Commonwealth Executive Power and Australian Federalism

A majority of the High Court in Williams v Commonwealth held that the Commonwealth executive does not have a general power to enter into contracts and spend public money absent statutory authority or some other recognised source of power. This article surveys the Court’s reasoning in reaching this surprising conclusion. It also considers the wider implications of the case for federalism in Australia. In particular, it examines: (1) the potential use of s 96 grants to deliver programs that have in the past been directly funded by Commonwealth executive contracts; and (2) the question of whether statutory authority may be required for the Commonwealth executive to participate in intergovernmental agreements.