Judicial Review of Non-Statutory Executive Powers

Date01 September 2003
Publication Date01 September 2003
AuthorChris Horan
Chris Horan*
In current times, most executive action affecting individuals involves the exercise of
powers conferred by or under statute. Administrative lawyers are familiar with the use
of judicial review in order to enforce limits placed on such powers by the empowering
legislation. Indeed, the development of the modern principles of administrative law
over the latter half of the 20th century has largely taken place in a statutory setting. As
recent history demonstrates, however, there are circumstances in which an executive
government may seek to rely on non-statutory sources of power. The exercise of non-
statutory powers will often raise distinct issues in the context of judicial review. The
review of non-statutory powers may involve questions concerning the extent to which
governmental actions are justiciable, that is, suitable to be examined by the courts.
Further, the application of many of the traditional grounds of judicial review can be
problematic without the touchstones of validity that are usually provided by statute.
This article discusses the judicial review of non-statutory executive powers in
relation to questions of jurisdiction, justiciability, grounds of review and remedies.
Some preliminary points should be noted in relation to the classification and
nomenclature of non-statutory executive powers. It is common to refer to such powers
as prerogative powers. However, it is necessary to observe several caveats in the use of
such terminology.
First, there are different views as to what powers are properly described as
'prerogative powers'. While Dicey used the term to refer to 'the residue of
discretionary or arbitrary authority, which at any given time is legally left in the
hands of the Crown',1 prerogative powers are sometimes more strictly defined as
those powers which are unique to the Crown—for example, the power to declare
war, to enter into a treaty, to grant a pardon, and so on.2 In other words, at least on
one view, the prerogative does not include powers which arise simply by reason of
* Barrister, Victorian Bar.
1 AV Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1959) 424.
2 Thus, Blackstone regarded the prerogative as 'that special pre-eminence which the king
hath, over and above all other persons, and out of the ordinary course of the common law
in right of his regal dignity', and stated that the term 'can only be applied to those rights
and capacities which the king enjoys alone, in contradistinction to others, and not to those
which he enjoys in common with any of his subjects': William Blackstone, Commentaries on
the Laws of England (first published 1765, 3rd ed, 1768) bk I, ch 7, 239. See generally William
Wade, Administrative Law (8th ed, 2000) 221–2; Davis v Commonwealth (1988) 166 CLR 79, 108
(Brennan J).
552 Federal Law Review Volume 31
the Crown's legal personality, and which are therefore possessed by the Crown in
common with its subjects, such as the power to enter into contracts3 or to acquire
and convey property. These powers arise under the common law rather than by
virtue of the prerogative.4
Secondly, at Commonwealth level, the source of executive power is s 61 of the
Constitution. It has been accepted that s 61 encompasses those prerogative powers
of the Crown which are relevant to the 'spheres of responsibility' vested in it by the
Constitution.5 However, there is growing ambivalence towards the use of the term
'prerogative' to describe powers derived from s 61 of the Constitution. As French J
observed in Ruddock v Vadarlis,6 '[t]he use of the "prerogative" to describe such a
power may properly acknowledge its historical antecedents but not adequately
illuminate its origins in s 61 of the Constitution.' The effect of this distinction is
potentially to liberate the scope of the Commonwealth's non-statutory executive
powers from the prerogative powers historically exercised by the Crown.7 This
may in turn influence the approach adopted in determining the existence and
extent of power, and in determining whether such power has been abrogated by
The powers conferred by s 61 also extend to 'the execution and maintenance of this
Constitution'. Several provisions of the Constitution expressly confer powers which
would otherwise have arisen by virtue of the prerogative, such as the power to
summon, dissolve and prorogue the Parliament (s 5), the issue of writs for
elections (ss 5, 32), the appointment and removal of civil servants (s 67) and the
command in chief of the naval and military forces (s 68).
The conferral of statutory powers has greatly reduced the areas in which prerogative
or non-statutory executive powers still operate.8 Where a statute specifically empowers
3 See New South Wales v Bardolph (1934) 52 CLR 455, 474–5 (Evatt J).
4 This does not mean that the exercise of common law (as opposed to prerogative) powers
cannot be the subject of judicial review proceedings. However, unless the executive
oversteps some positive constitutional or statutory limit on its powers, the exercise of its
common law powers will more often involve questions arising under private law (for
example, contract, property or tort).
5 Barton v Commonwealth (1974) 131 CLR 477, 498; see also Davis v Commonwealth (1988) 166
CLR 79, 93; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority
(1997) 190 CLR 410, 424 (Brennan CJ), 438 (Dawson, Toohey and Gaudron JJ), 455, 459
(McHugh J), 463–4 (Gummow J).
6 (2001) 110 FCR 491, 538. Compare the recent use of the term 'constitutional writs' in
preference to 'prerogative writs' to describe the remedies provided for by s 75(v) of the
Constitution: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 92–3 [20]–[21]
(Gaudron and Gummow JJ), 133–6 [138]–[140], 135–6 [144] (Kirby J), 141–2 [165] (Hayne J).
7 Thus, in Ruddock v Vadarlis (2001) 110 FCR 491, 540, 542–3, French J placed primary reliance
on 'Australia's status as a sovereign nation' in determining whether there was an executive
power to prevent the entry of non-citizens into Australia. Contrast the more historical
approach adopted by Black CJ: ibid 496–501. See also Re Ditfort; Ex parte Deputy
Commissioner of Taxation (1988) 19 FCR 347, 368 (Gummow J).
8 Note also that in some areas, under long-standing constitutional principles, the Crown
cannot act without positive authority conferred by statute — in other words, there is no
scope for the exercise of non-statutory executive powers. For example, the Crown cannot
raise taxes or impose fines or penalties without statute: see eg, Northern Suburbs General
Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555, 579 (Brennan J), 597–8

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