Pushing the Boundaries of Executive Power - Pape, the Prerogative and Nationhood Powers

Twomey, Anne, Melbourne University Law Review

[A majority of the High Court in Pape v Commissioner of Taxation accepted that the Commonwealth has executive powers beyond those derived from statute, the prerogative and its capacities, as a person. This fourth category of executive power, left nameless by the Court but generally described as the 'nationhood' power, remains ill-defined and ill-confined. This article explores the limits on the different categories' of executive power, why it was perceived necessary to imply a nationhood power, whether this justification is adequate and how such a power might be limited.]

CONTENTS

I   Introduction
II  The Extent of Commonwealth Executive Power
III Limitations on Commonwealth Executive Power
    A The Distribution of Executive Powers
    B Limits Derived from the Source of the Executive Power
      1 Executive Powers Conferred Expressly by the Constitution
      2 Executive Powers Conferred by Statute
      3 Executive Powers That Form Part of the Prerogative
      4 Executive Powers Derived from the Status of the Crown as a
        Person
IV  The 'Nationhood' Power
    A Nationhood and the Federal Distribution of Powers
    B The Source of the Nationhood Power
      1 Jacobs J and 'the Maintenance of This Constitution'
      2 Mason J and the 'Peculiarly Adapted' Test
      3 Nationhood--A Necessary Implication?
    C The Limitations on the Nationhood Power
V   Conclusion

I INTRODUCTION

The intersection in the Commonwealth Constitution between appropriations, executive power and the power to spend has never been very clear. One point of intersection has been the requirement in s 81 of the Constitution that appropriations be for the 'purposes of the Commonwealth'. Prior to the High Court's judgment in Pape v Commissioner of Taxation ('Pape'), (1) the debate about Commonwealth appropriations had centred upon the question of what falls within the 'purposes of the Commonwealth'. Some took the view that the 'purposes of the Commonwealth' included anything that the Commonwealth Parliament regarded as a Commonwealth purpose, (2) while others considered that it was a matter for the courts to determine by reference to the distribution of powers within the Constitution. (3) The answer depended largely on whether one took a federalist (4) or a nationalist (5) view of the Constitution.

The High Court in Pape, by deciding that s 81 itself did not support the expenditure of money appropriated by the Parliament, (6) pushed the debate from one concerning 'purposes of the Commonwealth' to one concerning whether other constitutional powers support the expenditure of appropriated funds. (7) The question then arose as to whether those aspects of Commonwealth expenditure that could not otherwise be supported by heads of Commonwealth legislative power could still be supported by the executive power and the associated incidental legislative power.

The majority in Pape (8) held that the Commonwealth government could respond to a global financial crisis by employing short-term fiscal measures to stimulate the economy. (9) In doing so, their Honours accepted that the executive power of the Commonwealth in s 61 of the Constitution supported the expenditure of money appropriated for such a purpose and that the incidental power in s 51 (xxxix) supported legislation that regulated the expenditure of the appropriation. (10)

French CJ concluded that the executive power extends to 'short-term fiscal measures to meet adverse economic conditions affecting the nation as a whole, where such measures are on their face peculiarly within the capacity and resources of the Commonwealth Government.' (11) His Honour was concerned to stress, however, that this 'does not equate it to a general power to manage the national economy.' (12) Nor did it necessarily amount to a power with respect to matters of 'national concern' or 'national emergency'. (13) He appeared to be sensitive to the need to confine the scope of his finding.

In contrast, Gummow, Crennan and Bell JJ took a broader view and did appear to rely on the notion of 'national emergency'. They said that

   in considering what enterprises and activities are peculiarly
   adapted to the government of the country and which cannot otherwise
   be carded on for its benefit, this case may be resolved without
   going beyond the notions of national emergency and the fiscal means
   of promptly responding to that situation. (14)

Their Honours drew an analogy between the powers of the executive government to respond to a national crisis, such as war or natural disaster, and the power to deal with a 'financial crisis on the scale here.' (15) In doing so, they did not appear to attempt to re-interpret the existing prerogative power with regard to self-protection from internal violence or insurrection so that it also applied to self-protection from a financial crisis. Rather, they justified the existence of such a power by reference to Australia's status as a nation.

This article examines the various sources of Commonwealth executive power and the different limits that attach to them, either arising from the federal distribution of powers or from the position that the source of the power holds in the hierarchy of laws. It queries whether the additional type of executive power identified by the High Court in Pape is necessary and it challenges the cogency of the arguments used to justify its existence. Finally, it considers whether such a power is little more than a means of avoiding the existing limits on Commonwealth executive power and what limits might apply to it.

II THE EXTENT OF COMMONWEALTH EXECUTIVE POWER

Section 61 of the Constitution vests the executive power of the Commonwealth in the Queen but does not define it. The only clue given is that it 'extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.'

As the judgments in Pape show, the earlier draft of this provision stated that the executive power of the Commonwealth

   shall extend to all matters with respect to which the legislative
   powers of the Parliament may be exercised, excepting only matters,
   being within the legislative powers of a State, with respect to
   which the Parliament of that State for the time being exercises
   such powers. (16)

It was amended on the suggestion of Sir Samuel Griffith to state that the executive powers of the Commonwealth extend to 'the execution of the provisions of this constitution and the laws of the commonwealth.' (17) Griffith stated that this change did not alter the intention of the clause. Rather it gave it a positive statement as to those powers, instead of a negative one. (18) It is clear that the intention was for Commonwealth executive powers to follow the distribution of legislative powers.

It was also clear, however, during the Convention Debates of the 1890s that the term 'executive power' was used in its common law sense and included some, if not all, of the prerogatives of the Crown. (19) Edmund Barton, in the Adelaide Convention of 1897, described two classes of executive acts--those exercised by the prerogative and those that are 'the offsprings of Statutes.' (20)

In Pape, French CJ noted that it was unnecessary to consider the full extent of the powers and capacities of the executive, but he nonetheless identified four classes of executive power that fall within s 61 of the Constitution. (21) The first three classes were:

1 The powers conferred upon the executive by statutes enacted by the Commonwealth Parliament pursuant to powers conferred by the Constitution. This power is clearly incorporated within the express reference in s 61 to the 'execution ... of the laws of the Commonwealth.' (22)

2 The prerogative, being the residue of the monarch's unique (23) powers, privileges and immunities that belong to the Commonwealth. (24)

3 The power derived from the legal capacities of the Commonwealth, (25) such as the power to enter into contracts or agreements, employ staff, own and convey property, make ex gratia payments and spend. (26)

French C J, however, concluded that these three types of powers 'form part of, but do not complete, the executive power.' (27) He stated that the executive power 'has to be capable of serving the proper purposes of a national government', but gave no name or source to this fourth type of executive power that goes beyond the recognised categories.

Gummow, Crennan and Bell JJ also concluded that the executive power of the Commonwealth goes beyond those preferences, immunities and exceptions that are commonly identified as the prerogative. (28) They saw this executive power as having its 'roots in the executive power exercised in the United Kingdom' (29) but did not explain how it could fall outside the three categories of executive power described above, as these are the only sources of executive power in the United Kingdom. It would seem unlikely that s 61 was intended to confer greater executive power on the Commonwealth than was held by the United Kingdom government. (30)

While both majority judgments drew on the status of the Commonwealth government as a national government to justify the existence of a fourth category of executive power, (31) they appeared to eschew any reference to this power as a 'nationhood power', despite this being its popular description in the academic literature. (32) Indeed, they assiduously avoided giving it any name or description. It is the power that dare not be named. This exacerbates, rather than clarifies, the uncertainty as to the nature of this power. It not only raises doubt about the subject matter of the power, but it also makes it difficult, if not impossible, to discern the limitations that apply to its exercise.

It is the uncertain content and limits of this power that have given rise to both criticism and concern. In Pape, members of both the majority and the minority were conscious of the warning of Dixon J in Australian Communist Party v Commonwealth ('Communist Party Case') that:

   History ... shows that in countries where democratic institutions
   have been unconstitutionally superseded, it has been done not
   seldom by those holding the executive power. Forms of government
   may need protection from dangers likely to arise from within the
   institutions to be protected. (33)

More recent history has also shown that Dixon J was prescient in his warning. (34) The President of Fiji and the head of the Republic of Fiji Military Forces, in justification of the 2006 coup d'etat in Fiji, both argued that the President held a prerogative power to respond to an emergency and that this prerogative could be exercised as a reserve power to dismiss the government, dissolve the Parliament and establish interim rule by decree. (35) The High Court of Fiji concluded that if the head of state 'acts in a crisis without mala tides and addresses the grave problems in a way that he believes honestly addresses those problems whether in peace time or war, the courts will uphold his action'. (36) This conclusion is potentially a recipe for lawlessness. It has been used to justify the seizure of power, the removal of democratic representation and the making of laws by executive decree.

The Court of Appeal of Fiji overturned the High Court of Fiji's judgment on two main grounds. First, the Constitution of Fiji expressly denied the President any reserve powers other than those expressly conferred by that Constitution. The conditions for the exercise of the expressly conferred reserve powers had not been met. (37) Secondly, the Constitution of Fiji expressly dealt with the subject of national security in a manner that abrogated any prerogative with respect to national security in Fiji. (38) The Commonwealth Constitution, in contrast, does not confine the Governor-General's reserve powers (other than by convention) and does not include express powers to deal with national security or other emergencies. While no-one would seriously argue that the circumstances that have arisen in Fiji might occur in Australia, it is still the case that judicial recognition of an expansive but ill-defined executive power to deal with 'emergencies' may be unwise, as well as unnecessary.

As Heydon J pointed out in his dissenting judgment in Pape, it is far from clear what an 'emergency' may be. If the courts defer to the opinion of the executive or the legislature, this would give 'an "unexaminable" power to the Executive', (39) opening up the risk of the executive suppressing democratic institutions. If the courts do not defer to the executive, by what criteria do they assess what is beyond power? (40) Hayne and Kiefel JJ raised the same concerns. (41) They pointed out that if it were left to the executive to define an emergency, then the executive's powers would be self-defining. This is especially problematic these days, as Heydon J pointed out, because so many things seem to be described as an emergency, a crisis, or a war on something. (42)

Academics have also criticised the amorphous nature of an executive power that extends beyond those conferred expressly by the Constitution, legislation or the prerogative. Winterton asked how a court is 'to apply such a vague and politically-charged criterion without reference to standards such as those provided by the prerogative?' (43) He noted that the 'prerogative is inherently more certain and offers greater guidance to both Government and citizen than vague abstract criteria such as what is an "appropriate" activity for a national government.' (44)

We know, for example, that new prerogative powers cannot be created, (45) although existing prerogatives may be adapted to meet new factual circumstances. (46) We know that the prerogative may be abrogated by legislation (47) and that it may be the subject of judicial review, as long as the subject matter of that power is justiciable. (48) We also know that the prerogative may not be used to create an offence (49) and that it cannot support the imposition of a tax (50) or a dispensation from the application of the law. (51) Its source, scope and limits are therefore more certain than an implied nationhood power.

The use of the prerogative, however, has also been the subject of criticism due to its perceived lack of democratic legitimacy when compared with legislation. Simon Evans has noted that

   enacting legislation requires greater openness, scrutiny and
   democratic deliberation than the exercise of prerogative powers,
   and the exercise of powers under statute is susceptible to more
   effective channels of judicial review than the exercise of
   prerogative powers. (52)

In the United Kingdom, judges, (53) academics (54) and the government (55) have preferred the greater democratic legitimacy of legislation over the exercise of the prerogative and sought to limit or supplant the prerogative accordingly. This takes place in a context where there is plenary legislative power so that reliance on the much more limited prerogative is only necessary if the government does not have the time or inclination to ask Parliament to pass the relevant legislation. In Australia, because of the distribution of powers in the federal system, the situation is different. In the absence of express conferral of legislative power on the Commonwealth Parliament by the …

Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Pushing the Boundaries of Executive Power - Pape, the Prerogative and Nationhood Powers. Contributors: Twomey, Anne - Author. Journal title: Melbourne University Law Review. Volume: 34. Issue: 1 Publication date: April 2010. Page number: 313+. © 2008 Melbourne University Law Review. COPYRIGHT 2010 Gale Group.

This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.