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A phenomenon of the twentieth century is the growth of regulation by government. This increased control of the activities of individuals and corporate bodies was accompanied by a massive growth in legislation, an increase commonly said to have occurred during and following the Second World War. Indicative of the truth of the development are the figures for Commonwealth legislative activity which, since the latter part of the 1940s have increased fifteenfold.[1] There has been a comparable increase in the legislative output of the States and Territories.
Understandably this spectacular growth in legislation has focused the attention of administrative lawyers, the judiciary and public administration on the legislative source of their powers and obligations. The complementary, formerly more important executive power, tended to be eclipsed. An examination of case law over this period finds few references to challenges based on non-statutory sources.[2] There is a paucity of references to executive power in the indexes and chapter headings of administrative law texts,[3] and even that highly reputable and valuable publication, the Oxford Companion to the High Court of Australia,[4] has no separate entry for the topic. As several of the articles in this collection have noted, the courts and commentators have largely neglected this arm of the traditional tripartite sources of public power.[5]
This neglect has begun to be turned around. The impetus for the change has come from the realisation that despite the best endeavours of legislative drafters, parliamentary committees and public sector advisers, there are often gaps in legislative schemes.[6] Another fillip to the growth in interest in executive power has emerged from the intricacies of the relationship between the arms of government within the federation. The complex interaction between bodies politic create many jurisdictional challenges for the courts and often gives rise to the need to plug jurisdictional gaps.[7] It is against this background that the reliance on unwritten law, of which executive power is a species, is on the upsurge either as a free-standing concept or as a source of authority to fill statutory interstices.
In recent years, a comparable need for expanding the reach of legislation by relying on the common law has seen a resurgence of interest in the incidental power.[8] Equally, the accrued and associated jurisdiction of the federal courts has given rise to a considerable jurisprudence.[9] Reliance on statutory assumptions, including the presumption of regularity of administrative action, has also flourished.[10] Each of these indicators, relying as they do on non-statutory law to supplement the legislative framework, illustrates the continuing need for and viability of the safety net function served by the common law, including executive power.
It was against this background that executive power was chosen in 2002 as the special theme for the Australian National University Law Faculty's Public Law Weekend. The articles in this collection collect much of the existing principle, such as it is, but more importantly they have highlighted developments in thinking and identified areas of uncertainty about this source of government power. They are thought-provoking and repay study. That study will assist in teasing out this elusive area of the law.
The neglect of executive power has had a number of consequences. One has manifested in uncertainty about what is meant by the expression. Does it include only the prerogative — that residue of the extraordinary powers of the Crown which, according to subsequent doctrine, was frozen in 1689, and can be abrogated by statute?[11] Or should it be supplemented by the more mundane powers which the Crown enjoys along with its subjects such as the power to enter into contract, to hire and fire staff, and to acquire property?[12] What, too, of the reference in s 61 of the Constitution to the 'executive power of the Commonwealth'? Are there special tasks which must be performed by the Governor-General when vested under s 61 with 'the execution and maintenance of this Constitution, and of the laws of the Commonwealth'?
The definitional question is addressed in several articles in this collection.[13] In the third of these, Horan in "Judicial Review of Non-statutory Executive Powers" agrees that there are three distinct meanings of 'executive power', at least in the context of the Commonwealth Constitution. Hence, executive power includes the exceptional powers formerly exercisable by the monarch as head of state, defender of the realm, and source of authority for the conduct of relations with other countries; it embraces those ordinary non-statutory powers monarchs enjoy alongside their citizens; and there is a special, constitutional dimension to executive power encompassing functions associated with parliament, and commander-in-chief of the armed forces, a role specifically conferred by the Constitution s 68.
What Horan's article does not consider is whether the executive functions described in s 61 as 'the execution and maintenance ... of the laws of the Commonwealth' impose any constitutional duties over and above those specifically referred to in the Constitution such as the appointment of Ministers (s 64), the assent to Bills (s 58), and the issue of the writs for general elections (s 32). In other words are there some powers inherent in the 'execution and maintenance' functions which are not spelt out but await discovery?[14] No criticism of the author can be made on this account, since this issue was the focus of the article by Winterton, and Horan sensibly left that issue to his fellow presenter.
That omission aside, his article does illustrate another facet of executive power, namely, that the contours of executive power are unclear because they are not spelt out in the constitutional text. This indeterminacy is not wholly to be deplored. It has benefits and disadvantages. The benefits are the flexibility to craft executive power to permit executive action suitable for the times; the disadvantage is its inherent uncertainty.
That uncertainty is illustrated in the paper by Justice Selway, "All at Sea — Constitutional Assumptions and 'The Executive Power of the Commonwealth'" in which the author explores alternative constitutional assumptions which might underpin the meaning of executive power in s 61. These assumptions, as he notes, are 'based in part upon the text and structure of the Constitution, but also upon historical and other considerations.'[15]
The historical aspect of the assumptions to which Justice Selway refers are the result of the dual ancestry which the Australian Constitution enjoys — the United States Constitution with its clear separation of government functions, and the system of responsible government inherited from the United Kingdom. This ancestry produces inherent contradictions in the Australian constitutional framework and creates a conundrum for constitutional scholars and practitioners. Nonetheless, in the century or so since the Constitution was enacted it could be expected that the ambiguity inherent in this dual heritage would have been explored with some precision. It is surprising, therefore, to find in the article by Justice Selway that a judgment in a case heard exactly one hundred years after federation[16] was the occasion for the exposure of doubts as to the constitutional assumptions which should be read into the source of executive power, s 61 of the Constitution.[17]
These issues were explored by Justice Selway by seeking answers to two questions: 'whether the executive power in s 61 includes the prerogatives of the Crown; and, if it does, whether the limitations upon the prerogative are also applicable to the executive power'. These questions arose because French J, a member of the Full Court of the Federal Court which decided Ruddock v Vadarlis (the Tampa),[18] appeared to suggest a negative answer should be given to both questions. In reaching this conclusion, the suggestion made by French J was that s 61 might owe more to the text of the Australian constitutional document than to its historical antecedents.[19]
In exploring this idea, French J turned to the jurisprudence on executive power under the United States Constitution. The strong desire of the United States Founding Fathers to sever all ties with Britain led them to deny that any of the prerogatives of the Crown had been received, a denial which has required United States courts to turn to other sources for essential government, including executive, powers. Given the close correlation between the United States and Australian Constitutions, the challenge posed by French J's judgment, is why should Australian courts not do likewise.
Whether French J intended to deny that prerogative power was in fact incorporated into s 61 is debateable.[20] There is persuasive authority, as Justice Selway concedes,[21] to the contrary. His Honour's comment could refer less to a desire to exclude our British heritage than that we should approach the British antecedents of our Constitution as part of the development of a distinctive Australian constitutional order. That is, his judgment is an example of a discernible adoption by contemporary courts not of a doctrine of 'literalism' but rather of 'legalism', and an 'Australian legalism' at that.[22] Seen in this way, French J's limiting the use of historical conceptions of the prerogative power may not be taking s 61 at 'face value' so much as seeing British and colonial history as mere precursors to contemporary Australian law.[23]
Nonetheless, Justice Selway's voicing of the matter raises some fundamental issues which must be addressed. In addition to the question of which assumptions underpinning the Constitution should be relied on when interpreting the Constitution, his article raises two other significant matters. First, do the limitations which attach to the prerogative power, for example, that no new prerogative is capable of being developed, apply also to the executive power? Secondly, if the executive power as interpreted by United States jurisprudence has been 'constitutionalised',[24] how would a similar development in Australia affect the activities of government? Justice Selway provides no answers to the first, but does to the second.
A third issue, if French J's suggested approach in the Tampa Case is pursued, is that judges, administrators and practitioners, in interpreting s 61, need to identify which powers are essential for the executive function or, as he put it, which powers are 'necessary ... to fulfil [the] role of executing the laws and checking and balancing the powers of the legislative and judicial branches of government.'[25] That is a demanding task, although one which has been essayed in the United States. A debt is owed to both Justices Selway and French for raising these issues. They have resonance for all governments in this country and underscore the surprising lack of clarity in the 21st century as to the interpretive source(s) for executive power.
If there is uncertainty about what is covered by references to executive power in the Constitution, the indeterminacy of the expression in other contexts is equally problematic and equally under-explored. The principal focus of Horan's article is on the use and effect of executive power in the context of judicial review. Given the startling growth in volume of the judicial review jurisdiction,[26] his attention to the impact of executive power on the jurisdiction of federal courts, justiciability, the grounds of review, and judicial review remedies is welcome. One of his pertinent insights is that there is considerable potential for liberation of the non-prerogative style powers when separated from their prerogative counterpart.
There are clearly powerful incentives to differentiate between the prerogative and other non-statutory sources of executive power. Differentiation avoids any suggestion that the limitation attached to prerogative powers, that is, that they can be abrogated or curtailed by statutory regulation of the matter,[27] could be applied to the non-statutory form of executive power. There are good reasons to avoid adopting this principle. A willingness to accept that the prerogative has been ousted can have unfortunate consequences, not least because it removes a source of authority which provides a reservoir of authority for executive action. For example, in Re C (Mental Patient: Contact)[28] the Family Division of the English High Court found that neither the Court of Protection, nor the High Court retained the protective parens patriae prerogative jurisdiction over the person as opposed to the property of an adult who was mentally incompetent. The jurisdiction had been overtaken by a combination of the cancellation of the royal warrant granting the jurisdiction, and the passage of the Mental Health Act 1983.[29] As it transpired, the Court was able to find a source of authority in Re C's case. However, in the absence of an alternative basis of jurisdiction, the displacement of the prerogative power would have had the result that no decisions of a personal nature could be made by a surrogate decision-maker, including the courts.
The outcome cautions against too literal an interpretation of the abrogation principle. To date, Australian courts do not appear to have fallen into this trap and have tenaciously kept alive the underlying common law or prerogative elements of the power.[30] An example is the employment of defence force personnel, originally a matter of discretion based on the defence power, a centrally important prerogative power. Although employment of members of the services is now extensively regulated, the courts have remained ready to assume the underlying prerogative is available to plug any legal gaps in the reach of the power.[31]
The value of this safety net feature of the prerogative has been recognised. This is illustrated in recent legislation of the Commonwealth. Following the Tampa decision, the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) was enacted to confirm that the executive had authority to prevent aliens from entering Australian territory when they had no legal entitlement to do so. That authority had been upheld in the Tampa Case, but was there held to be based on the prerogative power to expel aliens. Significantly, the Border Protection Act specifically indicated that it did not intend to abrogate the prerogative power. What is now s 7A of the Migration Act 1958 (Cth) provides that the comprehensive statutory regime provided for in the Border Protection legislation 'does not prevent the exercise of any executive power of the Commonwealth to protect Australia's borders'.[32]
Given the increased willingness of courts to intervene in claims made to them — the justiciability issue — a willingness chronicled by Horan in his article,[33] how amenable are prerogative and non-prerogative executive powers to judicial review? The very nature of such powers makes this issue problematic. The prerogative powers, pertaining as they often do to matters of high level policy, classically fall into the category of potentially non-justiciable powers. Equally, review of other non-prerogative powers, poses difficulties because of their imprecision. A valuable element of the Horan paper is its analysis of these questions, another area generally described only in a cursory fashion by standard administrative law texts.[34]
Horan has sought answers to the second question — are the courts effectively able to review executive power — by asking whether executive power is capable of being assessed against the criteria for specific grounds of review. He concludes that the grounds of review for errors of a more fundamental nature — breach of natural justice (including bias), fraud, and bad faith — can apply to decisions reliant on executive power. However, his finding is that it is more problematic to identify decisions which are unauthorised on relevancy or irrelevancy grounds, or are irrational, in the absence of statutory parameters against which to judge whether the decision-maker has exceeded or misunderstood the ambit of the power. Similarly, it is difficult[35] to identify an unauthorised purpose (absent bad faith), or whether there has been an error of law, given the inability in the case of executive power to discern pointers to the prescribed purpose or the legal boundaries of the authority being exercised. These are valuable conclusions which, hopefully, will give impetus to further analysis by administrative law scholars.
Contract is one of the most frequently used of the government's non-prerogative powers. Indeed, the policy of governments since the 1980s to devolve activity formerly undertaken by government to those outside the public sector has seen a renewed focus by government on the contracting tool to regulate its relationships with others.[36] Seddon's article on the few limits that the law places on the power to contract is, therefore, salutary. He warns the reader that '[t]raditional measures of accountability for the exercise of public power tend to be minimal in controlling the executive power to make contracts.'[37] In the absence of legislative prohibition, the accepted[38] limitations on the use of executive power, namely, that they cannot authorise decisions which are coercive, intrusive, threatening or punitive in nature,[39] do not apply to government contracts. The rationale for this situation is the supposed equal bargaining power of the parties to the contract and that any term, for example, which authorises decision-making of a coercive nature, is jointly agreed.
A more troubling point Seddon exposes is that contract can be used to avoid legislation which imposes financial probity and accountability requirements on those spending taxpayers' funds, such as the Financial Management and Accountability Act 1997 (Cth) and its regulations. If that were not a matter of sufficient concern, Seddon endorses Horan's view that jurisdictional limitations, and the need to make findings on the specific elements required for each ground of review, limit the possibilities to seek judicial review of decisions or action taken under contract. As he concludes 'executive power is power indeed', a conclusion at odds with the rhetoric of accountability, transparency, fairness, rationality and openness, the hallmark of measures applied to exercises of power by government.
If Seddon's article shows how contract — the key non-statutory power — has challenged traditional accountability mechanisms, Winterton's article poses challenges to the interpretation of the heartland of executive power, s 61 of the Constitution itself. There is considerable need for this analysis, given the minimalist nature of the text of s 61, a feature of constitutional provisions granting executive power.[40] Winterton's treatment of the 'depth'[41] and 'breadth'[42] of s 61 of the Constitution,[43] and his analysis of what constitutes the 'execution' and 'maintenance' of the Constitution contains surprises. The first is that the premises underlying his discussion appear to be that the 'execution' component of s 61 is equated with the non-prerogative powers of government, leaving the 'maintenance' element, to be restricted to those facets of executive power based on the prerogative.
Second, as to the 'execution' component, his conclusion that this element 'should cause few difficulties' is questionable. At one level, it is true that the powers the Crown enjoys along with its subjects are well charted and unexceptional. They fall within what can be described as the complementary or incidental powers which are instrumental for effecting substantive functions bestowed on government. They share meaning with the classical 'necessary or convenient' formula encountered in ordinary statutory interpretation. Winterton's examples — providing administrative assistance, and setting up bodies to put into effect statutory functions — are easily recognised as coming within the ambit of this ancillary power, or its constitutional counterpart, the 'execution' power.
At the same time, it should be acknowledged that the breadth of the possibilities available under either formula give considerable interpretive leeway to courts and administrators. The High Court has provided little guidance about the extent of the 'necessary or convenient' power, nor of the 'execution' power. These complementary sources of authority take their colour from the principal source of power to which they are allied. However, that assistance is largely denied when the ancillary or 'execution' power is being used in conjunction not with a substantive head of power enumerated in the Constitution, but with an executive power, marked by its imprecision, or with an implied power, also indeterminate in extent. As Winterton points out, this inevitably means courts are inappropriately determining issues of policy.[44]
That same lack of precision leads Winterton to conclude, in relation to the 'maintenance' element of s 61, that the depth of federal executive power should be confined to those emanating from the prerogative.[45] Like Justice Selway, Winterton takes issue with the suggestion, so it has been argued, made by French J in the Tampa, that the meaning of s 61 should be divorced from its historical underpinnings or assumptions and restricted to what can be gleaned from the Australian Constitution. To do so, he argues, is to 'judge the constitutional architecture merely by its façade'.[46]
So much may be conceded. However, in exploring what contributes to the meaning of 'maintenance' why confine historical sources to those originating in the prerogative? By their nature, teasing out what is covered by a time-warped prerogative inevitably creates difficulties for courts which must interpret them in a contemporary setting. As Winterton himself concedes, there are a number of reasons why prerogative powers are 'not an ideal criterion' for the 'maintenance' function, including deciding whether they remain in existence and, if so, how they can fit into the current framework for government. If that premise which underpins Winterton's analysis is accepted, these difficulties inevitably arise.
In that context, Winterton's arguments in favour of employing the 'prerogative as the yardstick'[47] repay analysis. The first argument — that the common law (including the law on prerogative powers) is useful to interpret ambiguous provisions in written instruments, including constitutions — and the fourth — the importance in terms of parliamentary sovereignty of the principle that the prerogative can be superseded by statute — apply equally to the non-prerogative element of executive power. The third argument — that the prerogative is 'inherently more certain' than vague notions of what is appropriate for national governments[48] — reflects problems with implied powers, rather than justifying sole reliance on prerogative power. The second argument is that greater certainty attaches to prerogative than to non-prerogative executive powers, because of the jurisprudence which has developed round the former in common law jurisdictions. However, the common law of non-prerogative powers is comparably developed, even if not as deeply enmeshed in history and tradition.
On balance, restricting 'execution' to the non-prerogative source of power, and 'maintenance' to the prerogatives creates an artificial and inflexible division. That said, like other articles in this collection, Winterton's article demonstrates that there is a worrying absence of guidance from the superior courts on the meaning of these key constitutional provisions.
The principle that executive power can be abrogated or superseded by legislation is the focus of the paper by Twomey.[49] She tackles this issue, however, not on a one-dimensional front, but in the multi-dimensional theatre of the federal structure. Her theme is 'In what circumstances will the legislature of one body politic in the federation abrogate or abolish the executive function in another'?[50]
Since the Engineers' Case in 1920,[51]it has been accepted that the 'laws of the Commonwealth and the States have full operation within the subjects upon which they have power to legislate' subject only to there being inconsistency under s 109.[52] 'Laws' in this context mean all laws, whether legislative or common laws, including those sourced in executive power. The consequence is that State legislatures can bind the Commonwealth executive and the executives of other States, and Commonwealth laws equally can bind the executives of the States.[53] Starting from this principle other exceptions have emerged. As Twomey notes: 'The Engineers' Case left open the possibility that different considerations may apply to discriminatory laws, and laws concerning taxation or the prerogative.'[54]
Her paper goes on to explore these exceptions. She is critical of the introduction of a new test in Austin[55] for determining what is a discriminatory law of the Commonwealth. As she points out the new test is confusing and leaves open a number of questions, including whether 'any restriction of an executive function'[56] extends to executive powers. Equally there are problems with the tests for the reverse situation — when can State laws bind the Commonwealth[57] — not least due to a dispute within the current High Court as to whether the States have constitutional power to bind the Commonwealth with respect to its executive powers under s 61.[58] Finally, as she points out, in deciding whether a State law can bind the laws of another State, it appears that there are similar limitations to the Commonwealth in that an otherwise valid law may be incapable of applying outside the territorial boundaries if the law, 'discriminates against the State or impairs the capacity of the State to function as a government.'[59] Twomey concludes with a plea for a return to the Melbourne Corporation principle for deciding when State laws bind the Commonwealth, and that the Cigamatic doctrine 'Byzantine in its complexities' be abandoned.
If Twomey's article explores the circumstances in which one body politic can bind another in the federal structure, and does so through the interaction of executive and legislative power, the final article considered in this collection turns our attention to the comparison between executive and judicial power under the Constitution. It is simply not possible to do justice to Graeme Hill's paper in this brief compass. The analysis is comprehensive, spanning constitutional and common law principle and policy.
Underpinning the examination of the issue posed by the title — whether Wakim-style reasoning could be applied to Chapter II of the Constitution — are discussions of the impact on this issue of important public law principles such as responsible government,[60] the reach of administrative law review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (in particular with reference to exercises of executive power by State officers under cooperative schemes), and the controversial problem of the public-private divide in administrative law.[61] The arguments, therefore, touch upon the deeper philosophical unity of the different fields of public law, a connection that is all too often neglected. As an aside Hill's coining of a new verb 'to Wakim' is likely to become a regular part of the lexicon.
The sub-text of the arguments is what theory of federalism should be adopted — cooperative, coordinate, or concurrent. The answer to that question in part determines what answer is given to the question 'Will the High Court 'Wakim' Chapter II of the Constitution? Hill's personal view comes through clearly.[62] He is a centrist, and strongly in favour of the ongoing efficacy of cooperative legislative schemes. His concern is that there have been indications in recent High Court decisions — principally R v Hughes[63] — that the Court would limit the Commonwealth executive government to functions within the scope of federal legislative power.[64] Such a move would be inimical to cooperative schemes. Another concern is whether the State can supplement the Commonwealth's executive functions by conferring powers that 'the Commonwealth could not confer itself'.[65] This step, it is suggested, might be contrary to Commonwealth immunities doctrine, or likely to undermine the division under the Constitution of executive power.
Hill also addresses the converse question, namely, can Commonwealth executive power be vested in a State agency? Support for the view that such devolution of Commonwealth executive power to a State is not possible can be found in the principle of responsible government. Seen from this perspective responsible government logically requires that it is Commonwealth Ministers alone who are accountable for the execution of Commonwealth laws. Hill takes pain to dispel this view, referring to arguments by Winterton and Lindell in support.[66] The view he prefers is that 'responsible government does not require Commonwealth executive power to be exercised only by members of the Commonwealth executive.'[67] Looking critically at his argument, whether the accountability of the executive to the Parliament could legitimately be traded off against preserving the efficient administration of cooperative schemes is a policy question on which minds will differ.
Accountability also impinges on an alternative argument made by Hill concerning the High Court's original jurisdiction under s 75(v). The argument is along these lines. Since s 75(v) only grants the Court jurisdiction in relation to an 'officer of the Commonwealth', if the Commonwealth executive power was executed by a State Minister or official, this would deny a challenger to such executive action access to the Court's critical review function. The attempt by Hill to craft an implied constitutional right to review decisions which are unlawful without reference to s 75(v), thus avoiding the limitations of the provision, appear speculative at best (as Hill himself concedes[68]) and arguably run counter to the moves by the Court away from implied rights and in favour of a strict reading of the constitutional text.[69]
That last response should in no way detract from the value of Hill's article. It, like the other articles in this collection has considerably enhanced the scholarship on the law on executive power in Australia. The conference started from the point described by Mason CJ, Deane and Gaudron JJ in Davis v Commonwealth,[70] namely, that 'The scope of the executive power of the Commonwealth has often been discussed but never defined'. Faced with this challenge, those invited to participate responded with this remarkable collection of papers. All those invited to develop a facet of this topic and whose output is represented in this collection, are to be congratulated. The effort they have made to respond to their respective briefs is admirable and the public law community is in their debt. They have gone a considerable way towards revealing the contours of executive power in a manner not hitherto achieved. They have also demonstrated the continuing importance of executive power, that source of government authority to act which, like an iceberg, is largely submerged but without which, ninety per cent of the transactions of government could not be undertaken.
* Robin Creyke was the Conference Director for the Public Law Weekend Special Theme conference on executive power. She holds the Alumni Chair of Administrative Law at the Australian National University, is Vice-President of the Australian Institute of Administrative Law, a member of the Administrative Review Council, and Special Counsel with Phillips Fox Lawyers. Robin acknowledges with gratitude the assistance in the preparation of this paper of Sandy Flecknoe-Brown, and Anais D'Arville[.]
1 This figure is based on the number of pages of Acts and Statutory Rules combined, over the period 1946–2000. The number of pages of Acts alone increased fifteenfold over 1946–2002. By contrast, the number of Acts only increased 83% over the period 1946–2002, which indicates the increased intensity of regulation of different subjects.
[2] See, eg, Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491; Oates v Attorney-General (Cth) [2003] HCA 21; (2003) 197 ALR 105; Commissioner of Police for NSW v Jarratt [2003] NSWCA 326 (Unreported, Mason P, Meagher and Santow JJA, 11 November 2003); cf Bromet v Oddie [2003] FCAFC 213 (Unreported, Spender, Madgwick and Dowsett JJ, 29 August 2003); Anderson v Sullivan (1997) 78 FCR 380. The latter two cases concern the power of command at common law in the context of the police and armed forces. While that principle is not described as being of the order of an executive or prerogative power, it matches the general description of executive power in many ways (cf Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491, 539 (French J)). For an indication of the small number of cases on executive power before the High Court see George Winterton, 'The Limits and Use of Executive Power by Governments' (2004) 31 Federal Law Review 421.
[3] See, eg, E Sykes, D Lanham, R Tracey and K Esser, General Principles of Administrative Law (4th ed, 1997) 110–12; Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (2nd ed, 2000) 96–8, 114–15; Peter Cane, An Introduction to Administrative Law (3rd ed, 1996) 23–4, 34–5; Stanley Hotop, Cases on Review of Administrative Action (3rd ed, 1995) 449–51 (only giving extracts of case law); Roger Douglas, Douglas and Jones' Administrative Law (4th ed, 2002) 429–37 (only extracting Ruddock v Vadarlis); Margaret Allars, Administrative Law: Cases and Commentary (1997) 800–4, 816–20 (predominantly extracts from case law). It is also worthy of note that many of these discussions merely take the prerogative power as the starting point of a general discussion of the concept of justiciability, rather than focussing on executive and prerogative power in their own right.
[4] Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001).
[5] See Winterton, above n 2, 421; Chris Horan, 'Judicial Review of Non-Statutory Executive Powers' (2004) 31 Federal Law Review 551.
[6] See, eg, the Migration Act 1958 (Cth), discussed in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; the Extradition (Foreign States) Act 1966 (Cth), discussed in Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477. For examples of the use of executive power to fill the interstices of a legislative scheme, see Anderson v Sullivan (1997) 78 FCR 380, and Bromet v Oddie [2003] FCAFC 213 (Unreported, Spender, Madgwick and Dowsett JJ, 29 August 2003). See also (for the growth of references to the incidental power and to statutory assumptions) below, nn 8–10 and text accompanying.
[7] See, eg, R v Hughes (2000) 202 CLR 535; Re Wakim; Ex parte McNally (1999) 198 CLR 511; cf Graeme Hill, 'Will the High Court "Wakim" Chapter II of the Constitution?' (2004) 31 Federal Law Review 445.
[8] See, eg, Binse v Williams [1998] 1 VR 381; Anthony Lagoon Station Pty Ltd v Maurice (1987) 74 ALR 77; Kent v Johnson (1972) 21 FLR 177; Benning v Wong [1969] HCA 58; (1969) 122 CLR 249; Thompson v Randwick Corporation [1950] HCA 33; (1950) 81 CLR 87; Attorney-General v Smethwick Corporation [1932] 1 Ch 562.
[9] Federal Court Act 1976 (Cth) ss 21-23, 32. The Family Court and the Federal Magistrates Service each has an equivalent provision (see Family Law Act 1975 (Cth) s 33; Federal Magistrates Act 1999 (Cth) s 18. It must be conceded that the additional jurisdiction conferred on the Federal Court in 1997 by the Judiciary Act 1903 (Cth) s 39B(1A)(c) has diminished the need for reliance on the associated jurisdiction. For the case law see: Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563; Vietnam Veterans' Association of Australia (NSW Branch) v Cohen (1996) 70 FCR 449; Turelin Nominees Pty Ltd v Dainford [1983] FCA 62; (1983) 47 ALR 326; Westpac Banking Corp v Eltran Pty Ltd (1987) 74 ALR 45; Allied Mills Industries Pty Ltd v Trade Practices Commission (No 1) [1981] FCA 11; (1981) 34 ALR 105; Buck v Comcare [1996] FCA 1485; (1996) 66 FCR 359. Fencott v Muller (1983) 152 CLR 570; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 177 ALR 329; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 153 ALR 643. See also Enid Campbell, 'Accrued Jurisdiction of the Federal Court in Administrative Law Matters' (1998) 17 Australian Bar Review 127; Justice James Allsop, 'Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002' (2002) 23 Australian Bar Review 29.
[10] See, eg, Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, 164 (McHugh JA); Paterson v Director-General of Community Welfare Services [1982] VicRp 88; [1982] VR 883; Corporation of the Town of Gawler v Minister for Transport and Urban Planning and the State of South Australia [2002] SASC 85 (unreported, Debelle J, 5 March 2002), [29]–[30]; but see Cassell v The Queen (2000) 201 CLR 189, 207–10 (Kirby J). See also Enid Campbell, 'Ostensible Authority in Public Law' [1999] FedLawRw 1; (1999) 27 Federal Law Review 1.
[11] Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1964] UKHL 6; [1965] AC 75; British Broadcasting Corporation v Johns (Inspector of Taxes) [1964] 1 All ER 923.
[12] See, eg, MacDonald v Hamence [1984] FCA 11; (1984) 53 ALR 136 (conducting government public relations); Kent v Johnston [1972] FLR 177 (management and development of government property); New South Wales v Bardolph (1934) 52 CLR 455; Hughes Aircraft Systems International v Air Services Australia [1997] FCA 558; (1997) 146 ALR 1; JS McMillan Pty Ltd v Commonwealth (1997) 147 ALR 419 (the latter three concerning government contracting and tendering); Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79; Victoria v Commonwealth and Hayden [1975] HCA 52; (1975) 134 CLR 338 ('AAP Case').
[13] Winterton, above n 2; Justice Bradley Selway, 'All at Sea — Constitutional Assumptions and 'The Executive Power of the Commonwealth' (2004) 31 Federal Law Review 495; Horan, above n 5.
[14] The principal themes in Horan's article are considered later in this commentary.
[15] Selway, above n 13, 496.
[16] Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491.
[17] The issue is also adverted to, but not explored, in the article by Horan.
[18] [2001] FCA 1329; (2001) 110 FCR 491.
[19] [2001] FCA 1329; (2001) 110 FCR 491, 538–9 [179]. This view has antecedents in the opinion of Gummow J in Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 369.
[20] Justice Selway does concede that it was not clear that French J had 'appreciated that he was interpreting s 61 in light of that assumption': Selway, above n 13, 505.
[21] Ibid 497.
[22] Recent authority in the High Court has also signalled a broader willingness on the part of that Court to develop autochthonous, distinctively Australian, interpretations of constitutional provisions: Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520; Sue v Hill [1999] HCA 30; (1999) 199 CLR 462; see also Dan Meagher, 'Guided by Voices? Constitutional Interpretation on the Gleeson Court' [2002] DeakinLawRw 14; (2002) 7 Deakin Law Review 261; Winterton, above n 2, 431; cf David Bennett QC, 'Tuxedos, Robes or Mountain Boots? Formalism, Legalism and Adventurism on the High Court of Australia' (Paper delivered to the Annual Public Law Weekend, Canberra, 7–9 November 2003). The 'Australian' dimension of the legalism espoused by the High Court is a feature of its jurisprudence which commentators frequently overlook.
[23] Selway, above n 13, 505; cf Winterton, above n 2, 432; see further below, text accompanying nn 45–6.
[24] Selway, above n 13, 499, 505–6.
[25] Ibid.
[26] Various figures are available to illustrate this growth. For example, the number of migration matters filed in the Federal Court has doubled between 1998–99 (941 matters) and 2002–03 (1836 matters): Federal Court of Australia, Annual Report 2002–03 (2003) appendix 5; see also Philip Ruddock MP, 'Immigration Litigation at Record Levels' (Press Release, 3 February 2003). The Federal Magistrates Court, having only received migration jurisdiction in 2001, could claim at 30 June 2003 to hear 54% of migration matters filed in both that Court and the Federal Court (see Federal Magistrates Court, Annual Report 2002–03 (2003) 23, 26). Bearing in mind the substantial proportion of the federal caseload that migration matters make up, these figures are instructive of overall trends in administrative law caseloads. In the High Court, applications for constitutional writs jumped from 300 in 2001–02 to 2131 in 2002–03; the majority of this increase is attributable to migration matters, the vast majority of which were subsequently to be remitted to the lower courts (see High Court of Australia, Annual Report 2002–03 (2003) 93; see also Philip Ruddock MP, 'High Court workload needs addressing' (Press Release, 22 January 2004)). Statistics concerning the number of (non-migration) applications filed under the Administrative Decision (Judicial Review) Act 1977 (Cth) ('ADJR Act') are scarce, but in general suggest a decline over the last decade. The annual total of ADJR Act applications in the Federal Court in 1990–91 was 232; in 1996–97 it was 243; in 1997–98 it was 177; in 2000–2001 it was 117; and in 2001–02 it was 94: see Federal Court of Australia, Annual Report 1990–91 (1991) 73; Federal Court of Australia, Annual Report 2001–02 (2002) appendix 7. The introduction of the Federal Magistrates Court in 1999 does not account for this decline. In 2000–01 the number of ADJR Act applications filed in that Court was 11; in 2001–02, it was 28 and in 2002–03 it was 31: see Federal Magistrate Court, Annual Report 2002–03 (2003) 25. Overall, though, it is clear that the federal courts' caseloads have increased dramatically in the last five years.
[27] See, eg, Barratt v Howard [2000] FCA 190; (2000) 96 FCR 428; Brown v West (1990) 169 CLR 195.
[29] In practice, the Court avoided a jurisdictional glitch through a combination of its inherent jurisdiction and/or its statutory jurisdiction under RSC Ord 15, r 16 to grant declaratory relief (Re C (Mental Patient: Contact) [1993] 1 FLR 940 at 942 per Eastham J).
[30] Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477; Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25; Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491, 501–4 (Black CJ, who was in dissent on the outcome but not on this principle).
[31] See, eg, Bromet v Oddie [2003] FCAFC 213 (Unreported, Spender, Madgwick and Dowsett JJ, 29 August 2003) [54]–[56] (Madgwick J); Bromet v Oddie [2002] FCA 1148 (Unreported, Finn J, 16 September 2002) [41]–[42]; Commonwealth v Welsh [1947] HCA 14; (1947) 74 CLR 245, 268 (Dixon J); Coutts v Commonwealth [1985] HCA 40; (1985) 157 CLR 91.
[32] For the full text of s 7A see Horan, above n 5, 553.
[33] Ibid 554–66.
[34] See above n 3.
[35] Although not impossible: eg for error of law see Molomby v Whitehead [1985] FCA 421; (1985) 7 FCR 541.
[36] Public lawyers had been aware of the possibility that contract would come to play a major role in modern administrative law for a long time. At the National Administrative Law Forum Administrative Law: Does the Public Benefit? in April 1992, Alan Rose warned that citizens would increasingly need to rely on private, rather than public law to protect their rights as public administration sees a trend towards privatisation and corporatisation: see Robin Creyke, 'The Contracting Out of Government Services – Final Report: A Salutation' (1999) 51 Admin Review 6, 9 n 13. See also the prescient paper by Terence Daintith, 'Regulation by Contract: The New Prerogative' (1979) 32 Current Legal Problems 41, discussed by Nick Seddon, 'The Interaction of Contract and Executive Power' (2004) 31 Federal Law Review 541, 547.
[37] See Seddon, above n 36, 541.
[38] But note the comment by the majority in R v Hughes (2000) 202 CLR 535 that 'the scope to enact coercive laws under the executive power "remains open to some debate"' (Hill, above n 7, 457 n 73, quoting Hughes at 555 [39]). Note too the argument in Hill's paper that 'executive power supports some coercive laws' (Hill, above n 7, 458–9).
[39] Congreve v Home Office [1976] QB 629; A v Hayden [1984] HCA 67; (1984) 156 CLR 532; and Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19. Other cases like Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, and Attorney-General v Smethwick Corporation [1933] 1 Ch 562 that define the approach to construing government statutory powers, can also be relevant. Compare some prerogative powers which, by their nature, authorise coercive action, for example, the prerogative powers to conduct war, and to keep the peace: see R v Secretary of State for the Home Department; Ex parte Northumbria Police Authority [1988] 1 ALL ER 556; Ruddock v Vadarlis (Tampa) [2001] FCA 1329; (2001) 110 FCR 491.
[40] Winterton, 'The Limits and Use of Executive Power by Government', above n 2, 422–3.
[41] The content or 'subjects in respect of which Commonwealth executive power can be exercised': ibid 428.
[42] The 'activities the government can undertake with regard to those subjects': ibid.
[43] Ibid.
[44] Ibid 427.
[45] Ibid 431.
[46] Ibid 432; cf above, nn 20–3 and text accompanying.
[47] Ibid 432.
[48] Ibid 433.
[49] The issue is also discussed at some length in the article by Horan.
[50] Anne Twomey, 'Federal Limitations on the Legislative Power of the States and the Commonwealth to Bind One Another' (2004) 31 Federal Law Review 507.
[51] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129.
[52] Twomey, above n 49, 508.
[53] Ibid.
[54] Ibid.
[55] Austin v Commonwealth (2003) 195 ALR 321.
[56] Twomey, above n 49, 512.
[57] Commonwealth v Cigamatic Pty Ltd (in liq) [1962] HCA 40; (1962) 108 CLR 372 as extended in Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410.
[58] Twomey, above n 49, 516.
[59] Ibid 519.
[60] See Hill, above n 7, Part 4(A)(i).
[61] See ibid Part 4(B).
[62] See also Graeme Hill, 'Revisiting Wakim and Hughes: The Distinct Demands of Federalism (2002) 13 Public Law Review 205.
[63] (2000) 202 CLR 535. Hill also finds that such indications in High Court decisions are further reflected in lower court decisions such as R v Fukusato [2002] QCA 20; [2003] 1 Qd R 272.
[64] Hill, above n 7, 445–7.
[65] Ibid 446.
[66] Ibid 474–6.
[67] Ibid 476.
[68] Ibid 478.
[69] See the authorities cited above, n 22.
[70] [1988] HCA 63; (1988) 166 CLR 79, 92.
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