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The focus of this subject is executive power, as it is understood in common law legal systems, with particular reference to executive power in Australia. Executive power has always played a critical role in systems of government, but in the 21st century it has become more significant than ever, for reasons that range from new modes of governance to the impact of globalisation. The subject will explore all facets of executive power: its historical evolution; relevant theoretical constructs; practical dimensions of its exercise; and the constitutional, legal, and parliamentary constraints to which it is subject. In doing so, it will engage with some of the most pressing contemporary challenges for the public law of executive power including the rationale(s) for the distinction between prerogative and ‘common law’ executive powers; judicial review of non-statutory executive power; executive power in a federal context; the executive and ‘external’ powers.
The subject will draw on comparative material to examine issues and options for meeting these challenges. It should be of considerable interest to Australian and international students from all regions of the world with interests in public, comparative and/or international law.
The syllabus will be organised around 5 key themes:
- Foundations, including history, political theory, and the structure and operation of the executive in a parliamentary system
- Legal framework, including the effect of written (and unwritten) Constitutions and the distinctions between statutory and non-statutory executive power, between the prerogative and other forms of non-statutory power and between law and policy; executive privilege and immunities.
- Constraints, including those presented by Parliament, by judicial review and by other forms of external review
- Key challenges for the domestic exercise of executive power, including judicial review of contract, spending and policy and the role of executive power in federal intergovernmental relations
- Key challenges for the external exercise of executive power, including the negotiation and implementation of international agreements and the commitment of armed forces.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have an advanced understanding of the history, theory, law and practice of executive power in common law legal systems
- Be able to engage critically in discussion and analysis of key aspects of executive power;
- Be able to contribute to the resolution of particular and generic problems involving executive power;
- Understand, at an advanced level, the implications of changes in governance and globalisation for the role of executive power.
- Be well-placed to anticipate and apply analytical skills to other problems of method and substance in public law.
- Understand the insights that can be derived for domestic constitutional arrangements from comparative experience, properly applied.
- Be aware of the extent to which democratic constitutional systems share broadly comparable challenges, despite differences in context.
- A capacity to understand and apply, at an advanced level, methods of comparative public law that are appropriate for the purpose sought.
- The ability to think conceptually and analytically about public law.
- The ability to think conceptually and analytically about the relationship between domestic constitutional and international law.
- An appreciation of how and why public law constructs vary and evolve over time.
- Advanced research skills in understanding and explaining issues involving public law in sufficient detail to be reliable for the purposes of sustaining an argument.
- An ability to think creatively about problems and solutions for complex challenges in public law.
- Advanced skills in researching issues in public law.
Last updated: 25 March 2022