, the plaintiff appears to challenge the generally accepted scheme of incorporating an assessment Act with a taxing Act in order to avoid falling foul of s.55.

26. Section 55, so far as is relevant, provides that laws imposing taxation shall deal only with the imposition of taxation and any provision therein dealing with any other matter shall be of no effect. There has been some difference of opinion whether a law imposing taxation and a law dealing with the imposition of taxation are one and the same thing. In Federal Commissioner of Taxation v. Munro ((100) (1926) 38 CLR 153, at p 186.) Isaacs J. took the view that there was no distinction between the two. That view has, however, now been rejected by the Court ((101) See Re Dymond (1959) 101 CLR 11.). An Act imposing taxation necessarily deals with the imposition of taxation, but an Act may deal with the imposition of taxation although it does not impose taxation. As Fullagar J. explained in Re Dymond ((102) ibid., at p 20.), the expressions "imposing taxation" and "dealing with the imposition of taxation" are not precisely synonymous. He continued ((103) ibid., at pp 20-21.), saying that it is not true:

"that an Act imposing taxation can do no more than say 'An income tax is imposed at the following rates', and then specify the rates. It would not be 'dealing with' anything other than the imposition of taxation if it prescribed the persons who were to pay the tax and the classes of income in respect of which they were to be taxed ... But provisions for administration and machinery, the appointment and powers and duties of a commissioner of taxation, the making of returns and assessments, the determination of questions of law and fact relating to liability, the collection and recovery of tax, the punishment of offences, stand on a different footing. They 'deal with' matters which must be dealt with if the imposition of the tax is to be effective. But they cannot be said to deal with the imposition of taxation, because their subject matter is not comprehended within the meaning of the term 'imposition of taxation'. ... 'Dealing with the imposition of taxation' is a different thing from 'dealing with taxation', and the former expression does not mean or include 'dealing with matters incidental to the imposition of taxation'. I can see no escape from the view that the Assessment Act does deal with matters other than the imposition of taxation."

27. The precise effect of incorporating an assessment Act with a taxing Act appears not to have been the subject of actual decision, but it has generally been accepted that the result is that, if the incorporation means that the taxing Act deals with matters other than the imposition of taxation, then the incorporation is ineffectual by reason of s.55 (save to the extent that the assessment Act deals with the imposition of taxation), leaving the assessment Act otherwise to remain in existence and to operate separately ((104) See Federal Commissioner of Taxation v. Munro (1926) 38 CLR , per Isaacs J. at p 185; Cadbury-Fry-Pascall Pty. Ltd. v. Federal Commissioner of Taxation (1944) 70 CLR 362, per Latham C.J. at p 373; Moore v. The Commonwealth (1951) 82 CLR 547, per Latham C.J. at p 565; State Chamber of Commerce and Industry v. The Commonwealth (The Second Fringe Benefits Tax Case) (1987) 163 CLR 329, at p 341.). This mechanism is a convenient means of avoiding the difficulty which might otherwise arise should the legislature misconceive where the line is to be drawn between a law dealing with the imposition of taxation and a law simply dealing with taxation. No reason of substance is advanced which would suggest that the accepted view is not the correct one and I see no reason to doubt it.

28. I would allow the demurrer and dismiss the action.

McHUGH J. The facts, legislation and issues are set out in the judgment of Dawson J. Except to the extent necessary to explain my reasons, it is unnecessary to repeat them.

2. For the reason given by his Honour, I am of opinion that the charge imposed by the Training Guarantee Act 1990 (Cth) ("the Act") is not a fee for services or a penalty and that the charge is not prevented from being characterised as a tax because the raising of revenue is not a specified object of the legislation. I also agree with his Honour's reasons for holding that the legislation does not constitute a breach of s.55 of the Constitution.

3. The plaintiff also contended that the legislation was not a law with respect to taxation because the legislation failed to specify the criteria for determining the exemption from liability for the training guarantee charge for an employer who is taken to be "an eligible outstanding trainer" ((105) See s.18A of the Training Guarantee (Administration) Act 1990 (Cth) ("the Administration Act").). Relying on MacCormick v. Federal Commissioner of Taxation ((106) (1984) 158 CLR 622, at pp 639-641.), the plaintiff contended that failure to specify the criteria made the charge an arbitrary exaction of money and, therefore, not a tax. However, even if the legislation had failed to specify the criteria for determining who was "an eligible outstanding trainer", it does not follow that the imposition of the charge could not be a tax. This is not a case where the exemption and the imposition are so interdependent that the failure to specify the criteria for determining the exemption necessarily means that the criteria for determining the liability to pay the tax is unascertainable. But in any event s.18A(2) assumes that regulations will be made which will set out ascertainable criteria for determining who is "an eligible outstanding trainer". In those circumstances, there is no ground for holding that the charge is an arbitrary exaction of money rather than a tax.

4. The plaintiff's chief contention, however, was that, if the charge was characterised as a tax, the legislation would be in breach of s.81 of the Constitution. The plaintiff contended that if the legislation imposed a tax "its character would invalidate the Administration Act for contravention of Sections 81" of the Constitution, a contravention which the plaintiff claimed "should not be supposed" unless it followed.

5. Contrary to the submission of the plaintiff, however, characterising the charge as a tax does not result in a breach of s.81 of the Constitution. That section provides:

"All revenues or moneys raised by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution."

6. Section 81 must be read with s.83 of the Constitution which provides:
"No money shall be drawn from the Treasury of the
Commonwealth except under appropriation made by law."

Section 83 gives effect to the established principle that:

"(N)o money can be taken out of the consolidated Fund into which the revenues of the State have been paid, excepting under a distinct authorization from Parliament itself". ((107)

Auckland Harbour Board v. The King (1924) AC 318, at p 326.)

7. The requirements that the revenues and moneys of the Commonwealth are to be paid into the Consolidated Revenue Fund and that no money can be drawn from that fund except with the authority of Parliament are the consequence of the continual demands of the English monarchs for finance to meet their needs and those of the nation. The purpose and meaning of ss.81 and 83 are best understood by reference to those demands and the means by which Parliament resolved them.

8. Despite the substantial revenues which the Crown derived from its land and prerogative rights and privileges, the Norman monarchs and their successors were frequently in need of additional moneys. Taxation and borrowings - which were often pledged against taxation revenues - were the principal means by which these needs were met. By 1297, however, it had become accepted that no direct taxation could be imposed without the summoning and the consent of the assembly which was the predecessor of the modern Parliament. In general, Parliament would consent to the raising of a tax only to meet the present needs of the King ((108) Maitland, The Constitutional History of England, (1908), pp 179-182.). Moreover, Parliament began to insist that the revenue raised by a tax should be spent for the purpose for which the tax had been raised. By the reign of Edward III, Parliament had been able to insist on a number of occasions that moneys granted to the Sovereign from the proceeds of taxation were to be used for specific purposes ((109) See ibid., pp 183-184. Strong monarchs naturally resisted any doctrine of accountability concerning the way in which they spent the money granted to them by Parliament. Henry IV told the commons that "kings do not render accounts": Stubbs, The Constitutional History of England: In Its Origin and Development, 5th ed. (1898), vol.3, p 274. But as Stubbs says (ibid.) "the boast was a vain one", for in the following year Henry laid the accounts "before the commons without being asked for; and the victory so secured was never again formally contested".). Nevertheless, Parliament did not always insist that a grant should be expended on a particular purpose or purposes. As late as 1685, Parliament "took credit with the king for not having appropriated their supplies" ((110) Hallam, The Constitutional History of England, 5th ed. (1846) vol.2, p 281.). It was not until the Revolution of 1688 that the principle was finally established that, apart from exceptional cases, Parliament would grant supply to the Crown only for the purposes specified by Parliament.

9. By the end of the seventeenth century, "the usual practice of the legislature was to appropriate each duty, when imposed, to a specific service" ((111) Anson and Berriedale Keith, The Law and Custom of the Constitution, 4th ed. (1935), vol.2, pp 150-151.). The proceeds of taxes were frequently assigned to the repayment of moneys borrowed by the Crown. Maitland ((112) op cit., p 440.) asserted that "all or most of the old duties had been pledged for the payment of annuities". But the result of the practice that specific taxes should be used for specific services led to "great Perplexity in the Accounts of the Publick Revenue" ((113) Preamble to 27 Geo.III c.13.). The Customs had seventy-four separate accounts, each of which recorded the receipt of revenue from a particular tax and the expenditure of that tax on the service to which it had been appropriated ((114) Anson, op cit., p 179.). In 1787, many Acts imposing taxes were consolidated. "(A)ll that could be called royal revenue was to be brought into one consolidated fund, and out of this the various annuitants were to be paid" ((115) Maitland, op cit., p 441.). A Consolidated Fund was established to which would come "every Stream of the Public Revenue, and from whence shall issue the Supply for every Public Service" ((116) Great Britain, The Thirteenth Report of the Commissioners appointed to Examine, Take, and State the Public Accounts of the Kingdom, March 1785, p 60.). Henceforth, the revenues of the Crown constituted one general pool or fund from which the present and future liabilities of the Crown were to be met. Furthermore, no part of that fund could be appropriated for any purpose without the authority of an Act of the Parliament.

10. The Consolidated Fund of 1787 was the model for the Consolidated Revenue Fund which was established for the Commonwealth by s.81 of the Constitution. The history of the Consolidated Fund of Great Britain shows that the Consolidated Revenue Fund established by s.81 is not the equivalent of a bank account. It is not comparable to the four chests of the Exchequer into and from which the revenues of Great Britain were once received and disbursed. The Consolidated Revenue Fund is an abstraction which is descriptive of the totality of moneys received "by the Executive Government of the Commonwealth" irrespective of where they happen to be held ((117) cf. Browning, House of Representatives Practice, (2nd ed.) (1989), p 409. There is, however, a widely held view that loan moneys do not form part of the Consolidated Revenue Fund. This view is based on the assumption that the word "moneys" in s.81 means "moneys in the nature of revenue": Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901), p 811. It is a view which has not gone unchallenged: see the evidence of Mr Owen Dixon K.C., Report of and Evidence before the Royal Commission of the Constitution of the Commonwealth, (1927-1929), Minutes of Evidence, pp 779-780; Campbell "Parliamentary Appropriations", (1971) 4 Adelaide Law Review 145, p 149.). Once moneys are received by the Executive Government, they become part of the Consolidated Revenue Fund by force of s.81 of the Constitution. Thus, Maitland ((118) op cit., p 441. Cf. Anson, op cit., p 181: "the Consolidated Fund in the Bank of England ... is not a hoard, but a balance".) described the Consolidated Fund of Great Britain as "the public revenue or royal revenue of Great Britain, as collected under the laws in force for the time being". In Australia, the moneys which constitute the Consolidated Revenue Fund are paid into the "Commonwealth Public Account, the main bank account of the Commonwealth held by the Reserve Bank" ((119) Browning, op cit., p 409.). However, the purpose of s.81 of the Constitution is not to ensure that revenue raised by the Commonwealth is held in any particular bank account or at any particular place but to ensure that once moneys are received by the Commonwealth they are not expended except under the authority of Parliament.

11. The question then arises as to whether the direction in s.33 of the Training Guarantee (Administration) Act 1990 (Cth) ("the Administration Act") that "amounts paid to the Commonwealth under this Act" and "amounts paid to the Commonwealth for the purposes of the Fund" ((120) s.33(a) and (b) of the Administration Act.) are to be paid into the Training Guarantee Fund constitutes a breach of s.81 of the Constitution. The Commonwealth contends that, properly understood, those paragraphs supplement, and do not contravene, s.81 because the amounts described in those paragraphs are first paid into the Consolidated Revenue Fund and then appropriated from that Fund by the direction in those paragraphs that the amounts be paid into the Training Guarantee Fund. Hence, on this contention, the question whether the directions in s.33(a) and (b) contravene s.81 turns on whether those paragraphs constitute an appropriation of s.81 "for the purposes of the Commonwealth".

12. Appropriation for the purposes of the Commonwealth "means legally segregating it from the general mass of the Consolidated Fund and dedicating it to the execution of some purpose which either the Constitution has itself declared, or Parliament has lawfully determined, shall be carried out" ((121) The State of New South Wales v. The Commonwealth (1908) 7 CLR 179, per Isaacs J. at p 200.). An appropriation Act need not take any particular form ((122) Campbell, op cit., p 153.). However, it must authorise the expenditure of money ((123) Attorney-General (Vict ) Ex rel. Dale v. The Commonwealth (1945) 71 CLR 237, at p 250.). Moreover, it must nominate an amount of money to be appropriated or specify a formula or criterion by which the amount appropriated can be determined ((124) cf. Fisher v. The Queen (1901) 26 VLR 781, at p 800.).

13. In Dale ((125) (1945) 71 CLR , at p 253.), Latham C.J. said that "(a)n Act which merely provided that a minister or some other person could spend a sum of money, no purpose of the expenditure being stated, would not be a valid appropriation Act". This statement has been criticised ((126) Campbell, op cit., p 157.). Moreover, it seems to have been ignored by successive governments who annually voted an Advance to the Treasurer ((127) ibid., p 156. As to the present position, see Browning, op cit., p 47.) without specifying the purposes for which he may spend the money allotted. If it had not been for the unanimous statement of members of this Court in Brown v. West ((128) (1990) 169 CLR 195, at p 208.) adopting the same view as that expressed by Latham C.J. in Dale, I would have thought that the criticism of his view was valid.

14. If Parliament delegates to a Minister the decision as to which purposes a specified sum of money is to be spent, it is difficult to see how the delegation can be invalid. Neither s.81 nor s.83 of the Constitution gives any express power to appropriate money for Commonwealth purposes. However, the power to appropriate is a necessary incident of the power to make laws with respect to a subject-matter and is implied by the grant of that power. Thus, in Dale ((129) (1945) 71 CLR , at p 251.), Latham C.J. said that the "power to make laws with respect to a particular subject matter includes a power to make a law providing for the expenditure of money in relation to that subject matter". If Parliament has an implied incidental power to spend money on a subject-matter within Commonwealth power, ordinary principles of constitutional interpretation would also give it the power to delegate to a Minister or some other person or agency the right to specify the purposes within the subject-matter for which the money is to be spent. If the legislation does not specify the subject-matter, it is an implied term of the delegation that the money be spent for the purposes of the Commonwealth. In either case, the appropriation would seem to be valid. In Cincinnati Soap Co. v. United States ((130) (1937) 301 US 308.), the Supreme Court of the United States upheld the validity of a Congressional enactment which provided that certain taxes "shall be held as a separate fund and paid to the Treasury of the Philippine Islands". Article I, s.9, cl.7 of the US Constitution, echoing s.83 of the Commonwealth Constitution, declares that "(n)o money shall be drawn from the Treasury but in Consequence of Appropriations made by Law". In upholding the validity of the enactment, the Supreme Court said ((131) ibid., at p 321.) that the "contention that there has been no constitutional appropriation, or that any attempted appropriation is bad, because the particular uses to which the appropriated money is to be put have not been specified, is without merit".

15. As I have indicated, however, it was the unanimous view of this Court in Brown ((132) (1990) 169 CLR , at p 208) that an "appropriation, whether annual or standing, must designate the purpose or purposes for which the moneys appropriated might be expended". The Court was of the view that the principle was of long standing "having its origin in the vote of 'an enormous supply' in 1665 which was subjected to a statutory proviso requiring that the money raised should be applicable only to the purposes of the Dutch war" ((133) ibid). With great respect, this reasoning makes no distinction between a political principle in an uncontrolled constitution, such as the British Constitution, and the power of the Parliament to make appropriations under a written constitution which does not expressly confer power to make annual or standing appropriations. However, the Court was not asked to re-examine the matter in the present case.

16. In my opinion, the Commonwealth was correct in contending that the moneys received pursuant to s.33 of the Administration Act became part of the Consolidated Revenue Fund. By force of s.81 of the Constitution, all "revenues or moneys raised or received by the Executive Government of the Commonwealth" are part of the Consolidated Revenue Fund. Before an Act can amount to an appropriation, however, it must authorise the expenditure of money ((134) Dale (1945) 71 CLR , at p 250; Campbell, op cit., p 157.). By itself, a legislative direction that an amount of money be paid into a particular Fund does not constitute an appropriation for the purpose of s.81 of the Constitution even if the legislation states that the amount shall be paid out of the Consolidated Revenue Fund "which is hereby appropriated accordingly" ((135) See Dale (1945) 71 CLR , per Latham C.J. at p 249.). The effect of s.33(a) and (b) of the Administration Act is that the moneys in the Training Guarantee Fund are "deemed to be moneys standing to the credit of the Trust Fund" ((136) Audit Act 1901 (Cth), s.62A(3).) established by s.60 of the Audit Act. But the moneys standing to the credit of the Trust Fund remain part of the Consolidated Revenue Fund unless or until they have been appropriated by Parliament. It may be that the Audit Act proceeds upon a different theory. But as Griffiths C.J. pointed out in The State of New South Wales v. The Commonwealth ((137) (1908) 7 CLR , at p 190) the terms of the Audit Act "cannot control the construction of the Constitution".

17. To constitute an appropriation of the moneys collected under the Act, something more is required than the bare direction that those moneys "are to be paid into the Fund" ((138) Administration Act, s.33.). It is supplied in this case by the terms of s.34 of the Administration Act which provides that:
"money in the Fund may be applied for the purposes of:
(a) reimbursing the Commonwealth for:

...

(b) making payments under training guarantee agreements;

and

(c) refunding any overpaid amounts under section 50 or any

amounts paid into the Fund in error."

The purposes to which s.34 refer are "purposes of the Commonwealth" within the meaning of s.81 of the Constitution. Consequently, s.33, by directing that the moneys specified in that section be paid into the Training Guarantee Fund, and s.34, by authorising the expenditure of the moneys of that Fund, combine to constitute a valid appropriation of the Consolidated Revenue Fund ((139) This is probably what the Minister had in mind when he said: "Revenue collected under the training guarantee will be placed in (the Training Guarantee Fund) under a standing appropriation from the Consolidated Revenue Fund". House of Representatives, Parliamentary Debates (Hansard), 10 May 1990, p 296. It may be, however, that the Minister thought that s.33 would itself constitute a standing appropriation.).

18. Accordingly, nothing in the Act or the Administration Act would involve a breach of s.81 of the Constitution if the charge levied by s.6 of the Act is a tax. Once that conclusion is reached, the case for holding that the charge is a tax is compelling.

19. Furthermore, since ss.33 and 34 of the Administration Act constitute a standing appropriation of the Consolidated Revenue Fund, the legislation in question in this case is not an appropriation "for the ordinary annual services of the Government" ((140) Constitution, s.54.). In Brown ((141) (1990) 169 CLR , at p 207.), this Court said "Standing appropriations need not be included in annual appropriations". Consequently, the plaintiff's argument, based on the provisions of s.54 of the Constitution, also fails.

20. The demurrer should be allowed, and the action dismissed.

Orders

Demurrer allowed and action dismissed with costs.