[3] A second line of development marked the boundaries between power that could be exercised by the executive alone, subject to legislation to the contrary, and that which required authorisation from the parliament. The report explores a series of case studies in depth, providing useful insight into some of the difficulties that arise. 225, 226. Relevantly for present purposes, the parliament may make laws with respect to ‘matters incidental to the execution’ of whatever power section 61 vests in the ‘Government of the Commonwealth’ (section 51(xxxix)). This would allow the president to declare "national emergencies" and unilaterally enact laws to deal with them. Pape is interesting because you get an outcome in Pape. Australia is not alone in this; it is a phenomenon elsewhere, particularly in countries that share an underlying tradition of inherent executive power, sourced neither in Constitution nor statute. That trend changed drastically with the passage of the War Powers Act of 1917. 25, 2005, p. 97; Margit Cohn, ‘Judicial review of non-statutory executive powers after Bancoult: A unified anxious model’, Public Law, 2009, p. 260. We as a country are still all debating whether that was so or not but at the time, if you think back to the angst, it was easy to understand it. © Commonwealth of Australia   |   Page last reviewed 20 Nov 2019, Welcome to the Parliamentary Education Office. [62]    French CJ [21], Gummow and Bell JJ [154], Hayne J [204]. [34] Recourse to non-statutory executive power minimises and partly eradicates review of the lawfulness of executive action: the Administrative Decisions (Judicial Review) Act, including its right to reasons applies only to decisions pursuant to legislation;[35] and while review is procedurally possible under the alternative avenues of the Judiciary Act and the Constitution, for the moment at least there is uncertainty about the standards of lawfulness that apply. I begin by outlining the challenges of understanding the meaning of the key provision of the Constitution, section 61. Executive power performs a valuable role in government for these reasons. 9–12. The potential for conflict with state executive power is an indicator that the limits may have been reached. Question — I am wondering if you could comment on possible comparisons with other countries while noting that there might not be many that have a federation with written constitutions in the common law system. This observation in turn echoed an earlier remark of Justice Gummow, also at that point a Justice of the Federal Court, ‘In Australia, ... one looks not to the content of the prerogative in Britain, but rather to s 61 of the Constitution, by which the executive power of the Commonwealth was vested in the Crown’: Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 369. One is the passage of de facto executive power from monarch to ministers with the confidence of the elected house. Cheryl Saunders — Yes, it is a very interesting comparative project actually, exactly how interesting I had not really fully understood until preparing this paper. I note in passing, however, that a very considerable proportion of government in Australia takes place in the exercise of executive power under the rubric of intergovernmental relations, largely bypassing the systemic procedures for political and legal accountability. Temporary validating legislation of some kind would have been understandable, not only because of the politics of sudden cessation of these programs but because of the anxiety that the decision may have caused in the short term to recipients of federal funds pursuant to them. 349–50. This understanding of the breadth of section 61 was reconfirmed in 1988 in the very different context of a challenge to the validity of legislation empowering the Australian Bicentennial Authority, where the joint judgment of Mason CJ, Deane and Gaudron JJ also noted that: the existence of Commonwealth executive power in areas beyond the express grants of legislative power will ordinarily be clearest where Commonwealth executive or legislative action involves no real competition with State executive or legislative competence.[31]. [27] The outcome of the case was frustratingly inconclusive: the challenge was dismissed after Justice Stephen, the seventh member of an otherwise equally divided court, denied the plaintiff state standing. It was passed with great urgency by both houses because there were very compelling reasons to fix up this problem that the High Court had exposed through the Williams decision.

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