Democracy, Liberty and the Prerogative: The Displacement of Inherent Executive Power by Statute

AuthorBenjamin B Saunders
Publication Date01 June 2013
DOI10.22145/flr.41.2.6
SubjectArticle
DEMOCRACY, LIBERTY AND THE PREROGATIVE: THE
DISPLACEMENT OF INHERENT EXECUTIVE POWER BY
STATUTE
Benjamin B Saunders*
ABSTRACT
This article analyses arguments that the prerogative should be readily displaced by
statute, where a statute deals with a subject matter similar to a prerogative. It does so
by examining the leading cases on displacement of the prerogative in the United
Kingdom and the Australian states, and displacement of the Australian
Commonwealth’s in herent executive power. The cases do not adopt a single rule but
the question of whether a statute will be taken to displace a preroga tive is highly
dependent on the facts and the provisions of the particular statute. This article defends
the current approach to displacement, for three reasons. First, the courts do not allow
governments to subvert or ignore statutes by using the prerogative. Secondly, the
courts have almost always decided in favour of liberty and against the conferral of
coercive powers on government. Thirdly, a single rule could not do justice to all the
variables involved in displacement cases. Ordinary principles of statutory
interpretation are sufficient to deal with questions of displacement.
I INTRODUCTION
The royal prerogative has a bad reputation in contemporary jurisprudence. It is
considered to be an obscure relic of an undemocratic past, and a potential threat to
civil liberties. These factors, together with prevailing ideals of democratic legitimacy,
are said to make a compelling case for abolishing t he prerogative or placing it on a
statutory footing. Althoug h it is well accepted that parliament may control or regulate
the exercise of power by the executive, statutes rarel y expressly abolish prerogative
powers, often leading to difficulties in determining whether the prerogative has been
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* Legal Officer, Office of Crown Counsel (Advisings), Department of Justice, Melbourne . The
research for this article was undertaken under an Australi an Research Council Discovery
Project (DP1092671) . Many thanks to Simon Evans, the Chief Investigator of that project,
who has had significant input into this article, and to Cheryl Saunders and Michael
Crommelin for their comments. The opinions expressed in this article are those of the
author alone.
364 Federal Law Review Volume 41
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displaced in a particular case.
1
Even the recent Constitutional Reform and Governance Act
2010 (UK), which was designed to place the U K Civil Service on a statutory footing,
did not expressly displace the prerogative power to regulate the Civil Service.
2
Relying on similar reasoning, it has been argued that the prerogative s hould be
readily displaced by statute, where a statute deals with subject matter similar to a
prerogative. This article seeks to evaluate these claims and the reasoning underlying
them. It examines the leading cases on displacement of the prerogative in the United
Kingdom and the Australian states,
3
and the inherent executive power of the
Commonwealth contained in s 61 of the Constitution. I argue that the approaches taken
in the United Kingdom an d Australia are very similar. In both jurisdictions, there is no
single legal test for determining when the prerogative will be taken to have been
displaced by statute which is applicable in all circumstances. The courts examine the
statutory provisions in accordance with established principles of interpretation. The
question of whether a statute will be taken to displace a prerogative is highly
dependent on the facts and the provisions of the particular statute.
Contrary to the arguments advanced by many commentators, t his article defends
the current approach to displacement, for three reasons. First, the courts do not allow
governments to subvert or ignore statutes by using the prerogative. Where a statute
and a prerogative conflict, or a statute lays down conditions or pr ocedures to be
followed in the exercise of power, the courts readily hold that the government cannot
resort to prerogative powers in defiance of the statute. Secondly, in displacement cases,
the courts have almost always decided in favour of individual liberty and against the
conferral of coercive powers on government. Where liberty, property or rights are at
stake, the courts have been hostile to attempted encroachments on them. There is at
least one exception to this. But the protection of liberty is a stro ng, and welcome, theme
in displacement cases. This article therefore argues that the main criticisms of the
prerogative in the displacement context have not been made out.
Thirdly, a si ngle rule c ould not do justice to all the variables which exist in
displacement cases. The prerogative consists of a wide range of powers, rights and
attributes, the question of displacement arises in a wide variety of circumstances, and
statutes engage with the prerogative in a variety of ways. Some statutes have regulated
prerogative powers but assumed or relied on the continued existence of those powers.
In some cases displacement would lead to great inconvenie nce with little benefit and
so in some cases, it is appropriate for a prerogative to exist alongside a statute. A
presumption that in every case the prerogative should be easily displaced would not
be a preferable approach.
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1
See the perceptive discussion in Frederic William Maitland, The Constitutional History of
England (Cambridge University Press, first published 1908, 2000 ed) 41821. For an example
of where a prerogative was expressly curtailed, see British Coal Corporation v The King [1935]
AC 500.
2
Constitutional Reform and Governance Act 2010 (UK) c 25, s 3. In contrast, the Fixed-term
Parliaments Act 2011 (UK) c 14, s 3(2) expressly abolished any prerogative power to dissolve
Parliament.
3
This article does not consider displacement of the capacities or 'third source powers', as to
which see, eg, Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454.
Note Hayne J’s warning regarding the terminology of 'capacities': Williams v Commonwealth
(2012) 288 ALR 410, 46970 [200][202].

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