Handbook home
Executive Power in Australia (LAWS70447)
Graduate coursework level 7Points: 12.5Not available in 2020
For information about the University’s phased return to campus and in-person activity in Winter and Semester 2, please refer to the on-campus subjects page.
Please refer to the LMS for up-to-date subject information, including assessment and participation requirements, for subjects being offered in 2020.
Overview
Fees | Look up fees |
---|
The powers of the executive branch of government have been debated in some of the most significant constitutional cases in Australia in recent years. Despite the High Court’s decisions in the School Chaplains Cases, Pape v FCT and migration cases including CPCF v Minister for Immigration and Border Protection, the scope of these powers and the validity of many government programs and activities remain very unclear.
This subject will explain and critically analyse the key contemporary questions relating to the powers of executive government in Australia. It will help students understand the current complexity and anticipate future developments in the High Court.
Key questions to be addressed include: When can the Commonwealth act through the executive branch alone? When does it require legislative support for its programs? What is the effect of legislation on the inherent powers of the executive branch? When can legislation displace, override or otherwise limit executive power? When does executive power stray into powers that can be exercised only by the legislature? How do these questions play out in the context of the federal system? Can the Commonwealth “outsource” the exercise of executive power to private bodies? Are there limits on the powers of Parliament to hold the executive accountable? What does the Commonwealth become liable for harmful consequences of executive action? What light does the constitutional law of comparable jurisdictions shed on any of these questions?
Professor Simon Evans is a constitutional law scholar at Melbourne Law School with particular expertise in the executive branch of government. Graeme Hill regularly advises the Commonwealth and state governments concerning constitutional matters and appears in the High Court in such matters, including matters related to executive power.
Principal topics include:
- The conceptual foundations of executive power: the Crown, the nation and the people
- Inherent executive power and non-statutory executive power, including the continuing relevance of “the prerogative”
- The privileges and immunities of the executive government
- The liability of the executive government
- The effect of legislation on non-statutory executive power and on executive discretion
- Responsible executive government in a contemporary federation
- The executive power to conduct foreign relations and the impact of international law
- Executive spending, contracts and section 96 grants: the impact of responsible government, federalism and separation of powers
- The executive as law-maker and the validity of delegated legislation.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have an advanced and integrated understanding of the constitutional principles relating to the executive branch of government in Australia, including recent developments in this field of law and practice
- Be able to critically examine, analyse, interpret and assess these principles in the constitutional and governmental contexts in which they are relevant
- Be an engaged participant in debate regarding emerging and contemporary issues in the field, such as the federal limits on Commonwealth executive power, the scope of State executive power and the constitutional implications of outsourcing executive functions
- Have a sophisticated appreciation of the fundamental constitutional principles – including responsible government, federalism, the separation of powers and the rule of law – relevant to developments in this area
- Have an advanced understanding of the constitutional implications of contemporary modes of governance, including outsourcing, intergovernmental and international cooperation
- Have the cognitive and technical skills to generate critical and creative ideas about the constitutional principles relating to the executive branch of government in Australia, and to critically evaluate existing legal theories, principles and concepts with creativity and autonomy
- Have the cognitive and technical skills to independently examine, research and analyse existing and emerging legal issues about the constitutional principles relating to the executive branch of government in Australia
- Have the communication skills to clearly articulate and convey complex information regarding the constitutional principles relating to the executive branch of government in Australia to relevant specialist and non-specialist audiences
- Be able demonstrate autonomy, expert judgment and responsibility as a practitioner and learner in the field of the constitutional principles relating to the executive branch of government in Australia.
Last updated: 3 November 2022
Eligibility and requirements
Prerequisites
Students must meet one of the following prerequisite options:
Option 1
Admission into a relevant Melbourne Law Masters program
Option 2
Admission into the MC-JURISD Juris Doctor
AND
All of
Code | Name | Teaching period | Credit Points |
---|---|---|---|
LAWS50024 | Principles of Public Law |
Semester 1 (On Campus - Parkville)
June (On Campus - Parkville)
|
12.5 |
LAWS50028 | Constitutional Law | Semester 2 (On Campus - Parkville) |
12.5 |
LAWS50032 | Administrative Law |
May (On Campus - Parkville)
Semester 1 (On Campus - Parkville)
|
12.5 |
Corequisites
None
Non-allowed subjects
None
Recommended background knowledge
Applicants without legal qualifications should note that subjects are offered in the discipline of law at an advanced graduate level. While every effort will be made to meet the needs of students trained in other fields, concessions will not be made in the general level of instruction or assessment. Most subjects assume the knowledge usually acquired in a degree in law (LLB, JD or equivalent). Applicants should note that admission to some subjects in the Melbourne Law Masters will be dependent upon the individual applicant’s educational background and professional experience.
Inherent requirements (core participation requirements)
The University of Melbourne is committed to providing students with reasonable adjustments to assessment and participation under the Disability Standards for Education (2005), and the Assessment and Results Policy (MPF1326). Students are expected to meet the core participation requirements for their course. These can be viewed under Entry and Participation Requirements for the course outlines in the Handbook.
Further details on how to seek academic adjustments can be found on the Student Equity and Disability Support website: http://services.unimelb.edu.au/student-equity/home
Last updated: 3 November 2022
Assessment
Due to the impact of COVID-19, assessment may differ from that published in the Handbook. Students are reminded to check the subject assessment requirements published in the subject outline on the LMS
Description | Timing | Percentage |
---|---|---|
Option 1: Take-home examination
| 100% | |
Option 2: Research paper on a topic approved by the subject coordinator
| 100% | |
Hurdle requirement: A minimum of 75% attendance | Throughout the teaching period | N/A |
Additional details
Note: Students must choose assessment from the options listed above. If an option contains parts, all parts must be completed if that option is chosen.
Last updated: 3 November 2022
Quotas apply to this subject
Dates & times
Not available in 2020
Time commitment details
136-150 hours The pre-teaching period commences four weeks before the subject commencement date. From this time, students are expected to access and review the Reading Guide that will be available from the LMS subject page and the subject materials provided by the subject coordinator, which will be available from Melbourne Law School. Refer to the Reading Guide for confirmation of which resources need to be read and what other preparation is required before the teaching period commences.
Additional delivery details
This subject has a quota of 30 students. Please refer to the Melbourne Law Masters website for further information about the management of subject quotas and waitlists.
Last updated: 3 November 2022
Further information
- Texts
Prescribed texts
Specialist printed materials will be made available free of charge from the Melbourne Law School prior to the pre-teaching period.
- Related Handbook entries
This subject contributes to the following:
Type Name Course Graduate Diploma in Government Law Course Master of Public and International Law Course Graduate Diploma in Legal Studies Course Master of Laws - Links to additional information
law.unimelb.edu.au
- Available through the Community Access Program
About the Community Access Program (CAP)
This subject is available through the Community Access Program (also called Single Subject Studies) which allows you to enrol in single subjects offered by the University of Melbourne, without the commitment required to complete a whole degree.
Entry requirements including prerequisites may apply. Please refer to the CAP applications page for further information.
Additional information for this subject
If required, please contact law-admissions@unimelb.edu.au for subject coordinator approval.
- Available to Study Abroad and/or Study Exchange Students
This subject is available to students studying at the University from eligible overseas institutions on exchange and study abroad. Students are required to satisfy any listed requirements, such as pre- and co-requisites, for enrolment in the subject.
Last updated: 3 November 2022