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

Article excerpt

[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.]


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
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


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. …