The Executive

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This topic is within Principles of Public Law.

Contents

Required Reading

Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (5th ed, Federation Press, 2010) pp. 105-109 (Chapter 2, section 4(d)); 480 (start of section 3) - 494 (end of section 3(a)); 521 (start of section 4) - 528 (end of section 4(a)).

Constitutional Conventions

[1]Constitutional conventions are “maxims and practices which, though they regulate the ordinary conduct of the Crown, of Ministers, and of other persons under the constitution, are not in strictness laws at all.[2]

  • Conventions fill the gap between constitutional position and political reality. They are flexible, unwritten practices which adapt according to changing social circumstances, and allow the proper governing of the nation.

Conventions are not directly enforceable. However, they can be judicially identified and may influence the interpretation of statues – the courts usually have a presumption that the parliament does not intend to violate the conventions. The legal status of conventions was considered in Canada, in Re Resolution to Amend the Constitution[3]:

  • Conventions are the “the principles and rules of responsible government…which regulate the relations between the Crown, the prime minister, the cabinet and the two houses of Parliament.[4]
  • “The main purpose of constitutional conventions is to ensure that the legal framework of the constitution will be operated in accordance with the prevailing constitutional values or principles of the period.[5]
  • Conventions are not enforced by the courts. “Perhaps the main reason why conventional rules cannot be enforced by the courts is that they are generally in conflict with the legal rules which they postulate and the courts are bound to enforce the legal rules.[6]
  • For example: legal rules in Australia ascribe vast power in the governor general. However, conventional rules mean that these powers are largely illusory.

Colin Hughes – Conventions: Dicey Revisited

[7]Why are conventions to be obeyed? Conventions form a part of constitutional morality.

  • Dicey:
    • Not because for fear of impeachment or the force of public opinion
    • Rather because it would bring the offender into conflict with the courts and the law of the land.
  • Jennings:
    • Rejects Dicey.
    • Deterred by political difficulties in undermining the stability of the system that follow a violation of conventions, not the prospect of trouble with the courts.
  • Marshall and Moodie:
    • A breach of convention is likely to induce a change in the law, or even in the whole constitutional structure.
    • People are resistant to change and so will obey conventions.

Executive Power

Executive powers are the powers vested in the Queen and exercised by the Governor General (through the government) by virtue of s 61 of the Constitution. Among the executive powers incorporated in s 61 is prerogative power.

Prerogative Power

[8]Prerogative powers are powers inherent to the Crown by the common law, which have not been removed by legislation.

  • Blackstone: prerogative powers are powers that are unique to the Crown (ratifying treaties, issuing passports)
  • Dicey: broader view: the discretionary or arbitrary powers that the Crown still enjoys (haven’t been eroded).
    • Dicey’s view has been accepted by the courts.
  • Prerogative powers are a diminishing field – they cannot be expanded.
  • Sir Jon Comyns compiled a list of prerogative powers according to the common law in 1736.

Justice Evatt and the Republic Advisory Committee classified prerogative powers into three main categories:

  1. Executive Prerogatives - Declaration of War and Peace, Control of the Armed Forces, Foreign affairs (treaties, extradition), coin money, pardon offenders .
  2. Immunities and preferences – priority of Crown debts over other creditors, immunity from process of the courts.
  3. Property rights – entitlement to metals, fish, ownership of the foreshore, sea bed and its subsoil.

Modification of prerogative powers

Prerogative powers may be modified by legislation in two ways:

  1. 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.
  2. Statues may completely extinguish the prerogative, making what was previously an inherent power a power which is derived from statute.

The modification of prerogative powers was discussed in cases such as New South Wales v Cadia Holdings[9]:


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And in Attorney General v De Keyser’s Royal Hotel Ltd:

  • When legislation covers the same area as a prerogative power, the prerogative power is modified or extinguished.
  • This power is now derived from the legislation.
  • This power is now subjected to conditions of the legislation.

This issue came up again in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) in which the UK alienated residents of their territories from their home by the use of prerogative powers. In Australia, the questions of royal prerogative and the exclusion of alien were discussed in Ruddock v Vadarlis (Tampa Case):

  • While the executive power may derive some of its content by reference to the royal prerogative, it is a power conferred from the Constitution.
  • The power to determine who enters Australia is a main sovereign power. It cannot be that the Constitution or any legislation deprives the government from having this power.

Prerogative to declare war

There is no provision regarding the declaration of war in the Australian Constitution. Declarations of war are done by prerogative.

  • Japan – Article 9, war is not the sovereign right of the nation
  • US – Article 1, power to declare war vested with Congress not President.

Geoffrey Lindell commented on this issue in “The Constitutional Authority to Deploy Australian Military Forces in the Coalition War Against Iraq[10] ”:

  • Power to declare war is an executive power of the commonwealth as covered by s 61.
  • Follows the reasoning that the executive also has power to make treaties with foreign nations.
  • These powers may be exercised without parliamentary approval.

Control of the Executive

[11]The executive is kept in check by the following instruments: The executive is kept in check by the following instruments:

  • Within the executive:
    • Codes of conduct
    • Merit review by tribunal (decision remade)
    • Ombudsman Act 1976 (Cth)
    • Auditor-General Act 1997 (Cth)
    • Australian Human Rights Commission Act 1986 (Cth)
  • By the Judiciary:
    • Review by the courts or common law (reviewing legality of decision)
  • By the Parliament:
    • Responsible Government.
  • By the Media:
    • Freedom of Information Act 1982 (Cth)

Responsible Government

[12]Responsible government entails that the Crown acts on advice of its ministers (except in the exercise of their reserve powers). By virtue of s 64, all ministers must be elected members of parliament, and are therefore accountable to their electors.

Elements of responsible government, and problems of responsible government in Australia, are identified by Hugh Emy and Owen Hughes in Australian Politics: Realities in Conflict[13]:

Elements:

  1. Ministers are members of parliament and thus held accountable to electors.
  2. Governor General acts on behalf of ministers, but also General has reserve power that he may draw upon in the case that the government breaches the Constitution.
  3. Government may be dismissed in two ways: losing an election, or losing a vote of confidence in the lower house.
  4. Executive is supported by an independent, political-free bureaucracy whose employees are promoted on the basis of merit. They form their duties objectively regardless of the party in power.
  5. Direct chain of accountability through all executive members.

Problems:

  1. Chain of accountability – do ministers actually have control over their departments and public servants?
  2. Does parliament actually have control of the ministers?
  3. Problems caused by the Senate’s power to block supply under s 53.
  4. The Governor General is actually invested with tremendous power. Has power, and has done so before, to dismiss a government which enjoys a majority in the lower house.

Chain of accountability:

Public service -> Ministry -> Parliament -> electorate.


The issue of the accountability of a government to parliament was discussed in Egan v Willis. It was held that:

  • Parliament has a capacity to call the Executive into account.
  • It has a power to take ‘reasonable’ measures to ensure the proper exercise of its functions.
  • This power is defined by the conventions and practices of the time.
  • Reaffirmed conventions of responsible government, the review function of the Upper House and developed the new idea that a Court could impose a remedy that interfered in the political arena.

The decision was reaffirmed in Egan v Chadwick.

End

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References

Textbook refers to Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014)

  1. Textbook, 105-109
  2. AV Dicey, Introduction to the Study of the Law of the Constitution, p.24 in Textbook, p. 105
  3. [1981] 1 SCR 753
  4. [1981] 1 SCR 753, 878
  5. [1981] 1 SCR 753, 880
  6. [1981] 1 SCR 753, 880-1
  7. Colin Hughes, “Conventions: Dicey Revisited” in Textbook, pp. 107-9
  8. Textbook, pp. 481-92
  9. (2009) 257 ALR 528
  10. (2002) 5 Constitutional Law and Policy Review 46 in Textbook, pp. 493-4
  11. Textbook, 521
  12. Textbook, 521-8
  13. (Macmillan, 2nd ed 1991) in Textbook, pp. 521-4
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