Executive Power in Australia (LAWS70447)

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.