TOPIC 9 THE EXECUTIVE GOVERNMENT

1. TOPIC 9THE EXECUTIVE GOVERNMENT

2. Description and sources of executive power

3. Source: Australian Parliament House website

4. Parliament Executive Courts/Judiciary Separation of Powers

5. Minister for Arts and Heritage and Environment v Peko-Wallsend “subject to the exclusion of non-justiciable matters, the courts of this country should now accept responsibility for reviewing the decisions of Ministers or the Governor-General in Council notwithstanding the decision is carried out in pursuance of a power derived not from statute but from the common law or the prerogative” at 223 per Bowen CJ

6. Peko-Wallsend case “The prospect of Cabinet itself, even by delegation, having to accord a hearing to individuals who may be adversely affected by its decisions, is a daunting one. It could bring the proceedings of Cabinet to a grinding halt.” per Bowen CJ at 225

7. Peko –Wallsend case “it would…be inappropriate for this court to intervene to set aside a Cabinet decision involving such complex policy considerations as does the decision of 16 September 1986, even if the private interest of the respondents was thought to have been inadequately considered. The matter appears to my mind to lie in the political arena.” Per Bowen CJ at 225

8. Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan at 101 “A statute conferring upon the Executive a power to legislate upon some matter contained within one of the subjects of the legislative power of the Parliament is a law with respect to that subject, and …the distribution of legislative, executive and judicial powers in the Constitution does not operate to restrain the power of the Parliament to make such a law.”

9. Legislative Instruments Act 2003 (Cth) s3(e) … improved mechanisms for Parliamentary scrutiny of legislative instruments; and (f)  [established] mechanisms to ensure that legislative instruments are periodically reviewed and, if they no longer have a continuing purpose, repealed

10. Sources of executive power

11. Ruddock v Vadarlis [2001] FCA 1329 • Federal Court considered the nature and extent of the executive power of the Commonwealth. • Two issues arose : • 1. The extent of the executive power of the Commonwealth and whether it extended to the expulsion of what the court termed the “rescuees” and their detention for that purpose; and • 2. If there was no such executive power, whether the rescuees had been restrained by the Commonwealth, and whether an action for habeas corpus lay.

12. “4. Because of the undoubted urgency of these cases, the need for the legal questions to be resolved and for the parties to know what their positions are with the least possible delay, the members of the Court, having reached a clear view about the outcome, have decided to announce the decision of the Court today. They have decided to do so, and to make orders on the appeals, in advance of the publication of their reasons for judgment. Those reasons are lengthy and will be published tomorrow. Another factor that has persuaded the Court to take this course is that information provided to it during the hearing of the appeals suggested that HMAS Manoora is likely to arrive at Nauru today, and she may already have done so.” Ruddock v Vadarlis: summary

13. “9. This summary is intended to assist in an understanding of the outcome of these appeals. Such summaries are commonly prepared by the Court in cases of public interest, but they are not a substitute for the judges' reasons which remain the only authoritative statement of the Court.”Ruddock v Vadarlis: summary

14. “8. The judges wish to make it plain that the Court's decision is not, and cannot be, concerned with either the policy or the merits of the Commonwealth's actions. That is a debate for other forums. The questions before the Court are questions of law.” Ruddock v Vadarlis: summary

15. Commonwealth Constitution s61 “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, and of the laws of the Commonwealth”

16. French J (at 176) “Section 61 is the primary source of executive power. Its content extends to the execution and maintenance of the Constitution and the laws of the Commonwealth. It is also limited by those terms in so far as it will not authorise the Commonwealth to act inconsistently with the distribution of powers and the limits on power for which the Constitution provides.”

17. Executive power • Blackstone: “…the discretionary power of acting in the public good where the positive laws are silent.” Ruddock v Vadarlis (at181) • Lord Denning“…a discretionary power exercisable by the executive government for the public good, in certain spheres of governmental activity for which the law has made no provision…”Laker Airways Ltd v Department of Trade [1977] 1 QB 643 at 705

18. Prerogative power: “the powers accorded to the Crown by common law” per Mason J Barton v The Commonwealth (1974) 131 CLR 477 at 498

19. Mason J in Barton v The Commonwealth (1974) 131 CLR 477 at 498: "The Constitution established the Commonwealth of Australia as a political entity and brought it into existence as a member of the community of nations. The Constitution conferred upon the Commonwealth power with respect to external affairs and, subject perhaps to the Statute of Westminster 1931 and the Balfour Declaration, entrusted to it the responsibility for the conduct of the relationships between Australia and other members of the community of nations, including the conduct of diplomatic negotiations between Australia and other countries. By s 61 the executive power of the Commonwealth was vested in the Crown. It extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth. It enables the Crown to undertake all executive action which is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution. It includes the prerogative powers of the Crown, that is, the powers accorded to the Crown by the common law."

20. Prerogative power • “In Australia…one looks not to the content of the prerogative in Britain, but rather to s61 of the Constitution, by which the executive power of the Commonwealth was vested in the Crown.” per Gummow J in Re Ditfort; Ex parte DeputyCommissioner of Taxation (1988) 19 FCR 347 at 369

21. Parliamentary Control of executive power • Legislative Instruments Act 2003 (Cth) Part 5 • No new prerogative power • “It is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative.” per Diplock LJ in British Broadcasting Corporation v Jones [1965] Ch 32 at 79

22. Parliamentary sovereignty “ The executive power can be abrogated, modified or regulated by laws of the Commonwealth. Its common law ancestor, the Royal Prerogative, was similarly subject to abrogation, modification or regulation by statute.” Ruddock v Vadarlis 181

23. French J: 204 • “The steps taken in relation to the MV Tampa which had the purpose and effect of preventing the rescuees from entering the migration zone and arranging for their departure from Australian territorial waters were within the scope of executive power. The finding does not involve a judgment about any policy informing the exercise of that power. That is a matter which has been and continues to be debated in public and indeed international forums. Through that debate and the parliamentary process the Ministers involved can be held accountable for their actions. If Parliament is concerned about the existence of an executive power in this area, deriving from s 61 of the Constitution, it can legislate to exclude it by clear words. The task of the Court is to decide whether the power exists and whether what was done was within that power, not whether it was exercised wisely and well.”

24. Commonwealth executive government • “Under our Constitution the executive power of the Commonwealth is exercisable by the Governor-General. There is a Federal Executive Council to advise the Governor-General.” per Bowen CJ in Peko-Wallsend at 223

25. Responsible government • As Bowen CJ comments in Peko Wallsend at 223: “Although formal decision making power rests with the Governor General in Council the real decision making power rests with the Cabinet.”

26. Commonwealth Constitution s63 • “The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.”

27. New South Wales executive government NSW Constitution s35A : “…established constitutional convention relating to the exercise or performance of the functions of the Governor otherwise than on the advice of the Executive Council”

28. Interpretation Act 1987 (NSW) s14 “In any Act or instrument, a reference to the Governor is a reference to the Governor with the advice of the Executive Council, and includes a reference to any person for the time being lawfully administering the Government. “

29. S7 of the Australia Acts: “(1) Her Majesty’s representative in each State shall be the Governor. (2) …all powers and functions of Her Majesty in respect of a State are exercisable only by the Governor of the State. (3)… (4) While Her Majesty is personally present in a State, Her Majesty is not precluded from exercising any of Her powers and functions in respect of the State that are the subject of subsection (2) above (5) The advice to Her Majesty in relation to the exercise of the powers and functions of Her Majesty in respect of a State shall be tendered by the Premier of the State”

30. Steps In The s57 procedure • 1.The House of Representatives passes a proposed law.

31. 2. The Senate (a) rejects or (b) fails to pass the proposed law or (c) passes it with amendments to which the Representatives will not agree.

32. PMA Case per Barwick CJ at 109: “at the date of the simultaneous dissolution of the House of Representatives and the Senate, the Bill did not satisfy the requirements of the first paragraph of s57, and thus could not itself have afforded a reason for that dissolution or be the subject of debate and affirmation at a joint sitting.”

33. Stephen J: PMA Case “No conclusive test can be devised which, by its application, in all circumstances will provide a ready answer to the question whether in any particular instance parliamentary conduct involves a failure to pass for the purposes of s57…it may not be the character of the particular parliamentary conduct but rather its excessive employment that may identify it as a failure to pass”.

34. 3. There is an interval of three months.

35. PMA Case: Barwick CJ at 116 “The plaintiffs submit that upon the true construction of s57, the interval of three months referred to in the first paragraph of the section is a period which begins at the time at which the Senate rejects, or fails to pass, or passes with amendments which ultimately proved unacceptable to the House of Representatives; that the Senate had not rejected the Bill, failed to pass it or passed it with unacceptable amendments before 2nd April 1974; and that, unless the interval of three months had elapsed thereafter before the House again passed the Bill, it would not qualify as a proposed law for the purposes of the third paragraph of s57.”

36. Barwick CJ at 119 “…there is no room, in my opinion, for the view the terms of s57 are merely directory so that failure to conform to its requirements will not affect the validity of what is done. What is laid down in s57 is a process of law making, and s57 is a provision of the Constitution. It is quite inappropriate, in my opinion, to apply to such a section the distinctions between a directory and mandatory statutory provision.”

37. 4. The House of Representatives, in the same or the next session, again passes the proposed law, with or without any Senate amendments.

38. 5. The Senate again rejects or fails to pass the proposed law, or passes it with amendments to which the House of Representatives will not agree

39. First Territorial Senator’s Case per Gibbs J at 236 “If…the House of Representatives has twice passed a proposed law and the Senate has twice rejected it, it is apparent that the two Houses are in disagreement on the question whether that proposed law should be passed, and it is not correct to say that they have ceased to disagree simply because some time elapses during which no action is taken to resolve the disagreement.”

40. 6. The Governor-General simultaneously dissolves the Senate and the House of Representatives.

41. 7. A general election for both houses takes place.

42. 8. The newly-elected House of Representatives passes the proposed law, with or without any senate amendments.

43. 9. The newly-elected Senate rejects or fails to pass the proposed law, or passes it with amendments to which the House of Representatives will not agree.

44. 10. The Governor-General convenes a joint sitting of the two houses.

45. 11. The members of the Senate and the House of Representatives at the joint sitting deliberate and vote together on the proposed law as last proposed by the Representatives, and any amendments; if the proposed law with amendments is affirmed by an absolute majority of the total membership, it is taken to have been duly passed by both houses.

46. 12. The proposed law is then presented to the Governor-General for assent.