Executive Powers – Key Points

Course Progress

This week concludes the shift from legislative institutions to the executive branch. Prior weeks covered foundational doctrines (separation of powers, rule of law) and Commonwealth legislative competence under section 51\text{section }51, the supremacy rule in section 109\text{section }109, and the states’ residual plenary powers.

Composition of the Executive

Australia’s executive encompasses the King (represented by the Governor-General), the Prime Minister, Cabinet and other ministers, the public service, police, armed forces and numerous administrative agencies. Although embedded in Parliament, it operates as a separate power charged with implementing and enforcing federal law.

Delegated (Subordinate) Legislation

Parliament may confer narrow, expert-driven rule-making authority on ministers or agencies. The Biosecurity Act’s wide COVID-19 regulations illustrate the growing practical significance—and potential constitutional tension—of delegated legislation.

Express Constitutional Executive Powers

The general executive power in section 61\text{section }61 authorises administration of the Commonwealth’s laws and the Constitution. Specific grants include:

  • section 64\text{section }64 – administer departments and spend for ordinary government purposes.
  • section 67\text{section }67 – appoint civil servants.
  • section 72\text{section }72 – appoint federal judges.
  • section 86\text{section }86 – collect customs and excise duties.
  • A protective limb (identified by the High Court) empowers measures safeguarding the constitutional order (e.g. ASIO).

Inherent (Common-Law) Executive Powers

At common law, prerogative powers formerly held by the Crown are absorbed by section 61\text{section }61. They are discretionary, often extraordinary, and include powers to declare war, make or unmake treaties, detain aliens, expel non-residents, and hold certain rare property (e.g. cassowaries, platypus). A prerogative power is extinguished by (1) disuse, (2) inconsistency with statute, or (3) inconsistency with the Constitution.

Case Illustration – MV Tampa

Tampa concerned 433 rescued asylum seekers. Competing Federal Court judgments show the limits of prerogative:

• Black CJ – Migration Act 009 impliedly covered the field; prerogative to expel was displaced.
• French J – prerogative survived because the Act lacked clear words or necessary implication removing it.

Contracting and Spending at Common Law

The executive may contract and spend without parliamentary appropriation where expenditure is part of the ordinary course of administering government (e.g. salaries, office supplies).

Implied Nationhood Power

A combined reading of sections 51(xxxix)\text{sections }51(xxxix) and 6161 yields a limited power enabling the Commonwealth to tackle matters uniquely national in character.

• Davis v Commonwealth: creating a Bicentenary Authority valid, but coercive trademark restrictions invalid (disproportionate).
• Pape v Commissioner of Taxation: one-off $900\$900 stimulus payments upheld as a non-coercive, emergency response within executive capacity.

The power is construed broadly for non-coercive activity, narrowly where individual rights are restricted.

Checks and Balances on Executive Action

Treaty-making and war powers sit with the executive, but only treaties gain domestic force through parliamentary legislation (external affairs head, section 51(xxix)\text{section }51(xxix)). Delegated legislation is reviewable; prerogative may be overridden by clear statute; courts retain judicial review to police constitutional limits.