THE EXECUTIVE
GOVERNMENT
Issues
Definition of executive power
Limits on executive power
Multiple sources of executive
power
Relationship of executive with other
arms of government
Doctrine of responsible
government
DEFINITION OF EXECUTIVE
POWER
Executive power - definitions
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
Williams v Commonwealth of
Australia [2012] HCA 23
Gummow and Bell JJ at [121]
“This Court has eschewed any attempt
to define exhaustively the content of
the "executive power" which is
identified but not explicated in s 61 of
the Constitution. Hence the attention in
these reasons to partial but not
necessarily complete descriptions of
the executive spending power.”
Why?
“To some degree this state of affairs in the
analysis of s 61 may reflect the
considerations expressed by Professor
Crommelin in a passage in his study of the
drafting of the sparse provisions of Ch II of
the Constitution, which was quoted in Re
Patterson; Ex parte Taylor. The passage
reads:
"The reasons were understandable, if not
entirely convincing. The executive
branch of government was shrouded in
mystery, partly attributable to the
uncertain scope and status of the
prerogative. The task of committing its
essential features to writing was
daunting indeed. Moreover, the price of
undertaking that task would be a loss of
flexibility in the future development of
the executive. Politicians who were the
beneficiaries of half a century of colonial
constitutional development placed a high
value upon such flexibility."
RELATIONSHIP BETWEEN
EXECUTIVE AND OTHER
BRANCHES OF
GOVERNMENT
•Executive decisions reviewable?
•Delegated legislation?
•Same people serving in two branches of government.
Source: Australian Parliament House website
Westminster system:
responsible government
Westminster system: responsible
government
Minister for Arts and Heritage and
Environment v Peko-Wallsend
“subject to the exclusion of nonjusticiable matters, the courts of this
country should now accept
responsibility for reviewing the
decisions of Ministers or the
Governor-General 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
“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
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
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
New South Wales v Bardolph
[1934] HCA 74 per Dixon J
"Parliament is considered to retain the
power of enforcing the responsibility of the
Administration by means of its control over
the expenditure of public moneys. But the
principles of responsible government do not
disable the Executive from acting without
the prior approval of Parliament, nor from
contracting for the expenditure of moneys
conditionally upon appropriation by
Parliament and doing so before funds to
answer the expenditure have actually been
made legally available .”
SOURCES OF EXECUTIVE
POWER
•Statute – s61 Commonwealth Constitution
•Prerogative – content?
•Other?
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.”
 Discussion continues in Williams’ case.
Also - Prerogative power:
“the
powers accorded to
the Crown by common
law”
per Mason J Barton v The Commonwealth (1974)
131 CLR 477 at 498
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 at 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.”
Williams v Commonwealth of
Australia [2012] HCA 23
20 June 2012
Issue:
– The plaintiff challenges, for lack of
authority under the Constitution, the
provision by the Commonwealth of
funding pursuant to what is known as the
National School Chaplaincy Programme
("the NSCP"). Per Gummow and Bell JJ at [85]
“The funding of the NSCP is not provided
under any statute of the Parliament . There is
no law enacted, for example, in reliance upon
the power conferred by s 51(xxiiiA) of the
Constitution to make laws with respect to "the
provision of ... benefits to students". Nor is the
funding provided by the Commonwealth under
s 96 of the Constitution as the "grant [of]
financial assistance to any State on such
terms and conditions as the Parliament thinks
fit". Rather, for its power to spend so as to
fund the NSCP, the Commonwealth relies
upon "the executive power of the
Commonwealth” [at 88]
Arguments in this case:
Nature of Executive power in a
Federal system
– State/Federal balance
Whether Federal executive power is
co-extensive with Federal legislative
power
Nature of prerogative power
Nature of power:
French CJ [at 22]:
The executive power referred to in s 61 extends to:
 powers necessary or incidental to the execution
and maintenance of a law of the Commonwealth;
 powers conferred by statute;
 powers defined by reference to such of the
prerogatives of the Crown as are properly
attributable to the Commonwealth;
 powers defined by the capacities of the
Commonwealth common to legal persons;
 inherent authority derived from the character and
status of the Commonwealth as the national
government.
Federal/State balance
Issue for executive power as well as
legislative power
Qld already has a chaplaincy
programme
Clearly a State area of legislative
power
– Could be Federal(s51(xx);s51(xxiiiA))but
appropriation legislation not sufficient
(Pape’s case)
Federal power re schools?
For many years the Parliament has
legislated for the provision of financial
assistance to the States on the condition
that the funds be applied for educational
purposes. The Schools Assistance Act
2008 (Cth) provides for the provision of
financial assistance to the States for nongovernment schools. The Nation-building
Funds Act 2008 (Cth) provides for the grant
of financial assistance for educational
purposes on terms agreed between the
Commonwealth and the States.[at 100]
State/Federal balance
NSCP ‘by passing by the Executive of
s96’ [143]
[144] Gummow and Bell JJ refer to Pape
and Davis v The Commonwealth that:
"the existence of Commonwealth
executive power in areas beyond the
express grants of legislative power will
ordinarily be clearest where
Commonwealth executive or legislative
action involves no competition with State
executive or legislative competence“.
State/Federal balance
The present case, unlike Pape, does not
involve a natural disaster or national
economic or other emergency in which
only the Commonwealth has the means
to provide a prompt response. In Pape,
the short-term, extensive and urgent
nature of the payments to be made to
taxpayers necessitated the use of the
federal taxation administration system to
implement the proposal, ...
rather than the adoption of a
mechanism supported by s 96.
However, the States have the legal
and practical capacity to provide for a
scheme such as the NSCP. The
conduct of the public school system in
Queensland, where the Darling
Heights State Primary School is
situated, is the responsibility of that
State. Indeed, Queensland maintains
its own programme for school
chaplains. [146]
Limits on Executive power
However, in referring to the distribution of
responsibilities between the Commonwealth
and the States, [there is no] broad proposition
that moneys may be spent by the Executive
Government upon ...any head of legislative
power found in s 51 of the Constitution. That
this is so is apparent from the earlier rejection
by Mason J, along with Barwick CJ, of the
application to s 51(ii) of the Constitution of the
United States doctrine, exemplified in United
States v Butler, that because the power of
Congress to tax is "unlimited" the power to
spend is also "unlimited". [at 132]
So...
Executive power cannot exceed
legislative power but is not
necessarily co-extensive with it
Why?
Discussion at [134] – [137]
Too broad
– Not all legislative powers appropriate to be
exercised by executive
– E.g Taxation; marriage and divorce
Parliamentary sovereignty
– ‘such a proposition would undermine the
basal assumption of legislative
predominance inherited from the United
Kingdom and so would distort the
relationship between Ch I and Ch II of the
Constitution’
RESPONSIBLE
GOVERNMENT
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.”
Williams at 136:
No doubt the requirement of s 64 of the
Constitution that Ministers of State be
senators or members of the House of
Representatives has the consequence
that the Minister whose department
administers an executive spending
scheme, such as the NSCP, is
responsible to account for its
administration to the Parliament.”
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”