Selway, Bradley --- "All at Sea - Constitutional Assumptions and 'The Executive Power of the Commonwealth'" [2003] FedLawRw 19; (2003) 31(3) Federal Law Review 495
- THE TAMPA
- THE POSSIBLE ASSUMPTIONS
- THE FIRST ASSUMPTION — THE US MODEL
- THE SECOND ASSUMPTION — BRITISH AND COLONIAL PRACTICE AND HISTORY
- CONCLUSION
ALL AT SEA — CONSTITUTIONAL ASSUMPTIONS AND 'THE EXECUTIVE POWER OF THE COMMONWEALTH'
Bradley Selway[*]
CONSTITUTIONAL ASSUMPTIONS
There has been a vigorous debate both judicially and academically about the correct approach to constitutional interpretation. An aspect of that debate has involved the role of assumptions in informing our interpretation of the Constitution. I have argued elsewhere that 'some assumptions form part of the fabric upon which the written words of the Constitution are superimposed ... where the assumption is integral to a proper understanding of the structure and text of the Constitution, it can be both used and applied in constitutional interpretation.'[1]
The 'executive power of the Commonwealth' is conferred by s 61 of the Commonwealth Constitution. Section 61 provides that 'the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General'. Neither that section nor any other informs us as to what 'the executive power' is. Nor does the structure of the Commonwealth Constitution provide much of a hint of it.
The term 'executive power' involves a constitutional or political concept. In the absence of some internal definition of that concept its interpretation necessarily requires some reference to material extraneous to the Constitution itself — what that is, and how it might be applicable depends ultimately upon what anterior assumptions are made by the interpreter.
Other commentators have pointed to the role of assumptions in understanding federal executive power. Graeme Hill, for example, has pointed out that the question whether Commonwealth officers can perform State executive functions depends upon an ancillary assumption about the nature of the federation.[2] That ancillary assumption will be based in part upon the text and structure of the Constitution, but also upon historical and other considerations.
In this paper I consider the issue of whether the executive power in s 61 includes the prerogatives of the Crown and, if it does, whether the limitations upon the prerogative are also applicable to the executive power. This very issue was considered by the Full Court of the Federal Court in relation to the seizure of the MV Tampa.
THE TAMPA
On 29 August 2001, the MV Tampa, carrying 433 'boat people'[3] that it had rescued, entered Australian territorial waters without permission and anchored some four kilometres off the shore of Christmas Island. Later that day Australian troops were landed on the MV Tampa and took control over the movement of people to and from the ship. This event raised a number of issues as to Australia's obligations at international law.[4] It also raised the question of whether the action was lawful under Australian law. A Full Court of the Federal Court, comprising Black CJ, Beaumont and French JJ in Ruddock v Vadarlis, recently considered this question.[5]
The question of the validity of the seizure of the ship at Australian law involved two subsidiary questions:
(1) In the absence of any statute did the Commonwealth government have the power to take over the ship so as to prevent the 'boat people' from landing on Australian soil?
(2) If there was such a power, had it been abrogated or limited by statute, in particular, the Migration Act 1958 (Cth)?
Chief Justice Black assumed that any relevant power that the Commonwealth had was limited to the prerogative at common law. He doubted that such a prerogative power still subsisted, but held that, even if it did, it had been abrogated by the Migration Act 1958 (Cth).[6]
Justice Beaumont agreed with French J. Justice French, faced with conflicting lines of authority as to the effect of statutes on the powers exercised by governments,[7] distinguished between 'prerogative power' and 'executive power'. There were a number of steps in his Honour's reasoning:
(1) The executive power of the Commonwealth is to be discerned from the Commonwealth Constitution.[8]
(2) The executive power of the Commonwealth is not to be determined by consideration of the royal prerogatives.[9]
(3) Under s 61 of the Commonwealth Constitution there is a necessary power in the executive to exclude aliens.[10]
(4) Given that this power is a necessary implication from the Constitution, it is not subject to abrogation in the same manner as the royal prerogative.[11] It can only be abrogated by a 'clear [statutory] intent'.[12]
(5) The Migration Act 1958 (Cth) does not evince such a clear intent.[13]
There has been some critical analysis of his Honour's reasoning in relation to the effect of statutes in abrogating the executive power,[14] but surprisingly little comment on the essential step in his Honour's reasoning, that is, that the executive power in s 61 is to be ascertained from within the Constitution itself and that it is not subject to the common law limitations upon the royal prerogative.
This is somewhat surprising. The vast preponderance of High Court authority is that the reference to 'executive power' in s 61 of the Constitution includes the prerogative and is subject to the common law limitations upon it.[15] In the recent case of Oates v Attorney-General (Cth)[16] a unanimous High Court treated the common law prerogative relating to extradition, as it existed pre-federation, as forming part of the executive power. Most commentators also take the view that the common law prerogative forms part of the executive power.[17]
The only citation French J gives as authority for the proposition that the executive power is not subject to the limitations applicable to the common law prerogative is the comment of Gummow J, then of the Federal Court, in Re Ditfort; Ex parte Deputy Commissioner of Taxation.[18] In determining whether an exercise of the executive power was justiciable or not Gummow J commented that one looks, not to the prerogative in Britain, but
rather to s 61 of the Constitution, by which the executive power of the Commonwealth was vested in the Crown. That power extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth and enables the Crown to undertake all executive action appropriate to the spheres of responsibility vested in the Commonwealth. [19]
The issue in that case was whether or not the exercise of the relevant power was justiciable, and the comment of Gummow J may be limited to that context. There may also be some support for French J in some of the comments of Gummow J in the High Court in Re Residential Tenancies Tribunal; Ex parte Defence Housing Authority,[20] although again the relevant comments might be directed to the somewhat different problem of the effect of State laws upon the Commonwealth executive.
THE POSSIBLE ASSUMPTIONS
Notwithstanding that French J claimed that the meaning of s 61 was to be ascertained within the text of the Commonwealth Constitution it is plain that it cannot be. This is not an issue which can be resolved by applying some particular rule of constitutional interpretation. The words 'executive power of the Commonwealth' have no sensible meaning without some anterior assumption as to what 'executive power' is. That assumption is not one that can be derived from the text.
There are, in fact, two possibilities.
THE FIRST ASSUMPTION — THE US MODEL
The first is that the phrase should be interpreted in light of United States jurisprudence. The structure of the Commonwealth Constitution, including the structural division of the first three chapters into 'The Parliament', 'The Executive Government' and 'The Judicature', is copied from and closely reflects the similar division in the United States Constitution. In particular, s 61 of the Commonwealth Constitution is similar in terms to art 2(1) of the United States Constitution, from which s 61 was derived. Article 2(1) provides that '[t]he executive Power shall be vested in a President of the United States of America.'
In relation to judicial power these similarities in text and structure were sufficient to justify the use of US jurisprudence in interpreting Chapter III of the Commonwealth Constitution. If a similar use could be made of US authorities in relation to Chapter II it would provide considerable support for the approach of French J in Ruddock v Vadarlis.[21]
For example, under the United States Constitution the executive powers are defined from the Constitution itself — they are those powers that are conferred expressly or by necessary implication on the US President. In determining what those powers might be, the principle of separation of powers as understood in the United States Constitution is applied.[22] The executive powers and functions of the US President are those that are necessary for him to fulfil his role of executing the laws and checking and balancing the powers of the legislative and judicial branches of government. The US executive powers do not, as such, include any prerogative powers formerly exercised by the British Crown.[23] Indeed, one of the causes of the American Revolution was the reaction of the colonists to the exercise of those powers.[24] The only relevance of common law prerogative powers to the interpretation of the United States Constitution is by analogy, and there is some dispute in relation to that.[25]
If this approach were applicable to the Commonwealth Constitution then the method of interpretation adopted by French J would be correct. It would not be necessary to inquire into what prerogative powers the Crown had at common law. Rather, the issue would be what powers were necessary for the executive to have to fulfil its constitutional responsibilities. In relation to that question the US Supreme Court has held that the US executive power does include the power to use armed personnel to intercept aliens and prevent them landing on US soil.[26] The effect of the US approach has been to 'constitutionalise' executive powers, including executive immunities.[27] This is understood in US jurisprudence as having the consequence that such executive rights and immunities, to the extent that they can be abrogated by statute, will only be abrogated if the relevant statutory provision is 'unequivocally expressed'.[28]
This is the very result reached by French J. But in order to reach that result it is necessary to make an assumption. That assumption might be that s 61 should be interpreted in the same way as art 2(1) of the United States Constitution. Or it might be that the same result is reached because the assumptions applied by the US Supreme Court in interpreting its Constitution are equally applicable to s 61 of the Commonwealth Constitution. The point is that the interpretation of the provision does not depend so much upon the text as upon the relevant assumption.
It would seem clear that French J made an assumption. Indeed, given that the meaning of 'executive power' cannot be gleaned from the Constitution itself this was unavoidable. The assumption that his Honour made seems to have been that the assumptions applied by the US Supreme Court in interpreting its Constitution are equally applicable to the Australian Constitution. At the very least his Honour seems to have interpreted s 61 in light of a conceptual separation of the three branches of government. Consequently, much of his Honour's reasoning is, at the very least, consistent with US jurisprudence. For example:
While the Executive power may derive some of its content by reference to the royal prerogative, it is a power conferred as part of a negotiated federal compact expressed in a written Constitution distributing powers between the three arms of government reflected in Chs I, II and III of the Constitution and, as to legislative powers, between the polities that comprise the federation. The power is subject, not only to the limitations as to subject matter that flow directly from the Constitution but also to the laws of the Commonwealth made under it. There is no place then for any doctrine that a law made on a particular subject matter is presumed to displace or regulate the operation of the Executive power in respect of that subject matter. The operation of the law upon the power is a matter of construction.
That construction, while governed ultimately by the terms of the statute under consideration, is informed by a requirement for a clear intention to displace the power.[29]
The use of US jurisprudence in this context may also obtain some support from recent comments of the High Court.[30] These comments draw attention to the difficulties in simply applying British jurisprudence relating to 'the Crown' within the Australian constitutional structure which necessitates a conception of the Commonwealth and the States as 'organisations or institutions of government possessing distinct personality'.[31] However, it is more likely that those comments merely draw attention to the tension within the Commonwealth Constitution containing, as it does, the concept both of a national monarchy and of a federal structure.[32]
The fundamental difficulty with simply relying on the United States Constitution in our understanding of the executive power is that the Commonwealth Constitution also contains the principle of responsible government — a principle that is not contained in the United States Constitution.[33] In light of that principle there is no separation of powers between the legislative and executive branches of government — at least in theory the executive is responsible through its Ministers to the legislature.[34] The principle of responsible government is reflected in ss 1, 2, 62, 64 and elsewhere in the Constitution, although again those provisions only make sense if the person interpreting them has an understanding of the principle. The Commonwealth Constitution assumes that understanding.[35]
THE SECOND ASSUMPTION — BRITISH AND COLONIAL PRACTICE AND HISTORY
The alternative to the approach of relying upon US jurisprudence is to interpret the constitutional powers and role of the Commonwealth executive in the light of British and colonial practice and history. For example, in Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority[36] Dawson, Toohey and Gaudron JJ held that the power conferred by s 61 included 'the prerogatives of the Crown because the setting in which the Crown is invested with executive power is that of the common law and the prerogatives of the Crown are those rights, powers, privileges and immunities which it possesses at common law.' This approach is consistent with the principle of responsible government if only because British and colonial practice and history are consistent with it.
The relevant constitutional background can be briefly stated. By at least the time of the Colonial Laws Validity Act 1865 (UK) the basic constitutional structure of the second British Empire had been established. The 'Imperial' or UK Parliament was sovereign. The Monarch acted on the advice of her UK Ministers. The Monarch was represented in the relevant colony by a Governor who acted as her agent and, to the extent that the Monarch acted on advice, as agent for her UK Ministers. Save to the extent that the Governor was exercising a function necessarily incidental to the legislative powers of the relevant colony,[37] the Governor was constrained by his instructions and by the nature of his office.[38] Otherwise, the local Governor acted primarily on the advice of local Ministers.
So understood at federation all prerogative powers were 'Imperial prerogative powers' (ie to be exercised by the Queen on the advice of her UK Ministers) unless the prerogatives had been abrogated by legislation (which could be colonial legislation) or unless the powers were necessary to or had been delegated to the local Governor. In the absence of a relevant delegation the prerogative was not colonial 'executive power', but Imperial executive power exercised personally by Her Majesty on the advice of her UK Ministers. And even if the power was delegated it could be taken back.
This Imperial history was known and understood by those at the Constitutional Conventions and formed the background to their deliberations. There is some suggestion in the Convention debates that the 'executive power' in s 61 of the Commonwealth Constitution did not include any of the powers comprised within the prerogatives of the Crown.[39] However, this was because those at the Conventions viewed those powers as being derived from the Queen and thus assignable under s 2 of the Constitution.[40] Section 2 provides that the Governor-General shall be Her Majesty's representative and shall have and may exercise, 'such powers and functions of the Queen as her Majesty may be pleased to assign him'. This was an obvious reference to the ordinary and usual colonial practice by which the prerogative powers of the relevant Governor (other than those granted expressly by statute) were expected to be defined by Letters Patent and then qualified by Instructions — a practice subsequently adopted and applied in relation to the Governor-General.[41] There is no suggestion in the Convention debates that the common law limitations upon the prerogative were no longer applicable to the exercise of "executive power".
Whatever may have been the view as at 1900 of the source of the prerogative powers, that understanding must now be considered in the light of Australian independence. In the course of the first four decades of the twentieth century it came to be accepted that the federal government could exercise all royal prerogatives relevant to its powers and functions, including the appointment of ambassadors.[42] It also came to be accepted that the federal government, and not the UK government was responsible for advising the Monarch in relation to matters solely of concern to the federal government[43] and that the Governor-General was responsible to his Australian Ministers and not to UK Ministers.[44] Finally, it came to be accepted that the UK Parliament would not legislate in matters of concern to the federal government without the consent of the federal government. The effective independence of the federal Australian government from the UK government was confirmed[45] by the Statute of Westminster 1931 (UK) which became applicable to the Australian federal government in 1942.[46] Section 4 of that Act provided that the UK Parliament would not legislate for the Dominion except with its consent.
The result of this historical evolution was that executive powers which, in 1901 were only 'of the Commonwealth' if they were assigned to the Governor-General by the Imperial authorities became 'of the Commonwealth' because they were constitutional powers of the Crown necessarily attributable to the Crown in right of the Commonwealth. It was a necessary consequence of Australian independence that 'the executive power of the Commonwealth' came to include all of the prerogatives of the Crown applicable to the Commonwealth.[47] And, of course, the recognised independence of the federal government meant that the Imperial authorities could not take those powers back.
Barwick CJ described the historical development in New South Wales v Commonwealth:[48]
The progression from colony to independent nation was an inevitable progression, clearly adumbrated by the grant of such powers as the power with respect to defence and external affairs. Section 61, in enabling the Governor-General as in truth a Viceroy to exercise the executive power of the Commonwealth, underlines the prospect of independent nationhood which the enactment of the Constitution provided. That prospect in due course matured, aided in that behalf by the Balfour Declaration and the Statute of Westminster and its adoption.
When s 61 of the Commonwealth Constitution is considered in light of the principle of responsible government, and in light of s 2, and in light of the constitutional history and context, it seems clear enough that the assumption upon which s 61 is predicated is that the common law prerogative was expected and intended to form part of the executive power of the Commonwealth. It would also seem to be clear that there were two classes of such prerogative powers. First there were those that were necessary for the Governor-General to have for the proper government of the Commonwealth (as understood in the Imperial context).[49] And secondly there were the Imperial prerogative powers assigned under s 2 of the Commonwealth Constitution.[50] At federation it was usually necessary to look to the Letters Patent and the Instructions in order to identify what prerogatives the Governor-General could exercise, and what not. So, for example, as at 1901 the Governor-General could exercise the prerogative of mercy to offenders against Commonwealth laws,[51] but probably could not exercise some of the prerogative powers in relation to foreign affairs. However, as the federal government became more and more independent, so more and more of the prerogative powers came to be powers that were necessary for the Governor-General to have, in the sense that it would have been constitutionally inappropriate for the Monarch to exercise those powers on the advice of her UK Ministers. Once it was necessary for the Governor-General to have them then they could not be withdrawn under s 2 of the Commonwealth Constitution. Since Australia has been independent there are no assigned prerogatives save for some minor exceptions where Her Majesty does not act on advice (such as the grant of some royal honours). Since that time all prerogative powers have been those necessary for the Governor-General to have for the proper government of the Commonwealth.
CONCLUSION
If the meaning of the relevant constitutional provision was sufficiently clear from the text of the Constitution there would be no need or justification for interpreting the provision in light of extraneous assumptions. However, there are any number of constitutional provisions which simply assume that the reader has an understanding of what is intended and that the reader will interpret the provision in that context. This is particularly so where the provision contains or includes a concept, including a political or legal concept. Such provisions must be interpreted in light of the relevant assumption, whatever it is. Section 61 of the Commonwealth Constitution is one such provision.
As discussed, that provision could be interpreted on the assumption that it be interpreted in the same manner as the similarly drafted provision in the United States Constitution. If so, then the executive power would not include the common law prerogative powers of the Crown. Although it is not clear from his reasoning that French J appreciated that he was interpreting s 61 in light of that assumption, it would nevertheless appear that he did. His reasoning is certainly consistent with US jurisprudence. However, it is clear from the overall context that that is not an appropriate assumption for interpreting s 61 of the Commonwealth Constitution. Rather, the provision should be interpreted in light of British and colonial history. When so interpreted it does include the common law prerogatives, or at least such of them as are applicable to the government of the Commonwealth.
This highlights a basic difficulty. There is an obvious tension in the Constitution itself between what might be described as its US aspects, including the principles of separation of powers and federalism and what might be described as its British aspects, including Parliamentary sovereignty and responsible government. The meaning of 'executive power' within the Commonwealth Constitution requires the reader to resolve that tension, one way or another. The debate as to what 'executive power' means in this context is fundamentally not one about the meaning of constitutional text or even about constitutional structure — rather it is a debate about fundamental assumptions.
The problem this causes is that those assumptions are rarely articulated either in submissions or in judgments. This failure to address the fundamental assumptions means that the basic issue of disagreement is often not fully addressed or even identified.
In my view the correct assumption in interpreting s 61 of the Commonwealth Constitution is that the 'executive power of the Commonwealth' is to be understood in the context of Imperial and colonial history, including the law relating to the common law prerogative. Of course, this history does not give the entire and whole meaning. The text is still determinative where it provides some meaning or implication. For example, the executive power expressly includes the execution and maintenance of the laws of the Commonwealth.
On this approach the 'executive power of the Commonwealth' for the purposes of s 61 of the Constitution would comprise:
(1) Those specific powers given expressly by the Constitution itself (such as ss 5, 21, 56, 57, 62, 64, 65, 68, 69, 70 and 126) or which are implicit within the Constitution (such as the "nationhood power"),
(2) The power to 'execute and maintain the Constitution and the laws of the Commonwealth' given by s 61,
(3) The powers conferred by a valid Commonwealth statute,
(4) Any prerogative powers (and, probably, rights) 'related to the Commonwealth',
(5) The necessarily incidental power.
As George Winterton has convincingly shown, when so interpreted the executive power is subject to the limitations and controls of responsible government and the separation of judicial power, both of which are implicit within the Commonwealth Constitution.[52] It is also subject to any statute to the contrary. So understood the 'executive power' conferred by s 61 is not 'constitutionalised' so as to be immune from legislative or judicial restraint in accordance with the usual understandings of the common law.
This is a different conclusion as to the meaning of 'the executive power of the Commonwealth' from that reached by French J in Ruddock v Vadarlis. The difference is the consequence of making a different assumption as to what considerations are relevant in determining what executive power is.
Whether the different conclusion I reach as to the meaning of 'the executive power of the Commonwealth' would result in any difference to the orders actually made by the majority in Ruddock v Vadarlis is another question for another day.
[*] Now Justice Selway of the Federal Court of Australia, Adjunct Professor of Law at the University of Adelaide. This paper is derived from a paper given at the Annual Public Law Weekend, Australian National University on 1 November 2002. I acknowledge the assistance of my Associate, Mr S Hill in checking references and making comments.
[1] Bradley Selway, 'Horizontal and Vertical Assumptions within the Commonwealth Constitution' (2001) 12 Public Law Review 113.
[2] Graeme Hill, 'Revisiting Wakim and Hughes: The Distinct Demands of Federalism' (2002) 13 Public Law Review 205, 217–27; Graeme Hill, 'R v Hughes and the Future of Co-operative Legislative Schemes' [2000] MelbULawRw 18; (2000) 24 Melbourne University Law Review 478; George Williams, 'Cooperative Federalism and the Revival of the Corporations Law: Wakim and Beyond' (2002) 20 Company & Securities Law Journal 160; James McConvill and Darryl Smith, 'Interpretation and Cooperative Federalism: Bond v R from a Constitutional Perspective' [2001] FedLawRw 4; (2001) 29 Federal Law Review 75; Alex Da Costa, 'The Corporations Law and Cooperative Federalism after The Queen v Hughes' [2000] SydLawRw 21; (2000) 22 Sydney Law Review 451; Michael Longo, 'Co-operative Federalism in Australia and the European Union: Cross-Pollinating the Green Ideal' [1997] FedLawRw 4; (1997) 25 Federal Law Review 127.
[3] 'Unlawful non-citizens', in the language of the Migration Act 1958 (Cth).
[4] See, eg, Graham Thom, 'Human Rights, Refugees and the MV Tampa Crisis' (2002) 13 Public Law Review 110; Donald Rothwell, 'The Law of the Sea and the MV Tampa Incident: Reconciling Maritime Principles with Coastal State Sovereignty' (2002) 13 Public Law Review 85; Francine Field, 'Tampa Case: Seeking Refuge in Domestic Law' [2002] AUJlHRights 11; (2002) 8 Australian Journal of Human Rights 157.
[5] [2001] FCA 1329; (2001) 110 FCR 491. Subsequent attempts to obtain leave to appeal to the High Court were unsuccessful, as subsequent events and legislation had rendered the issues moot.
[6] [2001] FCA 1329; (2001) 110 FCR 491, 500 [26], 500–1 [29], 504 [40], 508 [64].
[7] Contrast 'A-G' v De Keyser's Royal Hotel Ltd [1920] UKHL 1; [1920] AC 508; Brown v West (1990) 169 CLR 195, 202, 204–5; John Goldring, 'The Impact of Statutes on the Royal Prerogative; Australasian Attitudes as to the Rule in Attorney-General v De Keyser's Royal Hotel Ltd.' (1974) 48 Australian Law Journal 434, on the one hand, with Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477 ('Barton'), on the other. The approach in Barton has recently been confirmed by the High Court: Oates v 'A-G (Cth)' [2003] HCA 21; (2003) 197 ALR 105.
[8] Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491, 538–9 [179].
[9] Ibid 540 [183]. The royal prerogative is the 'historical antecedent' to the power conferred by s 61: at 538–9 [179].
[10] Ibid 541–4 [186]-[197].
[11] Ibid 540 [183].
[12] Ibid 540–1 [184]-[185].
[13] Ibid 544–6 [199]-[205].
[14] See, eg, Geoffrey Lindell, 'Reflections on the Tampa Affair' (2001) 4 Constitutional Law & Policy Review 21; Simon Evans, 'The Rule of Law, Constitutionalism and the MV Tampa' (2002) 13 Public Law Review 94.
[15] See, eg, Farey v Burvett [1916] HCA 36; (1916) 21 CLR 433, 452; Commonwealth v Colonial Combing, Spinning & Weaving Co Ltd [1922] HCA 62; (1922) 31 CLR 421, 437, 441–2, 453–4, 461; Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477, 498; Johnson v Kent [1975] HCA 4; (1975) 132 CLR 164, 169; Victoria v Commonwealth [1975] HCA 52; (1975) 134 CLR 338, 405–6; NSW v Commonwealth [1975] HCA 58; (1975) 135 CLR 337, 373; Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, 211–12, 237; Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79, 93, 108–11; Re Residential Tenancies Tribunal; Ex parte Defence Housing Authority (1997) 190 CLR 410, 438; Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, 28–9.
[16] [2003] HCA 21; (2003) 197 ALR 105.
[17] See, eg, George Winterton, Parliament, the Executive and the Governor-General (1983) 27–34; James Thomson, 'Executive Power, Scope and Limitations: Some Notes from a Comparative Perspective' (1983) 62 Texas Law Review 559; Harold Renfree, The Executive Power of the Commonwealth of Australia (1984) 392–7; Leslie Zines, Commentary to H V Evatt, The Royal Prerogative (1987) C2–C7; Leslie Zines, The High Court and the Constitution (4th ed, 1997) 251–7.
[18] (1988) 19 FCR 347, 368–9.
[19] Ibid 369.
[20] (1997) 190 CLR 410, 469–70.
[21] [2001] FCA 1329; (2001) 110 FCR 491.
[22] Under the United States Constitution the three branches of government are considered as separate and co-equal institutions. The functions and roles applicable to of each branch is determined in that context: see Bradley Selway, 'The Rule of Law, Invalidity and the Executive' (1998) 9 Public Law Review 196, 197–8.
[23] See Youngstown Sheet & Tube Co v Sawyer, [1952] USSC 74; 343 US 579, 585 (1952); Laurence Tribe, American Constitutional Law (3rd ed, 2000) vol 1, 633–74; Thomson, above n 17, 572–3.
[24] Gordon Wood, 'The Origins of Vested Rights in the Early Republic' (1999) 85 Virginia Law Review 1421, 1432.
[25] Loving v US, [1996] USSC 48; 517 US 748, 775–6 (1996); John Yoo, 'The Continuation of Politics by Other Means: The Original Understanding of War Powers' (1996) 84 California Law Review 167, 221–34.
[26] Sale v Haitian Centers Council Inc, [1993] USSC 89; 509 US 155 (1993).
[27] See Bradley Selway, 'The Source and Nature of the Liability in Tort of Australian Governments' (2002) 10 Tort Law Review 14, 30–1.
[28] See, eg, Lane v Pena, [1996] USSC 65; 518 US 187, 192 (1996).
[29] Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491, 540 [183]–[184].
[30] See, eg, State Authorities Superannuation Board (1997) 191 CLR 471, 546; Commonwealth v Mewett (1997) 191 CLR 471, 546; Commonwealth v Western Australia (1999) 196 CLR 392, 410–11, 421, 429–36, 467-71; Sue v Hill [1999] HCA 30; (1999) 199 CLR 462, 497–503; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502, 519–20 [74]–[75].
[31] Sue v Hill [1999] HCA 30; (1999) 199 CLR 462, 501 [91].
[32] See Selway, 'Horizontal and Vertical Assumptions within the Commonwealth Constitution' above n 1, 118–9.
[33] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129, 147–8.
[34] Egan v Willis [1998] HCA 71; (1998) 195 CLR 424, 451–3.
[35] As does the NSW Constitution: ibid 453, 454, 474.
[36] Re Residential Tenancies Tribunal; Ex parte Defence Housing Authority (1997) 190 CLR 410, 438. Brennan CJ also accepted that the power conferred by s 61 includes the prerogative: at 426.
[37] Ah Toy v Musgrove [1888] VicLawRp 81; [1888] 14 VLR, 349, 393–6.
[38] Musgrave v Pulido [1879] 5 AC 102; R v Sutton [1908] HCA 26; (1908) 5 CLR 789, 805; Commonwealth v Colonial Combing Spinning & Weaving Co Ltd ('Wooltops Case') [1922] HCA 62; (1922) 31 CLR 421, 453. This may not have applied to the Governor-General in relation to the powers and duties specified in the Constitution itself, such as s 68: see Renfree, above n 17, 138–45. However, the Letters Patent and the Instructions in relation to the Governor-General, like those in relation to the State Governors, treated the Governor-General as an agent of the monarch. This was changed by the Letters Patent of 21 August 1984 (Commonwealth of Australia Gazette: Special S 334, 24 August 1984): see Donald Markwell, The Crown and Australia (Paper presented at the Trevor Reese Memorial Lecture, University of London, 1987) 13. Her Majesty continued to exercise some powers personally until 1987 eg, letters of credence to newly appointed ambassadors, although apparently on the mistaken view that these were not powers belonging to the Governor-General under s 61 of the Commonwealth Constitution: see J G Starke, 'Another Residual Constitutional Link with the United Kingdom Terminated; Diplomatic Letters of Credence Now Signed by Governor-General' (1989) 63 Australian Law Journal 149, 149–53.
[39] See Official Report of the National Australasian Convention Debates, Adelaide, 19 April 1897, 910 (Edmund Barton), cf 914 (Joseph Carruthers). It should be noted that in the course of debate about s 61 during the Adelaide Convention, Barton commented that the Constitution had been drafted on the basis that provisions dealing with what were traditionally prerogative executive powers did not refer to the Executive Council, whilst statutory executive powers did: see Official Report of the National Australasian Convention Debates, Adelaide, 19 April 1897, 910–11, 913; John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (1901) 406. The distinction can be seen between s 5 (historically a prerogative power) and s 67 (historically a statutory power). If that distinction holds true then s 61 would include prerogative powers.
[40] See Michael Crommelin, 'The Executive' in Gregory Craven (ed), The Convention Debates 1891–1898: Commentaries, Indices and Guide (1986) 127, 132–6. See also Quick and Garran, above n 39, 699–702. Justice Dawson in Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1, 298–300 held that prerogative powers are conferred by s 2 of the Commonwealth Constitution and by other express provisions (such as ss 5, 21, 56, 57, 62, 64, 65, 68, 69, 70 and 126) and that statutory powers are conferred by s 61: see also Daryl Dawson, 'Commonwealth Prerogatives' in Cheryl Saunders et al (eds), Current Constitutional Problems in Australia (1982) 62, 64–5.
[41] See Bradley Selway, The Constitution of South Australia (1997) 32–4; Renfree, above n 17, 138–145.
[42] Anne Twomey, 'Sue v Hill — The Evolution of Australian Independence' in Adrienne Stone and George Williams (eds), The High Court at the Cross Roads (2000) 77, 80–7. As to Australia's recognition as a separate nation in international law, see Brian Opeskin and Donald Rothwell, 'The Impact of Treaties on Australian Federalism' (1995) 27 Case Western Reserve Journal of International Law 1, 4.
[43] Noel Cox, 'The Control of Advice to the Crown and the Development of Executive Independence in New Zealand' [2001] BondLawRw 7; (2001) 13 Bond Law Review 166, 168–175; Markwell, above n 38, 9.
[44] See the discussion of the 1926 and 1930 Imperial Conferences in Sir Zelman Cowen, 'The Crown and its Representative in the Commonwealth' (1992) 18(1) Commonwealth Law Bulletin 303, 309–10.
[45] The Statute probably only confirmed existing political relationships, see Kenneth Roberts-Wray, Commonwealth and Colonial Law (1966) 256.
[46] Statute of Westminster Adoption Act 1942 (Cth).
[47] Winterton, above n 18, 51 treats this as a change in the common law. I would prefer to describe it as a development of the common law. But what did not change was the meaning of either s 2 or s 61 of the Commonwealth Constitution. Of course, related to these developments the Queen of the United Kingdom in the Commonwealth Constitution was transformed into the Queen of Australia. However, this probably occurred at a later time than the development of the meaning of 'executive power of the Commonwealth' in s 61 (maybe not until 1986).
[48] [1975] HCA 58; (1975) 135 CLR 337, 373.
[49] Acknowledging that these were limited: see Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 230.
[50] See Bonanza Creek Gold Mining Co Ltd v The King [1916] AC 566, 580–1, 586–7 ('Bonanza Creek'). In particular, at 586 the Privy Council, in discussing s 10 of the Canadian Constitution, contrast that section with s 61 of the Commonwealth Constitution 'which, subject to the declaration of the discretionary right of delegation by the Sovereign in ch 1, s 2, provides that the executive power, though declared to be in the Sovereign, is yet to be exercisable by the Governor-General' (emphasis added). This was apparently the view taken by most writers at the time of federation, see Evatt, above n 17, 172–5; Quick and Garran, above n 39, 389–400. To the contrary was Harrison Moore who viewed s 2 as limited to legislative powers and s 61 as providing for prerogative powers see Harrison Moore, 'The Commonwealth of Australia Bill' (1900) 16 Law Quarterly Review 35, 37–8, a view apparently supported by Evatt at 186–7: see Harrison Moore, Studies in Australian Constitutional Law (2nd ed, 1905) 65–6, a view supported by Evatt: at 186–7. As Winterton shows in Parliament, the Executive and the Governor General, above n 17, 52, that view cannot be correct because it is clear that s 2 was intended to include prerogative powers. Winterton argues that the powers under s 2 must be separate from those under s 61: see at 50–2. This may be accepted today, but not in 1901, as Bonanza Creek shows.
[51] Clause 6 of the Governor-General's Instructions made on 29 October 1900: see Quick and Garran, above n 39, 399–400.
[52] Winterton, above n 17; see also Leslie Zines, The High Court and the Constitution, above n 17, 262–73.