The nature and ambit of the Commonwealth’s non-statutory executive power under s 61 of the Constitution is now the subject of heavy debate. The contest is between those who argue that s 61 should be interpreted consistently with Australia’s character and status as a modern and federal nation (‘the inherent view’), and those who give greater emphasis to Australia’s common law heritage and the role of the royal prerogative (‘the common law view’). This article critically analyses both these viewpoints, and considers whether there is scope for reconciling their core propositions. Drawing on the broader notion of the symbiotic relationship between the Constitution and the common law, and its application to the dynamic between s 61 and the prerogative, it is contended that a more balanced conception of the Commonwealth’s non-statutory executive power is achievable. It is argued that, if the supporters of the common law view accept that the Commonwealth’s non-statutory executive power may be released from the traditional limitations placed on the English Crown and thereby adapted to suit a modern and federal context, an indigenous version of the prerogative may be retained as the measure of the ambit of this power. An indigenous prerogative reconciles the core propositions of the inherent view and the common law view and therefore supports the principal contention of this article.Condylis argues
Section 61 of the Commonwealth Constitution states that ‘[t]he executive power of the Commonwealth is vested in the Queen’, is ‘exercisable by the Governor-General’, and ‘extends to the execution and maintenance of [the] Constitution, and of the laws of the Commonwealth’. From this last expression, two types of power may be deduced. The first is ‘statutory executive power’ due to the Commonwealth’s ability to act in ‘execution’ of the Constitution and federal laws. This power presents few interpretational difficulties, as recourse may be had to the constitutional or legislative provision which the Commonwealth is administering to measure the lawfulness of the impugned action. The second derives from the Commonwealth’s ability to ‘maintain’ the Constitution, which has been interpreted to mean a power to act without legislative authorisation. While this power is also ‘statutory’ in the sense that it derives from the Constitution, it is often referred to as ‘non-statutory executive power’, reflecting the absence of parliamentary approval. This power is considerably more difficult to interpret. This is because, when the Commonwealth acts without legislation, there is no ‘measuring-rod’ in s 61 against which the constitutionality of such action may be tested. Thus, the provision leaves this great power ‘described but not defined’ and therefore ‘shrouded in mystery’.
Due to this textual ambiguity, the nature and ambit of the Commonwealth’s non-statutory executive power has always been debateable. There are now two competing views. The first view, principally developed by the High Court of Australia, argues that the power is to be sourced directly in s 61 and given content by interpreting the provision consistently with the Commonwealth’s character and status as a national government (‘the inherent view’). This view first emerged in the latter half of the 20th century, when the High Court began to consider whether s 61 might contain a form of nonstatutory executive power that was not derived from, or recognised by, the common law.
The second view, advanced by some of Australia’s leading constitutional scholars, posits that the non-statutory aspect of s 61 can only be given sufficient meaning by reference to the Crown’s prerogative powers (‘the common law view’). The lineage of this view is more complicated. While it crystallised in academic writings as a response to the rise of an inherent form of non-statutory executive power, commencing with Professor George Winterton’s text Parliament, the Executive and the Governor-General, it may also be understood as defending the once orthodox position on the issue. The debate is now at a stage where both viewpoints are becoming increasingly sophisticated, with each position developing its own core propositions. The inherent view is currently preferred by the High Court, and is evolving on a case-by-case basis. By contrast, the common law view still prevails in the literature, as its contemporary proponents continue to advance the argument originally developed by Professor Winterton.
In the recent decisions of Pape v Commissioner of Taxation (‘Pape’), Williams v Commonwealth (‘Williams [No 1]’) and Williams v Commonwealth [No 2] (‘Williams [No 2]’), the High Court has left the taxonomy of the nonstatutory aspect of s 61 in some confusion. Before these three cases, the anatomy of the power centred on the Crown’s royal prerogative; that is, under A V Dicey’s broader definition, ‘the residue of discretionary or arbitrary authority … legally left in the hands of the Crown’. This included the Crown’s unique powers, varying from the mundane ability to coin money, to more extensive powers such as the ability to declare war. It also included the Crown’s ordinary powers, such as the capacity to make contracts or convey land. Alongside the prerogative existed an inherent (or ‘nationhood’) power, which the High Court began to develop in the mid-1970s. In its infancy, this power allowed the Commonwealth to perform limited functions for the benefit of the nation, and was narrow in its application.
After Pape, Williams [No 1] and Williams [No 2], however, it seems that this inherent power is threatening to become the key source of the Commonwealth’s ability to act without legislation. In turn, the ‘preponderant drift’ away from the prerogative towards this inherent form of non-statutory executive power, has perpetuated the assumption that the inherent view and the common law view are ‘contending for ascendancy’ and are therefore mutually exclusive.
This article seeks to challenge that assumption. The principal contention that will be advanced is that s 61 may be approached in a more balanced way that draws on the core propositions of both the inherent view and the common law view. This contention will be supported by an evaluation of an article written by Professor William Gummow (as he now is), namely, ‘The Constitution: Ultimate Foundation of Australian Law?’, regarding the ‘symbiotic relationship’ between the Constitution and the common law. As Professor Gummow explains, there are terms in the Constitution that rely on the common law for conceptual guidance, and conversely, there are aspects of the common law that depend on the Constitution to adapt outmoded English legal concepts to the federal context in which they now operate.
It will be argued that this ‘symbiotic relationship’ is applicable to the dynamic between s 61 and the prerogative, and this should be seen as the analytical middle ground between the inherent view and the common law view. Through this lens, both positions become relevant when establishing how s 61 relies on the prerogative for interpretational clarity, and conversely, how the prerogative, as recognised under the English common law, is not suited to the legal realities of an independent, modern and federal polity. It will be proposed that, if the supporters of the common law view accept that the Commonwealth’s non-statutory executive power may be released from the traditional limitations placed on the English Crown and thereby adapted to suit a modern and federal context, an indigenous version of the prerogative, as developed by the Australian common law, may be retained as the measure of the ambit of this power. An indigenous prerogative reconciles the core propositions of the inherent view and the common law view, and therefore supports the contention that a more balanced conception of the Commonwealth’s non-statutory executive power is achievable.
This argument will be developed in three parts. Part II will explain the current debate concerning the Commonwealth’s non-statutory executive power. This will be achieved by providing an elucidation of the emergence of the inherent view and the common law view in the case law and literature respectively, and then articulating the core propositions underpinning each viewpoint.
Part III will establish that there is an assumption that these two viewpoints are mutually exclusive, and then explore whether this assumption is rebuttable. This will be achieved by identifying the premise from which the core propositions of each viewpoint derive, and comparing each premise to identify the critical point at which these two positions diverge, to see if a middle ground may be reasoned on this issue. The tentative conclusion will be drawn, based on one reading of Professor Gummow’s article, that the common law view proceeds from the false premise that there is a continuum between Australia’s common law heritage and its post-colonial constitutional framework, with the resultant triumph of the inherent view.
In Part IV, this article will enter the debate by arguing against this conclusion, and demonstrate how a more subtle reading of Professor Gummow’s article suggests that a middle ground does exist between both viewpoints. This will be achieved by exploring the symbiotic relationship between the Constitution and the common law, and the way this idea of mutual dependence has been developed in other contexts outside of executive power. This notion will then be applied to the relationship between s 61 and the prerogative, showing how an indigenous prerogative appeases the core concerns of both viewpoints.
The logic behind this argument will then be tested against the facts of the recent High Court case, CPCF v Minister for Immigration and Border Protection (‘CPCF’), which raised questions concerning the interpretation of s 61. The principal contention of this article will be confirmed: that the inherent view and the common law view are not mutually exclusive positions, and may be analytically united to devise a more balanced conception of the Commonwealth’s non-statutory executive power.