THE EXECUTIVE GOVERNMENT

1. THE EXECUTIVE GOVERNMENT

2. Issues • Definition of executive power • Limits on executive power • Multiple sources of executive power • Relationship of executive with other arms of government • Doctrine of responsible government

3. Definition of executive power

4. Executive power - definitions • 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

5. Williams v Commonwealth of Australia [2012] HCA 23 • Gummow and Bell JJ at [121] • “This Court has eschewed any attempt to define exhaustively the content of the "executive power" which is identified but not explicated in s 61 of the Constitution. Hence the attention in these reasons to partial but not necessarily complete descriptions of the executive spending power.”

6. Why? “To some degree this state of affairs in the analysis of s 61 may reflect the considerations expressed by Professor Crommelin in a passage in his study of the drafting of the sparse provisions of Ch II of the Constitution, which was quoted in Re Patterson; Ex parte Taylor. The passage reads:

7. "The reasons were understandable, if not entirely convincing. The executive branch of government was shrouded in mystery, partly attributable to the uncertain scope and status of the prerogative. The task of committing its essential features to writing was daunting indeed. Moreover, the price of undertaking that task would be a loss of flexibility in the future development of the executive. Politicians who were the beneficiaries of half a century of colonial constitutional development placed a high value upon such flexibility."

8. Executive decisions reviewable? Delegated legislation? Same people serving in two branches of government. Relationship between executive and other branches of government

9. Source: Australian Parliament House website

10. Parliament Executive Courts/Judiciary Separation of Powers

11. Westminster system: responsible government

12. Westminster system: responsible government

13. 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

14. 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

15. 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

16. 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.”

17. 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

18. New South Wales v Bardolph [1934] HCA 74 per Dixon J "Parliament is considered to retain the power of enforcing the responsibility of the Administration by means of its control over the expenditure of public moneys. But the principles of responsible government do not disable the Executive from acting without the prior approval of Parliament, nor from contracting for the expenditure of moneys conditionally upon appropriation by Parliament and doing so before funds to answer the expenditure have actually been made legally available .”

19. Statute – s61 Commonwealth Constitution Prerogative – content? Other? Sources of executive power

20. 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.

21. “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

22. “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

23. “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

24. 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”

25. 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.” • Discussion continues in Williams’ case.

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

27. 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 Deputy Commissioner of Taxation (1988) 19 FCR 347 at 369

28. 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

29. 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 at 181

30. 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.”

31. Williams v Commonwealth of Australia [2012] HCA 23 • 20 June 2012 • Issue: • The plaintiff challenges, for lack of authority under the Constitution, the provision by the Commonwealth of funding pursuant to what is known as the National School Chaplaincy Programme ("the NSCP"). Per Gummow and Bell JJ at [85]

32. “The funding of the NSCP is not provided under any statute of the Parliament . There is no law enacted, for example, in reliance upon the power conferred by s 51(xxiiiA) of the Constitution to make laws with respect to "the provision of ... benefits to students". Nor is the funding provided by the Commonwealth under s 96 of the Constitution as the "grant [of] financial assistance to any State on such terms and conditions as the Parliament thinks fit". Rather, for its power to spend so as to fund the NSCP, the Commonwealth relies upon "the executive power of the Commonwealth” [at 88]

33. Arguments in this case: • Nature of Executive power in a Federal system • State/Federal balance • Whether Federal executive power is co-extensive with Federal legislative power • Nature of prerogative power

34. Nature of power: French CJ [at 22]: The executive power referred to in s 61 extends to: • powers necessary or incidental to the execution and maintenance of a law of the Commonwealth; • powers conferred by statute; • powers defined by reference to such of the prerogatives of the Crown as are properly attributable to the Commonwealth; • powers defined by the capacities of the Commonwealth common to legal persons; • inherent authority derived from the character and status of the Commonwealth as the national government.

35. Federal/State balance • Issue for executive power as well as legislative power • Qld already has a chaplaincy programme • Clearly a State area of legislative power • Could be Federal(s51(xx);s51(xxiiiA))but appropriation legislation not sufficient (Pape’s case)

36. Federal power re schools? For many years the Parliament has legislated for the provision of financial assistance to the States on the condition that the funds be applied for educational purposes. The Schools Assistance Act 2008 (Cth) provides for the provision of financial assistance to the States for non-government schools. The Nation-building Funds Act 2008 (Cth) provides for the grant of financial assistance for educational purposes on terms agreed between the Commonwealth and the States.[at 100] How? s96

37. State/Federal balance • NSCP ‘by passing by the Executive of s96’ [143] • [144] Gummow and Bell JJ refer to Pape and Davis v The Commonwealth that: • "the existence of Commonwealth executive power in areas beyond the express grants of legislative power will ordinarily be clearest where Commonwealth executive or legislative action involves no competition with State executive or legislative competence“.

38. State/Federal balance • The present case, unlike Pape, does not involve a natural disaster or national economic or other emergency in which only the Commonwealth has the means to provide a prompt response. In Pape, the short-term, extensive and urgent nature of the payments to be made to taxpayers necessitated the use of the federal taxation administration system to implement the proposal, ...

39. rather than the adoption of a mechanism supported by s 96. However, the States have the legal and practical capacity to provide for a scheme such as the NSCP. The conduct of the public school system in Queensland, where the Darling Heights State Primary School is situated, is the responsibility of that State. Indeed, Queensland maintains its own programme for school chaplains. [146]

40. Limits on Executive power However, in referring to the distribution of responsibilities between the Commonwealth and the States, [there is no] broad proposition that moneys may be spent by the Executive Government upon ...any head of legislative power found in s 51 of the Constitution. That this is so is apparent from the earlier rejection by Mason J, along with Barwick CJ, of the application to s 51(ii) of the Constitution of the United States doctrine, exemplified in United States v Butler, that because the power of Congress to tax is "unlimited" the power to spend is also "unlimited". [at 132]

41. So... • Executive power cannot exceed legislative power but is not necessarily co-extensive with it

42. Why? • Discussion at [134] – [137] • Too broad • Not all legislative powers appropriate to be exercised by executive • E.g Taxation; marriage and divorce • Parliamentary sovereignty • ‘such a proposition would undermine the basal assumption of legislative predominance inherited from the United Kingdom and so would distort the relationship between Ch I and Ch II of the Constitution’

43. Responsible government

44. 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

45. 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.”

46. 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.”

47. Williams at 136: No doubt the requirement of s 64 of the Constitution that Ministers of State be senators or members of the House of Representatives has the consequence that the Minister whose department administers an executive spending scheme, such as the NSCP, is responsible to account for its administration to the Parliament.”

48. 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”

49. 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. “

50. 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”