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«The Hon Sir Gerard Brennan AC KBE, formerly Chief Justice of Australia. 17 February 2011 1. I acknowledge the Gadigal people of the Eora nation on ...»

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17.The general executive power of the Commonwealth is the power needed by the Executive Government to administer the affairs of the Commonwealth. By vesting the executive power of the Commonwealth in the Queen, it was understood that the Queen’s common law prerogative powers 15 supplied many of the powers needed for administration of the Commonwealth just as her prerogative supplied for the Executive Government of the United Kingdom many of the powers needed for the administration of the United Kingdom16.

18.The royal prerogative is of ancient origin. It is a “special preeminence which the King hath over and above all other persons and out of the course of the common law” 17. It extends “to all powers, preeminences, and privileges, which the law giveth to the Crown” 18.

In Cadia Holdings Pty Ltd v State of New South Wales 19, (where the issue was the classification of a mine producing gold and copper), the plurality judgment noted that the prerogative “concerns the The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (the Wooltops case) (1922) 31 CLR 421, 437, 461; The King v Hush; ex parte Devanney (1932) 48 CLR 487, 511;

Johnson v Kent (1975) 132 CLR 164, 174.

See per Dixon J in Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278, 304; and per Gummow, Crennan and Bell JJ in Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, 89 [233].

1 Bla.Com.239 cited by Chitty “The Law of the Prerogatives of the Crown” (1820, London) p 4.

Coke on Littleton, 90b.

[2010] 84 ALJR 588, 606; [2010] HCA 27, par. 75.

enjoyment by the executive government of preferences, immunities and exceptions peculiar to it and denied to the citizen 20 or, more specifically, of an exceptional right which partakes of the nature of property. 21” The outer limits of the prerogative power have never been determined – historically the King’s powers waxed and waned and it is accepted that the full extent of the prerogative cannot be defined 22.

19.The executive power conferred by s 61 includes as much of the prerogative powers of the Queen as “is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution”, to adopt the words of Mason J in Barton v The Commonwealth23. The plurality majority

judgment in Cadia 24 said:

“The executive power of the Commonwealth of which s 61 of the Constitution speaks enables the Commonwealth to undertake executive action appropriate to its position under the Constitution and to that end includes the prerogative powers accorded the Crown by the common law. 25” Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, 83 [214].

Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278, 320-321; Attorney-General (NSW) v Butterworth & Co (Aust) Ltd (1938) SR (NSW) 195, 246In Burmah Oil Co (Burmah Trading) Ltd v Lord Advocate [1965] AC 75, 99; Lord Reid observed “[i]t is not easy to discover and decide the law regarding the royal prerogative and the consequences of its exercise.” And Nourse LJ in the English Court of Appeal R v Secretary of State for the Home Department, ex p. Northumbria Police Authority (1989) QB 26, 56 observed that – “It has not at any stage in our history been practicable to identify all the prerogative powers of the Crown. It is only by a process of piecemeal decision over a period of centuries that particular powers are seen to exist or not to exist, as the case may be. From time to time a need for more exact definition arises”.

(1974) 131 CLR 477, 498.

[2010] 84 ALJR 588, 608; [2010] HCA 27, par. 86.

Barton v The Commonwealth (1974) 131 CLR 477, 498; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, 61-62.

As the prerogative is vested in the Monarch personally, the introduction of a republic might arguably eliminate the prerogative and all the “powers, pre-eminences and privileges” carried by the prerogative 26. If the non-statutory executive power did not extend beyond the powers attributable to the prerogative, as George Winterton and Peter Gerangelos would hold 27, the introduction of a republic might arguably eliminate a major content of the executive power of the Commonwealth. However, the executive power contains more than the prerogative. It includes powers conferred by statute and certain non-prerogative capacities. In the AAP Case28 Mason J held that s 61 confers on the Executive Government “power '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'”. I adopted this criterion in Davis v The Commonwealth 29 and, subject to certain qualifications not presently relevant, that was followed by the majority plurality judgment in Pape 30. In the same

case, French CJ may have gone further. He said 31:

“Section 61 is an important element of a written constitution for the government of an independent nation. While history and the common law inform its content, it is not a locked display cabinet in a constitutional museum. It is not limited to statutory powers and the prerogative. It has to be capable of serving the proper purposes of a national government.” See per Dixon J in Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278, 304.

“Parliament, the Executive, the Governor-General and the Republic: The George Winterton Thesis” in HP Lee and PA Gerangelos (eds) Constitutional Advancement in a Frozen Continent (Sydney, The Federation Press, 2009) p189.

(1975) 134 CLR 338, 397.

(1988) 166 CLR 79, 93.

Gummow, Crennan and Bell JJ (2009) 238 CLR 1, 87.

(2009) 238 CLR 1, 60 [127].

Note also that Hayne and Kiefel JJ (2009) 238 CLR 1, 119 held that “the ambit of the Commonwealth executive power is to be identified having regard to the whole of the constitutional structure”. The wide construction given to s 61 in Pape has been criticised: see Whatever be the scope of the executive power conferred by s 61 and whatever be the content derived from the prerogative, it would be desirable to provide that the scope and content of the executive power is unchanged by a transition to a Republic, though it be vested in and be exerciseable by the President. A “no change” provision would confirm that the law affecting the exercise of the executive power developed in the cases over the last century would be applicable to the new provisions. Thus the common law conditions on the exercise of a prerogative power33 would inform the law governing the exercise of a corresponding power under a republican successor to s 61. The Executive Government’s control of the general executive power would be maintained by an express provision that the President would act, but act only, on ministerial advice. That provision would extend to the function of the Commander in Chief of the defence forces under s 68 34.

20.In a republican Constitution, no change would be needed to the powers now vested in the Governor-General in Council 35. They are expressly required 36 to be exercised on advice by the Executive Council and would be so exercised by a President. Apart from some obsolete provisions, these powers relate to the issuing of writs for “Pushing the Boundaries of the Executive Power – Pape, the Prerogative and Nationhood Powers” by Anne Twomey in (2010) 34 Melbourne University Law Review 313.

See, for example, Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508 and Burma Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75.

Lane v Morrison (2009) 239 CLR 230, 249-250; and see Vol 1 p 346, par 5.175 of the Final Report of the Constitutional Commission (1988).

Sections 32, 33, 64, 67, 70, 83 and 103.

Section 63.

the election of members of the House of Representatives 37, the establishment of departments of State38 and the appointment and removal of Justices of the High Court and other Courts created by the Parliament 39.

21.Then there are powers vested in the Governor-General personally.

Leaving aside some mechanical functions 40 and powers which have become obsolete, they are powers to appoint and to dismiss the Prime Minister and Ministers (sections 62 and 64), to prorogue the Parliament and to dissolve the House of Representatives (sections 5 and 28), and to dissolve both Houses of Parliament when section 57 permits a double dissolution. These are ordinarily exercised only on ministerial advice but, in particular circumstances, a GovernorGeneral may exercise these powers without, or even contrary to, ministerial advice.

22.On 11 November 1975, Sir John Kerr exercised the reserve power under section 64 to dismiss Mr Whitlam and to appoint Mr Fraser as Prime Minister, then, acting on the advice of Mr Fraser, he dissolved both Houses of Parliament under section 57. The controversy which followed the dismissal demonstrates the importance of prescribing a mechanism for supervising the exercise of the reserve powers, especially if Australia adopts a republican form of government.

Sections 32 and 33.

Section 64.

Section 72. A power to appoint members of the Inter-State Commission also requires the advice of the Federal Executive Council: s.103.

See sections 7, 15, 17, 19, 21, 35, 37, 42.

23.Sir Harry Gibbs, in a paper written for Australians for Constitutional

Monarchy 41, explained the need for reserve powers:

“According to the conventions, there are some powers which the Governor-General may exercise according to his own discretion, and without the advice, or even contrary to the advice, of the Ministry. These powers, which are rather misleadingly called ‘reserve powers’, are designed to ensure that the powers of the Parliament and the Executive are operated in accordance with the principles of responsible government and representative democracy, or in other words, to ensure that the Ministry is responsible to Parliament and that the ultimate supremacy of the electorate will prevail. The reserve powers provide an essential check against abuse of power by the Executive or by Parliament. In Australia,.... they fill a real need in relation to the Executive.”

24.At present, if a Governor-General were minded to exercise a reserve power unjustifiably, the disincentive would be the risk of peremptory removal from office by the Queen on the advice of the Prime Minister. Sir John Kerr had to face that prospect on 11 November 1975 but, with the support of Sir Garfield Barwick, he attributed his authority to dismiss Mr Whitlam to a convention permitting the dismissal of a Prime Minister who could not secure supply. Professor Winterton, however, stated the convention differently, submitting that the reserve power of dismissal depended on the Prime Minister losing the confidence of the House of Representatives 42.

25.Despite the uncertainty and controversy that the events of November 1975 created and the conflicting views of eminent constitutionalists about the content of relevant conventions, the 1998 Constitutional “Reserve Powers of the Governor-General and the Provisions For Dismissal” 21 August 1995.

“1975: The Dismissal of the Whitlam Government” in G Winterton and HP Lee (eds) Australian Constitutional Landmarks (Melbourne, Cambridge University Press, 2003) 229, 243–245.

Convention proposed that undefined reserve powers and relevant conventions should continue to exist 43. Accordingly the 1999 Bill would have authorized the exercise of a reserve power by a President “in accordance with the constitutional conventions relating to the exercise of that power” 44, accepting at the same time that the conventions should be allowed to evolve 45. How would that formula have been applied to the Dismissal? In the United Kingdom, the convention is that dismissal is warranted only when the Commons (which controls supply) loses confidence in the Government 46, but in Australia, where the Senate has ability to block supply, may the Barwick view of the convention be justified as an antipodean evolution of the United Kingdom convention? The question illustrates an objection to the proposition that reserve power can be controlled merely by reference to “constitutional conventions”. It is too uncertain to be a sufficient control on the exercise of reserve power by a President who has a fixed term in office. Judicial supervision would not be available to enforce conventions unless they were enacted as law but that would fetter their practical utility.

To quote Professor E.A. Forsey47:

“To embody them in an ordinary law is to ossify them. To embody them in a Constitution is to petrify them.” Final Resolutions of the Constitutional Convention, Canberra 1998 (1998) 9 Public Law Review 55, 56; See comment by Sir Harry Gibbs 21(3) UNSWLJ 882, 884.

Section 59 as proposed in Schedule 1 to the Constitution to be inserted by Clause 3 of the Bill.

Paragraph 8 of proposed Schedule 2 to the Constitution (inserted by Clause 3 of the Bill).

See Winterton, “1975: The Dismissal of the Whitlam Government”, above n 42, 244 and New South Wales v Bardolph (1934) 52 CLR 455, 509. See also Egan v Willis (1998) 195 CLR 424, 453 and 503.

Evatt and Forsey on the Reserve Powers (Sydney, Legal Books, 1990) p.xc.

26.A codification of the conventions was suggested by Dr H V Evatt48 and was considered by the 1993 Republic Advisory Committee 49,

but, as Forsey points out 50:

“A law covering, with precision, all the possible circumstances which might call for the exercise of even a single reserve power, let alone the lot, is surely beyond the wit of even the most learned and imaginative draftsman.”

27.If conventions were reduced to constitutional or statutory text, the text would be subject to judicial interpretation and enforcement would require exposure to judicial review involving inevitable delay and uncertainty. Delay and uncertainty are incompatible with the timely and effective exercise of reserve power in exceptional

circumstances. Sir Harry Gibbs pointed out the dilemma 51:

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