Executive Power

Question 1

What does s 62 say about the Executive Council?

Answer 1

It is a body which “advises the G-G in the government of the Cth”.

Question 2

What does s 61 say about the power of the Executive Council?

Answer 2

It’s power “is vested in the Queen and is exercisable by the G-G”.

Question 3

What does the Executive Council do?

Answer 3

Make policy decisions and formally approve legislation.

Question 4

Which case called Executive Council “a formal step in coverting political decisions into legally effective decisions”?

Answer 4

FAI INSURANCES LTD V WINNEKE

Question 5

Who exercises Executive powers?

Answer 5

PM, Ministers, public servants, agencies, bodies, and other ‘instrumentalities’.

Question 6

What are the 3 main sources of Executive power? Case?

Answer 6

1) Power conferred by Statute (SP)
2) Nationhood power (NP)
3) Prerogative power (PP)

RUDDOCK V VADARLIS

Question 7

SP: What does s 51 say?

Answer 7

Government has all the powers of a natural person.

For example, buying property or entering contracts.

Question 8

SP: Which section states “Power extends to the execution and maintenance of the Consitution and Cth laws”?

Answer 8

s 61

Question 9

SP: Which case states that “Executive power is sourced from legislation empowering certain actions?

Answer 9

VICTORIAN STEVEDORING AND GENERAL CONTRACTING V DIGAN (“DIGAN’S CASE”)

Question 10

SP: Can Parliament oversee statutory powers granted to the Executive? Case?

Answer 10

Parliament can “disallow subordinate legislation” - i.e. can interfere in Act giving Executive power without abusing ‘seperation of powers’.

“DIGAN’S CASE”

Question 11

SP: What are the limits to Parliament control of Executive statutory powers? Case?

Answer 11

Parliament will not infringe on powers if the Act leaves “such an uncertainty of the subject matter…that it is not a law” under a Head of Power.

“DIGAN’S CASE” per Dixon J

Question 12

NP: Australia is a nation state within community of nations - what two specific powers stem from this?

Answer 12

Powers of execution and maintenance.

Question 13

NP: What restriction on nationhood power was considered by French CJ? In what case?

Answer 13

Cannot be used to skew distribution of powers between:
> Cth + States
> Three branches of Gov’t

PAPE V COMMISIONER OF TAXATION

Question 14

PP: What is the defintion of “prerogavtive power”?

Answer 14

Right or privilege one has by the virtue of their status.

Question 15

PP: Name two common examples of this power?

Answer 15

Refusing aliens (RUDDOCK V VARDARLIS)

Foreign affairs matters, extradition (BARTON V CTH)