THE IMPROBABLE RISE AND FALL OF AUCKLAND HARBOUR BOARD V THE KING
The question of whether courts can order the Crown to spend public monies in the absence of an appropriation has been a source of perennial legal controversy in Canada. Although a number of scholars have argued in favour of public funding orders, relatively limited attention has been paid to the underlying issue of whether courts have the jurisdiction to order the Crown to disburse public funds in the absence of an appropriation. Courts in Canada have generally exhibited caution when asked to make public funding orders. In justifying this deferential stance, Canadian courts have frequently relied upon dicta from the Privy Council’s 1924 decision in Auckland Harbour Board v The King, where Viscount Haldane held that any “payment out of the consolidated fund made without Parliamentary authority” was “illegal and ultra vires” and therefore properly recoverable “by the Government.” The author challenges the received orthodoxy that Auckland Harbour Board precludes courts from ordering the Crown to spend public funds. The author maintains that insofar as Auckland Harbour Board has been read as creating a blanket prohibition against public funding orders, it has been misunderstood and overextended. While there is no question that the Crown cannot order the dispensation of public funds without authority, this does not completely bar courts from making public funding orders. It is only where a court makes an order that effectively demands Parliament to appropriate funds, or which requires the payment of funds absent or in contravention of an appropriation, that Auckland Harbour Board has any real purchase.