The Executive Powers of the Commonwealth

Question 1

What does s.61 of AUS constitution state?

Answer 1

• Executive power vested in the Queen and exercisable by GG

Question 2

What does s.62 of AUS constitution state?

Answer 2

• Federal Executive Council to advise the GG and members of the FEC shall be chosen by the GG and shall be held in office by his pleasure

Question 3

Where are executive powers usually derived from?

Answer 3

• Statute an usually be conferred to either legislative or administrative power

Question 4

What can the executive ‘powers’ do?

Answer 4

• Execute the constitution
  –>
  Appoint ministers of State
  Appoint civil servants
  Appointment and removal of High Court Judges
  Administering and implementing Commonwealth Laws
  –>
  National security
  Delegated legislation

Question 5

Significance of Victorian Stevedoring v Dignan case (about Delegated Legislation)

Answer 5

• Constitution does NOT explicitly state Parliament can delegate its lawmaking powers

–> still found that governance would be IMPOSSIBLE w/out delegated legislation

Question 6

How are Delegated Powers Limited?

Answer 6

s.51 = the holder of delegated powers; the further the connection from Parliament, it is likely that the further removed the regulations will be constitutional authority.
s.52 = greater the breadth (of power) –> greater it falls OUTSIDE constitutional limits

Still supervised by Parliament (as delegated powers should NOT be an abdication of power)

Question 7

What are Prerogative Powers

Answer 7

• Historical powers originally exercised by British Crown and inherited by executive branch

Question 8

Who exercises Prerogative Powers?

Answer 8

• GG, PM and other executive officials

Question 9

What are some caterogies Prerogative Powers may include?

Answer 9

• Declaring wars
• Enter treaties
• Grant pardons
  -Establish Royal Commissions of Inquiry

Question 10

Can Prerogative Powers be newly created?

Answer 10

• No, but can be altered or modified

Question 11

What are Common Law Powers?

Answer 11

• Power to form corporations, to employ and dismiss persons to make payments

Question 12

What are Nationhood Powers?

Answer 12

• Executive power derived from s.61 of Constitution –> enables Commonwealth Government to undertake actions necessary for the PROTECTION and FUNCTIONING of nation as whole –> Jacob J stated that ‘nationhood powers’ could be used when a ‘necessity’ is present and is required

Question 13

Difference between Nationhood and Prerogative Powers?

Answer 13

Prerogative = derived from Monarch + legally recognized powers and specific

Nationhood = derived from existence of nation + broad + implied powers essential for survival

Question 14

What is the significance of Victorian Stevedoring

Answer 14

• Parliament could DELEGATE power and not abdicate power (rather must retain supervision)

Question 15

What is the significance of Work Choices Case?

Answer 15

• Alter or remove the executive’s delegated power altogether

Question 16

What is Significant about the Hayden case? (about Nationhood Powers)

Answer 16

• Reinforced the fact that “Commonwealth has a capacity to engage in enterprises and activities peculiarly
  adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation.”

Question 17

What is Significant about the Chaplain Case? (about 3 arms of Gov)

Answer 17

• Case establishes PARLIAMENTARY control over executive –> executive decisions at times may be BEYOND powers

Question 18

What is Significant about the Tampa case? (about Prerogative Powers)

Answer 18

• This is the refugee case
  –> Prerogative power to PREVENT entry of non-citizens to AUS –> Migration Act had NOT replaced the prerogative power in the case // merely acted alongside the prerogative power