The Executive Power of the Commonwealth_peter Gerangelos

DOI: 10.5235/OUCLJ.12.1 Oxford University Commonwealth Law Journal 97

THE EXECUTIVE POWER OF THE COMMONWEALTHOF AUSTRALIA: SECTION 61 OF THE COMMONWEALTH

CONSTITUTION, 'NATIONHOOD' AND THE FUTUREOF THE PREROGATIVE

PETER GERANGELOS*

A INTRODUCTION

Section 61 is the principal provision in the Australian Constitution providing forthe general 'executive power ofthe Commonwealth'. That power 'is vested in theQueen and is exercisable by the Governor-General as the Queen's representative,and extends to the execution and maintenance of this Constitution, and of thelaws ofthe Commonwealth'. The ambit of this power has recently been the subjectof some debate in Australian constitutional jurisprudence, with two viewscontending for ascendancy. The older view, generally adopted by the High Courtof Australia until recently, with the support of leading constitutional scholars,maintains that s 61 incorporates the powers of the Crown recognised by thecommon law, its ambit generally limited by them.' The more recent view, thatadopted by the Court in Pape v Federal Commissioner of Taxation,^ maintains that theexecutive power ofthe Commonwealth is not to be so limited, that from s 61 canbe derived some inherent content to that power beyond the common law powers.

Before proceeding, it needs to be appreciated that s 61 is supported by the expressincidental power contained in s 51(xxxix) which enables the CommonwealthParliament to make laws with respect to 'matters incidental to the execution of anypower vested by this Constitution in the Parliament or in either House thereof, orin the Government ofthe Commonwealth, or in the Federal Judicature, or in anydepartment or officer ofthe Commonwealth'. Thus, by a combination of s 61 ands 51(xxxix), Commonwealth power may possibly be enhanced if the content of s 61is expanded to include inherent content, particularly if this extends to subject matternot otherwise within the enumerated heads of legislative power in the Constitution

* Professor of Constitutional Law in the University of Sydney and formerly Principal Solicitor in theOffice ofthe Australian Government Solicitor. It is noted that the most recent decision ofthe HighCourt relevant to the issues discussed herein, Williams v Cth [2012] HCA 23, was handed down ver)'recently. As it was not possible to include a detailed discussion of that case in the main body of thearticle prior to publication, the case is nevertheless discussed in a supplementary note which follows.In relation to the import of Williams, the writer acknowledges the very valuable assistance providedby Professor Geoffrey Lindell and Ms Gabrielle Appleby ofthe University of Adelaide.

' Leslie Zines,'Commentary'in HV Evatt, The Royal Prerogative ÇThthzw Book Co 1987)ch5.^ [2009] HCA 23 (High Court of Australia (HCA)).

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(ss 51, 52, 122) and thus potentially encroaching upon concurrent State legislativecompetence. Section 109 of the Constitution renders State laws inoperative to theextent of any inconsistency with Commonwealth laws.

This article will evaluate both positions and will argue that the 'inherentcontent' view is difficult to sustain, that the older view based on the prerogative(including what are often referred to as the 'capacities' of the Crown, ie thoseshared with the subject) is preferable on both legal and prudential grounds, thatit is more consistent with responsible government and the separation of powers,both implied in the Constitution,^ and provides for greater certainty andconsistency in the delineation of the federal distribution of powers.

The view that s 61 is limited by the common law tends to treat that section asa relatively mundane provision. As the Commonwealth is a government of theQueen, the provision does little more than confirm the incorporation of thecommon law powers of the Crown, its sparse words not adding inherent contentbeyond these. Because such powers can be regulated or abrogated by Parliament,to this extent s 61 is distinguished from those specific executive powers otherwisevested by the Constitution in the Covernor-Ceneral and which cannot beabrogated by Parliament, although probably they can be regulated;* eg, thepowers to appoint Ministers (s 64), to dissolve Parliament (ss 5, 28 and 57), toappoint federal judges (s 72(i), the command of the armed forces (s 68) and so on.Section 61 also ensures that the Commonwealth's executive powers are exercisableby the Governor-General on the advice of Australian Ministers, thus establishingin Australia the essential relationship between the executive (the Crown) andParliament at the heart of Westminster notions of responsible government andparliamentary supremacy; that is, the prerogative powers and capacities of theformer being subject to the legislative control the latter.^ 'It follows that in respectof Crown prerogatives and capacities s 61 seems to make no difference . . . [T]hesame rules would, generally speaking, apply to the States, and to the governmentsof Britain, Canada, or New Zealand.'^

See Lange v Australian Broadcasting Commission [1997] HCA 25 in relation to the former and, in relationto the latter, R v Kirby, exp Boilermakers' Society ofAustratia (1956) 94 CLR 254 (HCA) 275 (Boitermakers'case), and Attomey-Generalfor Australia V The Queen and The Boitermakers'Society! of Austratia [1957] AC 288(Priv>'CouncU(PC))315.G Winterton, Parliament, the Executive and the Governor-General: A Consätutionat Analysis (MelbourneUniversity'Press 1983)94-101; L Zines, The High Court and the Constitution {5th edn. The FederationPress 2008) 359-76.See ss 53, 57, 63, 64; Lange (n 3); G Lindell, Responsible Government and the Australian Constitution—Conventions Transformed into Law? (Australian National University Centre for International and PublicLaw, Law and Policy Paper 24, Federation Press 2004); Winterton, Partiament{n 4) 35; G Winterton,'The Relationship Between Commonwealth Legislative and Executive Power' (2004) 25 AdelaideLaw Review 21, 35. See aiso Attorney-General v De Keyser's Royal Hotet Ltd [1920] AC 508 (House ofLords (HL)).L Zines, 'The Inherent Executive Power of the Commonwealth' (2005) 16 Public Law Review 279,280.

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However, the 'inherent content' view of s 61 tends to regard its third component,containing the 'execution' and 'maintenance' limbs, as suggesting somethingmore. The 'maintenance' limb in particular, is regarded as adding power derivedfrom the character and status of the Commonwealth as a national polity andwhich can be deduced from the existence and character of the Commonwealthas a national government. This, however, remains an elusive concept. Withoutreference to the common law, it is difficult to identify legally-discernible criteriafrom it, beyond considerations basedpurely on policy andsubjective considerations,by which to test the validity of any given executive action in the absence ofstatutory authorisation; and hence not best suited for the use in judicialdetermination of such issues. While its adoption in Pape represents a novel step(some would say 'leap') in the High Court's jurisprudence, it is not entirelyunexpected in light of certain prior influential dicta; even though they are, atbest, an equivocal foundation for this new development. The most prominent arenoted:

Jacobs J in Victoria v Commonwealth stated: 'Within the words "maintenance of thisConstitution" . . . in s 61 lies the idea of Australia as a nation within itself and in its rela-tionship with the external world'.'

Mason J, in a very influential dictum in the same case (the Mason test), stated:

There is to be deduced from the existence and character of the Commonwealth as anational government and from the presence of ss. 51(xxxix) and 61 a capacit)' to engagein enterprises and activities peculiarly adapted to the government of a nation and whichcannot otherwise be carried on for the beneßt of the nation?

This formulation was set out in the context of determining the ambit ofCommonwealth executive power by reference to its legislative power, the field ofexecutive competence being limited by the ambit of the subject matters in relationto which the Commonwealth could legislate. And GummowJ, in ReDitford, expDeputy Commissioner of Taxation, stated: 'In Australia . . . one looks not to the contentof the prerogative in Britain, but rather to s 61 of the Constitution, by which theexecutive power is vested'.^ This culminated in Ruddock v Vadarlis,^° a decision ofthe Full Federal Court, by which a majority located within s 61 an inherentexecutive power (absent statutory authorisation and not otherwise within theprerogative), to prevent the entry of non-citizens into Australia, to detain themand compel them to leave.

But how is a court to define the outer limits of executive power in light of theelusive nature of'nationhood' considerations? As the cases which come before the

' (1975) 134 CLR 338 (HCA) 405-06 (AIP case).» AAP case (n 7) 397 (emphasis added).' (1988) 83 ALR 265 (Federal Court of Australia (FCA)) 285.'" [2001] FCA 1329. See S Evans, 'The Rule of Law, Constitutionalism and die M\ ' Tampa' (2002)

13 Public Law Review 94.

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courts are likely to involve matters of high political moment and nationalsignificance—as many of the cases considered herein bear out—it is importantthat principal reference can be made to legally-discernible criteria. This minimisesthe risk of the court becoming entangled in political controversies, whether itsupports particular executive action in the instant case or second-guesses thegovernment as to whether the exercise of a particular power is essential for'nationhood' purposes.

This problem may be compounded because the Constitution, by implication,entrenches a legal separation of powers." To what extent, therefore, is it now theposition that an executive power, to which inherent content is ascribed and beingconstitutionally prescribed, may be immune from legislative control? Thus, whileresponsible government is similarly implied and entrenches Westminster notionsof parliamentary supremacy over the executive,'^ if the separation of executivefrom legislative power is enforced with rigour, a sphere of executive powerimmune from parliamentary abrogation, and possibly control, may be created.While the present writer regards responsible government as sufficiently ascendantto override any legal separation of executive and legislative powers, this cannotbe entirely certain if inherent content is located within s 61 and thus sourced in aconstitutional provision.'^ This problem would be avoided if reliance was beingplaced on the prerogative which is inherently subject to legislative control.

B The execution and maintenance limbs of Section 61

In attempting to define the third component of s 61 from the text ('execution andmaintenance of this Constitution, and of the laws of the Commonwealth')uncertainties soon emerge and eventually abound.'* Little assistance, if any, isderived from the Convention Debates as to their precise meaning.'^ Judicialengagement with these limbs has resulted in various pronouncements referring tothe interpretational difficulties involved and that their precise meaning 'remainsopen to some debate'.'^ Isaacs J stated that s 61:

marks the external boundaries of the Commonwealth executive power . . . but it leavesentirely untouched the definition of that power and its ascertainment in any giveninstance. . . . [It] is an essential starting-point, and the extent it marks out cannot beexceeded'."

" Boilermakers'{r\ 3)." Boilermakers'(n 3).' ' See Winterton, Parliament{n 4) 97; Winterton, 'Relationship' (n 5) 38; Zines, High Court{n 4) 373." This was noted in The Report of the Advisory Committee to the Constitutional Commission on Executive Covemment

1987, ch 4, 59.''" See Winterton, 'Relationship' (n 5) 23; M Cromellin, 'The Executive' in G Craven (ed). The

ConventionDebates 1891-1898: Commentaries, Indices and Cuide{LegaiBooks 1986) 127, 131-32.'^ Rv Hughes [2000] HCA 22 [39] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and CaUinanJJ)." Commonwealth v The Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 (HCA) 447-48

{Woottops case).


Mason CJ, Dean and Gaudron J J in Davis v Commonwealth remarked that '[t]hescope of the executive power of the Commonwealth has often been discussed butnever defined'," with Brennan J adding that it was 'not amenable to exhaustivedefinition'.'^

The 'execution' limb is more straightforward, described as 'the doing of somethingimmediately prescribed or authorised' by the Constitution or Commonwealthlaws.^° This is consistent with the barest conceptual definition of executive powerwhich may be possible. Thus, executive action may be undertaken to meet theconstitutional obligations imposed on the Commonwealth such as protecting theStates against invasion and from domestic violence (upon their request) pursuant tos 119 of the Constitution. It would involve, subject to the appropriation of funds, thefacilitation of the exercise of power by the legislative or judicial branches, providingfor the functioning of Parliament, the administration of the courts and assisting theexecution of their process.^' It includes the payment of salaries authorised orprescribed by the Constitution, collection and control of customs and excise duties,the command in chief of the armed forces. ̂ ^ The 'execution' hmb thus provides nomore than a functional definition of this aspect of executive power, itsimplementational aspect, the subject matter in relation to which it may be appliedbeing determined by the Constitution and Commonwealth laws.

The 'maintenance' limb, however, poses greater challenges. Any plausibleinterpretation must be consistent with relevantprinciples implied in the Constitution,especially responsible government; ie, whatever its ambit, the government must beresponsible to Parliament for the exercise of executive power and it must be suchthat Parliament has the competence to regulate it by legislation. Williams J in theCommunist Party case defined it as 'the protection and safeguarding of somethingimmediately prescribed or authorised' by the Constitution or Commonwealthlaws." Protecting Australia from invasion or subversion would be permitted,coming within those prerogative powers relating to war, defence and foreignrelations.'* While the Commonwealth thus has power to take whatever action isnecessary, in a military sense, to repel the enemy, it is not made clear by the sectionwhat precise measures may be taken in the absence of statutory authorisation anddefinition.^^ This determination may be rendered quite elusive by the complications

" (1988) 166 CLR 79 (HCA) 92." Davisin 18) 107.*° Australian Communist Party V Commonwealth {\9b\) 8?: CL&. 1 (HCA) 230 (WilliamsJ, adopting Gavan

Duffy CJ and Knox J in Wooltops (n 17) 432). This was adopted in relation to 'execution andmaintenance' of Commonwealth laws by GummowJ in Re Residential Tenancies Tribunal (NSW), ex pDefence Housing Authority ( 1997) 190 CLR 410 (HCA) 464.

'̂ Brown a West (1990) 169 CLR 195 (HCA) 201 (Mason CJ, Brennan, Deane, Dawson and Toohey

JJ)-" See Winterton, Parliament (n 4) 31.' ' Communist Party (n 20) 230.'< Cadia Holdings Pty Ltd v New South Wales [2010] HCA 27 [31] (French CJ) and cases referred to in

Zines, 'Inherent' (n 6) 286-90; HP Lee, Emergency Powers (The Law Book Co 1984) ch 3.'^ See Winterton, 'Relationship' (n 5) 26.

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arising from the unconventional circumstances arising from, say, terrorist activity.̂ ^Can it be determined from s 61 alone whether the 'maintenance' limb encompasses,eg, coercive action absent statutory authorisation to prevent the entry into Australiaof persons from a particular region of the world which, in the Government'sassessment, is a notorious terrorist haven? Would it authorise the Government touse coercion to detain and deport such persons if they had otherwise legally arrivedin Australia on the sole basis that they had arrived from a proscribed region? Othersimilar questions could be asked. Unless some resort is had to considerations of apurely subjective, political kind, about which reasonable minds may differ, theanswer cannot easily be derived from the text of s 61 alone.

Thus, an examination of the broader common law foundations of theConstitution must provide the essential point of departure and resort thus mustbe had to the common law." As Professor Winterton noted, this approach'implements the well-established principle in common law countries that thecommon law is employed to interpret ambiguous provisions in written instruments,including constitutions and statutes'.^^ Gummow J noted in his extra-judicialwritings that 'it is settled that in certain respects . . . the executive power haslimitations which follow those established in the United Kingdom'." And, asProfessor Zines has succinctly noted, '[t]he Commonwealth was born into acommon law world where rules existed as to the powers and legal position oftheCrown, which the Commonwealth inherited as a government ofthe Queen'.'" Headded that 'in so far as s 61 includes them, they would exist apart from s 61, ands 61 has not changed them'." Thus, despite its ancient historical antecedents, orperhaps because of them, it is submitted that the prerogative cannot entirely berelegated to antiquarian interest or, indeed, to a 'locked display cabinet in aconstitutional museum';'^ nor need it be regarded as reminder of Australia'sformer Dominion status. (For ease of reference sufficient for present purposes, itis noted that 'prerogative' will be used to refer to all the powers and capacities ofthe Crown recognised by the common law.)^' Nevertheless, as will be pointed out

''^ Zines, 'Inherent' (n 6) 302." See Zines, 'Inherent' (n 6) 279; WMC Gummow, 'The Constitution: Ultimate Foundation of

Australian Law?' (2005) 79 Australian Law Joumal 167; Zines, High Court (n 4) 358.'* Winterton, 'Relationship' (n 5) 35.' ' Cummow, 'The Constitution' (n 27) 178." Zines, 'Inherent' (n 6) 292." Zines, 'Inherent' (n 6) 292. See also Winterton, Parliament (n 4) 97, 48-49; Zines, 'Commentary' (n

l)ch 1.5̂ Pfl/)e(n 2) [129] (French CJ).'̂ 'Prerogative' is subject to different usages. The broader Diceyan view is adopted herein as opposed

to the discerning usage preferred by Blackstone, Sir William Wade and Professor Zines, ie, thepowers and immunities uniquely the Crown's as distinct from the subject (also used by BrennanJ inDavis (n 18) 108); tbose common law powers shared with subjects are 'capacities'. In relation to thebroader usage see HWR Wade, 'Procedure and Prerogative in Public Law' (1985) 101 LawQuarterly Rexaew 180, 194; Barton v Commonwealth (1974) 131 CLR 477 (HCA) 498 (Mason J,'common law'); Commonwealth v Western Australia [1999] HGA5 [\06]; R v Secretary of Statefor ée HomeDepartment, ex p Fire Brigades Union [1995] 2 AC 513 (HL) 573 (Lord NichoUs, who referred to 'the

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below, while it still may remain a point of reference, it no longer appears to be theyardstick of the ambit of executive power in Australia at the federal level.

C THE 'BREADTH' AND 'DEPTH' OF THE MAINTENANCE LIMB

With such considerations in mind, Winterton conceived his neat distinctionbetween the 'breadth' and 'depth' elements of Commonwealth executive powerin the maintenance limb; 'breadth' referring to the subject matters in relation towhich the Commonwealth executive could operate, 'depth' referring to theprecise actions which may be taken in relation to those subject matters. Breadthis defined by reference to the legislative powers of the Commonwealth and isessentially coincident with them:^* 'the distribution of legislative powers effectedby the Constitution itself and the character and status of the Commonwealth asa national government'.'^ This legislative-pov/tr may include, although this has yetto be finally settled, matters appropriate to the Commonwealth on the basis of itsstatus as an independent national government.'^ This should preferably be locatedin the express incidental power in s 51(xxxix) in domestic matters" and s 51(xxix),the external relations power, in foreign affairs (as opposed to some generalimplication based on the Commonwealth's status as an independent nation). Thisensures that the subject matters in relation to which the Commonwealth may takeaction do not unduly encroach upon those which are within the ambit of Stateexecutives. The breadth component thus best reflects the federal distribution ofpowers in the Constitution. Moreover, it is most consistent with the approach thatregards the executive power as following the legislative, a natural corollary toresponsible government.'* The depth'^ of executive action, absent statutoryauthorisation, is then determined by the prerogative as recognised by the commonlaw.

Definitional confusion arises, however, when reference is increasingly made toa 'national' power in conjunction with the prerogative, tending to furtherconfusion when reference to the latter is omitted altogether. It is in this context

residue of discretionary' power left at any moment in the hands of the Crown'). For the narrowerusage see HWR Wade, 'The Crown, Minbters and Officials: Legal Status and Liability' inM Sunkin and S Pa>'ne (eds). The Natiire of the Crown (OUP 1999) 23, 31; Zines, 'Inherent' (n 6) 280.Zines has noted the important difference between 'capacities' and 'prerogatives' in that the latter'are capable of interfering with what would otherwise be the legal rights of others. In the case ofcapacities, their exercise cannot override legal rights and duties', in Zines, High Court (n 4) 345.

" AAP{n 1) 362 (Barwick CJ), 379 (GibbsJ), 396-97 (Mason J), 405-06 Jacobs J).35 A4/'(n7)396(perMasonJ).^ See Zines, H^h Court (n 4) 410-17." Davis {n 18) 101, 102, 103 (Wilson and Dawson JJ) 118 (Toohey J). See Winterton, 'Relationship' (n

5) 268.°̂ Federat Commissioner of Taxation v Officiât Liquidator ofE 0 Farley Ltd(in liq) (1940) 63 CLR 278 (HCA)

320-22 (EvattJ); A4/'(n 7) 362 (Barwick CJ), 379 (GibbsJ), 396-97 (MasonJ).3' This was originally set out in Winterton, Parliament (n 4) 33-34, ex-panded upon in chs 2 and 3.


that one needs to examine the influential Mason test.*" It is important to appreciatethat when Mason J formulated this test, he had already held that that the subjectmatters in relation to which the Commonwealth could take action were coincidentwith its legislative powers, express or implied.*' If the Mason test is regarded asproviding no more than a 'modern' expression of prerogative power, thedetermination of depth remains subject to the legally discernible criteria providedby the common law. Without such recourse, judicial determination of whichenterprises and activities are 'peculiarly adapted to the government of a nation'and 'cannot otherwise be carried on for the benefit of the nation' becomes verydifficult without recourse to subjective criteria. While there is some support forthe view that the Commonwealth's legislative powers include some power arisingfrom the Commonwealth's status and function as a national government,*^ ifthese comments are used as the foundation for an inherent executive 'nationhood'power, depth will remain bedevilled by definitional uncertainties. For example,in the AAP case. Mason J concluded from his formulation, and yet without expressreference to the prerogative, that scientific research and 'inquiries, investigationand advocacy in relation to matters affecting public health' were executive actionspermitted by s 61.*' But it is one thing to say that Commonwealth legislativecompetence might be extended by national imperatives, thus extending also thebreadth of its executive competence. It is quite another to proceed (without more)to identify particular activities, even benign activities, which may be undertakenby the Commonwealth executive based solely on criteria derived from its statusas a national government. As a matter of policy, the conclusion in AAPii hardlyobjectionable. Nevertheless, it is problematic to identify such activity asconstitutionally permitted to the Commonwealth executive without some recourseto legally discernible criteria, especially if the executive action at issue involvescoercion. Winterton opined that:

[T]he latter holding merely states conclusions, the legal reasoning apparently beingassumed. . . . First, what is the criterion for determining what executive power flowsfrom 'the character and status of the Commonwealth as a national government?' MasonJ gives no reason for deciding that research and investigation fall within the executivepower derived from that source. It is not suggested that the conclusion is incorrect, onlythat it is merely asserted, not derived by legal reasoning from its premise. Secondly . . .opinions may justifiably differ as to whether a particular activity must be conducted bythe Commonwealth if the nation is to derive benefit, and opinions will also differ on thequestion whether activities are to Australia's benefit or detriment.**

'"' See text with n 8." SeeyLlP(n 7) 396-98.« Zines, High Court (n 4) 410-17." AAP(n7)'i97." Winterton, 'Relationship' (n 5) 27-28.


Similar reasoning appeared in Rv Duncan ex p Australian Iron and Steel Pty Ltd inwhich Mason J held that s 61 authorised the Commonwealth to concludeagreements with the States and that this was 'beyond question'.*^

AlthoughJacobsJ also concludedin^^Pthat s 61 authorised the Commonwealthto undertake research and exploration,*^ he appears to have based this on theprerogative, linked to the 'maintenance' limb, but does so (with, respect) ratherimprecisely:

The prerogative is now exercisable by the Queen through the Governor-General actingon the advice of the Executive Council on all matters which are the concern of Australiaas a nation. Within the words "maintenance of this Constitution" . . . lies the idea ofAustralia as a nation within itself and in its relationship with the external world.*'

But there does not follow an analysis of the prerogative to determine the preciseactivities which may be thus permitted and hence his words may (although this isnot entirely certain) be interpreted as envisaging a broader, though ill-defined,'national' power:

The growth of national identity results in a corresponding growth in the area of activitieswhich have an Australian rather than a local flavour. Thus, the complexity and values ofa modern national society result in a need for co-ordination and integration of ways andmeans of planning for that complexit)' and reflecting those values. Inquiries on a nationalscale are necessary and likewise planning on a national scale must be carried out.Moreover, the complexity of society' requires co-ordination of services. .. . Research andexploration likewise have a national, rather than a local, flavour.*^

There is thus, with respect, a certain dissonance between the premise, thereasoning and the conclusion. Instead of limiting the use ofa nationhood conceptto breadth, it appears to be caught up in the determination of depth, its relationshipto the prerogative left unclear.

D THE PREROGATIVE AND DEPTH

A compelling advocate of the continued use of the prerogative, though by nomeans alone, remains Winterton, who has also been a strong advocate for moreprecision in delineating the relationship between s 61 and the prerogative. In hisseminal Parliament, the Executive and the Governor-General which introduced the'breadth'/'depth' analysis, Winterton provided an ordered and detailedconsideration of this question.*' Because this is sometimes overlooked, it needs to

« (1983) 158 CLR 535 (HCA) 560, apparendy adopted in Ä s//ug/¡«s (2000) 202 CLR 535 (HCA) [38](Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and CaUinanJJ).

« (n 7)412-13.(n 7) 405-06.fn 7)412-13.

Winterton, Parliament (n 4) 29.

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be borne in mind that, in his analysis, the role of the prerogative is locatedprecisely within the depth component of the maintenance limb of s 61. This is for the simplereason that the prerogative provides the legal criteria required for a determinationof depth, viz, which precise actions can be taken by the executive. The role of theprerogative is not at large andmustbe interpreted consistently with the imperativesof Australian federalism. And because depth is determined relative to the powersof the legislative and judicial branches, this definition of the executive powerreflects the separation of powers aspect of the Constitution.^° If this is appreciated,Winterton's analysis is reconcilable with the dictum of Gummow J above-mentioned in Re Ditford.^^ For Winterton also turns first to s 61, and 'not to thecontent of the prerogative in Britain', to determine the ambit of executive power,albeit he locates the prerogative therein.

Johnson v Kenf"^ provides a simple illustration of'the correct model for assessingthe constitutionality of executive action'. ̂ ^ At issue was the proposed constructionof a telecommunications tower on Crown land within the Australian CapitalTerritory pursuant to an executive decision made by the Governor-General inCouncil. In upholding its validity, the High Court first determined that theactivity came within the breadth of permissible Commonwealth executive activityas determined by its power to make laws for the government of any Territorypursuant to s 122 of the Constitution. The depth element was determined byreference to the prerogative; more precisely, the subset thereof referred to as the'capacities' of the Crown. The Commonwealth was simply seeking to develop itsown land. Barwick CJ stated:

[\'V]hat the executive does upon and in respect of such lands will be done by virtue of theprerogative and not by virtue of proprietorship. There can be no objection in my opin-ion to the Commonwealth, in the absence of any statutory provisions, establishing parks,gardens, sports grounds, tourist facilities and the like upon land it possesses in Canberra.. . . Such a conclusion would cover the erection in the present circumstances of a restau-rant and viewing facilities, assuming that there is no relevant statutory impairment of theprerogative.^*

This approach reflects the position taken by Professor Harrison Moore in theearly years of federation:

In pursuance of its duty to maintain the Constitution and the law of the Commonwealth,the Executive may, without any further statutory authority, take whatever measures areordinarily allowed to the Executive by the common law to protect every branch . . . ofthe Federal Government in the performance of its duties.^^

Winterton, Parliament (n 4) 29-30, 40-44; Evans (n 10).See text with n 9.(1975) 132 CLR 164 (HCA).Winterton, Partiament (n 4) 34.Johnson {n 52) 170.WH Moore, The Constitution of the Commonwealth of Australia (2nd edn. Legal Books 1997) 297-98.


In Barton^^ reliance was placed on the prerogative to determine whether theCommonwealth could request the extradition of a fugitive in the absence of anextradition treaty with the relevant nation. The Solicitor-General, Sir MauriceByersQC,adoptedabreadth/depthapproachinarguingthattheCommonwealth'spower was authorised by a combination ofthe external affairs power (s 51(xxix))and s 61 in which the relevant prerogative resided. Breadth was not in issuebecause the subject-matter came within the external affairs (legislative) power. Inrelation to depth, the argument which rested on the existence of the relevantprerogative was accepted by the court. Barwick CJ, Mason and Jacobs J J(McTiernan and Menzies J J not explicitly) held that the prerogative permitted arequest by the Commonwealth to a foreign State to detain a person alleged tohave committed an offence against the law of Australia and pending the makingof a request for his extradition.^' Winterton opined that this approach was bothgood law and sound as a matter of policy:

he Constitution 'maintenance' power does not add depth to the federal executivepower, nor need it add breadth, because the 'national' power and the Constitution-protection power, both of which have, as has been seen, occasionally been grounded inthis clause, fall within the contours of federal legislative power: the 'national power'within the incidental power, s 51(xxxix), and the 'Constitution-preservation power'either within the incidental power or simply an implied legislative power. There is littlepotential danger to democratic government in allowing the power to 'maintain' theConstitution to add breadth to federal executive power, became its depth will still be fixed bythe prerogative, which is subject to legislative control. However, if this interpretation ofthe 'main-tenance' power be questioned because the language of s 61 is whittled away to compara-tive insignificance, its words can be given the meaning ascribed to them by Williams J inthe Communist Party case; even so, that definition of the clause is unhelpful unless readagainst the background ofthe prerogative.^^

Other leading constitutional scholars have also argued along these lines.Professor Enid Campbell wrote:

|T]t is questionable whether it [the third component of s 61] is a grant of substantivepower at all. It is unthinkable that it would be construed as empowering the Crown to do what was,under common law, forbidden unless authorised by statute.. .. The means chosen for carrying outthe function of executing and maintaining the Constitution and the laws are, in short,controlled by the general

Barton (n 33).It is noted that the AAP case (n 7) was concerned with the validity of legislation appropriating fundsfor the Australian Assistance Plan pursuant to s 81. As GibbsJ noted ((1975) 134 CLR 338, 379),the principal concern was with breadth.Winterton, Parliament (n 4) 34. For a more complete exposition see 29-30, 40-44 and G Winterton(ed). We, the People {AUen andUnwin 1994) 31-34.E Campbell, 'Parliament and the Executive' in L Zines (ed) Commentaries on the Australian Constitution(Butterwortiis 1977) 88-89 (emphasis added).


Writing before Pape, Zines stated that the authorities did 'not support theproposition that s 61 confers 'inherent' power beyond that which the Crownpossesses at common law' and argued that the contrary reasoning of the FederalCourt majority in Vadarlis 'should not be followed'.̂ " He did not think it possible(with respect, correctly) to understand executive power at a purely abstractconceptual level or attribute inherent content to it:'''

The principle that the executive government has no power at common law to levy a taxis not derived from contemplating the concept of executive power. It is because ofEnglish historical development, particularly the struggles of the 17th

Similarly, 'the reason why making treaties and declaring war are executivepowers is not because of any inherent meaning of the concept but because ofevents in English history and their effect on the common law'.^' Moreover, sincethe 1688 settlement, reflecting the ascendancy of the Whig, social-compact viewof monarchical government and the triumph of Parliamerit, the prerogative hasnot been sought to be expanded upon. Hence the reference to it as a 'residue',indeed one which is diminishing.^* Zines' reflections are, with respect, compelhng:

It is difficult to accept that the framers of the Constitution believed that the moderndemocratic constitution that they had designed conferred inherent coercive power onthe Commonwealth government that was denied to the Imperial government.^^

Thus, it cannot be denied that the prerogative provides, at the very least, thefoundation for an understanding of the nature of Commonwealth executivepower. Unless the Constitution clearly provides to the contrary, the common lawas it develops in Australia, where appropriate, continues to inform theinterpretation of the written instrument.^^ Despite the difficulties which sometimesarise in relation to discerning prerogatives beyond well-established principles, itnevertheless does provide legally discernible criteria, even in novel situations, inlight of the ability of the common law to adapt to new circumstances.^' Andbecause the Commonwealth executive is limited to acting within the sphere ofCommonwealth legislative competence, it provides a sound constitutional basisto limit Commonwealth executive action vis-à-vis the States, thus also ensuringthat no executive action is beyond the realm of Commonwealth legislativecompetence as the demands of responsible government and parliamentary

" Zines,'Inherent'(n 6) 281." Zines, High Court (n 4) 359. See also Winterton, Parliament (n 4) 66-68.*' Zines, 'Inherent' (n 6) 279." Zines, High Court (n 4) 358." See the fine summation in Anne Twomey, 'Pushing the Boundaries of Executive Power—Pape, the

Prerogative and Nationhood Powers' (2010) 34 Melbourne University Law Re\'iew 313, nn 45-51and accompanying text with relevant authority.

" Zines, High Court {n 4) 359.^ Gummow, 'The Constitution' (n 26) 178.°' For a more detailed examination of this point, see Winterton, Parliament (n 4) 120-22; G Winterton,

'The Prerogative in Novel Situations' (1983) 99 Law Quarterly Review 407.


supremacy would require. This symmetry is not easily maintained if one permitsof inherent content to the maintenance limb.

This was borne out in particularly dramatic circumstances in Vadarlis.^^ Atissue was the legality of the Government's action to avert from Australianterritorial waters the Norwegian ship which had taken on board some 400 personsseeking asylum in Australia, having rescued them from their sinking vessel. Theywere detained and prevented from disembarking when the ship was boarded byAustralian military personnel upon entering Australian waters. The moreorthodox approach was adopted by North J (at first instance)^^ and Black CJ (onappeal and in dissent), both finding that the Commonwealth's actions were notauthorised by the relevant statute which provided a comprehensive regimerelating to the exclusion, entry and expulsion of aliens. Black CJ, in response tothe contrary majority decision, held that the Commonwealth's actions were notin any event supported by the prerogative powers incorporated in s 61,'° uponwhich he principally relied, nor any non-prerogative powers therein." In relationto the detention of friendly aliens in times of peace, it was 'at best, doubtful thatthe asserted prerogative continues to exist at common law'.'^ Addressing thequestion 'whether s 61 of the Constitution provides some larger source of such apower', he responded:

It would be a very strange circumstance if the at best doubtful and historically long-unused power to exclude or expel should emerge in a strong modern form from s 61 ofthe Constitution by virtue of general conceptions of'the national interest'. This is all themore so when according to English constitutional theory new prerogative powers cannotbe created: see generally Winterton [Parliament, The Executive and the Governor-General] atp 120 and British Broadcasting Corporation v Johns [1965] Ch 32 in which Diplock LJ said (at79) '[I]t is 350 years and a civil war too late for the Queen's courts to broaden theprerogative'.'^

However, French J, with whom Beaumont J agreed, rejected the proposition thats 61 confines the Government to the prerogative, and (on one reading at least) thatthe prerogative, as prerogative, informs the content of s 61:

The Executive power of the Commonwealth under s 61 cannot be treated as a species of the

royal prerogative. . . . While the Executive power may derive some of its content by refer-ence to the royal prerogative, it is a power conferred as part of a negotiated federalcompact expressed in a written Constitution distributing powers between the three armsof government reflected in Chs I, II and III of the Constitution.'*

«* Vadarlis{n 10).*' Victorian Counälßr Civil Liberties v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452

(Federal Ct)[110]-[22].'» Kai/ar&(nlO)[9]-[29]." Vadarlis{n 10) [31]." Vadarlis{n 10) [29]." Vadarisln 10) [30]." Vadartis{n 10) [183] (Beaumont J concurring with French J) (emphasis added).


As a discrete source of executive power, s 61 was to be measured by reference toAustralia's status as a sovereign independent nation." It would appear that thisdid not simply add content to the prerogative but that it was the sole source of lawon this issue, the prerogative relegated to a mere point of reference. Hence, hisHonour concluded that the Commonwealth could validly undertake the action,which involved coercion:

The power to determine who may come into Australia is so central to its sovereignty thatit is not to be supposed that the Government of the nation would lack under the powerconferred upon it directly by the Constitution, the ability to prevent people not part of theAustralia [sic] communit)', from entering.'^

His Honour expressly approved the dictum of Gummow J in Re Ditford above-mentioned" and referred to the prerogative as 'the common law ancestor' of theexecutive power in s 61 .'^ The power to detain and exclude aliens, it would appear,was 'central to the expression of Australia's status and sovereignty as a nation',"and thus it was included in s 61.°° Black CJ, by contrast, had noted that theconclusion authorising coercive action extended beyond executive powersrecognised in earlier cases." A view similar to the Vadarlis majority was expressedby McHughJin Residential Tenanciesthat 'the executive power of the Commonwealthconferred by s 61 involves much more than the common law prerogatives of the Crown'.^'^

Professor Geoffrey Sawer, as early as 1976, referred to a 'preponderant drift'toward the acknowledgment of'an area of inherent authority derived partly fromthe Royal Prerogative, and probably even more from the necessities ofa modernnationalgovernmenl'^^ sourced in s 61; although it was certainly not the case that ithad any clear authoritative acceptance at that time. Winterton also suggestedthat, despite Johnson v Kent and Barton, that the Vadarlis approach may have beengiven some comfort by the High Court pre-Pape.^* In Davis/'" for example, theCourt had held that s 61 authorised the Government to commemorate Australia'sBicentenary without apparent reliance on the prerogative but rather directlyfrom s 61, pursuant to the Mason test^^ in AAP^^: 'the commemoration of the

" Vadarlis (n 10) [191].™ Vadarlis {n 10) [193] (emphasis added)." See text with n 9 above.'» VadaAis{r\ 10) [181] (emphasis added)." Vadarlis [n 10) [192].«"' Vadarlis (r\ 10) [193].»' Vadarlis(ri\0)[3\]." Residential Tenancies (n 20) 459 (emphasis added).°' G Sawer, 'The Executive Power of the Commonwealth and the Whidam Government' (unpublished

Octagon Lecture, University of Western Australia, 1976) 10 (empbasis added). See Winterton'Relationship' (n 5) 33.

*• Winterton 'Relationship' (n 5) 31.»̂ Davis {n 18) 93 (Mason CJ, Deane and Gaudron JJ); 103 (WUson and Da\vsonJJ); 111 (BrennanJ);

119 (TooheyJ).8̂ AAP{r\ 7).*' AAP{n 7).


Bicentenary is pre-eminently the business and the concern of the Commonwealthas the national government and as such falls fairly and squarely within the federalexecutive power.'^^ The other justices expressed similar views.^^ AlthoughBrennan J did refer to the prerogative in apparently basing his conclusion on the'maintenance component' of s 61, he did not employ it in his reasoning, adoptingthe view of Jacobs J in AAP, that the phrase 'imports the idea of Australia as anation',^" authorising the Government to act for 'the protection and advancementof the Australian nation'." Winterton appears to have concluded that the justiceswere suggesting that celebrating the nation was the activity (or range of activities)itself, ie depth, which was authorised by s 61.'^

However, it is arguable that this" reasoning did not relate to depth and hencecannot be regarded as precursor to the Vadarlis approach. Zines, for example, hasidentified the issue as 'whether the purposes of a celebration of this kind camewithin the area of responsibilities of the Commonwealth' and accordingly it wasin fact concerned with breadth determined by the extent of Commonwealthlegislative competence.'^ Celebrating the bi-centenary was thus a subject matterwhich was appropriate to the Commonwealth's status as a national governmentfor which it could take action. If one limits the ratio more precisely to the facts,the interpretation of Zines, with respect, may be more correct.'* That is, the caseheld not that the Commonwealth could undertake any activity to celebrate thenation, but rather that it had power to incorporate a company for the purposes ofcelebrating the bicentenary. Such a power can be found to exist within the'capacities' of the Crown. Zines concluded:

The executive like anyone else had power to have incorporated a company to engage ina celebration if the purpose was within a sphere of federal responsibility». The issue wouldnot arise in a non-federal State . . . No coercive power was involved. No one's rightswere affected (except by legislation). The object and means were within the capacity ofanyone to exercise, even if the significance of the event is greater when carried out by thenational government.^^

Nevertheless, despite cases such as Johnson v Kent and Barton, and unlike thestatements of leading constitutional scholars, there was no unequivocal rejectionof an element of inherent executive power in the maintenance limb of s 61 by theHigh Court. Perhaps this was taken as understood, 'unthinkable that [s 61] wouldbe construed as empowering the Crown to do what was, under common law.

'" Davis [n 18) 94 (Mason CJ, Deane and Gaudron JJ).«' Dauis (n 18) 104 (WUson and Dawson JJ); 114 (Brennan J); 119 (Toohey J).'" Davis [n 18) 110.5' Davisin 18) 110.' ' Winterton, 'Relationship' (n 5) 32.^ Zines,'Inherent'(n 6) 281.'* Zines,'Inherent'(n 6) 281.' ' Zines, 'Inherent' (n 6) 291. See Twomey (n 64) 323-24 where there is succinct statement of respective

views which arise with respect to the capacities of the Crown in a federal context.


forbidden unless authorised by statute' and hence the need for such explicitrejection was not perceived.'^

E BEYOND THE PREROGATIVE

In Pape^^ a majority ofthe High Court adopted the view that s 61 contains inherentcontent beyond the prerogative based, broadly speaking, on 'national' considera-tions, although eschewing reference to a 'nationhood power'. Intricate issues wereraised on the facts involving the inter-relationship between s 61, the incidentalpower in s 51 (xxxix), express Commonwealth heads of legislative power and theappropriation provisions in the Constitution, ss 81 and 83; the latter respectivelyproviding that all government revenues are to form one Consolidated RevenueFund 'to be appropriated for the purposes ofthe Commonwealth' and that '[n]omoney shall be drawn from the Treasury . . . except under appropriation madeby law'. The Government had responded to the 2008 'global financial crisis' byproviding a 'bonus payment' to taxpayers pursuant to the impugned statute, itselfmade reliant on a standing appropriation. This statutory machinery was heldsufficient to provide the necessary appropriation, although this did not authorisethe expenditure, s 81 held not to be a source of power to spend.

The Court had previously not resolved whether 'for the purposes of theCommonwealth' in s 81 required the appropriation to be within a Commonwealthhead of power or whether it was sufficient if Parliament regarded it to be forCommonwealth purposes.'' Because Pap« decided that appropriation per se couldnot authorise expenditure, the issue became whether the impugned statute,authorising payment, was supported by a head of Commonwealth legislativepower (that is, beyond s 81).'^ A majority (French CJ, Gummow, Crennan andBell JJ) held that it was: by the incidental power, s 51 (xxxix) supporting a validexercise of s 61 executive power. Heydon J held the Act wholly invalid, whileHayne and Kiefel J J held it valid only to the extent that the payments could beread down to come within the taxation power (s 51 (ii)).

The more conservative approach of French CJ located a power within s 61permitting 'short-term fiscal measures to meet adverse economic conditionsaffecting the nation as a whole, where such measures are on their face peculiarlywithin the capacity and resources ofthe Commonwealth Government'. This did

^ See n 59 and the accompanying quotation from Professor Campbell's work.' ' Pape (n 2). Articles which have considered this case in detail are: C Saunders, 'The Sources and

Scope ofthe Commonwealth Power to Spend' (2009) 20 Public Law Review 256; A McLeod, 'TheExecutive and Financial Powers ofthe Commonwealth: Pape v Commissioner of Taxation' (2010)32 Sydney Law Resaew 123; Twomey (n 63).

™ In AAP (n 7) and Attorney-General (Vic) v Commonwealth (Pharmaceutical Benefits Case) {1945) 71 CLR 237discussed in Zines, High Court [n 4) 352-54.

' ' Pape{n 2) [8]-[9], [133]-[34] (French CJ); [241]-[43] (Gummow, Crennan and BeUJJ); [320](Hayne and Kiefel JJ); [601]-[02] (Heydon J).


not extend to a general executive power to manage the economy,'"" nor did hisHonour regard it necessary to determine the extent of executive power in anational emergency."" In similar vein, the joint reasoning of Gummow, Crennanand Bell J J had consideration to 'what enterprises and activities are peculiarlyadapted to the government of the country and which cannot otherwise be carriedon for its benefit.''"' The influence of the Mason test on the majority is apparent.More expansively, they acknowledged the imperatives upon a national governmentto respond to an emergency:

It can hardly be doubted that the current financial and economic crisis concernsAustralia as a nation. Determining that there is the need for an immediate fiscal stimulusto the national economy in the circumstances set out above is somewhat analogous todetermining a state of emergency in circumstances of a natural disaster. The ExecutiveGovernment is the arm of government capable of and empowered to respond to a crisisbe it war, natural disaster or a financial crisis on the scale here.'"^

Hayne and Kiefel J J conceded that the executive power extends to 'national'issues, but held that this particular stimulus package could not be brought withinthis power. Hence their need to rely on the taxation power (s 51 (ii)) to the extentthat the payments could be redefined as a tax refund.

This finding of inherent content to s 61 was accompanied by a subtle, yetsignificant, shift in constitutional reasoning. Rather than determining firstwhether the subject matter of the impugned Act came within a Commonwealthhead of legislative power (including s 51 (xxxix) or an implied legislative powerbased on 'national' considerations), reference was initially made to the content ofexecutive power within s 61 itself, its depth not limited by the prerogative. Themajority then determined that the legislation authorising the bonus paymentscould be supported by the incidental legislative power in s 51 (xxxix).'"* This wasthe reverse of the 'breadth/depth/prerogative' approach described by Wintertonwhich first makes reference to the ambit of legislative power before determiningwhat action the executive can take therein, thus ensuring that executive powerfollows the legislative and that the Commonwealth stays within its sphere ofcompetence based on the federal division of powers. Instead the content of s 61determined the flow of legislative power through s 51 (xxxix), the executive powerleading the legislative.'"^ French CJ expressly confirmed this:

Elucidation of the content of the executive power in s 61 and the incidental power con-ferred by s 51 (xxxix) is a process to be distinguished from the discover)' by implication ofa 'nationhood' power as an implied head of legislative competence.'"^

"» Pape{n 2) [\33]."" Pape{n2)[\0].

Pape[n 2)Pape{n 2) [233].Pape{n 2) [8]-[9], [133]-[34] (French CJ); [241]-[43] (Gummow, Crennan and BellJJ).Saunders (n 97) 261-62 noted a confusion in the reasoning relating to breadth and depth.Pape{n 2) [\33].


This approach resulted in the difficulties apparent in the reasoning in relation tothe delineation between Commonwealth and the State executive power whichProfessor Twomey has explained."" It was also inconsistent with an interpretationbased on responsible government which would have insisted that executivecompetence be determined so as to ensure that it was subject to legislative control.

More precisely in relation to present concerns about the prerogative, French CJstated that:

The collection of statutory and prerogative powers and non-prerogative capacitiesyörmpart of, but do not complete, the executive power. They lie within the scope of s 61, which isinformed by history and the common law relevant to the relationship between theCrowai and the Parliament. . . . While history and the common law inform its content, itis not a locked display cabinet in a constitutional museum. It is not limited to statutorypowers and the prerogative. It has to be capable of serving the purposes of a nationalgovernment.'"'

The role of the prerogative, left somewhat ambiguous in Vadarlis, was clarified tothe extent that the prerogatives were stated to 'form part of but 'do not complete'the executive power in s 61.'°^ While a rather nice distinction, the point remainsthat in this formulation the prerogative still influences and restrains, at least to anextent, the subjectivity inherent in the power defined by reference to the nationalconsiderations. However, the limits of that restraint were well illustrated in thedecision in Vadarlis above-mentioned where s 61 was held to permit executiveaction, including coercive action, which the prerogative may not have permitted.In similar vein, Gummow, Crennan and Bell J J stated:

The conduct of the executive branch of government includes, but involves much more than,enjoyment of the benefits of those preferences, immunities and exceptions which aredenied to the citizen and are commonly identified with 'the prerogative'; the executivepower of the Commonwealth enables the undertaking of action appropriate to the posi-tion of the Commonwealth as a polit)' created by the Constitution and having regard tothe spheres of responsibility' vested in it. ' '"

The 'includes, but involves much more than' phrase corresponds to the 'form partof, but do not complete' phrase of the Chief Justice. Apart from considerations offederalism:

Otherwise there appears no good reason to treat the executive power recognized in s. 61. . . as being, in matters of the raising and expenditure of public moneys, any less thanthat of the executive in the United Kingdom at the time of the inauguration of theCommonwealth. ' ' '

"" Twomey (n 64) 327-30.'^ Pape{n 2) [127] (emphasis added).* Pape {n 2) [127].'° Pape{n 2) [214] (emphasis added)." Pape {n 2) [220].


It may not be any less, but, by not limiting s 61 by reference to the prerogative, isit not being rendered something more? Moreover, if the prerogative was still arelevant determinant of executive power, why did the Court not seek to rely on it?As Twomey has noted, ' [i] n doing so, they did not appear to attempt to re-interpretthe existing prerogative power with regard to self-protection from internal violenceor insurrection so that it also applied to self-protection from a financial crisis.'"^

Although in dissent, Hayne and Kiefel JJ did not reject outright the existence ofan executive power within s 61 based 'national' considerations."' Their reasoning,however, indicated a fundamental disquiet with this approach, particularly if itpermitted a broad, inherent executive power in (arguably) extraordinary situationsthus authorising a potentially self-defining executive power to respond."* Thesubjective and political nature of its determination was apparent to them. Eventhough it was undeniable that there was a very serious international financial crisis,and even on objective grounds, they were nevertheless not persuaded by argumentsbased on the existence ofa 'crisis' or 'emergency', which arguments 'do not readilyyield criteria of constitutional validity', and which they summed up as being nomore than '[t]here is a crisis; ifthe Commonwealth cannot do this, who can?'"*This tended to circularity in reasoning and was fundamentally flawed with respectto yielding legally-discernible criteria for its application:

VXTiat that and similar forms of rhetorical question obscure is a conflation of distinct ques-tions about ends and means . . . because the legislative power to enact the Impugned Act istreated as depending upon the execution of a power, said to be implicitly vested by theConstitution in the Executive, to meet a national crisis (in this case a financial or economiccrisis). But if that is the end to which the exercise of power is to be directed, it by no meansfollows that any and every means of achieving that end must be within power. To arguefrom the existence of an emergency to either a general proposition that the Executive mayrespond to the crisis in any way it sees fit, or to some more limited proposition that theExecutive has power to make this particular response, is circtilar. . . . Reference to notionsas protean and imprecise as 'crisis' and 'emergency' (or 'adverse effects of circumstancesaffecting the national economy') to indicate the boundary of an aspect of executive powercarries with it difficulties and dangers that raise fundamental questions about the relation-ship between the judicial and other branches of government."^

These concerns certainly echo those of the present writer. It is precisely in answerto this problem that Winterton was careful to distinguish breadth (even assuminga legislative nationhood power) from depth which can only sensibly, in a purelylegal sense, be determined by the prerogative. And yet, their Honours did not seekto resort to the prerogative for assistance or to adopt reasoning based on a'breadth/depth' analysis for which there was substantial precedent.

' " Twomey (n 64) 315.' " Pape[n 2) [345] and using criteria along the lines suggested by the Mason test: [329]-[30].' " Pfl/ie(n2)[352]-[53]."5 Pape(n 2) [3'i8]."« Pa/)e(n2)[349]-[52].

116 The Executive Fower of the Commonwealth of Australia OUCLJ VOL 12 NO I

The disquiet was also apparent in the reasoning of Heydon J who otherwiseappeared to adopt a neutral stance with respect to the existence of an executivepower based on national considerations, although explicitly rejecting an impliedlegislative nationhood power.'" Applying the Mason test for the sake of argument,he held that its criteria had not been met here,"^ confirming Winteron's statementthat:

Opinions may justifiably differ as to whether a particular activity must be conducted bythe Commonwealth if the nation is to derive benefit, and opinions will also differ on thequestion whether activities are to Australia's benefit or detriment. Does Australia reallybenefit more from research [referring to Mason J's example in AAF) carried out bythe CSIRO (a Commonwealth instrumentality) than (say) the University of Melbourne(a State instrumentality)?"^

His Honour was concerned with its inherently subjective nature and its unsuit-ability for the purposes of legal adjudication. He referred to the contemporaryexcess of use of 'emergency', 'crisis' and such like, over a range of issues, and inrelation to which immediate (often radical) action is advocated. 'The great maximof governments seeking to widen their constitutional powers would be: "Neverallow a crisis to go to waste"'.'^°

Finally, and no less significantly, the 'inherent content' view of s 61 remainsquite a leap from the dicta and authorities relied on by the majority, in particular

, the dicta ofjacobs and Mason J J in AAP.'^' While there is no doubt that the latterrefer to national considerations, it is not clear that they are dispensing with theprerogative as the ambit of the power, or indeed that they are advocating aninherent content to it. Moreover, it is certainly not the case that they are suggestingthat the executive power can be determined independently of the breadth of thelegislative power, even one based on national considerations. The point remains,that Pape, as with Vadarlis before it, constitutes a decisive step beyond what mayhave been suggested in earlier cases.'̂ ^

F A FUNDAMENTAL PROBLEM OF DEFINITION: INHERENT EXECUTIVE POWER?

The 'inherent content' view must confront the impossibility of attributing, byconceptual analysis alone, any substantive content to 'executive' power beyond thepurely functional. And yet it has not done so. Winterton referred to it as 'somethingof a mystery"" and noted the 'futility of attempting to define the ambit of federal

Pa/)e(n2)[487]-[510].Pape {n 2) [5'i5].Winterton, 'Relationship' (n 5) 28.Pape(n2)[yo\].A^P (n 7) and accompanying text.See Twomey (n 64) 330-35 for a more detailed examination of this point.Winterton, 'Relationship' (n 5) 21.


executive power by allusion to abstract notions of "executive power'".'^* It was'barren ground for an analytical approach', 'a trackless waste' in the happyphrases of Professor Morgan.'^^ It might be said to be that power in a polity whichundertakes the administration, residing principally in the direction of thegovernment and the implementation of policy, pursuant to the laws which itexecutes and the constitutional provisions with which it must comply.'̂ '' This,however, defines the power according to its role without ascribing any substantivecontent to it.'^' To say that it is the residue of power beyond the 'judicial' or'legislative' states even less, and yet may be the basis to say that is somethingindeterminately more. Even if one refers to that executive power historically mostclosely linked to the prerogative, the conduct of foreign relations, it is not the casethat such a power can be derived logically from a conceptual analysis of'executivepower'. It is simply a historical fact at any given time, based on prudential andefficiency considerations, political realities, as well as custom and usage. It iscertainly not immutable. English constitutional history, and that of Britain'sconstitutional progeny, remains influential in determining the content of executivepower; especially the constitutional conflicts of the seventeenth century and theRevolution settlement, the establishment of the supremacy of Parliament, thesubsequent evolution of cabinet and responsible government (especially afterthe Reform Act 1832 (UK)) and the development ofthe common law as it relatesto the powers ofthe Crown. Parliament left such traditional 'executive' powers asforeign relations, declaring war and peace, altering national boundaries, acts ofstate, conferring honours, pardoning offenders, etc in the hands ofthe Crown foressentially pragmatic reasons, influenced by political realities and English notionsof limited monarchy.

The problem of inherent content to executive power has been realised in othercontexts, notably in the application of the doctrine of the separation of powerswith respect to legislative and executive power.'^' Writing about the position inthe United States, which, like Australia, has a legally entrenched separationdoctrine. Professor Martin Redish noted:

The executive branch, . . . (with exceptions specified by the Constitution), is confined tothe function of 'executing' the law. Such a function inherently presupposes a pre-existing'law' to be executed. Thus, the executive branch is, in the exercise of its 'executive'p o w e r , confined to the development of means for enforcing legislation already in existence. . . . I t s h o u l d

Wintmon,Parliament(ni)70.DG Morgan, The Separation of Powers in the Irish Constitution (Round Hall Sweet and Maxwell 1997)272, quoted in Zines, 'The Inherent' (n 6) 279.See Winterton, 'Relationship' (n 5) 33; Zines, 'The Inherent' (n 6).As to the origins ofthe concept of executive power, see MJC Vile, Constitutionalism and the Separationof Powers (2nd edn. Liberty Fund 1998) 29-34.PA Gerangelos, 'Interpretational Methodology in Separation of Powers Jurisprudence: TheFormalist/Functionalist Debate' (2005) 7 Constitutional Law and Policy Rexaew 1; PA Gerangelos,The Separation of Powers arui Legislative Interference in Judicial Functions (Hart Publishing 2009) 14—57.

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be emphasised that this requirement in no way implies that the executive branch's powershould somehow be confined to the performance of'ministerial' functions, bereft of anyroom for the exercise of creativity, judgment or discretion. All it means is that, unlesssome other specif.cally delegated executive branch power applies, the executive branchmust be exercising that creativity, judgment, or discretion in an 'implementational' con-text. In other words, the executive branch must be interpreting and/or enforcing a leg-islative choice or judgment; its actions cannot amount to the exercise of free-standing législativepower.^''^

In Australia, Winterton has made a similar point compellingly:

[E]ven in a purely Anglo-American context there are no functions inherently 'executive' innature. Besides referring to powers expressly or impliedly granted by the constitution,'executive power' in abstract is meaningless; its content depends entirely upon the frame of referenteemployed to determine the scope of executive power.... The futility of attemptingto define the ambitof federal executive power by allusion to abstract notions of 'executive power' and not byreference merely to expressly conferred powers and the prerogative is demonstrated by thepoor result of endeavours to do so.''°

To permit of a constitutionally enshrined inherent executive power opens thedoor to the undue aggrandisement of the power, especially as this power maybecome self-defining, at least in exceptional circumstances. Although less likelyin a mature representative democracy, with the independence of the judiciarybeing secure, executive power remains susceptible to abuse, especially if agovernment is able to invoke 'emergency' or 'crisis conditions' and takes action itdeems necessary to 'maintain the Constitution'.'^' The consequences are poten-tially corrosive to civil liberties and the values of a parliamentary democracybased on the rule of law. Although the political situation in Australia is relativelystable and benign, the experience of history, and a pragmatism born of presentrealities, counsel against complacency in this regard. Sir Owen Dixon famouslyreflected that:

History and not only ancient history, shows that in countries where democratic institu-tions have been unconstitutionally superseded, it has been done not seldom by thoseholding the executive power. Forms of government may need protection from dangerslikely to arise from within the institutions to be protected.'^^

Examples abound and need not be related here.'" Suffice it to say that 'nationalsecurity' may still become the 'last refuge of a scoundrel' seeking to disguise aninsurrection against constitutional government.'^*

M H Redish, The Constitution as Political Structure {OUV 1995) 117.Winterton, Parliament (n 4) 70 (emphasis added).Pape{n 2) [55\].Austratian Communist Party {n 20) 187.Lee (n 24) 209-11 ; Twomey (n 64) 381.Winterton, Parliament {n 4) 33.


Prudence thus counsels against facilitating an indeterminate inherent power to'maintain' the Constitution. This is particularly the case if, as some commentatorshave suggested, executive power may be rendered immune from legislativecontrol if a particularly rigorous and formalistic approach is adopted with theseparation of powers implied in the Constitution."^ Although this latter view isquestionable,'^^ it needs to be stated that, because the Constitution is based on therule of law and entrenches responsible and representative government, s 61 mustat least be interpreted consistently with these constitutional fundamentals, toensure that it is not possible to exercise executive action independent ofparliamentary control. This may occur if the 'inherent content' view is taken.'^'As stated by Jackson J: 'With all its defects, delays and inconveniences, men havediscovered no technique for long preserving free government except that theExecutive be under the law, and that the law be made by parliamentarydeliberations."^^

By way of final illustration, and in relation to the facts in Vadarlis, how can it besaid, avoiding subjectivity, and a resort to pure policy considerations, that one canderive from the status of Australia as a sovereign nation a precise executive powerto use coercion to detain and expel friendly aliens, or at least prevent their entryinto Australia? As Zines noted, 'it is equally open to argue that as the governmentalaction involves use of coercive force against unarmed people "it is not to besupposed" [French J's own words] that the Constitution (or the common law)would provide such power in the absence of its conferral by Parliament.'''^

G A WORD FOR THE COMMON LAW

On both legal and prudential grounds, a return to sole reliance on the prerogativehas much to commend it. The common law powers of the Crown which havesurvived the rigours of parliamentary supremacy over the executive are compatiblewith the values which the evolution to parliamentary responsible governmentrepresent, including those most conducive to civil liberties.'*" Reliance on theprerogative fits more neatly into a structured approach to the determination ofthe ambit of Commonwealth executive power vis-à-vis the States because thesubject matters in relation to which it operates must first be determined byreference to the ambit of Commonwealth legislative competence. This becomes

See G Sawer, 'The Governor-General of the Commonwealth of Australia' (1976) 52 Current AlfairsBuUetin 20, 25; J Richardson, 'The Executive Power of the Commonwealth' in Zines, Commentaries(n 59) 86-87.See Winterton, Parliament (n 4) 33; Winterton, 'Relationship' (n 5) 36.Winterton, Parliament (n 4) 33.Quoted in Winterton, Parliament (n 4) 34.Zines, 'Inherent' (n 6) 292.Zines, 'Inherent' (n 6) 292.

120 The Executive Power of the Commonwealth of Australia OUCLJ VOL ! 2 NO i

a far more difficult proposition if one is relying on inherent content to s 61executive power, which, conceivably, might not be able to be contained therein,especially if the imperative for action by the national government is regarded assufficiently compelling.

Of course, in determining the ambit of executive power in Australia,consideration must also be given to the evolution of legal independence from theUnited Kingdom,'*' its written constitution, its federal nature and how this ismanifested in the structure of the political branches of government. But relianceon the prerogative is not inconsistent with these considerations. Indeed, it ispositively helpful in light of its flexibility, as evidenced by the way theCommonwealth prerogative was expanded with respect to external affairs toreflect Australia's developing status as an independent nation.'*^

The High Court itself has traditionally eschewed a purely abstract analysis tobranch power'*' and, in the absence of legislation authorising executive action,has itself tended to resort to the prerogative to determine its validity of executiveaction: '[Section 61] enables the Crown to undertake all executive action whichis appropriate to the Commonwealth under the Constitution. . . . It includes theprerogative . . . the powers accorded to the Crown by the common law."** Thus,Zines was able to comment before Pape that:

The common law provided the prerogative and executive powers that have since beendeemed to be included in that section. It is clear that the common law privileges andimmunities of the Crown would attach to the Grown in right of the Commonwealth byvirtue of common law in the absence of s 61.'*^

By expressly providing that the executive power is exercisable by the Governor-General, s 61, inter alia,'"^ removed doubts that it was to be exercised on theadvice of Australian Ministers.'*' It was regarded as a relatively straightforwardprovision, translating into the Commonwealth sphere the Westminster principleswhich it reflected. It was not traditionally regarded as a source of inherentexecutive power. This appears to be the understanding of the Framers.'*^

Could Pape have been resolved by reference to the prerogative if such anexercise had been attempted? Reference may have been made to the prerogativein times of war and emergency (which included the requisitioning of ships andother property, and indeed the destruction of property to prevent it falling into

Australia Act 1986 (Cth) and (UK).Winterton, Parliament (n 4) 24, 48; Zines, 'Commentary' (n 1) chl-chlO.Cerangeios, Separation of Powen(n 128)22-29.Barton (n 33) 498 (MasonJ).Zines, High Court (n 4) 363-64.Zines, 'Inherent' (n 6) 282.Sue V Hill (Í999) 199 CLR 462 (HCA), 495-96; Zines, 'Inherent' (n 6) 282; Zines, High Court (n 4)364.Twomey (n 64) 316.


enemy hands, compensation being payable)'*' to argue that a financial crisis, andnot only a military one, created such an emergency. However, it is difficult todetermine precisely what may be done in circumstances short of war or itsimminence, and what similar action might be taken to address situations such asinsurrection, riot, pestilence and natural emergencies.'^" But it would be a longbow indeed to suggest thatfinancial emergencies came within its kernel or that theprerogative extended to the creation of schemes to confer benefits on persons.'^'Whatever the outcome of such an enquiry, reliance could have been placed oncommon law principles, albeit difficult to ascertain, but avoiding any charge ofmere assertion and circularity in the determination of the measures warranted bya 'global financial crisis'.

Nevertheless, might it not have been argued that this aspect of the prerogativecould be developed and applied to a modern emergency now defined in a financialterms? That is, while the imperatives on a government in a military emergencyare certainly more obvious, could it not be argued that a financial catastrophe inthe modern era, or even the imminent threat thereof, may well now be held tocome within s 61 as part of the evolution of the Australian common law on thematter, at least to the extent that it did not involve coercion or unnecessaryintrusion on the common law rights of the subject? By analogy with the incidentalaspect of the trade and commerce power (s 51 (i)), in which existing authoritylimits its intrusion into intra-state commerce by reference only to the physicalprotection of interstate commerce, it has been argued that economic factorsshould be allowed to extend the power.'*^ In substance, there is no obviousconstitutional logic in that context why the distinction should be drawn.'^^Similarly, although the analogy is not perfect, it is arguable that the prerogativemay be applied in a modern situation to include a power to take action in aneconomic emergency which seriously threatens the nation, although the thresholdfor its application should be set at a high level. While these thoughts remainpurely speculative, of course it could be said that the same uncertainties will ariseirrespective of whether one approaches the question from a common law basis orwhether one relies on inherent content to s 61. But that is no reason of itself tochoose the latter course, for, as Professor Zines has noted:

[t]he doubts about the extent of the prerogative are not relieved by adopting the viewthat one should resort not to the content of the prerogative but to s 61 of the Constitution,

' " Lee (n 24) ch 3; Zines 'Inherent' (n 6) 287, 294.'̂ 0 See also Burmah Oil Co Ltd v Lord Advocate [1965] AC 75 (HL); Zines 'Inherent' (n 6) 287.'^' AW Bradley and KD Ev\Tng, Constitutional and Administrative Law (13th ed, Longman 2003) 105,

246-47.'5' Airlines of NSW Pty Ltd v NSW (No 2) (1965) 113 CLR 54 (HCA); Attorney-General (WA), Ex RelAnsett

Transport Industries (Operations) Pty IM v Australian National Airlines Commission (1976) 138 CLR 492(HCA).

" ' See Sir A Mason, 'The Australian Constitution: 1901-1988' (1988) 62 Australian Law Journal 752,755.


even if it is conceivable that the power in that section to 'maintain the Constitution'might extend beyond the common law prerogative. '̂ ^

It is not to be denied that there is a certain archaic element to the prerogative. Itis not a dynamic area of the common law, being almost atrophied within itscharacter as a residue; not necessarily a bad thing. Unlike inherent executivepower, there are definable limits to the prerogative: it may be abrogated by statuteand is generally subject tojudicial review. It cannot be used to permit a dispensationfrom the application ofthe law, nor create an offence or impose a tax. Moreover,certain powers which have survived legislative abrogation may in any event beextinct because of desuetude.'" Although no new prerogatives may be created,they can be developed, in the way of the common law, to apply to newcircumstances.'^'^ While the precise content of the prerogative may remaindifficult to discern in certain circumstances, many prerogatives are well settledand of continuing modern relevance. In short:

the prerogative constitutes a substantial body of principles, rules and precedents, estab-lished over hundreds of years, the subject of considerable literature and heritage sharedwith comparable nations such as the United Kingdom, Canada and New Zealand.'"

These have been detailed elsewhere and need not be repeated here.'^° It thusremains inherently more certain than a determination based on what isappropriate for a national government.

If the concern is to remove any doubt that the general executive power is to bedetermined by reference to s 61 alone, perhaps the element ofthe prerogativetherein may be referred to by more appropriate terminology, and applied slightlymore liberally (as discussed below) to meet national imperatives, but restrainedwithin the familiar territory of the Australian common law. Subject to theseremarks the present writer generally concurs with Winterton's position:

While constitutional discourse should reflect present constitutional realities, one of theseis that the Constitution was not inscribed upon a tabula rasa. It was born into a commonlaw world, albeit one capable of development, for adaptability is one of the commonlaw's most fundamental and valuable qualities. This is especially true of Ch II of theConstitution, which was deliberately drafted to reflect the supposed law of theConstitution, not Its practice, even in 1900. An interpretation of Ch II which ignoresBritish and Australian constitutional history by taking its words at face value is not 'post-colonial', but rather one which judges the constitutional architecture merely by itsfaçade. Moreover, it is potentially dangerous, for it could lead to grossly exaggerated

'^ Zines, 'Inherent' (n 6) 290. For a more detailed consideration of how the common law might beapplied to deal with the diiferent scenarios raised in the Australian cases, see Twomey (n 64) 335-38.

'̂ ^ See the fine summar)' in Twomey (n 64) 320 and cases referred to therein.'=« Winterton, Parliament [n 4) 120-22.' " Winterton, 'Relationship' (n 5) 34-35.'*' See Winterton, Parliament (n 4) 49; Evatt, Royal Prerogative (n 1) ch 6; Twomey (n 64) 324, 335-38.


views of the Governor-General's independent powers . . . Even if one rejects an'originalist' interpretation of the Constitution and interprets it in light of contemporaryconstitutional requirements, Ch II of the Constitution, including s 61, cannot be inter-preted sensibly without reference to the Crovvn's prerogative powers, whether or notthe 'maintenance' element of Commonwealth executive power is confined to thosepowers.'^'

The origins of the prerogative within the constitutional context of parliamentarysupremacy over the executive also implies the executive's inherent subjection tolegislation, a situation which, it is submitted, presently pertains in Australia,particularly in light of the decision in Lange.'^° Executive action will thus ultimatelybe only an interim measure pending relevant applicable legislation, althoughexecutive control of Parliament may result in a lengthy wait. From the perspectiveof democratic scrutiny by elected representatives in Parliament, it is a good thingthat it be so.'^' Accountability is enhanced. The likelihood of extreme action islessened. The rule of law is strengthened because such action will be subject tojudicial review. It is most important to appreciate that it is far more likely thatexecutive action will be held to be subject to legislative control than if it wereregarded as deriving directly from s 61 entirely independently of the prerogative,especially if this quality of the prerogative (ie its inherent subjection toparliamentary control) is not explicitly stated to be transferred to the moremodern conception of s 61.

Without securing settled legal criteria, the court might be placed in a positionwhere it is required to gainsay even a government which has acted with extremecaution and restraint, based on its own due consideration of what is appropriatefor a national government in the circumstances. The court may also be drawninto unnecessary political controversy. Of course, this cannot be avoided entirely,even if reliance is being placed on the prerogative alone. But it is far less likely ifrecourse is being had to criteria recognised and refined within the common law.No doubt the court will, over time, develop its own jurisprudence on what isappropriate for a national government to undertake, its continued reference tothe prerogative (however it is styled) being a positive sign. However, such cases asdo arise are rare. The position may remain unqualified and vague for a very longtime, longer even perhaps than is required to keep pace with the evolution ofgovernment and the policy question of what is appropriate action for a nationalgovernment, even using the Mason test.

vvinterton, 'Relationship' (n 5) 34—35.Lange (n 3) 561. See also De Keyset's Royal Hotel (n 5); Winterton, 'Relationship' (n 5) 35; Lindell (n 5).See Evans, 'The Rule of Law' (n 10) 99.


H TOWARD A RESOLUTION

Subsequent to Pape, in the inaugural Winterton Lecture, the Chief Justice ofAustralia, the Honourable Robert French, stated that: 'There is room, therefore,for further academic discussion and suggestions for a principled approach toappropriate limits upon executive power."^^ This article will conclude byventuring some. These will be based on the following assumptions (which are byno means certain): first, the decision in Pape relating to s 61 continues to apply,although it may be qualified. Secondly, a substantive role for the prerogativecontinues to be acknowledged. It will remain incorporated within s 61. It issubmitted that the proposed position is reconcilable with that of the strongeradvocates for the post-Pape position, including that of French CJ in Pape andVadarlis, as well as the dictum of GummowJ in Re Ditford.'^^ The proposal, inessence quite humble, is this: in determining the ambit of Commonwealthexecutive power, one indeed must look 'to s 61 of the Constitution' and 'not to theprerogative in Britain'. In so doing, one must distinguish between the 'execution'and 'maintenance' limbs of the third component of s 61. The 'execution' hmb canbe defined pursuant to the analysis suggested above and reference to theprerogative is not generally required.'^* The 'maintenance' limb, which causesthe greatest problems, should nevertheless proceed to be determined by theposition which pertained pre-Pape, that is by reference first to the breadth ofCommonwealth legislative competence as described by Winterton, including byreference to s 51 (xxxix) which may be used to provide the legislative competenceto meet the requirements of nationhood. Of course, there is no need here to makereference to the prerogative because one is simply determining subject matter. Itis submitted that the Pape approach, which turns first to executive power, is farless able to provide a consistent outcome with respect to the federal division ofpowers.'" Winterton had noted that:

[I] t would be less dangerous to base an executive power to engage in 'national' activitieson legislative power to authorize them, than to derive the legislative power from execu-tive power via s 51 (xxxix). . . [I]f the legislative power is the source of executive power,it will satisfy only the 'breadth' component for the exercise of executive power, the aspectof 'depth' will still be depend on whether or not the particular 'national' activity fallswithin the prerogative. This is much safer for the future of democratic government thanaccording recognition to a necessarily vague executive power to engage in 'national'activities.'̂ ^

'^' RS French, 'The Executive Power' (2010) 12 Constitutional Law and Policy Review 5, 12." ' Text accompanying n 9.'" Text accompanying n 19-21." ' See above n 106 and accompanying text."* Winterton, Parliament {n 4) 44.


In determining precisely what executive action may be taken in this regard(Winterton's 'depth'), it is submitted that the prerogative, as it develops in Australia,provides the most appropriate guide and should continue to provide thefoundation. This would require a frank acknowledgement not simply tha t ' s 61incorporates the prerogative', but rather that in determining what executiveaction is permitted, absent statutory authorisation, pursuant to the maintenance limbof s 61, the determinant remains the prerogative at common law; it beingacknowledged, however, that the common law in this regard may be moreprecisely referred to in terms of'nationhood' and relating to the requirements ofthe government of the Commonwealth as an independent federal polity. Thisdoes not necessarily involve a change of nomenclature as reference could still bemade to the prerogative; although if preferred, this may be altered in the way, forexample, one refers to 'procedural fairness' as opposed to 'natural justice', byreferring to 'common law executive powers', or 'powers and capacities', or suchlike. The High Court in Pape appeared to be exploring the possibilities toward amore modern conception of s 61, reflective of Australia's independence,acknowledging a continuing role, even if only an informative one, for theprerogative. It is clear that it seeks to ground the concept of executive power uponthe terminology of nationhood, and within s 61.

The constitutional text thus enlivens reliance on the prerogative in its precisenative context. While it may be said that there are elements of the prerogativewhich should indeed remain within a 'locked display cabinet in a constitutionalmuseum', in particular those which have fallen by the wayside because ofdesuetude (one can hardly imagine the press gang going about its business todayto man the Queen's ships), that is not to say that others, including the moreestablished ones such as foreign relations, may remain very useful presentlydespite (or perhaps because) oftheir ancient lineage. However, it is worth repeatingthat the text of s 61 remains the essential point of constitutional reference.

The following further qualifications may assist. First, there may need to be amore explicit recognition that this native form of the prerogative is more amenableto development and application in novel situations than the prerogative may be inBritain. This is because it is being located precisely within the constitutional textestablishing a federal polity. Perhaps one might venture to suggest that the limitationsimposed on the prerogative by the context of the 1688 setdement do not need toapply quite to the same extent in the Australian federal system. In other words, thehitherto prevailing attitude in Britain by which the prerogative is regarded verystrictly as a residue, one which is diminishing, may be slightly liberalised as a matteronly of constitutional interpretation to meet the imperatives ofa federal polity.

The closest analogy may be the role of the implied principle of responsiblegovernment as envisaged by Egan v Willis.'^^ Referring to responsible governmentin New South Wales, Gaudron, Gummow and Hayne J J stated:

'" (1998) 195 CLR 425 (HCA).


It should not be assumed that the characteristics of a system of responsible governmentare fixed or that the principles of ministerial responsibility which developed in NewSouth Wales after 1855 necessarily reflected closely those from time to time accepted atWestminster.'^'

Even though frank acknowledgment is given to the incorporation of the doctrineat Commonwealth level based on certain constitutional provisions and inheritedWestminster usage, and that even if its 'core' features are regarded as having beencrystallised in 19Ö0 and therefore cannot be altered except by constitutionalamendment, nevertheless the principles are allowed to evolve as the nature ofAustralian government evolves. Of course, in Britain responsible government isregarded as still evolving whereas the prerogative is regarded as a diminishingresidue. But it is not denied that this diminishing residue is applicable to new andnovel situations. Moreover, in the former case, although one is referring toconstitutional conventions as opposed to principles of the common law, theanalogy can be maintained. In an independent federal Australia, may it not beaccepted that this is precisely how the depth component of the maintenance limbof s 61 is to be interpreted, that is, by appreciating more its evolutionary (and noteonly its residual) nature without the same rather severe reluctance to develop itwhich may be more appropriate in Britain? If the prerogative is thus perceived,usual common law techniques can be applied in its development; which, given thepaucity of such cases, is likely to be slow and evolutionary in any event.

Therefore, reference can be made to the prerogative as recognised by thecommon law, including its evolution in Britain prior to 1900, and thence inAustralia, post-1900 cases in British and Commonwealth courts of course beingmerely persuasive. Already, there is some indication as to how this may beapproached following the decision in Pape. While on the one hand there would bea more expansive interpretation of the prerogative, there may need to be also apresumption against an expansive interpretation where coercion is involved,something already envisaged by French CJ in Pape:

Future questions about the application of the executive power to the control or regula-tion of conduct or activities under coercive laws, absent authority supplied by a statutemade under some head of power other than s 51 (xxxix) alone, are likely to be answeredconservatively. They are likely to be answered bearing in mind the cautionary words ofDixon J in the Communist Party

It may be helpful to consider how the facts of Vadarlis"° might be decided pursuantto the above-advocated position. Without commenting on the merits of any

"° Egan (n 167) [41]. In relation to the issue of responsible government, the writer is indebted to theimportant article of Professor Geoffrey Lindell (n 5), especially 5; and also similar remarks in RePatterson; Ex parte Tcylor (2000) 207 CLR 391 (HCA) [17] (Gleeson CJ) [212] (Gummow and HayneJJ) which were brought to the attention of the writer by Professor Lindell's work.

'*̂ Pape (n 2) [10]. For the quotation from Sir Owen Dixon see text with n 132."0 Vadarlis {n 10).


conclusion, given the uncertainty of the existence of any prerogative to expel orrepulse by force the entry of friendly aliens, which uncertainty Black CJ (indissent) recognised, it would nevertheless be open (even under Black CJ's analysis)to have held that the government's actions were valid. It might even be said thatexecutive action involving coercion may be countenanced only when all otheravenues to protect the borders, even as against the entry of friendly aliens, havebeen considered or have failed. This would be determined precisely under thedepth component ofthe maintenance limb of s 61 pursuant to the prerogative inthe precise context of protecting the borders, such action being no more coercivethan absolutely necessary in the circumstances and there being no other availableoptions. In this way, the determination could still occur pursuant to considerationsarising in relation to the requirements of a national government, even under theMason test, with the determining factor being the prerogative in a federal context.The limited nature of this power under the prerogative would thus exert arestraint on its interpretation which might not otherwise exist if reference is beingmade solely to 'nationhood', and especially when an 'emergency' is invoked. Ofcourse, a less strict approach may be taken to non-coercive executive activity.Similarly, the court may wish to indicate that, in light of the history of theprerogative, a more stringent approach will be taken generally with respect tothose powers which are 'prerogative powers' in the narrow sense, as distinct fromthose powers which have been referred to as executive 'capacities'.

In this way, the concerns of those who fear an undue expansion of executivepower, and those who fear its undue limitation if reference is made to theprerogative alone, may be assuaged, if only slightly. Under this approach it willnot be necessary to proceed to some kind of general description ofthe content ofs 61 executive power beyond the above guidelines. This the Court in Papeeschewed in any event, preferring to consider the particular action before it. If,however, s 61 is couched simply in terms of (executive) 'nationhood', there willmore likely be a demand for a more precise general statement as to the content ofsuch a power and the fundamental problem will remain: how is one to determinesuch a vague and amorphous power in the abstract, without essential resort to theprerogative and historical experience?

The present writer, however, cannot avoid the conclusion that an 'inherentcontent' view of s 61 cannot be sustained. If one relies on criteria based on'national' imperatives alone, and without reference to the common law, resort willinvariably be had to purely policy considerations, generally of a subjective kind,and unsuited, without more, tojudicial determination. It is submitted, finally, andwith respect, that the decision in Pape may need to be reconsidered and that thecommon law relating to the prerogative in its precise Australian context, even ifstyled in more modern garb, must continue to retain its fundamental place andits restraining hand.

128 The Executive Power of the Commonwealth of Australia OUCLJ VOL 12 .NO I

SUPPLEMENTARY NOTE

The decision of the High Court in Williams v Cth"' is the most recent case onexecutive power. This supplementary note will refer to those aspects of thedecision most relevant to the principal concerns of this article. The case no doubtwill be the subject of further detailed analysis.

The decision affirmed, inter alia, the following aspects oí Pape: An appropriationpursuant to s 81 is not a source of spending power; and s 61 is a source of inherentexecutive power based on 'nationhood' considerations beyond what may bepermitted by those executive powers (both 'prerogative'—in the narrow sense—and 'capacities') recognised by the common law. The discussion in this articlerelating to the principal issue of inherent content to s 61 remains unaffected,except in the aspects discussed below.

The precise issue raised by the facts was the extent to which the Commonwealth,absent statutory authorisation, could enter into contracts and to spend moneys inperformance thereof; in this case entering an agreement to fund chaplaincy servicesin State schools. The agreement and spending in issue were held to be invalid. Theambit of the prerogative, in the narrow sense, was not in issue. A majority (FrenchCJ, Gummow, Bell and Crennan JJ)"^ held that s 61 permitted Commonwealthcontracting and spending without statutory authorisation (subject to appropriation)only in the following circumstances: when it is a) reasonably necessary for theexecution and maintenance of the provisions of the Constitution and valid lawsmade thereunder; b) in the exercise of the Commonwealth's prerogative powers (inthe narrow sense); c) in the exercise of those powers which derive from the inherentexecutive nationhood power (which is not amendable to exhaustive definition); andd) in the ordinary course of administering a recognised part of the Commonwealthgovernment, carrying out recognised functions of government, which is analogousto the power to administer government departments pursuant to s 64 of theConstitution. Excepting these circumstances (hereinafter 'the recognisedexceptions'), the Commonwealth could not validly contract and spend unlessauthorised by legislation. As the impugned funding agreement did not come withinthese 'recognised exceptions', it was held invalid.'"

Although the facts related more precisely to executive 'capacities', the reasoningof these majority judges manifested a move away from previous understandingsand assumptions relating to s 61, the full implications of which may not becomeapparent until further cases are brought. This is revealed most clearly bycontrasting the approach of this majority in WiUiams with the general approachbased on breadth/depth analysis, previously dominant despite differing views as

'" [2012] HCA 23.' " Williams{n 171) [22] (French CJ), [138]-[46] (Gummow and BeUJJ), [483]-[85] (CrennanJ).' " Hayne and Kiefel J J also held these to be invalid, though for different reasons which need not be

discussed here. Heydon J was the only justice to hold the agreement and spending valid.

2012 Oiçford University Commonwealth Law Journal 129

to the existence and ambit of inherent content based on 'nationhood'. Applyingthe latter approach, the funding agreement would be regarded as an exercise ofthat executive capacity shared with natural persons, recognised by the commonlaw and incorporated by s 61, to enter into contracts. It clearly thus fell within thedepth component of Commonwealth executive power, satisfying the first step forconstitutional validity. It was then necessary to determine whether the terms ofthe contract, the matters it provided for, satisfied the breadth requirement; thatis, whether they were within the permissible sphere of Commonwealth executivepower determined by reference to the ambit of Commonwealth legislativecompetence, express and implied. If they were, then no further statutoryauthorisation was required (subject to appropriation).

Heydon J (in dissent) came closest to this approach, commending Winterton'sbreadth/depth distinction as 'not only neat but illuminating'."* The depthrequirement was met because the act of contracting and spending was a recognisedexecutive capacity authorised by s 61, albeit one not unique to the Commonwealth.The breadth requirement was satisfied by s 51 (xxiiiA) which provided, inter aha,that the Parliament could make laws 'with respect t o . . . benefits to students', adoptinga broad interpretation thereof to included the provision of chaplaincy services.

This approach does not suggest that the Executive Government of theCommonwealth could do anything in relation to which the Parliament of theCommonwealth could make a valid law. The breadth/depth approach would sayrather that the government can only do those things, engage in those activities,encompassed by the executive prerogatives and capacities at common law, and—followingPape—by the 'nationhood' executive power, and then, only within the spheredefined by Commonwealth legislative competence, express and implied.

None of the majority judges adopted this approach."^ Rather, they appear tohave considered first the ambit of s 61 executive power; and in relation to whichthey eschewed an exhaustive definition. They proceeded to determine (withoutreliance on breadth/depth) whether the funding agreement in issue was a validexercise of s 61 power. Applying the holding in Pape—that s 81 is not a spendingpower—they proposed that, prima facie as a general rule, the Commonwealthdoes not have power to contract and spend without prior statutory authorisation.The next step was to determine whether the executive action in issue came withinone of 'the recognised exceptions' above-mentioned. None of these, however,gave implicit recognition to a general executive capacity, at common law andincorporated by s. 61, to contract and spend. That is, the majority appear not tohave given explicit recognition to a general capacity (shared with natural persons)to contract and spend (depth) so long as this was exercised within the sphere ofCommonwealth legislative competence (breadth). Of course, ifthe Commonwealthwere not a federation, and its Parliament had plenary legislative competence,

"•• Williams (n 171) [382], and n 525 contained therein.'» Williams [n 171) [22] (French CJ), [138]-[46] (Gummow and BellJJ), [483]-[85] (CrennanJ).


there would be no need to consider the element of breadth. Validity would simplybe determined by the question of depth. Indeed, they appear almost to be rejectingthat there is an executive 'capacity' to contract and spend, based on the characterof the Commonwealth as a juristic person and recognised at common law. Insteadthe focus appears to have shifted to the 'recognised exceptions' as restraints onthat capacity. Under the previous approach, apart from meeting the breadthrequirement, this capacity may have been restrained by considerations relating tothe requirement that its exercise be subject to the general law, that it not impingeon the rights of others, that it not involve coercion, and by a certain sensitivityrelating to the different quality attached to a 'capacity' when exercised by govern-ment as opposed to the private citizen (eg, secret government telecommunicationssurveillance being quite different to private eavesdropping)."^ However, followingthe majority reasoning, a general power to contract and spend which does notcome within these exceptions now requires statutory authorisation, and is therebyno longer an executive 'capacity' at all. Will this approach be extended to include,and thus limit, what were hitherto regarded as 'capacities' beyond the power tocontract and spend? Is there potential for this approach be extended to limit the'prerogatives' in the narrow sense? Future cases will need to clarify this.

The new criteria for determining the ambit of these capacities, as reflected inthe nature of the 'recognised exceptions' (especially the last one) would appear tobe based on issues of accountability"' (requiring legislation for the exercise of anyformer 'capacity' implementing new policy beyond the recognised functions ofgovernment) and a more vigorously asserted need to protect State executivepower from federal encroachment."*

There were some further specific instances of disenchantment with the breadth/depth approach, possibly based on a misunderstanding thereof Gummow and BellJJ"^ focussed on a broad proposition, which they rejected, that the executive mightdo anything which Parliament might do by an enactment; and yet seem not to havedistinguished this from the breadth/depth approach. The latter approach does notsuggest that the executive may do anything at all which could be permitted bylegislation. Rather, it stands for the proposition that whatever the prerogatives andcapacities recognised at common law, as well as {po%t-Pape) the inherent executivenationhood power, may permit the Commonwealth to do (depth), it may only takethat permitted action within the sphere of Commonwealth legislative competence(breadth). And yet French CJ queried the usefulness of the concept of breadth:

The subject matters of legislative power are specified for that purpose [to determine thevalidit)' of legislation], not to give content to the executive power. Executive action.

™ Zines, High Court (n 4) 355; Winterton, Parliament (n 4) 122-23.' " Wittiams{n 171) [151]-[52] (Gummow and BellJJ); [516]-[34] (GrennanJ)."« Williams{n 171) [37]-[38], [56]-[58], [60], [83] (French CJ).™ Williams(n\n)[\3'i]-[3S].


except in the exercise of delegated legislative authority, is qualitatively different fromlegislative action.'™

The meaning of 'not giving content' is difficult to determine. For the concept ofthe content of executive power is more meaningfully applied when examiningdepth. Reference to subject matters of legislative competence merely determinesthe sphere in which the content of the executive power may operate. Executiveaction is, in the main, qualitatively different to legislative action and it is for thisreason that a determination of its constitutional validity it is not as straightforwardas determining the validity of legislation. But this does not justify impugning theconcept of breadth. On the contrary, this difference explains and justifies thediscrete method applied by breadth/depth analysis, properly understood, toexecutive action, distinguishing it from that applied to the determination of thevalidity of legislation pursuant to the Constitution.

The above would indicate that there has been a further shift away from existingapproaches and principles in relation to executive power. There is a possibility thatthe above issues may be re-examined and amended when revisited by the Court.This potential for reconsideration is reinforced by the view of at least one the justices,due to a significant shift of the position of some of the parties on a fundamental legalissue after the hearing had commenced, that the fullest consideration of that issuemay have been hindered. That issue, referred to as the 'common assumption', was'that the executive power of the Commonwealth included a power to enter contractswithout statutory authority as long as the Commonwealth had legislative power togive it statutory authority'.'*' This is broadly in conformity with the orthodoxbreadth/depth analysis. Heydon J was concerned by the rejection of this commonassumption by the plaintiff after oral argument had commenced, 'raising thepossibility that the case may not have been argued and considered with the degreeof thoroughness that no doubt would have been applied to it if the commonassumption had been clearly impugned by the plaintiff from the very outset'."^ Afterreferring to other vicissitudes of litigation which hindered a fuller examination ofthis fundamental question, his Honour concluded:

This case is not an appropriate one in which that question should be answered. . . . It isimportant that points of fundamental significance such as the one that this case belatedlyraised be pondered by counsel for years—as they often are when appeals come to thisCourt—or at least for months—as is usual when matters in the original jurisdiction arebrought to the Full Court. Above all, they need to be considered calmly. Radical changesin the construction of the Constitution should not be made without better assistance thanthe unpredicted conspiracy of circumstances permitted counsel to provide in this case.'^^

The final episode relating to these questions may thus yet to be played out.

'™ Williams{n 171) [26]-[27].'" WiUiamsln 171) [341].'«' Wî7/Mmj(nl71)[404].'^ WiUiamsln 171) [404].

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The Executive Power of the Commonwealth_peter Gerangelos

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