This presentation will examine the source and limits of government power to make contracts, such as major infrastructure contracts (including those involved in Victoria's controversial East-West Link project). It will critically examine two theories of non-statutory government power, such as contracting power, that have currency in England and consider their potential application to Australia: the 'third source' explanation of non-prerogative powers, espoused most prominently by Professor B V Harris, and the conception of the Crown as a corporation sole, advanced by Sir William Wade and Professor Forsyth but trenchantly criticised by Maitland (and others). It will also tentatively advance two other potential explanations of the power and consider the constraints that might apply to such power, having particular regard to the considerations in the Williams v Commonwealth decisions of the High Court of Australia that might suggest previously unrecognised restrictions on the power. This presentation forms part of the work towards an MPhil which seeks to identify the source of government power to contract in English and Australian (State and federal).
Professor BV Harris (Auckland) and Mr Max Harris (All Souls, Oxford) will each comment on the paper.