Executive Powers
Who are the Executive?
 Queen and GG
 Prime Minister and other Ministers of State
 Public servants/bureaucrats
Source of Executive’s powers
 Common law – prerogative
 Legislation
 Constitution:
o s61
o Incidental power - s51(xxxix)
o Implied nationhood power
Prerogative:
 Refers to all traditional powers/immunities enjoyed by Imp Crown at common law at Federation eg.
international affairs, defence, enforcement of public/criminal law.
 This power emanates from CL – thus can be removed by legislation: Commonwealth v Cigamatic
Pty Ltd (in liq) (1962) 108 CLR 372.
 There is overlap between CL prer powers and Exec powers (s61) under Constitution: Victoria v
Commonwealth (1996) 187 CLR 416 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ
at 476-480.
 Courts show deferrence to Exec and Prer powers – generally not susceptible to judicial review: R v
Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 217–218.
 BUT judicial review of limits of Exec powe are part of courts’ exclusive power of judicial review:
North Australian Aboriginal Legal Aid Service v Bradley [2001] FCA 1080, 1728; [2002] FCA 564.
International affairs:
 Exec enjoys Prer power to enter treaties: R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 643 644
 Conduct of foreign affairs (including treaty obligations) and diplomatic matters: Koowarta v BjelkePetersen (1982) 153 CLR 168 at 193, 215, 237, 249–250.
 Exec can also request the extradition of fugitives where there is no extradition treaty in place with
relevant country: Barton v Commonwealth (1974) 131 CLR 477 at 488, 498–499, 508.
Defence
 Power to declare war or peace: Farey v Burvett (1916) 21 CLR 433 at 452
 Emergency power (wartime) to expropriate property for purposes of defence exempt from any
requirement under “just terms” s 51 (xxxi): Johnston Fear and Kingham v Commonwealth (1943) 67
CLR 314 at 318.
 Control of armed forces, except in so far as they have been superseded by statute: Marks v
Commonwealth (1964) 111 CLR 549 at 564
 Land used for defence purposes are immune from State taxes: Essendon Corporation v Criterion
Theatres Ltd & Ors (1947) 74 CLR 1
 Can enable price regulation (even though typically area left to States by s51(i): Farey v Burvett.
 THUS: defence prerogative is very wide.
o The full extent of the prerogative…is certainly great in relation to the national emergency
which calls for its exercise”
 But Issacs J (Farey v Burvett):
o “War creates its own necessities, proportioned to the circumstances, and not measurable in
advance of the occasion…while peace prevails, the normal facts of national life take their
respective places”.
Fiscal and legal matters
 C has priority over States in payment of taxation debts in bankruptcy: Commonwealth v Cigamatic
Pty Ltd (in liq) (1962) 108 CLR 372
 C immune from remedy of distress of rent (allows property owner to seize goods on property in lieu
of unpaid rent): Repatriation Commission v Kirkland (1923) 32 CLR 1 at 9, 11, 24
 Judicial review will not lie to challenge A-G deicison not to grant their fiat for the use of their name
in a relator action to enable enforcement of public rights: R v Toohey; Ex parte Northern Land
Council (1981) 151 CLR 170 at 218, 220
 Decision of A-G to enter an ex officio indictment and a nolle prosequi in criminal proceedings is
non-justiciable: Barton v R (1980) 147 CLR 75.
 Has power to conduct enquiries: Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at
378.
Principle of Executive immunity
 At CL, Exec, its servants and agents are presumed to be immune in relation to their activities in the
course of their functions/duties: Province of Bombay v Municipality of Bombay [1947] AC 58;
Bropho v Western Australia (1990) 171 CLR 1 at 16. Has been overruled – look below!
 1st TEST: whether person/corporation is servant/agent  whether subject to direct ministerial
control of independent and enjoys discretionary powers of its own: Grain Elevators Board (Vict) v
Dunmunkle Corporation (1946) 73 CLR 70 at 76
 2nd TEST: consider overall nature of functions/duties: Registrar, Accident Compensation Tribunal v
Commissioner of Taxation (Cth) (1993) 178 CLR 145 at 170 per Mason CJ, Deane, Toohey and
Gaudron JJ.
 3rd TEST: Some duties/functions traditional to government (criticised as role of gov changes over
time): Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330
at 349.
 Once identified as servant/agent  entitled to immunity if interests of Exec would be prejudiced if
such persons were bound: Bradken Consolidated Ltd v The Broken Hill Pty Co Ltd (1979) 145 CLR
107 at 113.
 BUT this is complicated: State Superannuation Board v Trade Practices Commision:
o “the intention of the legislation may be that only some of the Crown’s immunities and
privileges should attach to it…indicia may at first sight appear to point in different
directions…only resolving itself by reference to the circumstances relevant to the case in
hand and how they bear upon the particular function in question”
o THUS: whether statute apply/bind Exec is question of statutory interpretation.
 TEST: does purpose, policy and subject matter of legislation disclose intention that Crown is to be
bound? Bropho v State of WA and Another.
o REPLACES above general rule that presumption that Crown is immune: Province.
o Purportedly applies to statutes enacted after 20 June 1990.
o Facts: WA law make offence for “any person” to destroy/damage Aboriginal sites etc. B
bring claim against WA. D tried to argue that provision did not bind Crown. Held: applied
above principles – Crown was bound.
Section 61
“The Executive power of the Commonwealth is vested in the Queen and is exercisable by the GovernorGeneral as the Queen’s representative, and extends to the execution and maintenance of this
Constitution, and of the laws of the Commonwealth.”

s.61 not exhaustive: Brown v West (1990) 169 CLR 195
o Minister for Admin Services increased postal entitlement for members of P above that set by
Remuneration Tribunal under Remuneration Tribunal Act 1973. Held: P won.
o Power “clearly extends to the provision of what is necessary or convenient for the
functioning of the Parliament provided that funds for that purpose are appropriated by
Parliament”.
o BUT does not extend to “the discretionary allocation of a benefit having a pecuniary value to
alleviate a pecuniary burden which members incur as an incident of office”.
‘Nationhood’ Power
 Authority either implied in Con OR from combo of ss51 (xxxix) and 61.
 Exec power extends to “execution and maintenance” of the Constitution and laws of C: s61.
 Fed P may use s51(xxxix) to make laws with respect to:
Matters incidental to the execution of any power vested by this Constitution in the Parliament or
in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature,
or in any department or officer of the Commonwealth.
Source of power: an “implied” power?
 Existence of C as nation  implied powers: Australian Communist Party v The Commonwealth
(1951) 83 CLR 1.
o Facts: Fed law ban Aus Communist Party. GG power to declare certain organisations as
communist organisations (unlawful). Law gave no opp for judicial review of GG’s decisions
nor prescribe any rule/prohibit certain acts/omissions as subversion.
o Held: Fed law struck down – could not be supported by s51(xxxix) and 61, or under implied
power.
o Dixon J: Power to legislate against subversive conduct has a source in principle that is deeper
and wider than a series of combinations of the words in s51(xxxix) and those of other
constitutional powers.
Scope of power: general:
 Power over all matters within the legislative competence of the Commonwealth (Commonwealth v
Colonial Combing, Spinning and Weaving Co Ltd (The Wool Tops Case) (1922) 31 CLR 421 ; 29
ALR 138 )
 Pharmaceutical Benefits case: examined scope of appropriations power (s81) for spending money
for “purposes of the Commonwealth”. Defined it as:
o any matter which the Parliament or the Executive decides is a 'Commonwealth purpose'
o responsibilities that the Constitution specifies and might reasonably be implied from the
distribution of powers and functions between the Commonwealth and the States
o specifically enumerated responsibilities under the Constitution such as those listed in section
51
Scope of power: protection of nation.
 Exec power can authorise law imposing criminal sanctions for seditious or subversive conduct.
 Burns v Ransley: provision of Crimes Act 1914 (Cth) made criminal offence to incite hatred of the
Sovereign, Gov of UK or Gov of Aus so as to endanger the C. Exceptions for “good faith” criticism.
B (Aus Communist Party) in public debate, said stuff and convicted.
o Argued that C had no general power to make criminal laws and make political criticism a
criminal offence: Ex parte Walsh and Johnson; Re Yates (1925).
o Held: P has no power to pass law to suppress/punish political criticism – excitement of
disaffection against Gov goes beyond political criticism.
o Fed P can make laws to protect against subversive activities for purpose of preserving
constitutional powers/operations of gov agencies and existence of gov.
 R v Sharkey (1949) 79 CLR 121: S made comments published in newspaper to say that if Soviet
Union attacked Aus, Aus Communist Party would welcome them. Provisions challenged like Burns
and also upheld.
o Dixon J: “The power is not expressly given but it arises out of the very nature and existence
of the Commonwealth as a political institution…the execution of the functions of
government is a matter incidental to the exercise of all its powers”.
Scope of the power: advancement of the nation:
 s61 gives C powers consistent with the character and status of the C as a national government:
Australian Assistance Plan (AAP) case - Victoria v The Commonwealth and Hayden (1975) 134
CLR 338, Mason J.
o “a capacity to engage in enterprises and activities peculiarly adapted to the government of a
nation and which cannot otherwise be carried on for the benefit of the nation.

Davis v The Commonwealth (1988) 166 CLR 79: Fed law to commemorate Gov Phillip’s land in Aus
in 26 Jan 1788. Set up Aus Bicentenary Authority, which was given exclusive power to
symbols/trademarks of even (1788, 1988, 88, Sydney/Melb). D (Aboriginal activist) printed shirts
using symbols to protest against Bic. Held: law invalid.
o “Although the statutory regime may be related to a constitutionally legitimate end, the
provisions in question reach too far. This extraordinary intrusion into freedom of expression
is not reasonably and appropriately adapted to achieve the ends that lie within the limits of
constitutional power”.
o Brennan J: “The executive power…extends to the advancement of the nation whereby its
strength is fostered”.
o Brennan J: “it does not follow that the Exec…is the arbiter of its own power or that the
executive power of the C extends to whatever activity or enterprise the Exec Gov deems to
be in the national interest”
o Brennan J: “consideration of the sufficiency of the powers of the States to engage effectively
in the enterprise or activity in question and of the need for national action…to secure a
contemplated benefit”.
Limits of Power
 Limited to the distribution of powers between C and States:
 Commonwealth v Colonial Combing, Spinning & Weaving Co (1922)
o Issacs J: powers of the executive were consequences of the constitution and referrable to the
constitution itself
 Australian Assistance Plan (AAP) case:
o Mason J: “its content does not reach beyond the area of responsibilities allocated to the C by
the Constitution…more particularly the distribution of powers effected by the Constitution
itself”
o Barwick CJ: “to say that a matter or situation is of national interest or concern does
not…attract any power to the C”.
 Davis v The Commonwealth:
o Wilson, Dawson JJ: doubted existence of implied nationhood power.
o “The C cannot be accorded a legislative power to cross the boundaries between State and C
responsibility…even if it is convenient in some circumstances to look at the totality rather
than individual heads of power, the C remains confined”
 Power of limitation questioned by WorkChoices
 Must be matters appropriate to the national gov:
o “enterprises and activities peculiarly adapted to the government of a nation”
o AAP case – read above.
 Must be necessary for national act:
o “of the need for national action”: Davis v Commonwealth.
o Also in Commonwealth v Tasmania (Tas Dam case).
 Must be for benefit of the nation:
o Authority: Australian Assistance Plan (AAP) case - Victoria v The Commonwealth and
Hayden
o Has not been tested in cases yet.