Dr Max Spry
Law and Public Administration Group
Major Issues
Introduction
Responsible Government
Separation of Powers
The Constitution - Three Arms of
Government
Section 61
Parliament's supervision of the
executive's treaty-making role
Conclusion
Endnotes
In recent times there has been considerable discussion as to the
extent to which the Executive can or should act independently of
Parliament. The debate over the Executive Government's role in the
treaty-making process is one such example. Another is the extent to
which the Executive may, without parliamentary approval, vary the
allowances of Parliamentarians or individual members of the
Executive.
More fundamentally, there are concerns that the power of the
Executive is actually increasing as Parliament's power declines,(1)
and it has been suggested that, should Australia become a Republic,
the power of the Executive may be increased even further.(2)
Section 61, the executive power of the Commonwealth, is located
in Chapter II of the Constitution, a Chapter Professor Michael
Crommelin has suggested was intended by the Constitutional drafters
to 'mask rather than prescribe the workings of the executive.'
Section 61 tells us who can exercise the executive power. It
also tells us that the executive power 'extends to the execution
and maintenance of this Constitution, and of the laws of the
Commonwealth.' But what does this mean, and why is it
necessary?
Sir John Latham, Chief Justice of the High Court from 1935 until
1952, observed in 1961 that there had been little judicial
interpretation of section 61. In essence, this remains true today,
even though since 1961 the High Court has handed down two important
decisions on section 61: Victoria v The Commonwealth
(1975) and Davis v The Commonwealth (1988).
Nevertheless, drawing on High Court authority, the following
observations may be made on the scope of the executive power:
- the words, 'execution and maintenance of the Constitution and
the laws of the Commonwealth' in section 61 are no longer words of
limitation;
- it contains those common law Crown prerogatives (eg,
treaty-making; declaring war) that vest in right of the
Commonwealth rather than in the States;
- it allows the Commonwealth to engage in activities peculiarly
adapted to the government of a nation which cannot otherwise be
carried out (including, for example, celebrations such as the
bicentenary, establishing the CSIRO, and promulgating flags and
other national symbols); and
- it includes the power to enter into contracts and commercial
arrangements without the sanction of the Parliament.
However, section 61:
- does not extend beyond those responsibilities allocated to the
Executive of the Commonwealth by the Constitution although this
probably does not limit the Commonwealth to heads of legislative
power enumerated in sections 51 and 52;
- is subject to express constitutional limitations; and
- it may be limited by laws enacted by the Commonwealth.
The acknowledged scope of section 61 has been widened by the
High Court since Federation. The early view considered that the
executive power in section 61 was limited to the execution and
maintenance of the Constitution and of the laws of the
Commonwealth. Over time it has become accepted that section 61 also
incorporates the Crown prerogatives that vest in right of the
Commonwealth. These include, for example, the prerogative powers to
enter treaties and to declare war.
Whilst recent cases have not fully clarified the scope of the
power, it appears that the High Court has extended the scope of
section 61 to include consideration of the role and character of
the Commonwealth as a national government. In Davis v
The Commonwealth, for example, the present Chief Justice,
Sir Gerard Brennan observed that the Constitution did more than
merely join the separate colonies, it 'summoned the Australian
nation into existence' and that the executive power was not
restricted to the Commonwealth's legislative heads of power.
The Australian Constitution is comprised of 128 express
provisions and a number of judicially implied terms. Comparatively
few of these provisions have been subject to lengthy judicial or
academic discussion. Section 61, the executive power, is one of
those provisions that had, until quite recently, attracted little
attention.
This is surprising particularly given the ongoing debate over
the relationship between the Executive government and Parliament.
Further, should Australia become a republic, the scope of the
executive power of the Commonwealth would need to be carefully
considered. Should it remain the same, or should it be confined or
expanded? Should the powers of the Executive be enumerated in
detail, or should they continue to rely heavily on tradition,
usage, and convention? A clear understanding of the scope of the
power as it stands is, therefore, necessary.
Section 61 provides Constitutional legitimacy to certain actions
taken by the Executive without any need for Parliamentary or
legislative sanction. For example, the Executive may enter into
treaties without prior parliamentary approval. It is well settled
that section 61 includes the prerogative powers of the Crown,(3)
including, for example, the power to enter into treaties. This
independence of the Executive was observed by H.V. Evatt in his
1924 doctoral thesis. Evatt suggested that one of the reasons why
section 61 was so little studied was that:
Responsible government has to an extent blinded us to the
importance of the domain of the Prerogative in which the Executive
has still an important independence reserved to it.(4)
Section 61, in conjunction with the power to legislate over
incidental matters [section 51(xxxix) of the Constitution], may
also be a source of legislative power.(5) In Davis v The
Commonwealth (1988), Justices Wilson and Dawson said that the
Commonwealth must draw on the executive power under section 61 to
celebrate its origins, and 'legislation which is incidental to it
falls within s. 51(xxxix).'(6) Alternatively, as Professor Zines
notes:
Some have regarded the legislative power available to control or
assist the execution of the executive power that derives from the
national status of the Commonwealth as implied in the
Constitution.(7)
Given that the debate over the power of the Executive in
relation to Parliament involves both political, as well as legal
questions, this paper first provides an overview of the doctrines
of responsible government and the separation of powers. The paper
briefly discusses the legislative, judicial and executive powers of
the Commonwealth as distributed by the Constitution. It traces the
High Court's interpretation of section 61, beginning with
Commonwealth and the Central Wool Committee v Colonial Combing,
Spinning and Weaving Company, decided in 1922, through to the
decision in Davis (1988). Finally, the extent to which
Parliament may be able to control the Executive's use of its
treaty-making power will be examined.
It is a commonplace that the Australian polity is a mixture of
the British system of parliamentary democracy and that of
federalism derived largely from the United States. Key among the
doctrines derived from Britain is that of responsible government.
Put simply, responsible government means that the executive
government, chosen from those elected to Parliament, is accountable
to Parliament. Integral to the doctrine of responsible government
is that of ministerial responsibility.(8)
In a speech to the Convention Debates on 4 March 1891, Sir
Samuel Griffith (QLD) said that the system of responsible
government 'is the best that has yet been invented in the history
of the world for carrying out the good government of the
people.'(9) However, he continued, the essence of responsible
government is often misunderstood:
We are accustomed to think that the essence of responsible
government is this: that the ministers of state have seats, most of
them, in the lower house of the legislature, and that when they are
defeated on an important measure they go out of office.(10)
Rather than being its essence, Griffith described this as merely
an accident. The true legal form of responsible government,
Griffith suggested, depends on the ministers being appointed 'by
the head of the state, the Sovereign, or her representative, and
that they may hold seats in Parliament.'(11)
On 6 April 1891, Sir John Bray (SA) argued that that the
Constitution should provide that the executive officers of the
government 'should all be members of parliament, and not merely
that they should be capable of being members of parliament.'(12) Mr
Wrixon (VIC) proposed that such officers should be both members of
the federal executive council and 'responsible members of the
Crown.'(13) Griffith, however, stated that the term 'responsible
ministers of the Crown' describes the Government that exists but
that there is no need to insert such words in the draft
Constitution:
What we should put into the bill is a definition of the powers
and functions of the officers - not call them by names.(14)
The draft Constitution Bill adopted by the Convention on 9 April
1891 provided that the Governor-General may appoint Ministers of
State to administer the Executive government of the Commonwealth.
Such officers hold office during the pleasure of the
Governor-General and shall be capable of being chosen and of
sitting in Parliament (Chapter II, Clause 4).
The Bill agreed by the Adelaide Convention on 23 April 1897
provided, in addition to the above, that after the first
Commonwealth election, no Minister shall hold office for longer
than 3 months unless elected to the Parliament. Edmund Barton (NSW)
noted in the Debates on 17 September 1897 that this additional
clause was inserted 'as a safeguard to responsible government'.(15)
Mr Dobson (TAS) warned, however, that the delegates were 'keeping
too close to that model of responsible government in the English
Constitution which, I venture to think, time will prove is not so
well adapted to our federal wants'.(16) The inclusion of the
additional limitation was approved on 17 September 1897 by a vote
of 21 to 14.
The Draft Constitution adopted by the Melbourne Convention on 16
March 1898 included section 64 (Minister of State) as we now know
it. Section 64 provides:
The Governor-General may appoint officers to administer such
departments of State of the Commonwealth as the Governor-General in
Council may establish. Such officers shall hold office during the
pleasure of the Governor-General. They shall be members of the
Federal Executive Council, and shall be the Queen's Ministers of
State for the Commonwealth. After the first general election no
Minister of State shall hold office for a longer period than three
months unless he is or becomes a senator or a member of the House
of Representatives.
It is substantially the same as that adopted in 1897 with the
omission of any reference to such officers being merely capable of
sitting in Parliament. Responsible government, then, was clearly
intended by the Convention delegates to be a feature of the
Australian political system.
In Spirit of Laws, Montesquieu suggested that
government consists of three types of power: the executive,
legislative and judicial, and that liberty may only exist where
these powers are separate.
Speaking to the Constitutional Convention on 4 March 1891, Sir
Samuel Griffith observed that the United States had adopted the
most 'opposite' system of government to responsible government.(17)
In the United States, Ministers are not permitted to sit in
parliament. The reason for this, according to Griffith, was that
the 'framers of the American Constitution had been frightened by
the tendency then lately exhibited in the United Kingdom of
ministers to overawe Parliament' and following Montesquieu, 'they
thought it extremely desirable to separate the executive and
legislative branches of government.'(18)
The delegates to the Constitution Convention favoured
responsible government over the separation of legislative and
executive powers. Sir Samuel Griffith (QLD), for example, suggested
that the US system has shown the 'unwisdom ... of having ministers
dissociated, and the executive government entirely dissociated,
from the legislature'.(19) Mr Barton (NSW) agreed. In his view, the
dissociation of the executive from the representative body means
that ministers 'being individually amenable to a president, they
are only in the slightest degree animated by a common policy so far
as regards their common action'.(20)
More recently, in the context of purporting to explain why the
Australian Constitution does not (and need not) contain a Bill of
Rights, Sir Robert Menzies observed that although in both the
Australian and American Constitutions, the legislative, executive
and judicial powers are separately stated, in Australia 'the
Executive is not only responsible to the Legislature but, in its
political embodiment is part of and directly responsible to the
Legislature'.(21) Similarly, Sir Owen Dixon, then a Justice of the
High Court, noted that while the frame of Australia's Constitution
followed American notions of the separation of powers, that notion
was quite alien to British practice, and hence it has never been
fully applied in Australia. However, his Honour continued, the
'judicial power is exercised by the Courts alone and ... Parliament
cannot empower any other tribunal to perform judicial
functions.'(22)
The legislative, executive, and judicial powers are separately
stated in the Constitution, in Chapters I, II and III
respectively.
In his discussion of the Commonwealth Executive, Professor
Michael Crommelin states that 'unlike Chapter I of the
Constitution, Chapter II was intended to mask rather than prescribe
the workings of the executive'.(23)
One of the reasons for the uncertain scope of the executive
power is the desire of the Constitution's framers to retain a deal
of flexibility.(24) Another is the 'uncertain scope and status of
the prerogative' which forms part of the executive power and
includes the Crown's common law powers such as the right to declare
war and to enter into treaty agreements.
The scope of prerogatives has itself varied over time and partly
depends on their status in the UK at the time they were received
into Australian law. The most commonly referred to treatment of the
prerogative power in the Australian context is that formulated by
Dr
H V Evatt who saw the prerogative as being divided into three
classes. His first category, includes the Monarch's capacity to
declare war, make peace, coin money, issue Letters Patent for new
inventions, confer honours and grant pardons. Secondly, there are
special privileges and immunities enjoyed by the Crown. These
include (in Evatt's formulation) Crown immunity in court
proceedings (except where that immunity has been surrendered by
statute) and priority in debt over ordinary citizens. Third, there
are the so called priority rights, for example, treasure trove, the
ownership of the foreshore and the bed of the ocean within
territorial limits and what are referred to as 'escheats'.(25)
These prerogative powers expand considerably the executive power
conferred on the Commonwealth by Section 61.
Indeed Chapter II of the Constitution, the Executive Government,
is relatively short, consisting of only 10 provisions, including
section 61. In addition, to the executive power of the
Commonwealth, Chapter II provides for the appointment, number and
salaries of Ministers (sections 64 to 66). Section 68 vests command
of Australia's naval and military forces in the Governor-General
and section 69 provides for certain State departments to be
transferred to the Commonwealth.
Section 2 of the Constitution also confers upon the
Governor-General 'such powers ... as Her Majesty may be pleased to
assign to him.' For practical purposes, however, section 61 is the
main source of executive power. Although a further significant
source of day to day executive power is, of course, that conferred
by legislation enacted from time to time by the Parliament.
There was considerable comment during the Convention Debates as
to what powers should be vested in the Commonwealth and what powers
should remain with the States (an issue still debated to this day).
In his speech on 13 March 1891, Sir Henry Parkes (NSW) said that
the institutions of government in the separate colonies were as
perfect as could be found anywhere in the world but that there were
limits on what could be achieved individually:
There are a number of things which no one of the separate
governments can by any possibility do, and those things are amongst
the highest objects of government.(26)
Parkes suggested defence as one of those activities that could
not efficiently be carried out by the separate colonies
independently of one another. Similarly, on 16 March 1891, Mr
Deakin (VIC) said:
The states will retain full powers over the greater part of the
domain in which they at present enjoy those powers, and will retain
them intact for all time. But in national issues, on the subject of
defence, as people who desire to have their shores defended, and to
see their resources developed by means of a customs tariff and a
customs union - on these questions there are no longer state rights
and state interests to be guarded in the constitution, but the
people's interests are one, and they call upon us to deal with them
as one.(27)
The legislative powers of the Commonwealth Parliament are, in
the main, to be found in Part V, Chapter I of the Constitution.
Section 51 of the Constitution lists the majority of those matters
on which the Parliament may legislate, often referred to as the
Commonwealth's heads of power. The Parliament may, for example,
make laws on:
- trade and commerce with other countries, and among the States
[s 51(i)];
- taxation [s 51(ii)];
- defence [s 51(vi)];
- corporations [s 51(xx)];
- immigration [s 51(xxvii)]; and
- external affairs [s 51(xxix)].
Parliament may also make laws on a range of specifically
enumerated matters including Commonwealth places and on the
Commonwealth public service (section 52), the imposition of customs
and excise duties (section 90) as well as on federal territories
(section 122). The Commonwealth's legislative powers are limited by
both express and implied Constitutional prohibitions.
Chapter III of the Constitution provides for a system of federal
courts and sets up the High Court of Australia.
Section 72 provides for the appointment, tenure and remuneration
of the Judges. A Justice of the High Court may be removed only on
the ground of proved misbehaviour or incapacity on an address from
both Houses of Parliament in the same session. Justices are
currently appointed for a term expiring at age seventy. The
remuneration of a Justice may not be reduced during his or her
tenure.
The importance of a strong federal court in a federal system was
observed during the Convention Debates in 1891. Mr Barton (NSW),
for example, on 6 March 1891 noted that disputes over the validity
of state or federal statutes were best determined by a federal
court:
by that means the interpretation by individual cases is likely
to meet with a more harmonious acceptance than would be the result
if jealousy were provoked by endeavouring to settle it as between
state and state.(28)
Sir John Downer (SA) agreed, stating that 'the stronger and more
powerful the judicial bench, the stronger and better will the union
be'.(29)
Mr Barton and Sir John Downer also argued that the supreme court
in Australia should be the final court in the land. That is, there
should not be appeals to the Privy Council. Others, for example, Mr
Wrixon (VIC), supported the continuation of appeals to the Privy
Council as this would ensure 'a unity of law over the whole
empire'.(30)
In the event, a compromise was reached. Appeals would be allowed
to the Privy Council on inter se matters with leave of the High
Court (Constitution, section 74). It was not until 1986, with the
enactment of the Australia Act 1986, that appeals to the
Privy Council were finally abolished.
Recent High Court discussion of the judicial power of the
Commonwealth include Brandy v Human Rights and Equal
Opportunity Commission, decided in February 1995,(31) and
Grollo v Palmer, handed down on 21 September 1995.
Section 61 of the Constitution is now the main source of the
Commonwealth's executive power.
In the most recent discussion of the nature of section 61,
Davis v The Commonwealth (1988), Mason CJ, Deane and
Gaudron JJ, said that 'the scope of the executive power of the
Commonwealth has often been discussed but never defined'.(32)
Brennan J agreed: 'The scope of s. 61 has not been charted nor, for
the reasons which his Honour [Mason J in the AAP case] stated, is
its scope amenable to exhaustive definition'.(33) This section of
the paper considers High Court commentary on section 61 and draws
some conclusions as to the scope and content of the Commonwealth's
executive power.
Section 61 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.
The executive power is exercisable by the Governor-General as
the Queen's representative. By convention, the Governor-General,
when exercising the executive power does so on ministerial advice.
Section 126 of the Constitution provides for the Queen to authorise
the Governor-General to appoint any person to carry out such powers
and functions of the Governor-General as the Governor-General
thinks fit.(34)
The interpretation of section 61 is shaped by two important, but
conflicting, considerations. On the one hand, there is the
practical imperative of leaving with executive government adequate
powers and sufficient adminstrative discretion to conduct the
affairs of state as they arise. On the other hand , the executive
power must not be so open ended as to allow for arbitrary action.
The High Court has shown an abiding concern that resort to the
executive power could, if not circumscribed, become a device for
the Commonwealth impinging on or eroding the rights and functions
of the States.(35)
The Court initially took the view that section 61 went no
further than allowing for the execution and maintenance of the
Constitution and of legislation passed by Parliament.(36) Knox CJ
and Gavan Duffy J in Commonwealth v Colonial Combing, Spinning
& Weaving Co (the Wooltops case) said section 61
'delimits the area of the power by declaring that it extends to the
maintenance of the Constitution and of the laws of the
Commonwealth'.(37) On this view, the term 'laws of the
Commonwealth' means Acts of the Commonwealth Parliament.
What this meant in practice was that, initially, the question of
the prerogative powers of the Crown did not arise in the context of
section 61.
In the Pharmaceutical Benefits case (1944),(38) the
High Court examined the scope of the appropriations power (section
81) which provides that the Parliament may spend moneys 'for the
purposes of the Commonwealth'. The case concerned the validity of
the Pharmaceutical Benefits Act 1944 (the Benefits
Act) which established a scheme to provide free medicines from
registered chemists under prescription. Whilst focussing on
possible limits to the appropriations power, the case also has
implications for the use of the executive and incidental powers in
supporting regulatory schemes of the kind created by the
Benefits Act. The Court also discussed whether areas of
responsibility not specifically conferred on the Commonwealth by
the clear words of the Constitution can nonetheless be the subject
of a legitimate 'Commonwealth purpose'. [Clearly, a wide reading of
the phrase 'Commonwealth purpose' would open the way for
Commonwealth involvement in many areas hitherto thought to be the
sole preserve of the States.] This is of particular import given
that the executive and appropriations powers are frequently used in
tandem.
The Pharmaceutical Benefits case averted to three
alternative approaches to defining the scope of the executive and
appropriations powers by reference to the 'purposes of the
Commonwealth'. Those three alternative approaches involve
delineating a 'Commonwealth purpose' as either:
- any matter which the Parliament or the Executive decides is a
'Commonwealth purpose'
- limiting a legitimate 'Commonwealth purpose' to
responsibilities that the Constitution specifies and might
reasonably be implied from the distribution of powers and functions
between the Commonwealth and the States
- (most narrowly) limiting 'Commonwealth purposes' to
specifically enumerated responsibilities under the Constitution
such as those listed in section 51.
The Pharmaceutical Benefits case yielded no majority
view as to the scope of 'Commonwealth purposes', and gave little
detailed guidance on the possible limits of both the appropriations
and executive powers.(39) It did, however, lay the ground for later
consideration of these issues (see below).
Other cases have examined the scope of the executive power from
a different standpoint. They have asked what type of activities the
Executive may undertake in order to maintain the Constitution and
the laws of the Commonwealth? Two examples are revealing: Burns
v Ransley and Brown v West.
In 1949 a case came before the High Court involving the
utterance of what were alleged to be seditious words: Burns v
Ransley. Gilbert Burns, a member of the Communist Party of
Australia (CPA) said that in any war between Soviet Russia and the
West, the CPA would fight on the side of the Soviets. Burns was
convicted of uttering seditious words under the Crimes Act
1914. Burns appealed to the High Court but his appeal was
dismissed.
Burns argued that the Commonwealth did not have Constitutional
power to make laws with respect to crime, and could not make
political criticism a criminal offence.
However, Latham CJ said that section 61 read in conjunction with
section 51(xxxix) allows the Commonwealth to make laws to protect
itself.(40) His Honour noted that while Parliament does not have
the power to enact legislation punishing political criticism,
'excitement to disaffection against a Government goes beyond
political criticism'.(41)
A more recent example is Brown v West, decided in March
1990. Brown, a member of the House of Representatives, challenged a
decision of the Minister for Administrative Services to increase
the postal entitlement available to members of Parliament above
that set by the Remuneration Tribunal under the Remuneration
Tribunal Act 1973. The High Court decided that the Minister
could not increase the postal entitlement. In reaching its
decision, the Court considered, amongst other things, whether the
executive power could be used to supplement the postal entitlement
above that set by the Tribunal.(42)
Chief Justice Mason and Justices Brennan, Deane, Dawson and
Toohey stated that the Commonwealth's executive power 'clearly
extends to the provision of what is necessary or convenient for the
functioning of the Parliament provided that funds for that purpose
are appropriated by Parliament'.(43) However, the Court said:
it is not self-evident that the executive power extends to the
discretionary provision of benefits having a pecuniary value to
individual members of the Parliament who may draw upon the benefit
as they will. There may be a difference between the provision of
facilities for travel and assembly, which are essential to the
functioning of the Parliament, and the discretionary allocation of
a benefit having a pecuniary value to alleviate a pecuniary burden
which members incur as an incident of office.(44)
Further, their Honours referred to the importance of Parliament
in providing pecuniary benefits to its members:
There is much to be said for the view that Parliament alone may
make provision for benefits having a pecuniary value which accrue
to its members in virtue of their office and which are not mere
facilities for the functioning of Parliament.(45)
Whatever the scope of the executive power, the Court said that
'it is susceptible of control by statute.'(46) Here, the operation
of certain provisions in the Parliamentary Allowances Act
1952 and the Remuneration Tribunal Act 1973
meant that the executive power alone could not be relied upon to
increase the postal entitlement.(47)
The High Court's first discussion of section 61 was in 1922 in
Commonwealth v Colonial Combing, Spinning & Weaving Co
(the Wooltops case). Wooltops considered the
capacity of the Executive to enter into contracts without the
approval of Parliament. The Court took a narrow view of section 61
(since overruled) deciding that the Executive could not enter
contracts without Parliament's prior approval:
apart from any authority conferred by an Act of Parliament of
the Commonwealth or by regulations thereunder, the Executive
Government of the Commonwealth had no power to make or ratify any
of the agreements.(48)
Justice Isaacs stated succinctly:
In my opinion, unless authorised by some Commonwealth
legislation the Executive Government would have no power to make
any of the agreements.(49)
As Hanks notes in Australian Constitutional Law, the
Court's attitude to the ability of the Executive to enter contracts
is inconsistent with New South Wales v Bardolph, decided
in 1934.(50) In Bardolph, the High Court held that the
Executive could validly enter into a binding contract without
legislative approval. The contract, however, would be read as
containing an implied condition that payments by the Commonwealth
should only be made out of moneys appropriated by Parliament.(51)
Justice Dixon (as he then was) said:
It is a function of the Executive, not of Parliament, to make
contracts on behalf of the Crown. The Crown's advisers are
answerable politically to Parliament for their acts in making
contracts. Parliament is considered to retain the power of
enforcing the responsibility of the Administration by means of its
control over the expenditure of public moneys.(52)
Further, his Honour said:
The principles of responsible government do not disable the
Executive from acting without prior approval of Parliament, nor
from contracting for the expenditure of moneys conditionally upon
appropriation by parliament and doing so before funds to answer the
expenditure have actually been made legally available.(53)
In The Commonwealth v Australian Commonwealth Shipping
Board, decided in 1926, the High Court considered the capacity
of the Executive to engage in commercial activities. The Court took
a narrow view. Knox CJ, Gavan Duffy, Rich and Starke JJ said that
Parliament only has such power 'as is expressly or by necessary
implication vested in it by the Constitution'.(54) Neither
Parliament nor the Executive Government had Constitutional power to
set up a manufacturing business for general commercial
purposes.(55) The Commonwealth's executive power did not enable the
Government to engage in an activity otherwise 'unwarranted in
express terms by the Constitution'.(56)
In 1975, however, the High Court decided Johnson v
Kent, a case involving the Commonwealth Government's proposal
to construct the Black Mountain Tower in Canberra. The tower was to
provide communication services as well as a restaurant and public
viewing facilities. The plaintiffs argued that the Government did
not have the power to construct the tower. In his decision, Chief
Justice Barwick stated that there was clear statutory authority for
construction of the tower to provide communication services.
In relation to the restaurant and viewing facilities, his Honour
held that:
the executive, unless its power is relevantly reduced by
statute, may in my opinion do in the Territory upon or with respect
to land in the Territory anything which remains within the
prerogative of the Crown.(57)
Further, the Executive, in exercising its prerogative, could
establish 'parks, gardens, sports grounds, tourist facilities and
the like upon any land it possesses in Canberra'.
As noted above, it was initially thought that section 61 did not
incorporate the prerogative powers of the Crown. However, even in
early decisions there were some on the High Court who thought
otherwise. For example in Wooltops, Starke J stated that
section 61 merely indicates the field of the executive power of the
Commonwealth, and the 'validity of any particular act within that
field must be determined by reference to the Constitution or the
laws of the Commonwealth, or to the prerogative or inherent powers
of the King'.(59)
It gradually became accepted that the prerogative powers of the
Crown were incorporated in section 61 - or at least those vesting
in the right of the Commonwealth. This view was finally settled in
1974 in Barton v The Commonwealth.(60)
Barton involved the attempted extradition from Brazil
of Alexander and Thomas Barton, Australian citizens living in that
country. There was no extradition treaty between Australia and
Brazil. The issue before the High Court was, whether in such
circumstances, the Commonwealth's executive power permitted the
Government to request Brazil to detain and extradite the Bartons to
Australia. The Court held that the executive power did authorise
the Government to so act.
Mason J stated that the executive power includes the
'prerogative powers of the Crown'(61), and hence, subject to
statute, it is within the executive power to request another state
to detain and extradite a person alleged to have committed a crime
against Australian law. McTiernan and Menzies JJ, in a joint
judgment, endorsed Mason J's views:
we are satisfied that unless statute, either expressly or by
necessary implication, has deprived the executive of part of its
inherent power, it may make such requests as it considers proper
for the assistance of other states in bringing fugitive offenders
to justice.(62)
As already noted, the approach supported by the majority in the
Pharmaceutical Benefits decision tended to confine the
executive and appropriations powers to areas of defined
Commonwealth responsibility. The cases detailed below show the
Court wrestling with challenges to the validity of activities
undertaken by the Commonwealth which do not appear to fall squarely
within the enumerated heads of power. In these more recent cases,
the fate of the Commonwealth scheme partly turns on whether it may
be supported by an inherent (constitutionally implied) power
arising out of federal compact rather than because of any express
term in the Constitution.
It will be apparent that the law is far from settled,
particularly in regard to the constitutionality of various
administrative arrangements attending the expenditure of
Commonwealth funds (an issue left open by the Pharmaceutical
Benefits case). On the other hand, it seems that the scope of
the executive power has been given a fairly broad interpretation by
a number of judges in recent leading cases: Victoria v The
Commonwealth and Hayden (the AAP case) and Davis
v The Commonwealth. In particular, these cases examined what
weight is to be given to the character and role of the Commonwealth
as a national government in determining the scope of the
legislative and executive powers of the Commonwealth.(63)
Victoria v The Commonwealth and Hayden (the
AAP case), was handed down by the High Court in 1975. It
is a particularly difficult case with the Court divided in its
reasons and the ultimate majority being determined by one judge's
view on the issue of standing.
The AAP case examined the nature of the appropriations
power (s 81) and the executive power (s 61) and the incidental
power [section 51 (xxxix)]. The Appropriation Act (No 1)
1974-1975 provided for certain sums to be appropriated to the
Australian Assistance Plan (AAP) to enable grants to be made to
Regional Councils for Social Development. Victoria argued that the
Commonwealth did not have the Constitutional power to appropriate
these sums.
Three of the seven judges, Justices McTiernan, Jacobs and Murphy
held that the plan was valid. Justice Stephen said that the States
did not possess the necessary standing to impugn an appropriation.
As a consequence, Victoria's challenge was unsuccessful.
Section 81 provides that revenues paid into the Consolidated
Revenue Fund are 'to be appropriated for the purposes of the
Commonwealth in the manner and subject to the charges and
liabilities imposed by this Constitution.' (Section 83 provides
that monies may only be withdrawn from the Commonwealth Treasury
'under appropriation made by law.')
In his discussion of what amounted to a purpose of the
Commonwealth, Barwick CJ noted that the Commonwealth's legislative
and executive powers are limited. Most of its legislative powers
may be found in sections 51 and 52 of the Constitution, and its
executive powers are limited by the words of section 61.
His Honour, however, said some legislative and executive powers
may be derived from the 'very foundation of the Commonwealth as a
polity and its emergence as an international state'.(64)
Consequently, in considering what is a purpose of the Commonwealth,
the focus need not only fall on sections 51 and 52:
The extent of powers which are inherent in the fact of
nationhood and of international personality has not been fully
explored. Some of them may readily be recognised; and in
furtherance of such powers money may be spent. One such power, for
example, is the power to explore, whether it be of foreign lands or
seas or in areas of scientific knowledge or technology.(65)
But to describe an issue as one of 'national concern' does not
automatically bring it within the Commonwealth's legislative power.
For example, Barwick CJ said that although the national economy was
clearly of 'national concern', that in itself did not make it a
matter of Commonwealth power. Whatever act or activity the
Commonwealth participates in must be sourced from either a
legislative or executive power, derived from the Constitution.
Whether the activity is based on legislative or executive power,
the Parliament must be able to enact legislation to control the
activity for which the money is to be spent. This determines the
validity of the appropriation.
With certain exceptions that Barwick CJ considered it
unnecessary to state, 'the executive may only do that which has
been or could be the subject of valid legislation'.(66)
Barwick CJ held that as the Australian Assistance Plan was not
for a purpose of the Commonwealth, Parliament did not have the
power to enact legislation to authorise the carrying out of the
Plan.(67) Hence, his Honour concluded:
No power resides in the Commonwealth to implement and carry out
a social welfare plan such as the Australian Assistance Plan. It
follows ... that that Plan is not a purpose of the Commonwealth
within the meaning of s 82. Accordingly... there is no power in the
Parliament to appropriate and authorise the expenditure of money
for that Plan and its purposes.(68)
On section 61, Gibbs J endorsed the views put forward in both
the Wooltops and Australian Shipping Board
decisions and went on to say that section 61 limits the power of
the Executive: its words 'make it clear that the Executive cannot
act in respect of a matter which falls entirely outside the
legislative competence of the Commonwealth'.(69) The AAP
case did not involve the prerogative powers of the Crown. According
to Gibbs J, when it is clear that there is no head of power on
which to authorise the Plan, 'it follows that public moneys of the
Commonwealth may not lawfully be expended for the purposes of the
Plan.'(70)
Without wishing to diminish the views of Barwick CJ and Gibbs J,
the key judgment is that of Mason J.
In his judgment, Mason J noted that as no legislation had been
enacted to support the Australian Assistance Plan, consideration
must be given to the executive power and the incidental power.
Thus, the scope of section 61 is limited and does not reach beyond
those responsibilities allocated to the Commonwealth by the
Constitution. But in doing so, his Honour took a more expansive
view of the 'responsibilities' than that of Barwick CJ and Gibbs J,
concluding that they may be found in:
- the distribution of powers, especially legislative powers, in
the Constitution; and
- the 'character and status of the Commonwealth as a national
government'.(71)
Further, Mason J continued, in defining the scope of the
executive power, the following factors must be considered:
- the impact of the incidental power [section 51(xxxix)] on
section 61;
- the Commonwealth's implied powers stemming from its existence
and nature as a polity.
His Honour stated that these two factors combined mean that the
Commonwealth has 'a capacity to engage in enterprises and
activities peculiarly adapted to the government of a nation and
which cannot otherwise be carried on for the benefit of the
nation'.(72) The Commonwealth Scientific and Industrial Research
Organisation (CSIRO) is an example of the exercise of this
capacity. On this reasoning, other activities will be able to be
supported in a like fashion under the executive power.
Mason J warned, however, that the executive power to engage in
such national activities, arising as it does from a Constitutional
implication and the operation of the incidental power, is limited
in scope. It would not accord with the division of legislative
responsibilities in the Constitution between the Commonwealth and
the States to give this aspect of the executive power a wide
operation. The Commonwealth, for example, could not establish
programs not justified by a head of legislative power merely
because such programs 'can be conveniently formulated and
administered by the national government'.(73) Thus, although
acknowledging the existence of an implied nationhood power, both
Barwick CJ and Mason J denied that it extended to support the
Australian Assistance Plan.
Mason J also concluded that the Australian Assistance Scheme did
not fall within the executive power.(74) Accordingly, although the
appropriation under section 81 was, in Mason J's view valid, the
administrative scheme required to implement the Australian
Assistance Plan was beyond power.(75)
Justices Jacobs and Murphy,(76) on the other hand, considered
the executive power could be so utilised to support the Australian
Assistance Plan. According to Jacobs J, the Australian Assistance
Plan was within Commonwealth power for two reasons:
- it fell within the Commonwealth's executive power to 'formulate
and co-ordinate plans and purposes which require national rather
than local planning and of its legislative power to appropriate its
funds accordingly'; and
- 'it is an expenditure of money which is incidental to the
execution by the Commonwealth of its wide powers respecting social
welfare.'(77)
The notion of the Commonwealth as a national polity was
elaborated in Davis v The Commonwealth, the most recent
substantial discussion on the executive power.(78) In
Davis (1988), the plaintiffs challenged certain sections
of the Australian Bicentennial Authority Act 1980 (Cth) as
unconstitutional, and argued that section 83 of the Constitution
did not authorise the appropriation of money for the purposes of
the Bicentennial Authority or for the celebration of the
Bicentenary. Section 22 of the Act prohibited the use of certain
terms and symbols (such as '1788', '1988') without the consent of
the Authority.
The High Court held that the commemoration of the Bicentenary
was within the Commonwealth's executive power:
the commemoration of the Bicentenary is pre-eminently the
business and concern of the Commonwealth as the national government
and as such falls fairly and squarely within the federal executive
power.(79)
In their joint decision, Mason CJ, Deane and Gaudron JJ,
referred with approval to Mason J's comments in Barton
that section 61 enabled the Crown to undertake executive action
appropriate to its responsibilities under the Constitution. These
responsibilities derive from two sources:
- the distribution of legislative powers under the Constitution;
and
- from the character of the Commonwealth as a national
polity.(80)
Consequently, Commonwealth legislative powers extend beyond
those specifically stated in the Constitution and 'include such
powers as may be deduced from the establishment and nature of the
Commonwealth as a polity.'(81)
Their Honours acknowledged that executive and legislative power
is distributed by the Constitution between the Commonwealth and the
States. Section 61 'confers on the Commonwealth all the prerogative
powers of the Crown except those necessarily exercisable by the
States' under the Constitution.(82) It should, therefore, be easier
to ascertain the scope of the Commonwealth's executive power 'in
areas beyond the express grants of legislative power' where
Commonwealth power does not compete with State power. And, the
celebration of the Bicentenary, their Honours said, was clearly
within the Commonwealth's province in its 'capacity as the national
and federal government.'(83)
Although agreeing with the conclusion reached by Mason CJ, Deane
and Gaudron JJ, Wilson and Dawson JJ delivered a separate joint
judgment in which they commented on the Commonwealth's power to
make laws on matters not specifically enumerated in the
Constitution. Wilson and Dawson JJ did not find it necessary to
resort to any implied nationhood power. Such a power, their Honours
said, could be 'accurately described in the terms of s 61 supported
by s 51 (xxxix) [the incidental power]'.(84) Further, Wilson and
Dawson JJ considered it 'desirable to deprecate speaking of implied
powers as distinct from the proper scope of the executive power
conferred by s 61 lest the use of the term tends to suggest the
existence of some new or independent source of power.'(85)
Nevertheless, the Commonwealth does have power under section 61 to
'recognise and celebrate its own origins in history.'(86)
In the opinion of Brennan J (as he then was), the Constitution
did more than merely join the separate colonies, it 'summoned the
Australian nation into existence'. The purpose of the Constitution
'is to sustain the nation.'
And, if (as earlier decisions found) the Commonwealth executive
power could be used to protect the nation, 'it extends to the
advancement of the nation whereby its strength is fostered.'(87)
Further, his Honour said that the executive power is not restricted
to the Commonwealth's legislative heads of power:
So cramped a construction of the power would deny to the
Australian people many of the symbols of nationhood - a flag or
anthem ... or the benefits of many national initiatives in science,
literature and the arts.(88)
This does not imply that the Executive Government can do
anything it deems to be in the national interest. But section 61
does allow the Executive to, and here his Honour adopted the test
put forward by Mason J in the AAP case, 'engage in
enterprises and activities peculiarly adapted to the government of
a nation and which cannot otherwise be carried on for the benefit
of the nation'.(89)
Drawing on the cases discussed above, the following observations
may be made on the scope of the executive power:
- the words, 'execution and maintenance of the Constitution and
the laws of the Commonwealth' in section 61 are no longer words of
limitation;
- it contains those common law Crown prerogatives (eg,
treaty-making; declaring war) that vest in the right of the
Commonwealth rather than in the States;
- it allows the Commonwealth to engage in activities peculiarly
adapted to the government of a nation which cannot otherwise be
carried out (including, for example, celebrations of the
bicentenary, establishing the CSIRO and promulgating flags and
other national symbols); and
- it includes the power to enter into contracts and commercial
arrangements without the sanction of the Parliament.
However, section 61:
- does not extend beyond those responsibilities allocated to the
Executive of the Commonwealth by the Constitution;
- is subject to express constitutional limitations; and
- it may be limited by laws enacted by the Commonwealth.
The Executive, pursuant to section 61 of the Constitution,
clearly has the power to enter into treaties. In recent times there
has been considerable discussion concerning whether some limits
should be placed on the Executive's power in this regard, and that
Parliament should play a greater role in the treaty-making
process.
This section considers only one aspect of that debate.(90) Can
Parliament enact legislation requiring its approval prior to the
Executive entering into a treaty?
In a paper published in 1977, Professor Campbell asked, could
Parliament 'legislate to make itself party to the treaty-making
power?'(91) In that paper, Professor Campbell suggests that it
could not. More recently, in her submission to the Senate Legal and
Constitutional References Committee on 13 January 1995, Professor
Campbell opined that given the separation of powers, 'it is
possible that the High Court would hold that federal parliament
cannot enact legislation to invest itself, or either of its Houses,
with powers of an executive character.'(92) As a result, Parliament
could not 'pursuant to its external affairs power, enact a statute
which removes the treaty-making power from the executive branch and
transfers it to the Parliament or one (or both) of its Houses.'(93)
In other words, it is unlikely that Parliament could validly strip
the Executive of its prerogative to enter into treaties on behalf
of Australia.
However, Professor Campbell considered that Parliament could
validly enact legislation that required the Executive to obtain
Parliamentary approval prior to entering into a treaty.(94)
Sir Maurice Byers, QC, in his submission to the Committee,
doubted whether Parliament could deprive the Executive of any power
given to it by the Constitution.(95) Furthermore, he seems to
suggest that Parliament most likely could not limit the Executive's
treaty-making power.(96) And a submission by a group of Adelaide
legal academics suggested that 'the Commonwealth Parliament's
law-making participation in the process may be
held to be constitutionally limited to the implementation of
treaties in accordance with present practice'.(97)
The reason why Parliament could most likely place limits on the
Executive's treaty-making power may be simply stated. The
treaty-making power, although found in section 61 of the
Constitution, is a prerogative power, and prerogative powers are
subject to control by statute. As Henry Burmester, Acting Chief
General Counsel, Commonwealth Attorney-General's Department stated
in his Opinion of 13 June 1995:
In my view Parliament may enact legislation to regulate the
exercise of the prerogative powers of the Crown, of which the power
to conduct Australia's treaty relations forms part.(98)
This view is supported by High Court authority.
In the AAP case, Justice Jacobs stated:
The Parliament is sovereign over the Executive and whatever is
within the competence of the Executive under s. 61, including or as
well as the exercise of the prerogative within the area of the
prerogative attached to Australia, may be the subject of
legislation of the Australian Parliament.(99)
In Koowarta v Bjelke-Petersen, decided in 1982, Justice
Murphy discussed the nature of the Commonwealth executive power
with respect to external affairs. After noting that the executive
power over foreign affairs may be found in section 61 of the
Constitution, his Honour said that it is not unlimited, that it is
subject to both express and implied constitutional
limitations.(100) His Honour continued:
Otherwise the executive power in relation to external affairs,
unless confined by Parliament, is unconfined.(101)
Justices McTiernan and Menzies said in Barton in the
context of an extradition request by the Executive that 'unless
statute, either expressly or by necessary implication, has deprived
the executive of part of its inherent power', it may request other
States to assist in returning offenders to Australia.(102) And
Mason J stated that 'it is well accepted that a statute will not be
held to abrogate a prerogative of the Crown unless it does so by
express words or by ... necessary implication.'(103) As Burmester
notes, 'the corollary of those statements is that prerogative
powers may be affected by statute.'(104) In any event, as J E
Richardson has remarked:
The subordination of prerogative power to legislative power was
clearly established in the House of Lords case,
Attorney-General v De Keyser's Royal Hotel: [1920] AC
508.(105)
Thus, it would seem that although Parliament could not assume
the power to enter into treaties itself, it could place limitations
on the Executive's power to do so.(106) The Government's official
response to the Senate's report on treaty-making would seem to
suggest provisional support for this view.(107)
The acknowledged scope of section 61 has been widened by the
High Court since Federation. The early view in the
Wooltops case considered that the executive power in
section 61 was limited to the execution and maintenance of the
Constitution and of the laws of the Commonwealth. Over time it has
become accepted that section 61 also incorporates the Crown
prerogatives that vest in right of the Commonwealth. These include,
for example, the prerogative powers to enter treaties and to
declare war. Recent cases have extended the scope of section 61
even further to include consideration of the character of the
Commonwealth as a national government.
It is arguable that the scope of section 61 remains uncertain -
some might say flexible. The debate over whether Parliament could
limit the executive power to enter into treaties is an example of
this uncertainty. However, both judicial authority and the weight
of academic opinion tends to indicate that the Parliament can limit
the Executive's power to enter into treaties.
The issue of the Executive's treaty-making power is part of the
debate concerning the powers of the Executive and Parliament.
Should there be a move to amend the Constitution, it might be
argued that attention should also be given to spelling out the
scope of the Executive's power.
- Much has been written on this issue. or a brief summary, see:
Dr J.R. Verrier, The Future of Parliamentary Research Services: To
Lead or to Follow, Parliamentary Research Service Paper presented
at the IFLA Conference, August 1995.
- The Right Honourable Sir Harry Gibbs 'The Australian
Constitution and Australian Constitutional Monarchy', in MA Stephen
and C Turner (eds) Australia: Republic or Monarchy? St Lucia, 1994,
p 9.
- Osborn's Concise Law Dictionary defines the royal prerogative
as 'Those exceptional powers and privileges of the Sovereign in
virtue of the Crown, eg. command of the Army, or the treaty-making
power.'
- H.V. Evatt, The Royal Prerogative, Sydney, 1987, p 35.
- See: Mutual Pools & Staff v The Commonwealth (1993-1994)
179 CLR 155.
- Davis v The Commonwealth (1988) 166 CLR 79 at p 104.
- Professor L. Zines, The High Court and the Constitution, (3rd
edit) Sydney, 1992, p 218.
- See M. Spry, Ministerial Responsibility: Its Changing Content,
Parliamentary Research Service, Research Note No 8, 28 August
1995.
- Sir S Griffith, Official Report of the National Australasian
Convention Debates (March and April 1891) Vol I, p 36.
- p 34
- ibid. Griffith advocated this procedure, given that the
combination of federalism and responsible government was as yet
untried, and that it would be appropriate to provide his successors
with a degree of flexibility (p 38).
- ibid, p 765.
- ibid, p 767.
- ibid.
- ibid, Vol II, p 794.
- ibid, p 797.
- Convention Debates, Vol I, p 34.
- ibid, p 35.
- Convention Debates Vol. I, p 35.
- ibid, p 99.
- Menzies, Sir Robert, Central Power in the Australian
Commonwealth, London, 1967, p 54.
- O. Dixon, 'The Law and the Constitution' Law Quarterly Review
October 1935, p 606. See also: George Winterton, 'The Separation of
Judicial Power as an Implied Bill of Rights' in G. Lindell (ed)
Future Directions in Australian Constitutional Law, Sydney, 1994,
pp 185-208; Brian Galligan, 'Parliamentary Responsible Government
and the Protection of Rights', (1993) 4 Public Law Review, pp
100-112; Sir Harry Gibbs, 'The Separation of Powers - A Comparison,
Federal Law Review, September 1987, p 160:
Australian courts have not strictly adhered to the principle of
the separation of powers, although they profess to have found it
embodied in the Constitution. It is only in relation to the
judicial power that the doctrine has had any practical effect in
Australia, and even in that respect there has been a disposition to
confine it within fairly narrow bounds.
- Michael Crommelin, The Commonwealth Executive: A Deliberate
Enigma, Melbourne, 1986, p 36.
- ibid, pp 36-37.
- (principally reversion of land to the Crown where there are no
heirs).
- Convention Debates, Vol I, p 315.
- ibid, p 383.
- Convention Debates, Vol I, p 96.
- ibid, p 103.
- ibid, p 216.
- See M Spry, Harry Brandy v Human Rights and Equal Opportunity
Commission, Parliamentary Research Service, Research Note No 11, 2
March 1995 and A Twomey, Trimming the Tribunals: Brandy v Human
Rights and Equal Opportunity Commission, Parliamentary Research
Service, Current Issues Brief No 40 1994/95, 30 March 1995.
- Davis v The Commonwealth (1988) 166 CLR 79 at pp 92-93
- ibid, p 107.
- For powers the Monarch may exercise whilst personally present
in Australia, refer Royal Powers Act 1953.
- This tension is reflected in the lingering echoes of the
implied intergovernmental immunities approach rejected by the Court
in the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd
(the Engineer's Case) (1920) 28 CLR 129 that persist in more recent
judgments on the scope of the executive power.
- L. Zines, 'Nationhood and the Powers of the Commonwealth' in L
Zines (ed) Commentaries on the Australian Constitution, 1977, p 24.
See also L. Zines, The High Court and the Constitution (Third Ed),
1992, p 214:
In the early years of federation, it was assumed that a number
of powers given to the Queen by common law, that is, prerogative
powers, were not included within s 61, such as the power to declare
war, to enter into treaties or to acquire territory.
- Commonwealth v Colonial, Spinning and Weaving Co (1921-1922) 31
CLR 421 at p 431.
- Attorney-General (Vic) (ex rel Dale) v Commonwealth (1945) 71
CLR 237.
- See Tony Blackshield, George Williams and Brian Fitzgerald,
Australian Constitutional Law and Theory (1996), esp pp
534-550.
- Burns v Ransley (1949) 79 CLR 101 at pp 109-110.
- ibid, p 110.
- Brown v West (1990) 169 CLR 195 at p 200.
- ibid, p 201.
- ibid.
- ibid. See also p 202.
- ibid, p 202.
- ibid, p 204.
- Commonwealth v Colonial, Spinning and Weaving Co (1921-1922) 31
CLR 421.
- ibid, p 433.
- Peter Hanks, Australian Constitutional Law, 1994, p 309.
- New South Wales v Bardolph (1933-1934) 52 CLR 455. For a
discussion of the Executive's power to enter contracts see: H.E.
Renfree, The Executive Power of the Commonwealth of Australia,
Sydney, 1984, pp 469-484; E Campbell, 'Commonwealth Contracts'
(1970) 44 ALJ; G. Winterton, Parliament, the Executive and the
Governor-General, Melbourne, 1983, pp 44-47; J.E. Richardson, 'The
Executive Power of the Commonwealth' in L. Zines (ed) Commentaries
on the Australian Constitution, Sydney, 1977, pp 72-76.
- ibid, p 509.
- ibid.
- The Commonwealth v Australian Commonwealth Shipping Board
(1926) 39 CLR 1 at p 9.
- ibid.
- ibid, p 10.
- Johnson v Kent (1974-1975) 132 CLR 164 at p. 169.
- ibid, p 170.
- ibid, p 461.
- Barton v The Commonwealth (1974) 131 CLR 477.
- ibid, p 498.
- ibid, p 491.
- See also New South Wales v Commonwealth (Seas and Submerged
Lands Case) (1975) 135 CLR 337 where it was suggested by Barwick CJ
(at 374) that the nationhood power might enable the Commonwealth to
make laws for the Australian territorial sea.
- Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at p
361-362.
- ibid, p 362.
- ibid.
- ibid, p 363.
- ibid, p 364.
- ibid, p 379.
- ibid.
- ibid, p 396.
- ibid, p 397.
- ibid, p 398.
- ibid, pp 400-401.
- For a recent example of how this limitation may effect
government programs see Senate Rural and Regional Affairs and
Transport and Legislation Committee, Report on the Consideration of
Bill Referred to the Committee, the Primary Industries and Energy
Legislation Amendment Bill (No.3) 1994 and Parliamentary Research
Service , Bills Digest No.41 of 1995.
- ibid, p 419.
- ibid, p 413.
- Davis v The Commonwealth (1988) 166 CLR 79.
- ibid, p 94, per Mason CJ, Deane J and Gaudron J.
- ibid, p 93.
- ibid, p 93.
- ibid.
- ibid, p 94.
- ibid, p 102.
- ibid, p 103.
- ibid, p 104.
- ibid, p 110.
- ibid, p 111.
- ibid.
- For a discussion of the various proposals to reform the
treaty-making process in Australia see, Susan Downing,
Treaty-Making Options for Australia, Parliamentary Research
Service, Current Issues Brief, April 1996.
- E. Campbell, "Parliament and the Executive', in L. Zines (ed)
Commentaries on the Australian Constitution, Sydney, 1977, p
92.
- E. Campbell, Submission to the Senate Legal and Constitutional
References Committee, Vol I p 93.
- ibid.
- ibid.
- ibid, Vol 2, p 255.
- ibid, pp 253-254.
- ibid, Vol 5, pp 1021-1022.
- Henry Burmester, 'The power of Parliament to enact legislation
regulating the treaty process' Opinion, 13 June 1995, p 3.
- Victoria v The Commonwealth (1975) 134 CLR 338 at p 406.
- Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at pp
237-238.
- ibid, p 238.
- Barton v The Commonwealth (1974) 131 CLR 477 at p 491,
- ibid, p 501.
- Burmester, op cit, p 3.
- J.E. Richardson, 'The Executive Power of the Commonwealth' in
L. Zines (ed) Commentaries on the Australian Constitution, 1977, p
64. See also: L. Zines, 'Commentary' in H.V. Evatt, The Royal
Prerogative, 1987, p C17.
- For a discussion on this point see the report by the Senate
Legal and Constitutional References Committee Trick or Treaty?
Commonwealth Power to Make and Implement Treaties, (November 1995),
pp 45-61.
- As the Report states: 'The Government considers that it would
be sensible to review the experience to be gained from the
establishment of a Joint [Parliamentary] Committee and the
implementation of other recommendations before moving to consider
the need for an approval or disallowance procedure.' Government
Response' To Senate Legal Constitutional References Committee 2 May
1996. Report, 'Trick or Treaty? Commonwealth Power to Make and
Implement Treaties'.
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