TOPIC 9
THE EXECUTIVE
GOVERNMENT
Description and sources of
executive power
Source: Australian Parliament House website
Minister for Arts and Heritage
and Environment v PekoWallsend
“subject to the exclusion of non-justiciable
matters, the courts of this country should
now accept responsibility for reviewing the
decisions of Ministers or the GovernorGeneral in Council notwithstanding the
decision is carried out in pursuance of a
power derived not from statute but from
the common law or the prerogative” at 223
per Bowen CJ
Peko-Wallsend case
“The prospect of Cabinet itself, even by
delegation, having to accord a hearing to
individuals who may be adversely affected
by its decisions, is a daunting one. It could
bring the proceedings of Cabinet to a
grinding halt.”
per Bowen CJ at 225
Peko –Wallsend case
“it would…be inappropriate for this court to
intervene to set aside a Cabinet decision
involving such complex policy considerations
as does the decision of 16 September 1986,
even if the private interest of the respondents
was thought to have been inadequately
considered. The matter appears to my mind
to lie in the political arena.”
Per Bowen CJ at 225
Victorian Stevedoring and
General Contracting Co Pty Ltd
and Meakes v Dignan at 101
“A statute conferring upon the Executive a power
to legislate upon some matter contained within one
of the subjects of the legislative power of the
Parliament is a law with respect to that subject,
and …the distribution of legislative, executive and
judicial powers in the Constitution does not operate
to restrain the power of the Parliament to make
such a law.”
Legislative Instruments Act
2003 (Cth)
s3(e) … improved mechanisms for
Parliamentary scrutiny of legislative
instruments; and
(f) [established] mechanisms to ensure that
legislative instruments are periodically
reviewed and, if they no longer have a
continuing purpose, repealed
Sources of executive power
Ruddock v Vadarlis
[2001] FCA 1329
 Federal Court considered the nature and extent of the
executive power of the Commonwealth.
 Two issues arose :
– 1. The extent of the executive power of the
Commonwealth and whether it extended to the
expulsion of what the court termed the “rescuees”
and their detention for that purpose; and
– 2. If there was no such executive power, whether
the rescuees had been restrained by the
Commonwealth, and whether an action for habeas
corpus lay.
“4.
Because of the undoubted urgency of these cases,
the need for the legal questions to be resolved and for
the parties to know what their positions are with the
least possible delay, the members of the Court, having
reached a clear view about the outcome, have decided
to announce the decision of the Court today. They have
decided to do so, and to make orders on the appeals, in
advance of the publication of their reasons for
judgment. Those reasons are lengthy and will be
published tomorrow. Another factor that has persuaded
the Court to take this course is that information
provided to it during the hearing of the appeals
suggested that HMAS Manoora is likely to arrive at
Nauru today, and she may already have done so.”
Ruddock v Vadarlis: summary
“9. This summary is intended to assist in an
understanding of the outcome of these appeals.
Such summaries are commonly prepared by the
Court in cases of public interest, but they are
not a substitute for the judges' reasons which
remain the only authoritative statement of the
Court.”
Ruddock v Vadarlis: summary
“8. The judges wish to make it plain
that the Court's decision is not, and
cannot be, concerned with either the
policy or the merits of the
Commonwealth's actions. That is a
debate for other forums. The
questions before the Court are
questions of law.”
Ruddock v Vadarlis: summary
Commonwealth Constitution
s61
“The executive power of the
Commonwealth is vested in the Queen and
is exercisable by the Governor-General as
the Queen’s representative, and extends to
the execution and maintenance of this
Constitution, and of the laws of the
Commonwealth”
French J (at 176)
“Section 61 is the primary source of executive
power. Its content extends to the execution and
maintenance of the Constitution and the laws of
the Commonwealth. It is also limited by those
terms in so far as it will not authorise the
Commonwealth to act inconsistently with the
distribution of powers and the limits on power
for which the Constitution provides.”
Executive power
 Blackstone: “…the discretionary power of
acting in the public good where the
positive laws are silent.” Ruddock v Vadarlis (at181)
 Lord Denning“…a discretionary power
exercisable by the executive government
for the public good, in certain spheres of
governmental activity for which the law
has made no provision…” Laker Airways Ltd v
Department of Trade [1977] 1 QB 643 at 705
Prerogative power:
“the powers accorded to the
Crown by common law”
per Mason J Barton v The Commonwealth (1974)
131 CLR 477 at 498
Mason J in Barton v The Commonwealth
(1974) 131 CLR 477 at 498:
"The Constitution established the Commonwealth of
Australia as a political entity and brought it into existence
as a member of the community of nations. The Constitution
conferred upon the Commonwealth power with respect to
external affairs and, subject perhaps to the Statute of
Westminster 1931 and the Balfour Declaration, entrusted to
it the responsibility for the conduct of the relationships
between Australia and other members of the community of
nations, including the conduct of diplomatic negotiations
between Australia and other countries. By s 61 the
executive power of the Commonwealth was vested in the
Crown. It extends to the execution and maintenance of the
Constitution and of the laws of the Commonwealth. It
enables the Crown to undertake all executive action which is
appropriate to the position of the Commonwealth under the
Constitution and to the spheres of responsibility vested in it
by the Constitution. It includes the prerogative powers of
the Crown, that is, the powers accorded to the Crown by the
common law."
Prerogative power
 “In Australia…one looks not to the
content of the prerogative in Britain, but
rather to s61 of the Constitution, by which
the executive power of the Commonwealth
was vested in the Crown.” per Gummow J
in Re Ditfort; Ex parte Deputy
Commissioner of Taxation (1988) 19 FCR
347 at 369
Parliamentary Control of
executive power
 Legislative Instruments Act 2003 (Cth) Part
5
 No new prerogative power
 “It is 350 years and a civil war too late for
the Queen’s courts to broaden the
prerogative.” per Diplock LJ in British
Broadcasting Corporation v Jones [1965]
Ch 32 at 79
Parliamentary sovereignty
“ The executive power can be abrogated,
modified or regulated by laws of the
Commonwealth. Its common law ancestor,
the Royal Prerogative, was similarly
subject to abrogation, modification or
regulation by statute.”
Ruddock v Vadarlis 181
French J: 204
 “The steps taken in relation to the MV Tampa which had
the purpose and effect of preventing the rescuees from
entering the migration zone and arranging for their
departure from Australian territorial waters were within
the scope of executive power. The finding does not
involve a judgment about any policy informing the
exercise of that power. That is a matter which has been
and continues to be debated in public and indeed
international forums. Through that debate and the
parliamentary process the Ministers involved can be held
accountable for their actions. If Parliament is concerned
about the existence of an executive power in this area,
deriving from s 61 of the Constitution, it can legislate to
exclude it by clear words. The task of the Court is to
decide whether the power exists and whether what was
done was within that power, not whether it was exercised
wisely and well.”
Commonwealth executive
government
 “Under our Constitution the executive
power of the Commonwealth is exercisable
by the Governor-General. There is a
Federal Executive Council to advise the
Governor-General.” per Bowen CJ in
Peko-Wallsend at 223
Responsible government
 As Bowen CJ comments in Peko Wallsend
at 223:
“Although formal decision making power
rests with the Governor General in
Council the real decision making power
rests with the Cabinet.”
Commonwealth Constitution
s63
 “The provisions of this Constitution
referring to the Governor-General in
Council shall be construed as referring to
the Governor-General acting with the
advice of the Federal Executive Council.”
New South Wales executive
government
NSW Constitution s35A :
“…established constitutional convention
relating to the exercise or performance of
the functions of the Governor otherwise
than on the advice of the Executive
Council”
Interpretation Act 1987
(NSW) s14
“In any Act or instrument, a reference to
the Governor is a reference to the
Governor with the advice of the Executive
Council, and includes a reference to any
person for the time being lawfully
administering the Government. “
S7 of the Australia Acts:
“(1) Her Majesty’s representative in each State
shall be the Governor.
(2) …all powers and functions of Her Majesty in
respect of a State are exercisable only by the
Governor of the State.
(3)…
(4) While Her Majesty is personally present in a
State, Her Majesty is not precluded from
exercising any of Her powers and functions in
respect of the State that are the subject of
subsection (2) above
(5) The advice to Her Majesty in relation to the
exercise of the powers and functions of Her
Majesty in respect of a State shall be tendered by
the Premier of the State”
Steps In The s57 procedure
 1.The House of Representatives passes a
proposed law.
 2. The Senate (a) rejects or (b) fails to pass
the proposed law or (c) passes it with
amendments to which the Representatives
will not agree.
PMA Case per Barwick CJ at
109:
“at the date of the simultaneous
dissolution of the House of Representatives
and the Senate, the Bill did not satisfy the
requirements of the first paragraph of s57,
and thus could not itself have afforded a
reason for that dissolution or be the
subject of debate and affirmation at a joint
sitting.”
Stephen J: PMA Case
“No conclusive test can be devised which, by its
application, in all circumstances will provide a
ready answer to the question whether in any
particular instance parliamentary conduct
involves a failure to pass for the purposes of
s57…it may not be the character of the particular
parliamentary conduct but rather its excessive
employment that may identify it as a failure to
pass”.
 3. There is an interval of three months.
PMA Case: Barwick CJ at 116
“The plaintiffs submit that upon the true
construction of s57, the interval of three months
referred to in the first paragraph of the section is
a period which begins at the time at which the
Senate rejects, or fails to pass, or passes with
amendments which ultimately proved
unacceptable to the House of Representatives;
that the Senate had not rejected the Bill, failed to
pass it or passed it with unacceptable
amendments before 2nd April 1974; and that,
unless the interval of three months had elapsed
thereafter before the House again passed the
Bill, it would not qualify as a proposed law for
the purposes of the third paragraph of s57.”
Barwick CJ at 119
“…there is no room, in my opinion, for the view
the terms of s57 are merely directory so that
failure to conform to its requirements will not
affect the validity of what is done. What is laid
down in s57 is a process of law making, and s57
is a provision of the Constitution. It is quite
inappropriate, in my opinion, to apply to such a
section the distinctions between a directory and
mandatory statutory provision.”
 4. The House of Representatives, in the
same or the next session, again passes the
proposed law, with or without any Senate
amendments.
 5. The Senate again rejects or fails to pass
the proposed law, or passes it with
amendments to which the House of
Representatives will not agree
First Territorial Senator’s Case
per Gibbs J at 236
“If…the House of Representatives has twice
passed a proposed law and the Senate has twice
rejected it, it is apparent that the two Houses are
in disagreement on the question whether that
proposed law should be passed, and it is not
correct to say that they have ceased to disagree
simply because some time elapses during which
no action is taken to resolve the disagreement.”
 6. The Governor-General simultaneously
dissolves the Senate and the House of
Representatives.
 7. A general election for both houses takes
place.
 8. The newly-elected House of
Representatives passes the proposed law,
with or without any senate amendments.
 9. The newly-elected Senate rejects or fails
to pass the proposed law, or passes it with
amendments to which the House of
Representatives will not agree.
 10. The Governor-General convenes a joint
sitting of the two houses.
 11. The members of the Senate and the
House of Representatives at the joint sitting
deliberate and vote together on the proposed
law as last proposed by the Representatives,
and any amendments; if the proposed law
with amendments is affirmed by an absolute
majority of the total membership, it is taken
to have been duly passed by both houses.
 12. The proposed law is then presented to
the Governor-General for assent.