9. PREROGATIVE POWERS 1) Prerogative Powers (PP) PP: Not easily defined… • Wide definition: according to Dicey, it is the residue of ’s unique powers, privileges and immunities • Narrow definition: according to Blackstone, and accepted by Gageler J in Plaintiff M68, it is a closed list of identifiable and discrete powers which are only exercisable by governments

2) Is there a PP? To determine whether there is a PP, look to the : this is a historical examination.

There is no definitive list of PPs.

The common law will not create new prerogative powers, although existing prerogatives may be applied to new circumstances.

Justice Evatt and the Republic Advisory Committee classified PPs into three main categories: Executive prerogatives • Declaration of war and peace • Control of the armed forces • Foreign affairs (treaties, extradition) • Coin money • Pardon offenders

Immunities and preferences • Priority of Crown debts over other creditors, • Immunity from process of the courts [Plaintiff M68: legislation has now extinguished this power]

Property rights • Entitlement to metals • Fish, ownership of the foreshore, sea bed and its subsoil

Case law: Power to exclude aliens (expel non-residents from Australian territory) Ruddock v Vadarlis (majority FFC): the executive power of the Cth, absent statutory extinguishment, would extend to a power to prevent the entry of non-citizens and to do such things as necessary to effect exclusion • French CJ: the power to determine who may come into is so central to Australia's sovereignty that it is not to be supposed that the Cth Government would lack the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australian community, from entering

Ruddock v Vadarlis: Asylum Seekers rescued at sea by Norwegian vessel MV Tampa. Taken to in Australia. Boarded by Australian SAS troops and refused permission to land. Migration Act regulated the entry, presence, departure and deportation of aliens. Government relied upon power to expel non-residents from Australian waters (aliens).

CPCF v MIBP (HC): no majority, but some justices expressed doubt as to whether there is a prerogative power to exclude and detain aliens • Keane J found the prerogative to exclude and remove • Kiefel J found the non-statutory power to exclude Aliens was at least doubtful • Hayne and Bell JJ found no prerogative power to detain without judicial mandate or a power conferred by statute

CPCF v MIBP: Tort claim for unlawful imprisonment. Sri Lankan asylum seekers intercepted. Boat unseaworthy. Taken on board Commonwealth vessel. Vessel sailed to India on instructions of National Security Committee of Cabinet (Executive). No agreement reached with India for disembarkment so taken to Cocos Islands and held in detention. 46 • HC Majority found that there was statutory authority for Executive’s actions. Therefore didn’t have to find if non-statutory power to exclude and detain existed. The Maritime Powers Act authorised a maritime officer to detain the plaintiff for the purpose of taking him from Australia's contiguous zone to a place outside Australia, being India.

3) Has the PP been regulated or removed by legislation? Ruddock v Vardalis: executive power can be abrogated, modified or regulated by legislation

PPs may be modified by legislation in two ways: • Statutes may regulate the exercise of a prerogative power, thus depriving it of its discretionary elements by imposing certain criteria or procedures which control the exercise of power. This process still leaves the conceptual source of the power to the prerogative. • Statues may completely extinguish the prerogative, making what was previously an inherent power a power which is derived from statute.

Extinguishing PPs: Ruddock v Vadarlis (French CJ): To extinguish a PP, a statute must evince a clear and unambiguous intention to deprive the Executive of the power in question • In this case, the HC majority held the Migration Act had not replaced the prerogative power to exclude aliens • French J: the question was whether the Act "evinces a clear and unambiguous intention to deprive the Executive of the power to prevent entry by preventing a vessel from docking at an Australian port and adopting the means necessary to achieve that result" o In this case, there were no express words of exclusion o There are some sections that deal with expelling a person, but it did not cover the field of the power to exclude aliens

Ruddock v Vadarlis: Asylum Seekers rescued at sea by Norwegian vessel MV Tampa. Taken to Christmas Island in Australia. Boarded by Australian SAS troops and refused permission to land. Migration Act regulated the entry, presence, departure and deportation of aliens. Government relied upon power to expel non-residents from Australian waters (aliens).

AG v De Keyser’s Royal Hotel: When interpreting a statute to see if the legislature intended to extinguish a prerogative power, the Court looks to: o The express words o Any necessary implication o Whether the statue is made for the public good, in advancing justice and preventing injury or wrong

AG v De Keyser’s Royal Hotel: Government took possession of hotel according to Defence of the Realm Regulations. Compensation was required under the statutory scheme. Government claimed to act under prerogative power permitting use of property during a war without compensation. • The court held the legislation had modified the PP; thus compensation was payable.

Modification PPs: AG v De Keyser’s Royal Hotel (Lord Parmoor): Where a PP has been placed under Parliamentary control and is directly regulated by statute, the prerogative power is modified or extinguished. The PP is now derived from the statute and is subjected to conditions of the statute. • I.e. where statute covers the same area as a PP = PP has been modified by the statute o Lord Parmoor said: o ‘The constitutional principle is, that when the power of the Executive to interfere 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, and that in exercising such authority the Executive is bound to observe the restrictions which Parliament has imposed in favour of the subject.’

47 AG v De Keyser’s Royal Hotel: Government took possession of hotel according to Defence of the Realm Regulations. Compensation was required under the statutory scheme. Government claimed to act under prerogative power permitting use of property during a war without compensation. • The court held the legislation had modified the PP; thus compensation was payable.

Cadia Holdings v NSW: For a statute to displace a PP, it must do so by “express words or by necessary implication”

Cadia Holdings v NSW: Prerogative – Case of Mines (1568): if gold is mixed with copper then both minerals are the property of the Crown Mining Act 1992 (NSW) s 284: Royalty to be paid to the Minister; For privately owned minerals 7/8 of that amount is to be repaid to the owner of the land from which it is mined; “Except as expressly provided by this Act, this Act does not affect any prerogative of the Crown in respect of gold mines and silver mines.” Cadia Holdings mined co-mingled gold and copper. Owner of land sought 7/8 of royalty for copper mined. NSW said because it was co-mingled, then it was a public not private mineral. Did the prerogative right of NSW extend to copper mixed with gold? • No – prerogative was abridged by 1688 Act and therefore Copper was privately owned. • It was assumed/argued that based on Evatt’s category of proprietary prerogatives the prerogative with respect to the mining of royal metals rests with the states. o Was this assumption correct? § Not decided but a majority of the judges raised the possibility it was not correct. § Reasoning: the prerogative was connected to coinage and defence, both of which are now the responsibility of the Commonwealth.

4) Has the PP be lost overtime? Kiefel J’s Obiter in CPCF: Even if one assumes, for present purposes, that a Commonwealth executive power of the kind contended for existed at Federation, statutes have for a long time provided for powers of expulsion and detention. As a matter of principle any Commonwealth executive power may in those circumstances be considered lost or displaced.

5) Can PPs be added to? R (Bancoult) v Secretary of State (Lord Bingham): PPs cannot be added to.

French CJ in CPCF emphasised that it does not follow that the PP comprehensively defines the limits of executive power (as the executive power also contains the nationhood power)

48 10.1. NATIONHOOD 1) Nationhood Power Nationhood Power: In AAP Case, Mason J defined the nationhood power as a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation

2) The test for the nationhood power Mason J in AAP Case: two-limb test for identifying matters within the nationhood power • 1) The activity is a national endeavour: ‘peculiarly adapted to the government of a nation’ • 2) The activity cannot otherwise be carried on by the states

Factors the HC has identified as relevant in applying this test: • Mere convenience not sufficient to bring an activity within the power (Pape per Gummow, Crennan and Bell JJ) • s 96 of the Constitution must not be rendered ineffectual (this section provides that the Parliament may grant financial assistance to the States on such terms and conditions as the Parliament thinks fit) • The Commonwealth’s exercise of executive power and incidental legislative power must involve no real competition with the States

3) Scope of the nationhood power Limb 1: the activity must be a national endeavour, peculiarly adapted to the Cth government Pape (per French CJ): the nationhood power extends to matters that affect the nation as a whole, where the measures to deal with these matters are peculiarly within the capacity and resources of the Commonwealth Government • Pape (per French CJ): the adverse economic conditions threatened by the GFC would affect the nation as a whole, and short-term measures (the stimulus package) to prevent these conditions were on their face peculiarly within the capacity and resources of the Commonwealth Government • Pape (per Gummow, Crennan, and Bell JJ): the nationhood power extends to the protection of Australia from a national crisis, and the executive government is the arm of government capable of and empowered to respond to a crisis § Such a crisis could be an financial crisis (GFC), war, natural disaster

Activities the HC has identified as within the scope of the nationhood power: • Protecting the nation against a national crisis e.g. war, natural disaster, GFC (Pape) • International relations e.g. extradition requests, consular assistance, exploration of external territories, subscriptions to international organisations (Barwick CJ in Victoria v Cth & Hayden) • Rights and powers over the territorial sea, continental shelf and airspace are vested in the Commonwealth due to its status as an independent nation (NSW v Commonwealth) • Conservation of properties that are part of the national heritage (though not extensive regulation of the use of those properties) (Tasmanian Dams) • Symbolic aspects of nationhood – flags, emblems (Davis) • National commemorations, but not coercive regulation that is disproportionate to the celebration activities (Davis)

Limb 2: the activity cannot otherwise be carried out by the states Tasmanian Dams Case (per Deane J): the nationhood power is confined to matters in which there is no competition with the states

Williams (No 1) + Williams (No 2): members of the HC explained in obiter that states are well placed to administer a program for chaplaincy services, or other school programs, within state schools • Therefore, school programs do not fall within the scope of nationhood

Tasmanian Dams Case (per Deane J): the nationhood power cannot be used to override the legislative and executive powers of the states (e.g. to regulate conduct on property)

49 • In the Tasmanian Dams Case, although the Cth legislation succeeded on the grounds that it was supported by the external affairs power in s 51(xxix), four members of the HC held that the nationhood power could not support this coercive legislation, which would override and displace the ordinary legislative and executive powers of the State to regulate conduct on the property

Nationhood is constrained by: Cannot violate the distribution of powers and separation of powers Pape (per French CJ): the exigencies of national government cannot be invoked in order to set aside the distribution of powers between the Commonwealth and the States and between the three branches of government or in order to abrogate fundamental constitutional prohibitions

Cannot extend to any random thing deemed to be in the ‘national interest’ Pape (per Gummow, Crennan, and Bell JJ): the nationhood power does not extend to whatever the Commonwealth government deems to be in the national interest • Mere convenience is not sufficient to bring an activity within the nationhood power

Other relevant factors: Prohibiting certain acts and imposing harsh penalties Davis v Cth: while s 51(xxxix) allows the Commonwealth Executive to legislate with respect to matters incidental to the execution of an executive power, s 51(xxxix) does not support coercive or regulatory measures unless they are proportionate to the nationhood activity. • A problem arises if the regulatory provisions are extensive in scope and excessively intrusive: o In Davis v Cth, the “extraordinary intrusion” into Davis’ freedom of expression by making it an offence to years particular slogans without permission convinced the HC to unanimously find that the law was outside the bounds of the nationhood power – went beyond what was necessary to fill the intended legislative purpose; that is, celebrating the bicentennial • Davis: the legislation in question must be “appropriate and adapted” (proportionate) to the nationhood activity s 96 of the Constitution must not be rendered otiose • This section provides that the Parliament may grant financial assistance to the states on such terms and conditions as the Parliament thinks fit • I.e. if the states are well-placed deal with a matter, the Cth Government may grant them financial assistance to do so

Case Facts: Tasmanian Dams Case Facts: The case centred on the proposed construction of a hydro-electric dam on the Gordon River in Tasmania, which was supported by the Tasmanian government, but opposed by the Australian federal government. In 1982, UNESCO declared the Franklin area a World heritage site. The federal government then passed the World Heritage Properties Conservation Act, 1983 (Cth), which prohibited the dam. The federal government claimed the Act was giving effect to the Convention Concerning… Natural Heritage, which governs UNESCO's World heritage program and to which Australia was a party. • The external affairs power (s 51(xxix)) supported the Cth legislation • But the HC majority determined that the legislation was not supported by nationhood o Coercive nature; attempt to override state property rights

Davis v Cth: Cth Govt created an Authority (pursuant to s 51(xxxix)) with the power to restrict the use of symbols and logos associated with the Bicentenary of British Settlement (made it an offence to use these symbols/logos without permission - including “Bicentenary” “Australia” “200 years”). Davis, an Aboriginal activist, was prevented from marketing Bicentennial t-shirts bearing messages such as “200 years of suppression)”. • The HC majority held that the commemoration of the bicentenary fell within the nationhood power, but the statutory provisions regulating use of ‘1788’ and ‘1988’ were invalid because they were disproportionate to the nationhood activity (celebrating the bicentenary)

50 Pape v Commissioner of Taxation: In 2009, Rudd government made bonus payments of $900 to eligible taxpayers as part of a ‘fiscal stimulus package’ implemented to protect Australia from the Global Financial Crisis ($7.7 billion in total). The criteria for these payments were contained in Cth legislation, passed pursuant to section 51(xxxix). • The HC majority held the fiscal emergency fell within the scope of nationhood power; the legislative provision for payment of the bonus was supported by s 51(xxxix), being incidental to a nationhood power to provide short term fiscal measures in response to the GFC

NSW v Commonwealth: Dispute between States and Cth over control of the seas. Cth the passed legislation over the sea. Cth Legislation - stated that the Cth has sovereignty over the territorial sea and that the GG may declare the limits of the territorial sea, States brought proceedings saying the Cth didn’t have power to make the law • The Cth legislation was authorised by the External Affairs power of the Constitution s 51xxix (i.e. nationhood was not determinative) • But there were important comments of nationhood (Barwick CJ re: airspace, sea)

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