And he seemed to deny too something also accepted by a majority of the other judges: that the financial crisis was a particular sort of national ''emergency'', requiring a response of the sort that only the nation as opposed to the states, individually or collectively could respond to. Indeed, he described a number of ways in which the Commonwealth, acting in concert with the states, could have organised a handout without falling foul of limits he thinks to be inherent in the appropriation powers of the Constitution.

Dyson Heydon, once a darling of the Sydney commercial bar, has many critics, not least among those who think him to have campaigned for his appointment with a speech attacking a former Chief Justice of the High Court, Sir Anthony Mason, in part for seeming to orient his legal reasoning towards results which he (Mason) had instinctively wanted and which Heydon, apparently, did not instinctively want. Those critics might think his judgment yesterday a chapter two of his thoughts on Mason, given that Mason, whether as Commonwealth Solicitor-General, as Justice and as Chief Justice, was one of the principal architects of the notion of a potent executive power within the Constitution. Alas for Heydon, however, the broad Mason view continues to prevail, if (though no thanks to Heydon) in a somewhat more circumscribed but still wide form.

The circumscription probably will provide some help, if not much, to states seeking some limitation on a constantly expanding range of Commonwealth power. Alas, it provides very little comfort to those, including me, who would like to see some circumscription of a constantly expanding range of executive power as against the parliament. One might argue that parliament is the author of its own misfortunes in this regard, given that it has been prepared to hand over some of its most important functions to ministers, and to rubber-stamp whatever they do. Yet one might have expected that the judiciary, as the third arm of constitutional government, might be a little more willing to put some limits on the incestuous affair, if only on behalf of a citizenry increasingly being trampled by the descent into discretion, arbitrary power, and an effective power of dispensation from the rule of law.

Bryan Pape, as is well known, is a dilettante law lecturer who thought that anything the Commonwealth did had to be authorised by some specific head of power given the Commonwealth under the Constitution. He pointed, in particular, to the way Section 81 of the Constitution gives parliament a right to authorise the spending of money ''for the purposes of the Commonwealth''. These were words of limitation and did not mean ''for any purposes at all'', he said.

The Commonwealth, by contrast, argued that parliament could authorise spending for any purposes which it thought fit. If there were any limits, the handouts anyway fell within those limits on two separate grounds, it argued. First, it was authorised under its power to raise taxes, to control trade and to make external agreements (as at G20 about pumping liquidity into world economies). Second, the expenditure was authorised under the general executive power of Section 61, and the inherent nationhood of Australia particularly because the economic crisis was in the nature of a national emergency, capable only of being handled by the national government.

A majority, led by the Chief Justice, Robert French, accepted the emergency argument, though just how far a majority of the court would go in giving extensive meaning to inherent nationhood is far from clear. Most, I suspect, would go a good deal further than Dyson Heydon, but fall well short of of some of the more expansive notions. All of the judges rejected the notion that the Commonwealth can spend money however the parliament likes, and all insisted that ''purposes of the Commonwealth'' had some meaning, even if it was a meaning that embraced executive power.

The executive power granted, if not enumerated, in Section 61 embraces old Crown prerogatives such as the power to make war, or sign treaties and a host of other things which might be thought intrinsic to or incidental to being a nation (including setting up a CSIRO or an Arts Council). It definitely includes a power in the nation to protect itself from sedition.

But, as French said, while history and the common law inform the content of Section 61, ''it is not a locked display cabinet in a constitutional museum.

''It is not limited to statutory powers and the prerogative. It has to be capable of serving the proper purposes of a national government. On the other hand, the exigencies of 'national government' cannot be invoked to set aside the distribution of powers between Commonwealth and States and between the three branches of government for which this Constitution provides, nor to abrogate constitutional prohibitions ...

''As for this case, it is difficult to see how the payment of money to taxpayers, as a short-term measure to meet an urgent national problem, is in any way an interference with the constitutional distribution of powers.''

He's right, of course, though the instinctively centrist observer should rejoice that he does see some limits. The same acceptance of the need for a united national approach to cope with some ministerially defined emergency is what gives us draconian and hardly accountable national security laws. By and large, I would like to have my judges setting limits on executive government while considering matters that do not involve hysteria, such as cases on handouts, than when there is a risk (however unthinkable of High Court judges) that they might be deflected from justice by a need to seem patriotic.

Jack Waterford is Editor-at-Large.