PUBLIC FINANCE AND PARLIAMENTARY CONSTITUTIONALISM.

• Date: 01 December 2022
• Author: C., Stephen Gageler A.

PUBLIC FINANCE AND PARLIAMENTARY CONSTITUTIONALISM BY WILL BATEMAN (CAMBRIDGE UNIVERSITY PRESS, 2020) PAGES 1-234. PRICE $150.95 (HARDCOVER). ISBN 978-1-108-47811-3.

Parliamentary control of government finances, Sir Anthony Mason has observed, 'lacks the glitter and the glamour of some public law topics' but has a 'long and important history' which 'not only established Parliamentary control over taxation and government expenditure, but also set the pattern of the relationship between Parliament and the executive government as we know it today'. (1) Sir Anthony has gone so far as to embrace Sir Isaac Isaacs's description of 'parliamentary guardianship of taxation and expenditure' as 'the pivot of the Constitution and the keystone of the arch of personal liberty'. (2)

Filling a significant gap in our public law scholarship is this new book devoted to examining in meticulous detail the history of the idea and practice of parliamentary control of government finances, and to discerning from that history a common pattern in the contemporary relationship between public finance and parliamentary constitutionalism in the United Kingdom and Australia. Conceived during the fallout of the global financial crisis and brought to publication during the economic turmoil wrought by the COVID-19 pandemic, Dr Bateman's Public Finance and Parliamentary Constitutionalism is at once a work of legal history and of constitutional theory.

The legal history is in three principal tranches. Earliest and broadest in its sweep is the history of the emergence in Britain, during the period from roughly the middle of the 17th century to roughly the middle of the 19th century, of a distinct constitutional model of parliamentary public finance which came then to be exported to the British colonies as part of the practice of 'responsible government', a practice which was reflected in the system of national government in Australia for which provision was made in the Australian Constitution at the turn of the 20th century. Central to that model, as reflected in s 64 of the Constitution, was the practice of formation of executive governments through appointment, as ministers of state to administer departments of state, members drawn from and politically accountable to elected houses of parliament, the overall effect of which was described by Sir Samuel Griffith as being that 'the actual government of the State is conducted by officers who enjoy the confidence of the people'. (3) Other features of the model pertaining specifically to public finance, as reflected in ss 52-6, 81 and 83 of the Constitution, were the necessity for executive governments to seek and obtain the legislative sanction of parliaments both to raise revenue through the imposition of taxation and to draw money from the treasury, not only to ensure the administration of departments of state but also to ensure the servicing of debt incurred by executive governments on behalf of the state. Finally, as reflected in s 97 of the Constitution, the model provided for systematic auditing of the receipt of revenue and expenditure of money, and periodic reporting to parliaments by independent auditors-general.

The story of the development of those features of that model of parliamentary public finance begins with momentous occurrences in the 17th century, including R v Hampden ('Ship Money Case'), (4) the Bill of Rights 1688, (5) the Bank of England Act 1694, (6) and the Case of the Bankers in the Court of Exchequer ('Bankers Case'), (7) which saw Britain emerge around the beginning of the 18th century as what has been described as a 'fiscal-military state'. (8) The story concludes with the Exchequer and Audit Departments Act 1866, (9) sponsored by the reforming William Gladstone. (10) The broad outline of the story is not unfamiliar to students of early modern English history.

Dr Bateman's original contribution to the retelling of the story lies in insights gained from his painstaking review of the contents of centuries of legislation and of his cross-referencing to economic data. His graphic account of legislative trends over centuries is enhanced by his use of actual graphs designed to illustrate the economic impact of the measures he describes.

Interesting to an Australian reader is to learn that annual appropriations by the United Kingdom Parliament over the centuries were typically broadly and loosely expressed and were flexibly administered by the United Kingdom Treasury through a practice known as 'virement' involving the ready transfer of funds appropriated for one purpose to another purpose. (11) Moreover, annual appropriations typically operated in a predominantly retrospective manner in the sense that they operated to ratify expenditure which had in large part already occurred. (12) These revelations of Dr Bateman's research call into question the correctness of the assertion, quoted from time to time in the High Court, (13) that '[t]he chain of historical evidence undeniably proves that a previous and stringent appropriation, often minute and specific, has formed an essential part of the British constitution'. (14) The assertion was made in an 1857 report produced by the House of Commons's Select Committee on Public Monies, and was subsequently picked up by Colonel Durell, Chief Paymaster of the War Office during World War I, in a book entitled The Principles & Practice of the System of Control over Parliamentary Grants. (15) Durell's book tellingly contained a foreword written by his superior within the War Office, Sir Charles Harris. Commencing his foreword with a defence of '[r]ed tape' as 'a rhetorical name given to fixed routine by critics who fail to see its utility', Harris...