The Limits and Use of Executive Power by Government

DOI10.22145/flr.31.3.2
Publication Date01 Sep 2003
AuthorGeorge Winterton
SubjectArticle
THE LIMITS AND USE OF EXECUTIVE POWER BY
GOVERNMENT
George Winterton*
The executive power of the Commonwealth largely has been neglected, both by the
High Court and by commentators, receiving scant attention in comparison with the
Commonwealth's legislative and judicial powers. The High Court has examined
executive power on fewer than 10 occasions — principally three cases in the Whitlam
era: Barton v Commonwealth,1 the AAP Case2 and Johnson v Kent3and, most recently,
in the Bicentennial Authority Act Case in 1988.4 (The power has, of course, also arisen in
several Federal Court cases, most notably the Tampa Case in 2001.)5 The relative neglect
of this power is reflected in constitutional commentary, for which High Court cases
represent primary 'authority'. The Commonwealth's legislative powers have, of course,
received detailed examination in every major text since Quick and Garran in 1901.6
But, while the first monograph on Commonwealth judicial power appeared as early as
1904,7 almost 80 years were to elapse before publication of a book devoted to the
executive power of the Commonwealth.8 This disparate treatment reflects the fact that
the exercise of executive power raises fewer justiciable controversies than legislative
and judicial power (especially under a parliamentary executive,9 although this is true
also of the United States), but an additional factor is that executive power has always
been something of a mystery, frequently being defined merely as the 'residue' of
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* Professor of Constitutional Law, University of Sydney.
2 Victoria v Commonwealth and Hayden (1975) 134 CLR 338 ( 'AAP').
4 Davis v Commonwealth (1988) 166 CLR 79.
5 Ruddock v Vadarlis (2001) 110 FCR 491 ('Vadarlis'), reversing Victorian Council for Civil
Liberties Inc v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452. Special
leave to appeal to the High Court refused: (2001) 205 CLR 694.
6 John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth
(1901).
7 John Quick and Littleton Groom, The Judicial Power of the Commonwealth (1904). The next
major text was Zelman Cowen, Federal Jurisdiction in Australia (1959), now Leslie Zines,
Cowen and Zines's Federal Jurisdiction in Australia (3rd ed, 2002).
8 George Winterton, Parliament, the Executive and the Governor-General (1983). See also H E
Renfree, The Executive Power of the Commonwealth of Australia (1984).
9 Thus, an Irish commentator remarked that '[c]onstitutions which provide for an executive
in parliament are rarely troubled about executive power': James Casey, Constitutional Law
in Ireland (3rd ed, 2000) 231.
422 Federal Law Review Volume 31
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governmental powers after legislative and judicial powers are excluded.10 This is
demonstrated well by Quick and Garran, whose scant two pages devoted to s 61 of the
Constitution are uncharacteristically unhelpful indeed positively misleading in
irrelevantly noting a secondary meaning of 'the Commonwealth' as including both the
Commonwealth (its acknowledged meaning in s 61) and the States.11
The executive power of the Commonwealth is conferred by s 61 of the Constitution
which provides:
The executive power of the Commonwealth is vested in the Queen and is exercisable by
the Governor-General as the Queen's representative, and extends to the execution and
maintenance of this Constitution, and of the laws of the Commonwealth.
This section clearly includes three provisions. First, it vests 'the executive power' of the
federal polity created by the Constitution — the Commonwealth — in the Queen; this,
together with other provisions in the Constitution,12 established Australia as a
monarchy with the Queen of the United Kingdom as its Head of State. Secondly, the
Commonwealth's executive power is 'exercisable' by the Governor-General, which
means that it is exercised on the advice of Commonwealth (and not British) Ministers,
since it is the former who advise the Governor-General. Although s 61 vests executive
power in the Queen and does not expressly require it to be exercisable only by the
Governor-General, s 61 should be interpreted as impliedly so providing because its
second clause, interpreted in the light of British constitutional principles, means that
Commonwealth executive power is exercisable on the advice of Commonwealth (not
British) Ministers, who were unable directly to advise the monarch until 1931.13 The
third provision in s 61 is the most cryptic, stating to what subjects Commonwealth
executive power 'extends'. This third provision has, naturally, been the most important
and the only aspect of s 61 to raise justiciable controversy.
Notwithstanding its brevity,14 s 61 is positively prolix by comparison with
analogous constitutions, both antecedent and subsequent. The Canadian Constitution of
1867, for example, provided merely that '[t]he executive government and authority of
and over Canada is hereby declared to continue and be vested in the Queen.'15 The
South African Constitution of 1909 was a little more fulsome, providing, like the
Canadian, that '[t]he executive government' of the Union was vested in the King, but
adding that it 'shall be administered by His Majesty in person or by a governor-general
as His representative'.16 Subsequent republican constitutions in nations with a
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10 See Winterton, above n 8, 70, 264; Anthony Bradley and Keith Ewing, Constitutional and
Administrative Law (13th ed, 2003) 80; Butterworths, Halsbury's Laws of England (4th ed re-
issue, 1996 vol 8(2)) 22, [9] ('Executive functions are incapable of comprehensive definition,
for they are merely the residue of functions of government after legislative and judicial
functions have been taken away'); Renfree, above n 8, 389; Bishamber Dayal Chandra Mohan v
Uttar Pradesh AIR 1982 SC 33, 41 [20]; Durga Das Basu, Shorter Constitution of India (10th ed,
1989) 281; Casey, above n 9, 231.
11 See Quick and Garran, above n 6, 701.
12 See ss 1, 2, 64, 66, 68 and 126.
13 See Winterton, above n 8, 23–6.
14 See, likewise, Christos Mantziaris, 'The Executive: A Common Law Understanding of Legal
Form and Responsibility' in Robert French, Geoffrey Lindell and Cheryl Saunders (eds),
Reflections on the Australian Constitution (2003) 125, 128.
15 Constitution Act 1867, 30 and 31 Vict, c 3, s 9.
16 South Africa Act 1909, 9 Edw 7, c 9, s 8.

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