9. PREROGATIVE POWERS 1) Prerogative Powers (PP) PP: Not easily defined… • Wide definition: according to Dicey, it is the residue of the Crown’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 common law: 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 Australia 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 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). 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