Week 5 Executive Powers

• Reserve powers


  Certain powers that may be exercised by the Governor-General acting alone, without (or indeed against) the advice of the Prime Minister and Cabinet
• Scope of executive power


  • Execution and maintenance of the Constitution
  • Execution and maintenance of the laws of the Commonwealth
• Execution and maintenance of the laws of the Commonwealth

  Administer laws, that is to put them into practice and deal with the general minutiae of legal and policy administration
• The Crown


  The executive government at Commonwealth and State level is personified by "the Crown". The Crown is a legal person, capable of seeking enforcement of its rights in Court and enjoying rights under common law and statute. The Crown is essentially an artificial person like a corporation, and acts through its personnel.
• Section 61 vests federal executive power, and states: The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
• This confirms Australia's status as a constitutional monarchy. Executive government is therefore vested in the Crown, and is carried out by Crown servants, such as Ministers and employees in Ministerial departments.
• Powers of the Governor-General

  • Exercisable by the Governor-General alone
  • Exercisable by the "Governor-General in Council", defined in s 63 as the Governor-General acting with the advice of the Federal Executive Council
• The Federal Executive Council (FEC) is in turn defined in s 62 as persons "chosen and summoned by the Governor-General", who "hold office during his pleasure".
• Section 64 authorises the creation of administrative departments supervised by "the Queen's Ministers of State for the Commonwealth". Ministers are members of the FEC, and "hold office during the pleasure of the Governor-General". They can constitutionally be sacked by the Governor-General.
• Section 64 also prescribes that no Minister may hold office for more than three months without becoming a member of the Commonwealth Parliament, ensuring a measure of individual "Ministerial responsibility".
• Chapter II vests enormous legal power in the Governor-General, and identifies that person as the head of the Commonwealth executive acting as the Queen's surrogate. Important executive officers such as the Prime Minister and the Cabinet are absent from its text. The Prime Minister and the Cabinet were created by convention.
• The principle of responsible government requires that the Governor-General acts only on the advice of the Prime Minister and Cabinet.
• Persons within the executive

  • The Governor-General
  • The Federal Executive Council
  • The Ministers
  • Ministerial departments
  • The armed forces
  • The Prime Minister
  • The Cabinet
  • The outer Ministry
  • Statutory bodies and commissions
  • Administrative tribunals
  • Miscellaneous government workers such as police officers, postal workers, quarantine and customs officials
• Reserve powers


  • Appointment of a Prime Minister
  • Refusal to dissolve Parliament
  • Dismissal of a Prime Minister
• Appointment of a prime minister

  The Governor-General may commission the leader of the party who has won the confidence of the lower house as Prime Minister, whether after a general election or between elections
• The power to refuse to dissolve parliament

  The Governor-General may refuse to call a double dissolution under s 57 on the grounds that the prerequisites for a double dissolution have not been satisfied
• The power to dismiss a prime minister

  1. A Prime Minister can be dismissed after they have lost a vote of no confidence in the lower house and refuses to resign or call an election

  2. A Prime Minister can be dismissed if the government has persistently engaged in a fundamental breach of the Constitution, despite a court judgment and/or calls by the Governor-General to desist

  3. The Governor-General may dismiss a Prime Minister if they cannot guarantee supply, i.e. passage of the budget through Parliament
• Section 61 outlines the following types of executive power: Execution and maintenance of the Constitution, and Execution and maintenance of the laws of the Commonwealth.
• The scope and nature of the executive power is described, not defined, in s 61 of the Constitution. It is administrative as well as executive, encompassing the power to effectively administer the whole government.
• The breadth of Commonwealth executive power refers to the subject-matters with respect to which the Executive Government is empowered to act, while the depth refers to the precise actions the Executive Government is empowered to undertake in relation to those subject-matters.
• The Commonwealth executive power includes the prerogative powers of the Crown, that is, the powers accorded to the Crown by the common law.
• Executive power


  Precise actions which the Executive Government is empowered to undertake in relation to those subject-matters
• Scope and nature of the executive power

  • Enables the Crown to undertake all executive action which is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution
  • Includes the prerogative powers of the Crown, that is, the powers accorded to the Crown by the common law
• Statutory (non-prerogative) power or capacity


  One of three categories of powers or capacities of the Commonwealth executive power
• Prerogative (non-statutory) power or capacity


  One of three categories of powers or capacities of the Commonwealth executive power
• Capacity which is neither a statutory nor a prerogative capacity


  One of three categories of powers or capacities of the Commonwealth executive power
• Execution and maintenance of the laws of the commonwealth

  1. The executive is charged under s 61 with the administration and implementation of the laws of the Commonwealth

  2. The legislature often authorises the exercise of considerable power by the executive with regard to the implementation of legislation

  3. The executive is often delegated power to enact binding subordinate legislation, often called "rules", "regulations" or "delegated legislation"

  4. Much of the power exercised by the executive is essentially legislative power that has been delegated by the Parliament
• The true issue with regard to the demarcation of executive and legislative power concerns the extent to which legislative power can be conferred upon the executive
• Victorian Stevedoring and General Contracting Co v Dignan (1931) 46 CLR 73


  • Section 3 of the Transport Workers Act 1928 (Cth) authorised the Governor-General to make regulations, which, "notwithstanding anything in any other Act …, shall have the force of law", with regard to "the employment of transport workers"
• Section 3 of the Transport Workers Act 1928 (Cth)

  • There were no discretionary guidelines imposed on the Governor-General, indicating that the executive had unfettered discretion to make any law with regard to transport workers' employment
  • The Act itself did not set up a legal regime with respect to transport workers; its sole effect was to authorise the making of the regulations
  • The delegation expressly authorised the overriding of prior Acts of Parliament
• Section 3 of the Transport Workers Act 1928 (Cth) was unanimously rejected by the High Court
• It is no longer disputed that, if Parliament passes a law within its powers, it may, as part of its legislation, endow a subordinate body, not necessarily the Executive Government, with power to make regulations for the carrying out of the scheme described in the statute
• The validity of the regulations of the statutes enacted by the executive, because of delegation, rests upon the accountability of the Executive to Parliament
• A regulation will not bind as a Commonwealth law unless both it and the statute conferring power to regulate are laws with respect to a subject matter enumerated in s 51 or 52
• Regulations validly made by a Commonwealth authority other than Parliament itself, acquire the character of laws of the Commonwealth
• If the express will of the Commonwealth Parliament is that the regulations shall prevail over statutes passed by Parliament itself, then prevail they do
• Limitations on delegation of legislative power to the executive

  • Parliament cannot abdicate the power to make laws. It must always retain the ability to divest the executive of its legislative power in all delegated areas
  • A delegation could fail for reason of its breadth. An overly broad delegation may well fall outside the legislative power of the Commonwealth, as it will be incapable of being "characterised" as a law "with respect to" a Commonwealth head of power
  • The Parliament obviously cannot delegate power that it does not have
• Outside these limits, Parliament has extensive power to delegate legislative power to the executive
• The executive is frequently conferred broad discretionary powers under legislation
• The High Court has never ruled legislation invalid "for contravening the separation between legislative and executive power"