- Does the entry into the Funding Agreement exceed the executive power of the Commonwealth, and in particular does the executive power of the Commonwealth extend to entering into contracts in respect of matters that go beyond the legislative power of the Commonwealth;
- Do the NCSP Guidelines impose a religious test as a qualification for an office under the Commonwealth, and thereby contravene section 116 of the Constitution?
Executive power of the Commonwealth
Scope of the student benefits power – section 51(xxiiiA)
The Great Dissenter
It is difficult to know what the future of the NCSP is as a result of this judgment. There must be some doubt as to whether the Commonwealth could validly legislate to resurrect it. However, even assuming no legislative power to authorise to authorise the entry into the Funding Agreements, other constitutional mechanisms would seem to be available to enable the program to continue (most obviously, the provisions of tied grants under section 96).
More broadly, there is at least a majority of French CJ, Gummow, Bell and Crennan JJ who are of the view that the executive power of the Commonwealth is constrained not only by it's power to legislate but also by the fact of legislation authorising the entry into contracts pursuant to which it seeks to pay moneys in fulfilment of its programs. In a practical sense, this ultimately may not amount to very much, as similar ends will be achieved by legislatively providing the express authority to enter into such contracts, or achieving the same results via tied grants to the States.
However, more significantly the High Court has continued in its preparedness to challenge long-held assumptions about Commonwealth expenditure powers, and it can be expected that before too long the scope of various other powers of the Commonwealth to expend moneys (most notably sections 64 and 96 of the Constitution) will come under renewed challenge.