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All at Sea – Constitutional Assumptions and ‘the Executive Power of the Commonwealth’

Published online by Cambridge University Press:  24 January 2025

Bradley Selway
Bradley Selway*
Affiliation:
Federal Court of Australia, University of Adelaide
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Extract

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.’

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.

Type
Research Article
Information
Federal Law Review , Volume 31 , Issue 3 , September 2003 , pp. 495 - 506
Copyright
Copyright © 2003 The Australian National University

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Footnotes

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.

References

1 Bradley, Selway, 'Horizontal and Vertical Assumptions within the Commonwealth Constitution' (2001) 12 Public Law Review 113Google Scholar.

2 Graeme, Hill, 'Revisiting Wakim and Hughes: The Distinct Demands of Federalism' (2002) 13 Public Law Review 205, 217–27Google Scholar; Graeme, Hill, 'R v Hughes and the Future of Co–operative Legislative Schemes' (2000) 24 Melbourne University Law Review 478Google Scholar; George, Williams, 'Cooperative Federalism and the Revival of the Corporations Law: Wakim and Beyond' (2002) 20 Company & Securities Law Journal 160Google Scholar; James, McConvill Darryl, Smith,'Interpretation and Cooperative Federalism: Bond v R from a Constitutional Perspective' (2001) 29 Federal Law Review 75Google Scholar; Alex Da, Costa, 'The Corporations Law and Cooperative Federalism after The Queen v Hughes' (2000) 22 Sydney Law Review 451Google Scholar; Michael, Longo, 'Co– operative Federalism in Australia and the European Union: Cross–Pollinating the Green Ideal' (1997) 25 Federal Law Review 127Google Scholar.

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 110Google Scholar; Donald, Rothwell, 'The Law of the Sea and the MV Tampa Incident: Reconciling Maritime Principles with Coastal State Sovereignty' (2002) 13 Public Law Review 85Google Scholar; Francine, Field, 'Tampa Case: Seeking Refuge in Domestic Law' (2002) 8 Australian Journal of Human Rights 157Google Scholar.

5 (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) 110 FCR 491, 500 [26], 500–1 [29], 504 [40], 508 [64].

7 Contrast 'A-G' v De Keyser's Royal Hotel Ltd [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 434Google Scholar, on the one hand, with Barton v Commonwealth (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) 197 ALR 105.

8 Ruddock v Vadarlis (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 21Google Scholar; Simon, Evans, 'The Rule of Law, Constitutionalism and the MV Tampa' (2002) 13 Public Law Review 94Google Scholar.

15 See, eg, Farey v Burvett (1916) 21 CLR 433, 452; Commonwealth v Colonial Combing, Spinning & Weaving Co Ltd (1922) 31 CLR 421, 437, 441–2, 453–4, 461; Barton v Commonwealth (1974) 131 CLR 477, 498; Johnson v Kent (1975) 132 CLR 164, 169; Victoria v Commonwealth (1975) 134 CLR 338, 405–6; NSW v Commonwealth (1975) 135 CLR 337, 373; Koowarta v Bjelke–Petersen (1982) 153 CLR 168, 211–12, 237; Davis v Commonwealth (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) 201 CLR 1, 28–9.

16 (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 559Google Scholar; Harold, Renfree, The Executive Power of the Commonwealth of Australia (1984) 392–7Google Scholar; Leslie, Zines, Commentary to H V Evatt, The Royal Prerogative (1987) C2–C7Google Scholar; Leslie, Zines, The High Court and the Constitution (4th ed, 1997) 251–7Google Scholar.

18 (1988) 19 FCR 347, 368–9.

19 Ibid 369.

20 (1997) 190 CLR 410, 469–70.

21 (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, 197–8Google Scholar.

23 See Youngstown Sheet & Tube Co v Sawyer, 343 US 579, 585 (1952); Laurence, Tribe, American Constitutional Law (3rd ed, 2000) vol 1, 633–74Google Scholar; Thomson, above n 17, 572–3.

24 Gordon, Wood, 'The Origins of Vested Rights in the Early Republic' (1999) 85 Virginia Law Review 1421, 1432Google Scholar.

25 Loving v US, 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, 221–34Google Scholar.

26 Sale v Haitian Centers Council Inc, 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, 30–1Google Scholar.

28 See, eg, Lane v Pena, 518 US 187, 192 (1996).

29 Ruddock v Vadarlis (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) 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) 199 CLR 462, 501 [91].

32 See Selway, , 'Horizontal and Vertical Assumptions within the Commonwealth Constitution' above n 1, 118–9Google Scholar.

33 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 147–8.

34 Egan v Willis (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] 14 VLR, 349, 393–6.

38 Musgrave v Pulido [1879] 5 AC 102; R v Sutton (1908) 5 CLR 789, 805; Commonwealth v Colonial Combing Spinning & Weaving Co Ltd ('Wooltops Case') (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) 13Google Scholar. 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 Starke, J G, 'Another Residual Constitutional Link with the United Kingdom Terminated; Diplomatic Letters of Credence Now Signed by Governor-General' (1989) 63 Australian Law Journal 149, 149–53Google Scholar.

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, 132–6Google Scholar. See also Quick and Garran, above n 39, 699–702. Justice Dawson in Commonwealth v Tasmania (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, 64–5Google Scholar.

41 See Bradley, Selway, The Constitution of South Australia (1997) 32–4Google Scholar; Renfree, above n 17, 138–145.

42 Anne, Twomey, 'Sue v Hill — The Evolution of Australian Independence' in Adrienne, Stone George, Williams (eds), The High Court at the Cross Roads (2000) 77, 80–7Google Scholar. As to Australia's recognition as a separate nation in international law, see Brian, Opeskin Donald, Rothwell, 'The Impact of Treaties on Australian Federalism' (1995) 27 Case Western Reserve Journal of International Law 1, 4Google Scholar.

43 Noel, Cox, 'The Control of Advice to the Crown and the Development of Executive Independence in New Zealand' (2001) 13 Bond Law Review 166, 168–175Google Scholar; 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, 309–10Google Scholar.

45 The Statute probably only confirmed existing political relationships, see Kenneth, RobertsWray, Commonwealth and Colonial Law (1966) 256Google Scholar.

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) 135 CLR 337, 373.

49 Acknowledging that these were limited: see Australian Communist Party v Commonwealth (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, 37–8Google Scholar, 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 186–3Google Scholar. 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, 262–73Google Scholar.