LAWS5007: Public Law Executive Power EXECUTIVE POWER Executive
Federal executive Queen, GG, Ministers (PM & Cabinet) and bodies such as tribunals, public servants in government departments or independent agencies. o Role administer the law. ‘Crown’ multiple meanings and dependent on context. o Symbolic representation of the executive government and its powers. o Crown in right of the Commonwealth and in right of each State, with each being a separate legal person. ‘Head of state’ person who holds the highest-ranking constitutional office in a country and in whom the executive power is vested. o Technically, the Queen is the head of state. o However, it is the GG that actually exercises such power.
Powers of the Executive
Statutory powers. o Express powers in the Constitution. o Powers given by Parliamet. o Powers incidental to that given by the Constitution and Parliament. o Powers incidental to the administration of a Department of a state. Non-statutory powers. o Prerogative power. o Powers derived from the character and status of the Commonwealth as a national government. o Powers arising out of the Commonwealth’s status as a legal person
Nature of the Executive
Institutions Monarchy (Queen); GG/Governors; Cabinet and Ministers (sets overall direction of government); government departments; independent agencies and tribunals. Cabinet PM controls shape, structure and operation. o Cabinet made up of Senior Ministers. o Cabinet confidentiality and consultative in nature. o Decisions are binding on the Ministry. o Collective ministerial responsibility for decisions of the Cabinet. o Key aspect of the political system responsible for day-to-day operations, not the Queen or GG. Convention PM is leader of the party with a majority in the lower house. o S 64 GG appoints ministers. o Appointment and removal of ministers by GG on advice of PM. o Collective ministerial responsibility may undermine ability to enforce individual ministerial responsibility for departments. Functions making policy. o Administering laws. o Dealing with other governments. Independent agencies and tribunals while they are courts, they form part of the Executive. o E.g. Administrative Appeals Tribunal.
Constitution: Responsible Government, Ministers and the Executive Council
S 61 executive power of the Commonwealth is vested in the Queen and is exercisable by the GG as the Queen’s representative. Ss 62-63 there shall be a Federal Executive Council to advise the GG in the government of the Commonwealth. o Membership. o Formal body does not debate or make policy. LAWS5007: Public Law Executive Power S 64 GG is to appoint ministers and they shall hold office during the pleasure of the GG.
Prerogative Power
Scope of executive power is effectively left to inference legislative powers are clearly enumerated but Constitutional terms are opaque. Prerogative power power to enter into treaties, declare war or print money etc. o Dicey residual or discretionary authority which at any time is legally left to the Crown. o Derives from common law. Effect of proroguing ends current session of parliament and ends all business (terminates all bills). o Everything must be re-submitted according to the usual process after parliament is re-summoned.
The Governor-General
GG represents Queen at Commonwealth level. Governor represents Queen at state level. Procedures stipulated in the Constitution. o S 2 appointed by the Queen and letters patent; no criteria for appointment or dismissal. o Appointment based on advice of ministers, usually for 5 years. Removal of GG retirement/recommendation of Ministers. o Retirement. o Recommendation of ministers.
GG’s Exercise of Executive Power
1. Ceremonial. o Entertaining visiting heads of state. o Opening new sessions of parliament. o Receiving ambassadors and high commissioners appointed to represent their countries in Australia. o Giving awards. o Meeting community representatives. 2. Constitutional. o S 2 receive visiting heads of state and opening of parliament. o S 5 dissolve, prorogue and summon parliament. o S 32 issuing writs for elections. o S 58 assent to legislation. o S 61 exercise of the executive power of the Commonwealth. o S 64 appoint and dismiss Ministers. o S 68 Commander in Chief of Military forces – attend military parades and events. o S 72 appoints judges. o S 128 submits proposed changes to the Constitution to the people for a referendum. 3. Legislative. o Powers included in legislation. o E.g. where legislation provides for making of regulations (subordinate legislation). 1. Reserve. o Theoretically exercisable without need for advice but usually subject to certain conventions. . Government has ignored GG’s calls to stop. . Government has clearly persisted in breaching a fundamental constitutional provision. . Conduct is not justiciable and cannot be brought before the courts. o Appointment of PM. o Dismissal of PM and Government. . PM loses the Lower House but refuses to resign. LAWS5007: Public Law Executive Power . Government persists in continuing illegal or unconstitutional conduct e.g. Lang dismissal. o Dissolution of Parliament.
Absence of Constitutional Details – Convention
Formation of government party with majority in the Lower House. PM should resign if the government loses an election. GG is not required to follow the advice of PM if they choose to resign. o E.g. where there is a close election and both parties still have an opportunity to form government, the GG may elect to wait until a majority is formed. Hung parliament incumbent PM has the right to test support in the lower house. o PM should resign and call an election if the government loses confidence of the Lower House. o If PM refuses to resign, GG can still act on advice of other ministers and dissolve parliament. Prorogue end current session of parliament and quashes all unfinished business. o 2016 PM Turnbull prorogued parliament as government was unable to pass legislation. o 2019 prorogue of parliament in UK. . UKHC matter not justiciable but a political issue. . Scottish courts matter justiciable and clear breach of rule of law. o Summoning of parliament all proposed bills must be tabled through the usual process from the very beginning. o Power to prorogue is a reserve power. o GG/Queen would only decline if it undermined responsible government, breached the rule of law or prevented Houses from exercising their legislative power.
Recent Cases
Resignation of GG, Dr Peter Hollingworth
GG resignation of GG, Dr Peter Hollingworth. o Hollingworth had knowledge of a priest who had engaged in sexual misconduct but failed to act. o Lost confidence of PM/public and potentially brought position of GG into disrepute and was effectively forced to resign.
Lang Dismissal
Dismissal for loss of confidence in the Lower House. o Dismissal of PM and whole government is rare and controversial. o Convention subject to vote of no confidence and refuses to resign or call an election. . Appears to have lost confidence but refuses to recall Parliament in reasonable time or seeks to govern without its support. . Consistent with principle of responsible government (advice of responsible ministers). Dismissal for breach of the rule of law. o Occurs where government has engaged in persistent and serious illegality. o 1932 dismissal of Lang Government defaulted on payment of interest on loans from British creditors and repeatedly refused to comply with Commonwealth laws during the depression. . NSW government withdrew all moneys from banks and held it under armed guard to prevent the Commonwealth from obtaining the money. o NSW unsuccessfully challenged the validity of the Commonwealth laws and continued to thwart Commonwealth laws. o NSW public servants were given conflicting instructions by NSW and the Commonwealth. o Lang refused to give advice to the Governor if the government’s actions were legal and refused to withdraw the Circular even though a bill had been passed to raise the money needed. o Lang refused to resign Governor dismissed him on ground of illegality and appointed Opposition Leader as Premier on the basis that an election would be held immediately. LAWS5007: Public Law Executive Power . Lang was comprehensively defeated at the election. Criticism of the dismissal. o Criticism the Governor decided the issue himself and usurped judicial power. o Circular was clearly in conflict with Commonwealth law that was recently upheld by HCA and illegality was manifest. o Lang did not deny his conduct was illegal and refused to advise the Governor. o If the issue of legality had been disputed and was a justiciable matter, it should have been left to the courts to decide. o Governors should be way of dismissal on grounds of illegality unless courts have declared such action to be illegal and Government has persisted in such conduct. . However, there may still be exceptional circumstances where the exercise of this reserve power is warranted without court judgment.
Whitlam Dismissal
Supply
Supply appropriations bill. o All money (e.g. taxes) contribute to a Consolidated Revenue Fund. o Government cannot freely withdraw money must pass an appropriation bill which allows for government activities to be funded. o Government cannot lawfully govern if it cannot guarantee supply and is unable to pass the appropriation bill. Traditionally accepted that GG can exercise reserve power to dismiss a PM if the Lower House failed to pass a bill of supply. o Refusal to pass bill indicates government has lost confidence of the Lower House. Whitlam dismissal was so controversial as the supply bill passed the Lower House but the Upper House blocked it (contravened convention – generally only the Lower House should block it).
Circumstances of the Whitlam Dismissal
December 1972 Whitlam elected. May 1974 Whitlam wins double dissolution election. o Coalition effectively had majority in Senate prohibited Whitlam from passing many bills. Late 1974 Loans affair. 8 October 1975 appropriation bills passed Lower House. 29 October 1975 despite Lower House amendments, Senate voted no. o No confidence motion. 11 November 1975 Whitlam dismissed. o GG appoints Malcolm Fraser as caretaker PM on the condition that he can secure supply. o Parliament later resumes and Senate passes appropriation bill. o After Senate passed the appropriation bills, Malcolm Fraser announced he was appointed as caretaker PM. . Before Lower House could move a no confidence motion, Fraser advised GG to dissolve Parliament and call an election. . Coalition then won the next election.
Controversy of the Whitlam Dismissal
GG had legal authority to dismiss Whitlam (s 64 Constitution). o Justification loss of supply. o Australia different from UK senate can refuse to pass appropriation bills. o HCA CJ personally provided GG with advice (controversial – separation of powers). o GG failed to consult Whitlam. Pp 442, 444 textbook, 443
States – S 7 Australia Act 1986 LAWS5007: Public Law Executive Power (1) Queen’s representative in each state shall be the Governor. (2) All powers and functions of the Queen in respect of a state are exercisable only by the Governor. (3) (2) does not apply in relation to the power to appoint and power to terminate the appointment of the Governor of a state. (4) While the Queen is personally present in a State, she is not precluded from exercising any of her powers or functions that are the subject of (2). (5) Advice to the Queen in relation to the exercise of the powers and functions of the Queen in respect of a state shall be tendered by the Premier of the State.
Anne Twomey: Prorogation – Can it Ever be Regarded as a Reserve Power?
Prorogation procedural act that ends a session of Parliament that ends all unfinished business and permits a new session to be started. o Originally a power of the monarch but now normally exercised on the PM’s advice. o Recognised by previous HCA justices, academics and political leaders as a reserve power. o May be undertaken to allow a bill to be reintroduced. o Controversial when used to avoid accountability or manipulated for party advantage. Prorogation may be regarded as a reserve power in some circumstances. o Illegality or breach of Constitution. o Situations where a vote of no confidence is pending and likely to succeed but government is seeking to avoid facing Parliament as to continue governing without being responsible. . Denial of responsible government. . Where the governments seeks to use the GG to their advantage, than refusal of such advice is consistent with responsible government principles. o Supply would otherwise run out while Parliament is prorogued. Otherwise, acting without advice would be highly controversial. o Provided government retains confidence, prorogation should be granted and criticism of the government left to the electorate and political process. There are examples of the prorogation power being exercised as a reserve power. o Refusal of advice. o Rejection of prorogation where supply had run out. LAWS5007: Public Law Executive Power EXECUTIVE POWER/PREROGATIVE POWER Constitution – Powers of Commonwealth Parliament
S 61 executive power of the Commonwealth is vested in the Queen and exercisable by the GG as the Queen’s representative and extends to the execution and maintenance of this Constitutions and laws of the Commonwealth. M 68/2015 v Minister for Immigration and Border Protection.
o Facts memorandum of understanding between Commonwealth and Nauru as a regional processing centre for housing detainees whilst claims are processed. . Bangladeshi asylum seeker arrived by boat unauthorised maritime arrival. . Detained by Commonwealth officers (executive) and taken to Nauru. o Issue whether Commonwealth’s conduct was authorised by a valid law. o Held s 61 is to be interpreted in light of the purpose of the Constitution to establish a national responsible government, constitutional history and tradition of common law. . All executive power can be controlled by legislation only has powers given by law. Exercise of such power is subject to judicial review. . Provides a description, not a definition of executive power. . Neither judicial nor legislative power. . Power exercised by GG, Ministers or public servants, derived from multiple sources. . Most powers exercised by the executive are given to it by statute. . Commonwealth’s conduct authorised by s 198AHA Migration Act. . Breadth of executive power subject matters over which Commonwealth can act. . Depth of executive power precise actions that can be taken. o Principle three types of executive power related to the depth of executive power. . Statutory (non-prerogative) powers or capacities. . Prerogative (non-statutory) powers or capacities. . A capacity which is neither a statutory nor a prerogative capacity. Key issue legislative powers are clearly enumerates but s 61 is so opaque as to leave the scope of executive power to inference.
S 61 – Categories of Executive Power
1. Power conferred by statute. 2. Common law – includes prerogative powers. 3. Sovereign nation (nationhood power). 4. Capacity as a legal entity.
Prerogative Power
Prerogative power closed list of identifiable and discrete powers exercisable only by governments. o Part of common law ancient discretionary powers. o Distinguished from the capabilities the government enjoys in common with other legal persons. Examples of prerogative powers. o LOOK AT TEXTBOOK 450-2. o Declare war or peace. o Execute treaties. o Incorporate bodies by royal charter. LAWS5007: Public Law Executive Power o Pardon offenders. o Confer honours. o Preferences, immunities and exceptions. o Immunity from ordinary process of courts. o Property rights royal metals or ownership of the foreshore and seabed.
Determining a Prerogative Power
1. Examine common law (precedents). o LOOK AT TEXTBOOK 12.45 2. If a prerogative power has been found in common law, has it been taken away be legislation or fallen into desuetude. o Common law will not create new prerogative powers, although existing prerogatives may be applied to new circumstances.
Regulation and Extinguishment/Abrogation
Attorney-General v De Keyser’s Royal Hotel extinguishment/abrogation of prerogative power. o Facts government took possession of hotel according to Defence of the Realm Regulations. . Compensation required under statutory scheme. . Government claimed to act under prerogative power permitting use of property during a war without compensation. o Issue whether the statutory scheme extinguished the claimed prerogative/prerogative modified/prerogative operated in parallel. o Held no common test – however, if statute intendeds to cover the field, it operates to the exclusion of the prerogative. . Constitutional principle when a power of the executive interferes with the property or liberty of subjects has been placed under parliamentary control and directly regulated by statute, the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament. In exercising such authority, Executive is bound to observe parliamentary-imposed restrictions in favour of the subject. o Considerations when interpreting a statute to see if the legislature intended to extinguish a prerogative power. . Express words. . Necessary implication. . Whether the statute is made for the public good, in advancing justice and preventing injury or wrong. Cadia Holdings Pty Ltd v NSW 2010.
o Facts Mining Act 1992 (NSW) provided that royalty be paid to the Minister – 7/8 of privately owned minerals was to be repaid to the owner of the land from which it is mined. . Unless expressly provided, the Act does not affect any prerogative of the Crown in respect of gold and silver mines. . Prerogative if gold is mixed with copper, both minerals shall be the Crown’s property. . Royal Mines Act 1688 (Imp) no mine of copper shall hereafter be adjudged, reputed or taken to be a royal mine, although gold or silver may be extracted out of the same. LAWS5007: Public Law Executive Power . Cadia mined co-mingled gold and copper owner sought 7/8 of royalty for copper mine. o Held prerogative right of NSW did not extend to copper mixed with gold as the prerogative was abridged by the 1688 Act and therefore copper was privately owned. . Statute must expressly or by necessary implication, displace a prerogative power. . Prerogative with respect to mining of royal metals is associated with coinage and defence, both of which are the Commonwealth’s responsibility. R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009].
o Facts prerogative power in issue was that for which to legislate for territories acquired by conquest or cession. . Order in Council prevented original indigenous population from ever returning. . This prerogative power did not exist in Australia but did in England. o Held historical examination established the English crown no longer had the prerogative. . Same type of order could not be made to prevent a Britain subject from re-entering there was never a prerogative power to exclude British subjects. Different to Chagos Archipelago Queen entitled to preference UK interests. Issue was justiciable but no error had been made.
The Tampa and CPCF
Ruddock v Vadarlis (Tampa Case) (2001).
o Facts asylum seekers rescued at sea by Norwegian vessel MV Tampa and taken to Christmas Island in Australia. . Boarded by Australian SAS troops but were refused permission to land. . Migration Act regulated entry, presence, departure and deportation of aliens. . Prerogative power relied upon power to expel non-residents from Australian waters. o Issue whether it extinguished prerogative power to exclude aliens. o Held writ sought against the government – habeas corpus. . Executive’s prerogative power, absent of statutory extinguishment or abridgement, extends to a power to prevent entry of non-citizens and do such things as necessary to effect such exclusion. Executive’s actions did not amount to detainment. . Migration Act did not abrogate the prerogative Act conferred power and contained no express words of exclusion. . No HCA appeal another legislation operated retrospectively to authorise such conduct. CPCF v Minister for Immigration and Border Protection [2015].
o Facts tort claim for unlawful imprisonment. . Sri Lankan asylum seekers intercepted – boat was unseaworthy so they were taken on board a Commonwealth vessel that sailed to India on an Executive body’s orders. . No agreement reached with India for disembarking so asylum seekers were taken to Cocos Islands and held in detention. o Held there was a statutory authority for the Executive’s actions. . No need for the court to find if a non-statutory power to exclude and detain existed. . Executive power may be said to extend to the prerogative powers, appropriate to the Commonwealth, accorded to the Crown by common law. LAWS5007: Public Law Executive Power Prerogative content does not comprehensively define the limits of the aspects of executive power to which it relates. o Dissent found no statutory authority so non-statutory power had to be considered and in turn, no prerogative was found allowing Executive to detain a person and commit a trespass.
Summary
Cadia prerogative powers can be taken away or modified by statute. o They are powers dependent on the common law. M68 very nature of responsible government that the executive be susceptible to control by the exercise of executive power. Ruddock v Vardalis (Tampa Case) executive power can be abrogated, modified or regulated by Commonwealth laws. o Can be taken away completely by being replaced by legislation or regulated by a statute imposing criteria and procedures. Issue of whether prerogative powers can be expanded. o Extends to declarations of war. o R (Bancoult) v Secretary of State prerogative powers cannot be expanded. o CPCF prerogative power does not comprehensively define the limits of executive power – scope for expansion. Statutory exclusion of prerogative expressly excluded or exclude by words of necessary implication. R (Bancoult); Tampa prerogative powers extend to exclusion of aliens. o CPCF dissenting view argued prerogative powers did not extend to exclusion of aliens. o M68 further dicta against this view.
Statutory and Inherent Powers
Statutory powers. o Is a particular action taken pursuant to a state? o If so: . Was the action actually authorised by the statute? . Is the statute valid? Characterisation – s 51. Is it in breach of any Constitutional limits e.g. separation of powers? Inherent powers breadth and depth; constitutional limits. Actions of Commonwealth officers. o If action is not taken in accordance with a statutory power, does the action extend to the execution and maintenance of the Constitution and laws of the Commonwealth? o Does it fall within a prerogative power or a power derived from the status of the Commonwealth as a national government? o If the power is not statutory, prerogative or a nationhood power, was it supported by the Commonwealth’s legal status as a polity/juristic person. . Subject to ordinary civil and criminal law. LAWS5007: Public Law Executive Power