All at Sea — Constitutional Assumptions and ‘the Executive Power of the Commonwealth’
| DOI | 10.22145/flr.31.3.4 |
| Author | Bradley Selway |
| Date | 01 September 2003 |
| Published date | 01 September 2003 |
| Subject Matter | Article |
ALL AT SEA — CONSTITUTIONAL ASSUMPTIONS AND
'THE EXECUTIVE POWER OF THE COMMONWEALTH'
Bradley Selway*
CONSTITUTIONAL ASSUMPTIONS
There has been a vigorous debate both judicially and academically about the correct
approach to constitutional interpretation. An aspect of that debate has involved the
role of assumptions in informing our interpretation of the Constitution. I have argued
elsewhere that 'some assumptions form part of the fabric upon which the written
words of the Constitution are superimposed … where the assumption is integral to a
proper understanding of the structure and text of the Constitution, it can be both used
and applied in constitutional interpretation.'1
The 'executive power of the Commonwealth' is conferred by s 61 of the
Commonwealth Constitution. Section 61 provides that 'the executive power of the
Commonwealth is vested in the Queen and is exercisable by the Governor-General'.
Neither that section nor any other informs us as to what 'the executive power' is. Nor
does the structure of the Commonwealth Constitution provide much of a hint of it.
The term 'executive power' involves a constitutional or political concept. In the
absence of some internal definition of that concept its interpretation necessarily
requires some reference to material extraneous to the Constitution itself — what that is,
and how it might be applicable depends ultimately upon what anterior assumptions
are made by the interpreter.
Other commentators have pointed to the role of assumptions in understanding
federal executive power. Graeme Hill, for example, has pointed out that the question
whether Commonwealth officers can perform State executive functions depends upon
an ancillary assumption about the nature of the federation.2 That ancillary assumption
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* Now Justice Selway of the Federal Court of Australia, Adjunct Professor of Law at the
University of Adelaide. This paper is derived from a paper given at the Annual Public Law
Weekend, Australian National University on 1 November 2002. I acknowledge the
assistance of my Associate, Mr S Hill in checking references and making comments.
1 Bradley Selway, 'Horizontal and Vertical Assumptions within the Commonwealth
Constitution' (2001) 12 Public Law Review 113.
2 Graeme Hill, 'Revisiting Wakim and Hughes: The Distinct Demands of Federalism' (2002) 13
Public Law Review 205, 217–27; Graeme Hill, 'R v Hughes and the Future of Co-operative
Legislative Schemes' (2000) 24 Melbourne University Law Review 478; George Williams,
'Cooperative Federalism and the Revival of the Corporations Law: Wakim and Beyond'
(2002) 20 Company & Securities Law Journal 160; James McConvill and Darryl Smith,
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