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March 2018 EXECUTIVE POWER ISSUE

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March 2018 EXECUTIVE POWER ISSUE THE UNIVERSITY OF WESTERN AUSTRALIA LAW REVIEW Volume 43(2) March 2018 EXECUTIVE POWER ISSUE Introduction Murray Wesson ................................................................................................................... 1 Executive Power in Australia - Nurtured and Bound in Anxiety The Hon Robert French AC ............................................................................................ 16 The Strange Death of Prerogative in England Thomas Poole .................................................................................................................... 42 Judicial Review of Non-Statutory Executive Action: Australia and the United Kingdom Amanda Sapienza .............................................................................................................. 67 Section 61 of the Commonwealth Constitution and an 'Historical Constitutional Approach': An Excursus on Justice Gageler's Reasoning in the M68 Case Peter Gerangelos ............................................................................................................. 103 Nationhood and Section 61 of the Constitution Peta Stephenson .............................................................................................................. 149 Finding the Streams' True Sources: The Implied Freedom of Political Communication and Executive Power Joshua Forrester, Lorraine Finlay and Augusto Zimmermann ................................ 188 A Comment on How the Implied Freedom of Political Communication Restricts Non-Statutory Executive Power Gerard Carney ................................................................................................................. 255 Ad Hominem Parole Legislation, Chapter III and the High Court Sarah Murray ................................................................................................................... 275 The Executive and the External Affairs Power: Does the Executive’s Prerogative Power to Vary Treaty Obligations Qualify Parliamentary Supremacy? Zaccary Molloy Mencshelyi, Stephen Puttick and Murray Wesson ........................ 286 INTRODUCTION Dr Murray Wesson* We live in unsettled times. In recent years, we have witnessed a spate of Islamist terrorist atrocities, the resurgence of authoritarianism, increasing and apparently intractable concerns about inequality, and a weakening of the liberal consensus. In circumstances such as these, questions about executive power are likely to be particularly relevant. As the Honourable Robert French AC notes in his contribution to this special issue, anxieties about perceived threats to the social order are capable of fuelling expansive approaches to executive power, as the public seek the reassurance of ‘strong’ forms of government.1 On the other hand, executive power, especially non-statutory executive power, is itself anxiety provoking and may be a factor in democratic decay. In an oft-cited observation in the Communist Party Case, Sir Owen Dixon noted that ‘[h]istory, and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it had been done not seldom by those holding the executive power.’2 In this light, it is perhaps unsurprising that executive power and its attendant anxieties have featured prominently in many recent events. In the United Kingdom, the Supreme Court found in Miller that the government could not rely upon the prerogative to trigger withdrawal from the European Union but required an Act of Parliament.3 This decision was welcomed by some commentators on the basis that the prerogative is the ‘enemy of the people’,4 but was also resisted by others due to the ‘unanimity, strength and * Senior Lecturer, School of Law, the University of Western Australia. Many of the contributions to this special issue of the University of Western Australia Law Review derive from an Executive Power workshop held at the Institute of Advanced Studies, the University of Western Australia, on 7 April 2017. The workshop, and hence the special issue, would not have been possible without the generous support of the Institute of Advanced Studies. I would also like to thank the University of Western Australia Law School for financially supporting the production of the special issue, and Professor Michael Blakeney as staff editor for his advice and encouragement. Finally, I would like to thank Stephen Puttick for his excellent work as student editor. 1 ‘Executive Power in Australia – Nurtured and Bound in Anxiety’. 2 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 187. 3 R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 (24 January 2017). 4 Thomas Poole, ‘Losing our Religion? Public Law and Brexit’ on UK Constitutional Law Association, UK Constitutional Law Blog (2 Dec 2016) <https://ukconstitutionallaw.org/>. 2 University of Western Australia Law Review Vol 43(2):1 dispatch’ supposedly required by the executive to implement Brexit.5 In the United States, President Donald Trump’s executive orders creating a travel ban on people from six Muslim majority countries and two other countries have been criticised as abuses of power and challenged in the courts, but have also been defended as necessary to protect the American people against the threat of terrorism.6 Closer to home, albeit less dramatically, in Williams (No 1)7 the High Court of Australia fundamentally reshaped the Commonwealth executive’s authority to spend money and enter into contracts. This judgment was partly motivated by a concern to enhance responsible government and thereby make the exercise of executive power more accountable.8 However, it was also strongly resisted by the government, as demonstrated by the Commonwealth’s attempt to reopen Williams (No 1) in Williams (No 2).9 Against this background, the articles in this special issue of the University of Western Australia Law Review make a valuable contribution to the literature on executive power, particularly in the United Kingdom and Australia. This introduction will not attempt to canvas all of the issues covered in the special issue. However, it will explore the following themes that emerge prominently from the articles: the content of executive power; judicial review of exercises of executive power; and limits that exist upon executive power. As we shall see, each of these issues are pivotal in understanding executive power, but they are also subject to flux, disagreement, and uncertainty. I THE CONTENT OF THE EXECUTIVE POWER Many of the articles in the special issue are concerned with how to determine the content of executive power, especially the enigmatic category of non- statutory executive power. Interestingly, this issue raises similar considerations under the constitutions of the United Kingdom and Australia. The difficulties of determining the content of executive power under the United Kingdom’s 5 Timothy Endicott, “‘This Ancient, Secretive Royal Prerogative’” on UK Constitutional Law Association, UK Constitutional Law Blog (11 Nov 2016) <https://ukconstitutionallaw.org/>. 6 At the time of writing the Supreme Court of the United States had allowed the latest iteration of the travel ban to go into effect while legal challenges against it continued. See ‘Supreme Court Allows Trump Travel Ban to Take Effect’, The New York Times (New York), 4 December 2017. 7 Williams v Commonwealth of Australia (2012) 248 CLR 156. 8 Ibid 206 (French CJ), 232-3 (Gummow and Bell JJ), 271 (Hayne J), 351-2 (Crennan J). 9 Williams v Commonwealth of Australia (2014) 252 CLR 416. [2018] Introduction 3 unwritten constitution are obvious; in the absence of a text, regard must be had to other considerations. However, the sparseness of s 61 of the Commonwealth Constitution – ‘The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution’ – means that the text is also not of great assistance in this jurisdiction. Various approaches to determining the content of executive power are evident in this collection of articles. Firstly, in the context of s 61 of Commonwealth Constitution, there is a distinction between historical and autochthonous approaches. Historical approaches emphasise traditional conceptions of executive power sourced in the constitutional system of the United Kingdom, whereas autochthonous approaches emphasise the different context of Australia’s written, federal constitution to the United Kingdom’s unwritten, unitary constitution. There is also a distinction between approaches focused upon conceptual analysis and approaches resembling constructive interpretation. Conceptual analysis seeks a clearer understanding of concepts, in part through testing them against counter-examples.10 Constructive interpretation, in contrast, seeks the interpretation of a legal concept that best fits and justifies the relevant materials.11 These methodologies are not mutually exclusive and there are overlaps in the analyses of the authors. They are also not exhaustive; there are no doubt other approaches to determining the content of executive power. Nevertheless, these labels are useful in making sense of the contributions of the authors and the challenges involved in giving content to executive power. The historical approach is most evident in the contribution of Professor Peter Gerangelos, ‘Section 61 of the Commonwealth Constitution and an “Historical Constitutional Approach”: An Excursus
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