Section 61 of the Australian Constitution provides for the general executive power of the Commonwealth. It has traditionally been regarded as incorporating the prerogative as the yardstick of its ambit. There has, however, been a drift away from sole reliance on the prerogative toward a conception of s 61 as incorporating inherent power to meet the imperatives of a modern, independent national government. This has created a tension between those who would maintain that the prerogative alone can ensure against undue aggrandizement of executive power and those who see in an executive ‘nationhood’ power the only appropriate criterion by which to interpret s 61 to meet the needs of a modern government. The trend toward ‘nationhood’ has now been supported by the High Court of Australia. It is therefore presently urgent to address the issue of limitations to this power. It will be argued that this can only be achieved by maintaining an appropriate role for the prerogative, albeit the concept itself may need to evolve as part of the Australian common law and a written federal constitution.
21 November 2012
'The Executive Power of the Commonwealth of Australia: Section 61 of the Commonwealth Constitution, ‘Nationhood’ and the Future of the Prerogative' by Peter Gerangelos in 12(1) Oxford University Commonwealth Law Journal (2012) 1-35 comments that