Can Parliament Confer Plenary Executive Power? the Limitations Imposed by Sections 51 and 52 of the Australian Consitution

Date01 June 2016
Published date01 June 2016
Subject MatterArticle
Lisa Burton Crawford*
Plenary executive power seems repugnant to the rule of law. It is often said that such
power cannot exist: that all executive power must have legal limits. Yet, it remains
unclear which principle or principles of Australian constitutional law would prevent the
federal Parliament from conferring ple nary executive power. The High Court has
suggested that a federal statute purporting to confer an entirely open-ended discretion
on a Minister would simply not be a ‘law’, or else lack the requisite connection to a head
of power found in ss 51 or 52 of the Australian Constitution. This article examines the
latter claim. It explains the nature of the limitations imposed by ss 51 and 52 and the role
of the High Court in ensuring that those limitations are complied with. It concludes that
the scope of executive power that Parliament may confer is constrained by ss 51 and 52,
but not to the extent that has been suggested by the High Court.
The prospect of plenary executive power is a tr oubling one. In theory, a plenary
executive power is one that is free from any legal limitations or requirements. The
exercise of such a power would be effectively immune from judicial review, there being
no legal limitations on the power that the courts could enforce. At least since Dicey’s
day, power of this kind has been regarded as repugnant to the rule of law.
It is often a sserted that plenary executive power is not merely undes irable, but
unconstitutional. Textbooks on administrative law state that ‘there is no such thin g as
absolute or unfettered administrative power’;
that ‘all public power has its limits’.
* Lecturer, Monash University Faculty of Law. I wish to thank Professor Jeffrey Goldsworthy,
Associate Professor Patrick Emerton and Dr Janina Boughey for valuable discussion of the
ideas in this article. I also wish to thank the anony mous reviewers for their very useful
comments. All views expressed and any errors are my own.
Albert Venn Dicey, An Introduction to the Study of the Law of the Constitution (Liberty Fund,
1982) 120. See also Friedrich von Hayek, The Road to Serfdom (Routledge, 1944); Sir William
Wade, Administrative Law (Oxford University Press, 2004) 35.
H R W Wade and C F Forsyth, Administrative Law (Oxford University Press, 2014) 4.
Mark Aronson and Mathew Groves, Judicial Review of Administrative Action (Lawbook, 2013)
288 Federal Law Review Volume 44
Gerlach v Clifton Bricks Pty Ltd, Kirby and Callinan JJ said that ‘[n]o Parliament of
Australia could confer absolute power on anyone’.
But it is not clear whether
statements such as this are true, or why. What principle or principles of constitutional
law would prevent the federal Parliament from conferring plenary executive powe r?
In Plaintiff S157/2002 v Commonwealth
several members of the High Court indicate d
that a partial answer to this question lies in Chapter I of the Constitution. In the course of
argument in that case, Counsel for the Commonwealth suggested that Parliament could
give the Minister for Immigration ‘“a totally open-ended discretion as to what aliens can
and what aliens cannot come to and stay in Austra lia”, subject only to [the High] Court
deciding any dispute as to the “constitutional fact” of alien status.’
The plurality judges
stated that a statute purporting to confer such a power:
would appear to lack [the] hallmark of the exercise of legislative power … namely, the
determination of “the content of a law as a rule of conduct or a declaration as to power,
right or duty”. Moreover, there would be delineated by the Parliament no factual
requirements to connect any given state of affairs with the constitutional head of power.
This suggests two interrelated limits on Parlia ment’s ability to confer plenary
executive po wer. First, a statute that purported to do so would not be an exercise of
‘legislative power’, (presumably) for the purposes of ss 1, 51 or 52 of the Constitution.
Secondly, a statute that purported to do so would not demonstrate the req uisite
connection to a head of legislative power found in s 51 or s 52 of the Constitutio n.
This ‘intriguing’ passage
has been referre d to in subsequent case law and
but it is yet to be seriously analysed.
It has not been acted upon by the
High Court, either. It might therefore be thought to be of purely theoretical concern. But
the a bove-quoted passage raises issues of clear constitutional significance: the nature
and scope of legislative and executive power, the scope of the ‘entrenched minimum
provision of judicial review’,
the extent to which the rule of law is protected by the
Constitution, and perhaps even, the meaning of law. Furthermore, it is not clear that the
(2002) 209 CLR 478, 504 [70]. Note, though this is expressed in g eneral terms, the case itself
was concerned with the possibility of unlimited judicial (as opposed to executive) power.
(2003) 211 CLR 476 (‘Plaintiff S157’).
Plaintiff S157 (2003) 211 CLR 476, 512 [101].
Ibid 513 [102] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
See George Williams and David Hume, Human Rights Under the Australian Constitution
(Oxford University Press, 2013) 122.
New South Wales v Commonwealth (‘Work Choices Case’) (2006) 229 CLR 1, 176; Bodruddaza v
Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651, 663 4 [28] (Gleeson CJ,
Gummow, Kirby, Hayne, Heydon and Crennan JJ); Plaintiff M61/2010E v Commonwealth
(2010) 243 CLR 319, 3467 [56]; Plaintiff M79/2012 v Minister for Immigration and Citizensh ip
(2013) 252 CLR 336, 367 [88] (Hayne J); Momcilovic v The Queen (2011) 245 CLR 1, 159160
[400] and accompanying note (Heydon J). See also arguments put in Williams v Commonwealth
[No 2] (2014) 252 CLR 416, 4189.
Some of the leading expositions of the entrenched minimum provision of judicial review do
comment on the issue, but only fairly briefly: Leighton McDonald, ‘The Entrenched
Minimum Provision of Judicial Review and the Rule of Law’ (2010) 21 Public Law Review 14,
27; Will Bateman, ‘The Constitution and the Substantive Principles of Judicial Review: The
Full Scope of the Entrenched Minimum Provision of Judicial Review’ (2011) 30 Federal Law
Review 463, 464, 4912.
Plaintiff S157 (2003) 211 CLR 476, 513 [103].

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