Like Parliament, the legislative branch of the Australian government, the Commonwealth (Executive branch of the government) also possesses various powers. However, because of the doctrine of responsible government inherited from the UK, wherein the Prime Minister and other elected members of the Executive are held accountable to Parliament, these powers are less distinct than those of the President of the USA. The fusion of the two branches means that it is more difficult to determine where the power of the legislature ends and the executive begins. In addition, not all of the powers of the Commonwealth are found in the express language of the Constitution; some are implied by the High Court of Australia, while others are considered to be inherent in the nature of the Executive.

For the purposes of this article, the powers of the Governor-General are not included in the powers of the Commonwealth. As with the article on Parliament’s powers, this is intended to only be a cursory discussion of the powers of the Commonwealth, which will be explored in more detail in later articles. And as we shall see, the Constitution is a lot less important in determining the powers of the executive than it is for determining the power of the legislature, so once again we will have to look to the High Court of Australia and common law for the scope of executive power.¹ This makes it much more complex, but I’ve tried to move as much of the boring legal information to the footnotes, for legal nerds like me. Although the footnotes will help add context, they aren’t essential to understanding the powers of the Commonwealth. And if you make it to the end, there’s an important announcement there.

As already discussed, the source of all executive power is found in Section 61 of the Constitution, which vests the executive power in the British monarch, who in turn authorises the Governor-General to exercise this power. Unlike Sections 51 and 52, which expressly define the scope of Parliament’s legislative power, Section 61 does not outline any enumerated powers of the Commonwealth. This means that the scope of Section 61 is not determined by the Constitution;² but rather by the High Court and Parliament. Because of this lack of enumerated powers, despite the fact that there is overlap between the executive and legislative branches, the High Court has held actions of the Commonwealth to be valid, even in absence of statutory authorisation by Parliament.³ Although the Commonwealth can sometimes act without Parliamentary authorisation, the legislation “may so limit or impose conditions on the exercise of the executive power.”⁴ This demonstrates that the executive branch has limited independence from the legislative branch, a result of the limited separation of powers.

Crown Prerogative Powers

Crown prerogative powers date back to the decades following Norman the Conqueror’s successful invasion of England in 1066. Prerogative powers are powers reserved for use by certain people or classes, meaning that Crown prerogative powers are powers that only the Crown in right of the Commonwealth and the Crown in right of a State, or the executive branch, can exercise. For a discussion of those terms, see The Australian Government #8. Although the scope of the prerogative powers is difficult to determine, the High Court once again retains the authority to review exercises of this power.⁵ The prerogative powers were originally granted to the colonies of Australia when they were granted limited self-rule by Britain.⁶ Upon Federation, the prerogative powers were split between the States and the Commonwealth, based upon the federal system adopted in the Constitution.⁷

Evatt J has suggested that there are three categories of prerogative powers.⁸ The first are the ‘executive prerogatives,’ exercised by the Commonwealth, and include declarations of war and suing for peace, and are exercised by the Governor-General, on advice from the Prime Minister. Secondly, the Crown possesses various “preferences, immunities and exceptions,” including the prioritisation of its debts. Both the States and the Commonwealth enjoy these prerogatives, leading to conflict over which receives priority.⁹ Finally, Evatt J argued that the Crown possesses property rights, including the right to grant land,¹⁰ ownership of the ocean floor within the territorial seas of Australia, and the right to all precious metals in the ground.¹¹ This is also divided between the States and the Commonwealth. However, he did concede that “royal prerogatives are so disparate in character and subject matter that it is difficult to assign them to fixed categories or subjects.”¹² The immunity of the Crown means that the monarch cannot be tried for treason, which meant that it was legally impossible to try King Charles I for treason after the English Civil War, so the law had to be twisted. This leads to the interesting situation where agents of the Queen, acting on her orders, can be found guilty of crimes, but the Queen, who issued the orders, cannot.

Nationhood Power

This power is drawn from “the federal nature of the Constitution … [and] from the existence and character of the Commonwealth as a national government and from the presence of ss 51(xxxix) and 61 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.”¹³ What this means is that the nationhood power is based on the responsibilities that the Commonwealth has as the government of the nation of Australia. Section 51(xxxix), known as the ‘incidental power,’ states that:

“Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House therefore, in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.”

Therefore, this power grants the Commonwealth the authority to act in ways necessary to serve as the executive branch of the government, under Section 61. Because of the importance of the federal system, with limitations on the powers of the federal government, it should be remembered that this power is also drawn from the nature of the Constitution and government.¹⁴ Once again, the scope of this power is determined by the High Court’s interpretation of the Constitution. In my opinion, this is the hardest source of power to define. This is because nationhood power is influenced by what individual judges believe to be the responsibilities of the nation and government. It has been suggested that the nationhood power may allow the Australian government to legislate over the territorial seas of Australia.¹⁵

The High Court has also confirmed that this power can be used for the “protection and maintenance of the legal and political organisation of the Commonwealth,” allowing it to be used to protect Australia against sedition.¹⁶ In the years following World War 2, Australia had its own ‘Red Scare,’ out of fear of communism. The government even sought to ban the Communist Party. In Australian Communist Party v Commonwealth (1951) 83 CLR 1, the High Court determined 6:1 that the law was invalid. The only dissenting judge, Latham CJ, had previously served in Parliament alongside many members of the government trying to ban the Communist Party, and was friends with Prime Minister Robert Menzies. This demonstrates just how fragile the system can be. Finally, executive power in areas over which Parliament has not been given express legislative power will sometimes be held to be valid under the nationhood power if there is not a conflict with the interests of the States.¹⁷

Legislative Powers

The next source of power is those conveyed to the Commonwealth by legislation,¹⁸ either to grant new powers to the executive or to supplement, reinforce, or extend existing powers. Royal Commissions are a primary example of this, with the Royal Commission Act 1902 (Cth), authorising the Governor-General to call for Royal Commissions to investigate various issues and hand down their findings, which the government can choose to act on. As we have seen, in practice the Governor-General acts on the instructions of the government in summoning Royal Commissions. However, arguably the biggest aspect of this source of executive power is delegated legislation, Australia’s version of Executive Orders. Delegated legislation includes regulations, rules, and other forms of subordinate legislation, which are collectively referred to as legislative instruments, to distinguish them from legislation proper. One example of this is the delegated legislation authorised under the Biosecurity Act 2015 (Cth). Section 51 of the Act authorises the Health Minister to issue preventative biosecurity determinations, and take measures like stopping incoming international flights. These determinations are delegated legislation. Therefore, the Department of Health can issue various legislative instruments under this Act, depending on what it allows them to do. Jacob J justified the need for these executive powers, indirectly referring to delegated legislation and Royal Commissions, in Victoria v Commonwealth and Hayne (1975) 134 CLR 338, at 412-413:

“Inquiries on a national scale are necessary and likewise planning on a national scale must be carried out. Moreover, the complexity of society, with its various interrelated needs, requires coordination of services designed to meet those needs.

However, the doctrine of responsible government means that the Ministers, and their respective Departments, are to be held accountable by Parliament. Therefore, the Legislation Act 2003 (Cth) governs Parliamentary oversight of delegated legislation, including regular review of these legislative instruments, as well as the authority to repeal them.¹⁹ Various committees are also established in each House of Parliament to monitor the delegated legislation and report to Parliament all actions taken under it, for Parliament to review, and repeal if need be. This is the result of the incomplete separation of the legislature and executive. So although delegated legislation is the Australian equivalent of Executive Orders, the powers possessed by the Commonwealth are weaker than those in the US.

Contracting and Spending

This power is underpinned by the concept of the federal executive, and specifically the Crown, as a legal entity. For an explanation of that, refer to The Australian Government #8. Because the Commonwealth is a legal entity, it is able to enter into contracts and spend money. Section 81 of the Constitution states that all funds must be kept in the Consolidated Revenue Fund. Section 83 prevents this money from being spent without an appropriation bill being passed by Parliament to authorise this spending. Again, the notion of responsible government is relevant here. Appropriation bills must originate in the House of Representatives, and the Senate can either accept or reject them,²⁰ keeping the executive accountable. Appropriation bills “furnish the Crown with [the] authority and opportunity to obtain the money it desires” for government expenditure,²¹ but the executive must comply with any restrictions or limitations imposed by Parliament on spending the money.²² It should be noted that Sections 81 and 83 do not grant the spending power themselves;²³ it must be grounded “in some other head of Commonwealth legislative power.”²⁴ This then requires a complicated process of determining whether the spending falls sufficiently under these heads of power (such as Section 51). For example, in Williams v Commonwealth (No 2) (2014) 252 CLR 416, the Commonwealth justified spending money on Scripture Union Queensland’s chaplaincy program under Section 51 (xxiiiA) of the Constitution, which allows for “the provision of … benefits for students,” but the High Court found that because it did not “provide benefits which are directed to the consequences of being a student,” it was invalid. However, that is way too complex and long to discuss here, and I’ve already used way too much legalese. Congrats if you made it this far, by the way. You’re almost at the end. I want to end this paragraph on an interesting note: Davis v Commonwealth (1988) 166 CLR 79 suggests that if another source of executive power is present, such as the nationhood power, it will support the use of the spending power. This means that there is some overlap, which I think is pretty neat, but then again, I am a massive legal nerd (in case you couldn’t already tell).

Constitutional Powers

Aside from the constitutional powers of the executive that we have discussed in previous articles, there are several more worth mentioning. Sections 86-88 deal with customs and excise duties. The control and collection of these are the responsibility of the executive, under s 86. The same applies to taxation and coinage, Sections 114 and 115, respectively. Because the States cannot levy taxes, customs, or excise duties without the consent of the Commonwealth, the Commonwealth cannot keep more than 25% of the revenue from customs and excise duties, with the rest going to the States, per Section 87. In contrast, in the USA the states and the federal government can both raise taxes. Customs and duties are to be uniform, meaning that they are the responsibility of the Commonwealth. This operates in conjunction with Section 92, which requires that all interstate “trade, commerce, and intercourse … shall be absolutely free.”²⁵ The Inter-State Commission’s members, responsible for dealing with matters of trade and commerce under the Constitution, shall be appointed by the executive, in the form of the Governor-General in Council, on address to Parliament, per Section 103. Sections 105 and 105A allow the Commonwealth to take over and/or manage the States’ debts.

Well, congratulations. You’ve made it to the end of my longest article yet in this series. I hope that at least some of what I’ve said makes sense. Don’t worry though, I will be returning to each source of executive power later, and explain in more detail what they all mean. In the meantime, if you have any questions, comment them on this article or email them to Aussies4liberty@gmail.com. In the next three articles, we will look at the judicial system and its structure, the High Court, and the Privy Council and its relationship with Australia. Then, one week after the last article of this introductory series comes out, I will be hosting a Q&A on ALN’s YouTube channel. You will also get a chance to ask your questions live there. We will be streaming at 10am 29/04 Australian Eastern Standard Time /8pm 04/28 US Eastern Daylight Time. And if we get enough questions, I will do another one on the night of April 29, AEST. Stay tuned for more details about that.

Footnotes:

1. Under Section 75(iii) and (v) of the Constitution, the High Court has jurisdiction over any matter involving the Commonwealth. We will be revisiting this in two articles’ time, when we take our first look at the High Court of Australia. See Williams v Commonwealth (2012) 248 CLR 156, 314 [394]; Graham v Minister for Immigration and Border Protection (2017) 347 ALR 350, 361 [48].

2. Mason CJ, Deane and Gaudron JJ in Davis v Commonwealth (1988) 166 CLR 79, 92 said that the scope of Section 61 “has often been discussed but never defined.” Quoted in Williams, G, Brennan, S & Lynch, A 2018, Blackshield and Williams Australian Constitutional Law and Theory – Commentary and Materials, 7th edn, The Federation Press, Alexandria, NSW, p. 447.

3. In Plaintiff M68/2015 v Minister for Immigration and Border Protection, the High Court considered the Commonwealth entering into a ‘memorandum of understanding’ with Nauru about processing refugees. Parliament later retroactively passed legislation in an attempt to authorise this. However, at 71 [44]-[45], French CJ, Kiefel and Nettle J said that the legislation only dealt with what happens after entering into the agreement, rather than authorising entering into the agreement. Despite that, they said that entering into that agreement was “within the scope of the executive power of the Commonwealth with respect to aliens to enter into such an arrangement in order to facilitate regional processing arrangements.”

4. Ibid, 93 [122] (Bell J), quoting Brown v West (1990) 169 CLR 195, 202.

5. See Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274. However, the British Privy Council held in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 that although this power of judicial review does exist, it should be exercised cautiously, due to the importance of national security.

6. South Australia v Victoria (1911) 12 CLR 667, 710-711 (O’Connor J). See also New South Wales v Commonwealth (1975) 135 CLR 337; Sue v Hill (1999) CLR 462.

7. Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421, 437-440 (Isaacs J).

8. Evatt J outlined these in Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278; however, I will be referring to the summary provided in Pyke, J 2017, Government Powers Under a Federal Constitution: Constitutional Law in Australia, Thomson Reuters, Sydney, NSW, p. 144.

9. According to Gummow, Hayne, Heydon and Crennan JJ in Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195, 226, “the creation of the federation presented issues still not fully resolved of the allocation between the Commonwealth and States of prerogatives which pre-federation had been divided between the Imperial and colonial governments.” Quoted in Williams, above n 1, p. 449.

10. Australian property law is based on the doctrine of tenure, which originated in Britain. The historical position in Australia was that the Crown held absolute beneficial title over all land in Australia, merely giving grants to land owners while retaining the ultimate right to the land, through a prerogative right that was “proprietary in nature” (New South Wales v Commonwealth (1975) 135 CLR 337, 438-439). This was somewhat changed by Mabo v Queensland (No 2) 175 CLR 1, where the High Court conceded that this was not the case if it could be proven that Aboriginal and Torres Strait Islander peoples had a a native title claim to a certain area of land, the Crown would only possess ‘radical title,’ rather than absolute ownership.

11. The old common law approach was that all minerals, except for precious metals, were held by the landowner and that the landowner could own the precious metals if it was expressly allowed for in the land grant, per R v The Earl of Northumberland (1568) 1 Plowd 310; 75 ER 472; Woolley v Attorney-General (Vic) (1877) 2 App Cas 163. However, this has changed at a state level, with all minerals and precious metals reserved for the Crown, for example in the Mineral Resources Act 1989 (Qld), Section 8.

12. Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278, 320.

13. New South Wales v Commonwealth (1975) 135 CLR 337, 362 (Barwick CJ).

14. Davis v Commonwealth (1988) 166 CLR 79, 101-104 (Wilson and Dawson JJ).

15. New South Wales v Commonwealth (1975) 135 CLR 337, 375 (Barwick CJ). However, it was held by the majority that this power to legislate for the territorial seas of Australia is already covered by Section 51(xxix), the external affairs power, so the nationhood power is redundant.

16. R v Sharkey (1949) 79 CLR 121, 135 (Latham CJ). See also Burns v Ransley (1949) 79 CLR 101; R v Sharkey (1949) 79 CLR 121, 148 (Dixon J); Australian Communist Party v Commonwealth (1951) 83 CLR 1, 187-188 (Dixon J), 259 (Fullagar J). The latter case is of the more important constitutional law cases, and will receive its own article later on. However, in brief, Parliament passed the Communist Party Dissolution Act 1950 (Cth) to outlaw the Communist Party of Australia. The majority, including Dixon and Fullagar JJ, agreed that the Act was invalid not because it dealt with subversion and sedition, but because rather than making certain actions offences, which the accused would have to be taken to court over, it outright banned the party by declaring it guilty through legislation, not the courts, and authorised the Executive to declare individuals and groups guilty.

17. Davis v Commonwealth (1988) 166 CLR 79, 93-94 (Mason CJ, Deane and Gaudron JJ). In this case, it was held that the Commonwealth had executive authority over the celebration of the Australian Bicentenary. The joint judgment of Mason CJ, Deane and Gaudron JJ affirmed the ruling of Isaacs J in Commonwealth v Colonial Combing (1922) 31 CLR 421, 437-439, where Isaacs J held that the Commonwealth possesses all Crown prerogatives, except those necessary for the States or reserved for the States by the Constitution. The joint judgment applied this to the nationhood power, and ruled that the Commonwealth has executive power over areas where there is no conflict with the powers of the States. Additionally, this can also apply when the States’ interests are “of a more limited character,” as was the case here.

18. The Privy Council in Britain has held that the royal prerogative must be exercised in a manner not inconsistent with legislation (R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] 1 All ER 593), and that if legislation applies to the issue at hand, prerogative powers cannot be exercised (Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75, 101).

19. This includes strict rules that require delegated legislation to be given to Parliament to review before being put in effect. Williams, above n 1, p. 484.

20. Constitution, ss 53-54. See also The Australian Government #6.

21. Commonwealth v Colonial Ammunition Co Ltd (1924) 34 CLR 198, 222 (Isaacs and Rich JJ).

22. Auckland Harbour Board v The King [1924] AC 318, applied in Australia in Commonwealth v Burns [1971] VR 825; Commonwealth v Endresz [2020] FCA 1228.

23. Pape v Commissioner of Taxation (2009) 238 CLR 1, 212 [603]-[605] (Heydon J). See also 55 [111] (French CJ), 103-104 [291] (Hayne and Kiefel JJ).

24. Ibid, 212 [603].

25. This is one of the first sections that I want to return to after the introductory articles. Although Section 92 says “absolutely free,” the High Court has never considered it to mean absolutely free. The modern understanding of ‘absolutely free’ is found in Cole v Whitfield (1988) 165 CLR 360, where at 407-408, the court said that it will only invalidate laws that are “protectionist,” in that they are “discriminatory” against “interstate trade” and protect “intrastate trade,” although even this has caveats. Cole v Whitfield, at 393-394, affirmed the ruling of Griffiths CJ, one of the framers of the Constitution and the first Chief Justice of Australia, in Duncan v Queensland (1916) 22 CLR 556, 573, where he said that the freedom to trade does not mean that the market should be in “anarchy,” as Australians are “subject to law.”