Executive Power — New Wine in Old Bottles? Foreword
| Author | Robin Creyke |
| Published date | 01 September 2003 |
| Date | 01 September 2003 |
| DOI | http://doi.org/10.22145/flr.31.3.1 |
EXECUTIVE POWER — NEW WINE IN OLD BOTTLES?
FOREWORD
Robin Creyke*
A phenomenon of the twentieth century is the growth of regulation by government.
This increased control of the activities of individuals and corporate bodies was
accompanied by a massive growth in legislation, an increase commonly said to have
occurred during and following the Second World War. Indicative of the truth of the
development are the figures for Commonwealth legislative activity which, since the
latter part of the 1940s have increased fifteenfold.1 There has been a comparable
increase in the legislative output of the States and Territories.
Understandably this spectacular growth in legislation has focused the attention of
administrative lawyers, the judiciary and public administration on the legislative
source of their powers and obligations. The complementary, formerly more important
executive power, tended to be eclipsed. An examination of case law over this period
finds few references to challenges based on non-statutory sources.2 There is a paucity
of references to executive power in the indexes and chapter headings of administrative
_____________________________________________________________________________________
* Robin Creyke was the Conference Director for the Public Law Weekend Special Theme
conference on executive power. She holds the Alumni Chair of Administrative Law at the
Australian National University, is Vice-President of the Australian Institute of
Administrative Law, a member of the Administrative Review Council, and Special Counsel
with Phillips Fox Lawyers. Robin acknowledges with gratitude the assistance in the
preparation of this paper of Sandy Flecknoe-Brown, and Anais D'Arville.
1This figure is based on the number of pages of Acts and Statutory Rules combined, over the
period 1946–2000. The number of pages of Acts alone increased fifteenfold over 1946–2002.
By contrast, the number of Acts only increased 83% over the period 1946–2002, which
indicates the increased intensity of regulation of different subjects.
2See, eg, Ruddock v Vadarlis (2001) 110 FCR 491; Oates v Attorney-General (Cth) (2003) 197 ALR
105; Commissioner of Police for NSW v Jarratt [2003] NSWCA 326 (Unreported, Mason P,
Meagher and Santow JJA, 11 November 2003); cf Bromet v Oddie [2003] FCAFC 213
(Unreported, Spender, Madgwick and Dowsett JJ, 29 August 2003); Anderson v Sullivan
(1997) 78 FCR 380. The latter two cases concern the power of command at common law in
the context of the police and armed forces. While that principle is not described as being of
the order of an executive or prerogative power, it matches the general description of
executive power in many ways (cf Ruddock v Vadarlis (2001) 110 FCR 491, 539 (French J)).
For an indication of the small number of cases on executive power before the High Court
see George Winterton, 'The Limits and Use of Executive Power by Governments' (2004) 31
Federal Law Review 421.
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