Executive Power & Administrative Law – Week 1.1 Lecture Summary

Composition of the Executive Branch

"Executive" = the arm of government whose actions are the focus of administrative law.
Far broader than Cabinet or ministers alone; includes an extensive variety of people, offices, departments, agencies and quasi-government entities.
- Constitutionally-recognised core:
- $s\,61$ : Executive power of the Commonwealth vested in the King, exercisable by the Governor-General.
- $s\,62$ : Federal Executive Council established to advise the Governor-General (in practice: PM + Cabinet + GG acting on advice).
- Non-constitutional but legally significant components:
- Government departments (e.g.
  - Home Affairs, Health, Defence, etc.).
- Statutory authorities/bodies (e.g. ASIC, APRA, ACCC, CSIRO, Australian Institute of Sport).
- Regulatory tribunals & commissions (e.g. Fair Work Commission, Electoral Commission).
- Integrity institutions (Ombudsman, National Anti-Corruption Commission, Auditor-General, etc.).
- Operational services: Police forces, public schools, TAFEs, universities created by statute (e.g. ANU), public hospitals, prisons.
- State & Territory analogues of the above, plus municipal (local-government) instrumentalities.
- Public servants at every level: teachers, corrections officers, tribunal members, ombudsman staff, policy analysts, etc. — all are part of the executive.
- Scale illustration: Commonwealth Department of Finance PGPA Act schedule lists ~200 Commonwealth entities.
- Colour-coding: Purple = non-corporate C’wealth entities; Green = corporate C’wealth entities (body corporate); Yellow = C’wealth-controlled corporations.
- List would increase “exponentially” when State/Territory bodies added.

Outsourcing & Privatisation

Past few decades: marked shift of public powers to private contractors (e.g. Serco running immigration detention centres).
Raises accountability questions central to this course:
- If a private firm exercises a public function, can we still access:
- Ombudsman complaints?
- Freedom of Information (FOI) rights?
- Judicial review remedies?
- Ongoing theme: How to “control public power” when performed by non-government actors.

Activities & Functions Undertaken by the Executive

Pervasive involvement in everyday life:
- Licensing (driver’s, liquor, gambling).
- Welfare (Centrelink payments, disability support, pensions).
- Public transport planning & operation.
- Roads, garbage collection, water & electricity regulation.
- Internet/telecommunications regulation.
- Public health (Medicare, hospitals) & research funding.
Higher-level or systemic functions:
- Tax collection, police services, anti-corruption oversight.
- Running prisons & immigration detention.
- Foreign affairs: treaty-making, diplomatic relations, (hopefully not) declaration of war.
Administrative law interest: ensuring limits on these powers exist & are enforceable.
- Hypothetical issues: wrongful licence cancellation, incorrect welfare refusal, council stops bin collection → What remedies?

Sources of Executive Power (4 primary categories)

1. Statute (principal focus of course)

Parliament grants power to executive officials & bodies by legislation.
- Examples:
- C’wealth minister empowered to grant visas.
- NSW law establishing a Liquor Licensing Authority.
Delegated (subordinate) legislation: Legislature confers regulation-making power on executive.
- E.g. Minister sets visa conditions by regulation.
Statutory interpretation is crucial; administrative law often turns on reading the provision’s “legal reach”.

2. Prerogative Powers (historical Crown powers)

Exclusive to the executive at the highest level; e.g.
- Treaty execution.
- Declaration of war.
- Coining money.
- Conferring honours (e.g. Order of Australia).
Parliament can abrogate or modify prerogatives by statute.
Courts wrestle with justiciability of certain prerogative exercises (topic later in course).

3. Nationhood Power

Inherent powers derived from Australia’s status as a sovereign nation (distinct from UK-inherited prerogatives).
- High Court “Pape” case: allowed stimulus payments during GFC absent explicit statutory basis.

4. Common-Law / “Legal Personhood” / General Capacity Powers

Executive acts as a legal person: enter contracts, own property, sue & be sued.
Williams (School Chaplains) cases: Commonwealth spending/contracts require support from a valid constitutional or statutory source; general capacity is not unlimited.

Multi-Level Structure of Executive Power

Federal / Commonwealth Level

Source-identifiers: Federal statute, Commonwealth department, federal minister.
Sources of power
- Statutes enacted pursuant to $s\,51$ heads (e.g. $s\,51\,(ix)$ quarantine → Quarantine Act; $s\,51\,(ii)$ taxation → Tax Acts, etc.).
- Prerogative, nationhood & common-law capacities also apply.
Executive Review (internal/administrative)
- Merits review: Administrative Review Tribunal (ART) – successor to Administrative Appeals Tribunal (AAT).
- Investigatory bodies:
- Commonwealth Ombudsman (maladministration complaints, incl. Centrelink).
- National Anti-Corruption Commission (NACC) – corruption inquiries.
- Auditor-General – mismanagement of public funds.
- FOI: Freedom of Information Act 1982 (Cth).
Judicial Review
- High Court: $s\,75\,(v)$ Constitution (constitutional writs).
- Federal Court:
- Judiciary Act 1903 (mirrors $s\,75$ jurisdiction).
- ADJR Act 1977 (Cth) – statutory review.
- Federal Circuit Court: judicial review under ADJR Act as conferred.

State / Territory Level (example: New South Wales)

Identifier: State statute, state minister/agency (e.g. NSW Minister for Environment).
Sources of power
- State plenary legislative power (subject only to constitutional limits, intergovernmental immunities, etc.).
- State prerogative & common-law capacities.
Executive Review
- Merits review: NSW Civil & Administrative Tribunal (NCAT).
- Investigatory bodies:
- NSW Ombudsman, ICAC, Auditor-General.
- Information access: Government Information (Public Access) Act 2009 (NSW) – “GIPA”.
Judicial Review
- Supreme Court of NSW – common-law review jurisdiction preserved by $s\,69$ Supreme Court Act 1970 (NSW).
- No state equivalent of ADJR Act → relies on common-law grounds (some codified).

Local Government Level

Created by state legislation (not constitutionally entrenched).
- Powers: development approvals, local services (garbage, libraries, parking, etc.).
Review & oversight channels = same as state level (because source of power is state statute):
- NCAT for merits review where statute allows.
- NSW Ombudsman, ICAC, GIPA Act.
- Supreme Court $s\,69$ judicial review.

Administrative Law’s Two Core Tasks (re-emphasised)

Identify & interpret the legal limits on executive power in any given instance (primarily statutory, but also prerogative, nationhood, common-law).
Enforce those limits through suitable mechanisms when power is exceeded:
- Executive mechanisms (merits review, Ombudsman, integrity bodies, FOI).
- Judicial review (courts issuing constitutional/statutory writs).

Practical & Ethical Significance

Government’s pervasive role means unlawful decisions can directly affect daily life (licence, welfare, garbage, visas).
Outsourced or privatised functions complicate accountability → recurring theme.
Separation of powers is horizontal (Legislature/Judiciary/Executive) and vertical (Commonwealth/State/Local); choosing the wrong level misdirects the entire review strategy (common exam pitfall).

Study & Exam Advice

Master statutory interpretation: meaning, purpose, context – critical for judicial review problem questions.
Know the institutional map (which tribunal, which court, which Ombudsman at which level).
Grasp distinctions between merits review (correct/ preferable decision) and judicial review (legality only).
Be ready to discuss justiciability of prerogative and high-policy decisions.
Keep revisiting outsourcing examples (e.g. Serco detention) when analysing FOI, Ombudsman jurisdiction, and reviewability.