Cheryl Saunders 'The Scope of Executive Power' – Parliament of Australia
legislative power can constrain or extend the scope of executive power. The first was .. lies the idea of Australia as a nation within itself and in its relationship. This chapter examines relations between the Senate and the executive government The scrutiny of legislation and inquiries into government activities are . Under the Australian Constitution, however, the three parts of the Parliament are. The next major text was Z Cowen, Federal Jurisdiction in Australia (, now L 22 WINTERTON - COMMONWEALTH LEGISLATIVE AND EXECUTIVE.
It is desirable for the states to work out with their Commonwealth counterparts how section 96 might be used more efficiently to administer spending programs that continue to exist.
And the executive should welcome these developments as well, although it may not presently think so. At a time of financial constraint there is much to be gained from procedures that ensure that spending programs are not undertaken hastily, that there is a broad-based commitment to them, that they are well designed and implemented and that money is well spent.
Government of Australia
It should have been a stopgap measure but it has now become a permanent measure. It was passed with great urgency by both houses because there were very compelling reasons to fix up this problem that the High Court had exposed through the Williams decision. But now we are left with this huge delegation of power to the executive to make regulations to validate all sorts of programs that may or may not have a connection with Commonwealth legislative power.
How might the structures of the parliament be up to that challenge? Cheryl Saunders — Well there is a question about that, particularly in the wake of Combet where the structures of the parliament were not up to the challenge. There are all sorts of imponderables here. One is whether the legislation will survive challenge; another is if the chaplaincy scheme comes back whether its description will survive challenge. There is a sense in which the Parliament will not be able to avoid this entirely.
Again, if you think about the terms of reference of the Senate Regulations and Ordinances Committee, it has a job to review all of these regulations which is remarkably useful. Now of course it can dodge it, but nevertheless the question will have to be considered at some stage. I wonder if you could just comment a little bit further on that?
Cheryl Saunders — I was not happy about the Tampa decision either. There are several aspects of the Tampa decision. One is what the court said about the scope of executive power and the other was what the courts said about the relationship between executive power and legislative power given that there was a Migration Act.
The question was the extent to which the executive power survived the enactment of legislation. But I think that what was actually found by the majority in the Tampa case in relation to executive power is not as broad as all that.
If you look at the way in which Justice French, with whom Justice Beaumont agreed in the Tampa litigation, framed the executive power that he found to exist, it was not as broad, for example, as the executive power that Chief Justice Black was playing with. Nevertheless, there was concern at the time that this seemed to be a new sort of executive power and where did it come from?
It may be expansive in some circumstances but there will be also cause for retraction in others. What we are seeing is the tailoring of executive power by reference to the Constitution as a whole. It is quite an interesting time, really, from that point of view.
Question — Anne Twomey said that the Pape decision was a lost opportunity to examine and limit the scope of executive government. How would you respond to that? Cheryl Saunders — I am not sure that we know the answer to that question yet. Pape is interesting because you get an outcome in Pape. A majority decision for a particular outcome but a different majority for a set of principles. At least two or three of the potential dissentients in Pape really constitute a majority for limiting the executive power by reference to principle.
So insofar as the actual outcome in Pape does not reflect that statement of views about the effect of federal limitations on the executive power, I suppose so. On the other hand, as the court said in Pape and said again in Williams reflecting on Pape, Pape was a very particular set of circumstances, what was perceived as an economic crisis requiring a quick and speedy reaction by governments.
We as a country are still all debating whether that was so or not but at the time, if you think back to the angst, it was easy to understand it.
So I do not think you can read too much into Pape because I think we are still seeing the playing out of this process of accommodating the very vague terms of section 61 to the rest of the Constitution. Question — Now that the genie is out of the bottle and given the uncertainties around the effect and validity of the amendment Act, to what extent do you think that the legislative intervention has actually reduced uncertainty? Cheryl Saunders — In relation to some programs it probably has on the assumption that the general statue itself is valid and that the very general enabling provision works, which I guess is something that we need to think about.
Government of Australia - Wikipedia
It certainly postponed the evil day but I think unless both government and parliament turn their minds to really thinking rather more deeply about the various categories of exercise of executive power now and craft appropriate legislative solutions I think that the uncertainty that you refer to will bubble on and continue to haunt all of us including the court.
Question — If there will be a change of government, for example, where there may be cuts to grants programs, do you think that if there is a contract that is ongoing and they are cutting the grant they would then need to change the regulations? Cheryl Saunders — Not necessarily, I think, but I must say I have not looked at the legislation for that purpose. I do not want to answer off the cuff because I really need to look at it and think about that.
My immediate assumption is no but that may not be right. Clearly some of these contracts are going to end anyway even if they are not arbitrarily cut and so it must have been envisaged that the arrangements would naturally come to an end. But whether they contemplated taking them out, perhaps they should or otherwise it would be a mess. Question — Within the battle between inherent power and the power derived from statutory authority, would it be correct to say that just as the defence heads of power in the Constitution and the power of the executive has as a result waxed and waned depending on the defence threat, that much of the executive power of the Commonwealth would not be fixed no matter what we do because it will wax and wane depending on the crisis involved, if indeed it is a power for dealing with a crisis?
Cheryl Saunders — The power for dealing with a crisis is only a very small part of the executive power itself, and that is certainly not what we are talking about in relation to Williams, and it has got to be a fair old crisis that we are talking about as well.How to Understand the 3 Branches of Government
Now if it is a defence crisis it is not going to be such a difficulty in any event because that clearly falls within the Commonwealth realm. The reason why Pape was interesting was because it was not so obvious that that fell within the Commonwealth realm. So I do not think that the analogy of waxing and waning really helps terribly much with the executive power. Question — I am wondering if you could comment on possible comparisons with other countries while noting that there might not be many that have a federation with written constitutions in the common law system.
I am wondering if other countries have dealt with this issue of executive power and where they might be at? Cheryl Saunders — Yes, it is a very interesting comparative project actually, exactly how interesting I had not really fully understood until preparing this paper.
In relation to other countries similar to us in the sense that they inherited institutions originally from the UK there is a similar debate going on.
There has been a debate in the UK itself. A lot of it there has revolved around the issues that I deliberately dodged here namely defence and external affairs. So there has been a big debate in the United Kingdom about whether both the prerogative in the narrow sense on the one hand and the so-called ordinary executive powers on the other should in some way be tamed by legislation.
Others have engaged in that debate as well. There is a very interesting series of articles by an Israeli academic called Margit Cohn who has done a lot of comparative work in the area and come up with some solutions of her own, one of which I actually quote in the paper, about where the lines might be drawn between inherent powers to contract and powers to contract that need statutory authority, for example. If you move outside the British common law tradition to say the continental legal tradition or versions of it, you find an entirely different ball game.
There because there is no notion of inherent executive power pre-existing constitutions that has survived, they just assume that you will find your executive power either in legislation or in the constitution. That, of course, is the logic of a written constitution, but it just takes a while to work around to it. So there are some very interesting comparisons, I think, to be drawn with, for example, Germany in how the concept of executive power has developed and its relationship with both the constitution and legislation.
Question — My question refers to sections 59 and 60 of the Constitution. Section 61 allows for a narrow prerogative of the monarchy. A recent letter to the Canberra Times raised the question of a possible referendum law passed by parliament for the establishment of a republic even before the referendum had been put could fail to receive assent from the Crown. Would you care to comment? Cheryl Saunders — I have not seen that letter so I probably should not comment on that.
One of the other things that has happened over the last one hundred years is not only have there been changes in the way that executive power is exercised and changes in the way the court has interpreted executive power but there have been changes in the relationship between the United Kingdom and Australia with Australia becoming independent at some undefined point during that time.
Now that also actually has affected the meaning of section I briefly mentioned in passing another section, section 2 of the Constitution, which authorises the Queen to confer certain powers and functions on the Governor-General. Now that is a reference to the period that immediately followed federation when Australia was not fully independent and did not have a full complement of prerogative power anyway.
In an opinion dated 9 October see below the Solicitor-General stated: I do incline to the view that the Constitution does not require that the Royal assent to Bills passed by both Houses be declared and given before the Parliament is prorogued, or the House of Representatives dissolved.
Certainly this is not specifically required by section Moreover, section 60, which provides for a proposed law reserved pursuant to section 58 for the Queen's pleasure, clearly embraces the situation that the Queen's assent may be furnished after the end of the session at which the proposed law is passed. The requirement that the Queen's assent be made known within two years is inconsistent with any inference that assent may be given only during a session of the Parliament.
Among the powers which the Senate may exercise and the functions which it may perform during recess or following a dissolution of the House are those of debating public affairs, inquiring principally through its committees into matters of concern, the presentation, publication and consideration of documents, and the disallowance of statutory instruments. In the absence of a House of Representatives to receive any bills initiated and passed by the Senate, the Senate could originate legislation for subsequent consideration and could consider and vote on legislation already passed by the House of Representatives.
An important argument in support of the Senate's powers in relation to meeting during recess and following a dissolution of the House of Representatives is that concerning the continuing nature of the Senate. The six-year terms of senators and the retirement of half the Senate every three years means that the Senate is a continuing body except on those occasions when it is dissolved simultaneously with the House of Representatives under section 57 of the Constitution.
The continuing nature of the Senate is reflected in the standing orders and other orders of continuing effect. Senate standing committees are appointed at the commencement of each Parliament and continue in existence until the eve of the opening of a new Parliament. The Senate has not asserted its right to meet after a prorogation, but has regularly authorised its committees to do so and they have met accordingly. The Senate has asserted that it and its committees may meet after a dissolution of the House of Representatives.
- Cheryl Saunders 'The Scope of Executive Power'
- Chapter 19
- Separation of powers in Australia
Prorogation As mentioned in Chapter 7, the generally accepted view is that a prorogation, as well as terminating a session, prevents the Houses of Parliament meeting until they are summoned to meet by the Governor-General under section 5 of the Constitution, or they meet in accordance with the proclamation of prorogation. According to this view, orders and resolutions which are not of continuing effect cease to have force and all business on the Notice Paper lapses and must be recommenced in the new session.
Standing order provides that bills which have lapsed as result of a prorogation may be revived in the following session provided that a periodical election for the Senate or general election for either House has not taken place between the two sessions. The standing orders empower most standing committees of the Senate to meet during recess and some of the relevant provisions refer explicitly to the period of a dissolution of the House of Representatives.
The Senate has asserted since the right to empower committees to meet during the recess which follows a prorogation. On 6 June 18 the standing orders of the South Australian House of Assembly were adopted by the Senate on a temporary basis until it had drafted its own. The standing orders continued to grant these committees, and certain others, power to act during recess. Upon its establishment in the Standing Committee on Regulations and Ordinances was also given this power.
The power of the Senate to authorise committees to meet during recess may be regarded as deriving from section 49 of the Constitution, which provides that the powers, privileges and immunities each House, its members and committees shall, until Parliament declares otherwise, be those of the House of Commons in This and related opinions are further considered below.
Opinion is divided as to whether this section also empowers the Senate to authorise committees to sit during recess.
See, for example, the opinion by Professor Colin Howard, dated Marchand that of the Solicitor-General, dated 9 Octoberreferred to below.
In the Joint Committee on Constitutional Review, at the request of the Senate, was given power to sit during recess. The minister observed that while committees of the House of Commons ceased to exist following prorogation, the situation in Australia required a different approach: Although we follow quite regularly the rulings and practices of the House of Commons where they appear to accord with the needs of our situation in Australia, each Parliament, of course, has its own way to make and its own problems to resolve.
We live in a practical and swiftly moving world, and although the prorogation may legally bring to an end a session of the Parliament, it is assumed that if we are to have a session annually the Parliament will go on and resume in a new session shortly after the New Year according to the kind of program that I outlined last week. Senate committees have since then regularly met during prorogations, for private meetings and public hearings. That certainty has also been reinforced by later House of Commons practice which demonstrates that the House does not regard prorogation as having any legal effect in a growing number of situations.
While the traditional view was that prorogation brought all business to a halt, 23 it was always the case that orders of the House of Commons had a life beyond the session if they so provided. For example, new committee standing orders agreed to on 1 December were to have effect until the end of the next session of Parliament; orders for the production of documents were also recognised as having a continuing character, whether explicitly or implicitly.
Thus Blackmore's drafting of standing orders authorising committees to meet during recess following a prorogation, based on South Australian practice and necessity, was no mistake but a reflection of contemporary House of Commons thinking. The empowering provisions for some committees explicitly refer to the period of a dissolution of the House. This positive assertion by the Senate of the right to have its committees meet during the period of a dissolution of the House reflected a need for the newly-expanded committee system of the Senate to continue to function in an election period.
In the s the standing committees frequently held meetings, including public hearings, after the dissolution of the House of Representatives. On 19 October Senator Tate, the Chairman of the Senate Select Committee on Allegations Concerning a Judge, tabled papers relating to the power of the Senate or its committees to meet after a dissolution of the House of Representatives or a prorogation of the Parliament, and the publication of a committee report when the Senate is not sitting.
Griffith, dated 9 October Opinion dated 9 October of the Solicitor-General: This opinion concludes that — the Senate may not meet after a prorogation, which has the effect of terminating a session and preventing Parliament, as an organic whole, from functioning; the Senate likewise may not meet after a dissolution of the House of Representatives, which also has the effect of preventing the Parliament from functioning; but concludes that — the Senate has the power to authorise its committees to meet after a prorogation or dissolution of the House of Representatives, because this is one of the powers of the House of Commons adhering to the Senate by virtue of section 49 of the Constitution.
This paper concludes that — it is wrong to equate a dissolution of the House of Representatives with a prorogation, and the Senate and its committees may meet after a such dissolution; in any case, the Senate and its committees may meet after a prorogation; it is not tenable to maintain that the Senate committees may meet during a period during which it is claimed that the Senate may not meet: Each of these documents supported the conclusion that the publication of the report of the Select Committee on Allegations Concerning a Judge in accordance with the resolution appointing the committee would be absolutely privileged.
The report was subsequently published and there was no challenge of any sort to its absolutely privileged nature. Following the tabling of the papers, Senator Georges requested the tabling by the President of any further opinions received on this matter, either by the President or by any other committee of the Senate.
Opinion concludes that Senate committees cannot lawfully continue to meet and transact business during the period from a dissolution of the House of Representatives to the re-assembly of Parliament in the next session.
Also clear, in the Attorney's view, that the Senate itself cannot sit during that period. Ellicott, when Commonwealth Solicitor-General. Opinion concludes that, on dissolution by proclamation of the House of Representatives, neither the Senate nor its committees have power to meet until Parliament is called together following the general election. General conclusion that the Senate and its committees may sit and function during the period from a dissolution of the House of Representatives to the meeting of Parliament in the next session and during periods of prorogation of Parliament.
That the Senate declares that where the Senate, or a committee of the Senate which is empowered to do so, meets following a dissolution of the House of Representatives and prior to the next meeting of that House, the powers, privileges and immunities of the Senate, of its members and of its committees, as provided by section 49 of the Constitution, are in force in respect of such meeting and all proceedings thereof.
Since that time the Senate has not met after a dissolution of the House, but Senate committees have regularly done so for the purposes of private meetings and public hearings. The Senate and the ministry Section 1 of the Constitution provides that the Parliament consists of the monarch, the Senate and the House of Representatives.
The titular head of the executive government is therefore also part of the legislature and joins in the exercise of the legislative power. The monarch's powers and functions are in effect delegated to the Governor-General s.
This latter requirement is the only reference in the Constitution to the practice of responsible or cabinet government, under which the ministry holds office so long as it retains the confidence of the House of Representatives. In practice this means that the prime minister is the leader of the party or coalition of parties which holds a majority in that House, and the other ministers are members of that party or coalition nominated by the prime minister or selected by the party or coalition.
Through its party majority, the ministry controls the House of Representatives. Ministers individually and the ministry collectively, however, are required by the Senate to be accountable to the Senate for their policies and their conduct of the executive government.
This accountability to the Senate is provided for in the procedures of the Senate, and is imposed through questioning of ministers, examination of government legislative proposals, and inquiries into government activities. Ministers in the Senate The Constitution vests the executive power of the Commonwealth in the Governor-General as the monarch's representative s.
In practice the Governor General acts only on the advice of the government, which is formally tendered through the Executive Council, of which all ministers are members. Parliamentary secretaries see below are also appointed to the Council. Ministers are appointed by the Governor-General on the advice of the Prime Minister. The number of ministers and the maximum amount of funds that can be appropriated to cover their salaries is prescribed, under sections 65 and 66 of the Constitution, by the Ministers of State Act as amended.
When Senator John Gorton became Prime Minister consequent upon his election to the position of leader of the Liberal Party on 10 January he sought to become a member of the House of Representatives as soon as practicable. Although there are no constitutional or statutory requirements that any ministers be members of the Senate, all governments since federation have appointed senators to the ministry. In recent decades senators have usually comprised approximately one quarter to one third of the ministry.
From time to time the proposition has been advanced that there should be no ministers in the Senate, the argument being that the Senate is not the House which determines the composition of the government, the Senate's role should be one of review and the presence of ministers inhibits that role.
For example, on 22 February Senator Hamer moved: That, in the opinion of the Senate — Senators should no longer hold office as Ministers of State, with the exception of any Senator holding the office of Leader of the Government in the Senate, who, in order adequately to represent Government priorities to the Senate, should remain a member of the Cabinet; and Chairmen of the Senate's Legislative and General Purpose Standing Committees should be granted allowances, staffs and other entitlements similar to those currently granted to Ministers other than Ministers in the Cabinet.
This motion was debated but not resolved. This "transfer" legislation may have a "sunset clause", a legislative provision that nullifies the transfer of power after a specified period, at which point the original division of power is restored. In addition, Australia has several "territories", two of which are self-governing: These territories' legislatures, their Assemblies, exercise powers devolved to them by the Commonwealth; the Commonwealth Parliament remains able to override their legislation and to alter their powers.
Australian citizens in these territories are represented by members of both houses of the Commonwealth Parliament. The territory of Norfolk Island was self-governing from untilalthough it was never represented as such in the Commonwealth Parliament.
The other territories that are regularly inhabited— Jervis BayChristmas Island and the Cocos Keeling Islands —have never been self-governing. The federal nature of the Commonwealth and the structure of the Parliament of Australia were the subject of protracted negotiations among the colonies during the drafting of the Constitution. The House of Representatives is elected on a basis that reflects the differing populations of the States. Thus New South Wales has 48 members while Tasmania has only five.