CASES
Austin The law was so burdensome because it was going to affect the State’s ability to get recruit new judges
PART 3 – THE EXECUTIVE POWER OF THE COMMONWEALTH
CLASS 11 – EXECUTIVE POWER – THE SOURCE, N ATURE AN D SCOPE
Hypothetical Answer – What is the extent of the Executive power to act with respect to nationhood power?
Section 61 of the Constitution is the source of the Executive power, vesting the power of the Commonwealth into the Queen (or her representative), for the purpose of executing and maintaining the Constitution and its laws. This includes the execution of laws made by Parliament and non-statutory powers that have been incorporated through section 61.
1. Is the statute constitutionally valid?
a. Is the statute supported by a head of power?
b. Does the statute violate any limitation on federal legislative power?
2. Is the executive’s action directly authorised by, or reasonably necessary for the purpose of executing, the statute?
Execution and maintenance of the Constitution
Section 61 of the Constitution acts as a vehicle to confer powers of execution and maintenance of the Constitution onto the executive. These powers include prerogative of the Crown, ‘capacities’ of the Commonwealth, statutory executive powers, and the Nationhood power (section xxxix).
Execution and maintenance of the Commonwealth
• Section 64 – ‘Administer such departments of State of the Commonwealth’ – run the day-to-day activities of the Government
o EG: Employing people, giving them laptops, establishing climate change body
• Section 68 – Command in chief of the naval and military forces Prerogatives
The prerogatives refers to powers of the Crown that were properly attributable to the Commonwealth.
English law provides assistance with section 61 and interpreting ‘prerogative power’. Historically,
prerogative powers were considered part of the incidental powers under section 61, such as the executive’s ability to enter Australian treaties or declare war. However, following Williams (No 2), the court
distinguished the UK executive power from the Australian executive power, stating the UK’s power is subject to its Constitution and principles.
Not covered in this course Nationhood power
• ‘Capacity 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’ (AAP Case, Mason J, 397)
o What you expect a nation to do, and only that
• Davis
o Commemorate a national event
o Create a company to deal with the creation of the event
Sections 61 and 51(xxxix) enliven the federal allocation of executive power, permitting Parliament to make laws of the Commonwealth to ‘matters incidental to the execution of any power vested by this Constitution
… in the Government of the Commonwealth’. Simply stated, the nationhood power permits the Commonwealth government to act in the interest of the nation.
If the executive had unlimited power to spend money, section 51(xxxix) may allow the power to extend beyond those matters which may otherwise be the subject of legislative power, which could impinge onto State’s autonomy.15
The court in Pape affirmed Mason J’s definition of the nationhood power in AAP Case, which is that the nationhood power is the ‘capacity to engage in enterprises and activities peculiarly adapted to the
government of a nation and which cannot otherwise be carried out for the benefit of the nation’.16 However, the court in Pape had differing opinions on the scope of the power.
If applicable Pape
French CJ (narrow view) – French CJ was concerned about the scope of the power enabling the executive to serve the proper purposes national government. In doing so, his honour emphasised the
‘exigencies of national government’ stating that the nationhood power can provide support, but only if the support is within the capacity and resources of the Commonwealth government.17 Accordingly, French CJ took a narrow view of the problem and defined it as short-term fiscal measures finding that the nationhood power could be invoked to provide support.
Gummow, Crennan & Bell JJ (broad view) – Their honours interpreted section 61 as the protection of ‘Australia as a nation’ with the limit that the executive cannot do whatever it wanted whilst labelling it a
‘national emergency’.18 Accordingly, their honours defined the financial and economic problem as one that affected Australia as a nation, therefore, enlivening the nationhood power.
Hayne and Kiefel JJ (dissent) – Their honours rejected words like ‘emergency’ and ‘crisis’ meeting the criteria for constitutional validity.19 Cannot inflate a problem more than it is purely so that parliament can do whatever they want (French CJ thought this as well).
RE Woolley
In Re Woolley (2004) 225 CLR 1 27 [63] McHugh J commented that: “[t[he Federal Parliament has no general power to make laws with respect to imprisonment or detention.” Consequently, the Federal Parliament can only enact a law for executive detention without a judicial order in limited circumstances.
Nationhood power is not detention.
Davis v Commonwealth
15 Williams (No 1), Crennan
16 AAP Case, Mason J, 397
17 Pape, French CJ, 60, 63
18 Pape, Gummow, Crennan and Bell JJ, 89, 91
19 Pape, Hayne and Kiefel JJ, 122
Brennan J in Davis v Commonwealth (1988) 166 CLR 79, 112 'Where the Executive Government engages in activity in order to advance the nation - an essentially facultative function - the execution of executive power is not the occasion for a wide impairment of individual freedom.’
Williams (No 2)
Brennan J stated that the Commonwealth and the States agreeing on the Commonwealth using the power is not sufficient to enliven the Nationhood power.20 ‘Consultation between the Commonwealth and States coupled with … acquiescence by the States does not supply otherwise absent constitutional power to the Commonwealth’,21
Capacities Power
Power to contract & spend public money (Williams No 1).
• Williams No 1 – tells you when Parliament can’t spend money, but not what they can do o French CJ – 5 scenarios when you can enter into contracts and spend money
▪ ▪ Go to Appropriation for analysis continued
CLASS 12 – APPROPRIATION – EXECUTIVE POWER TO SPEND
Hypothetical Answer – Is there valid authorisation to spend the monies?
Executive power to spend
The executive is unable to contract and spend money like an ordinary person, nor can it contract and spend money when it is not part of a subject matter falling within a commonwealth head of power.22 Unlike an ordinary person, the executive is unable to spend moneys on anything it wants to. To spend moneys, the Commonwealth must appropriate the money, and then have a valid reason to spend the money.23 The criterion includes:24
a. Administration of department of state (section 64)
i. Things that the Commonwealth parliament does in the ordinary course of
administering a recognised part of government does not require an additional statute25
20 Williams (No 2), French CJ, Hayne, Kiefel, Bell and Keane JJ, 467
21 Williams (No 2), French CJ, Hayne, Kiefel, Bell and Keane JJ, 467
22 Williams (No 1)
23 Sections 81 and 83; Williams (No 1)
24 Williams (No 1), French CJ, 179 – 80
25 Williams (No 1), French CJ, 211 – 12
PART 6 – REPRESENTATION AND RIGHTS
CLASS 21 – REPRESEN TATION A ND RIGHTS: FREEDOM OF POLITICAL COMMUNICATION
Hypothetical Answer – Has the law impinged on the right to freedom of political communication?
Detail the principal issue.
The Commonwealth cannot make laws that impinge on the freedom of political communication. This is because this freedom is ‘indispensable to [the] accountability and [the] responsibility … to public affairs and political discussion.166 Further, a key foundation of Australia’s legal system is that of responsible and
representative government, and Parliament being chosen by the people. Therefore, the freedom of political discourse is an implied necessity to allow citizens to exercise free and informed choice as electors.
The court in Lange initially provided the tests to determine if a law is invalid in that it impinges on the freedom of political communication. These tests have since been revised and applied in McCloy and Edwards.
Does the law effectively burden freedom of communication about government or political matters either in the terms, operation or effect?
Detail whether the law in the facts inhibits freedom of political communication.
Use as necessary Lange –
Coleman – Discussion about police officers and their affairs can affect people’s voting at an election Monis – Discussion about the Australian Army can affect people’s voting at an election
Unions NSW – Freedom of political communication extends to states
Clubb – Discussion about the moral or ethical choices of a particular individual is not the same thing as discussion of political choices made by people
Is the purpose of the law legitimate in the sense that it’s compatible with the maintenance of the constitutionally prescribed system? (Legitimate end)
Only answer this question if the answer to the previous question was ‘yes’. If the answer to question 2 is
‘no’, then the law exceeds the implied limitation and the law is invalid.
To determine whether the law is representative government, one must look at the means adopted to achieve that purpose and whether it is legitimate. Is the purpose of the law compatible with the maintenance of the constitutionally prescribed system of representative government?167
Use as necessary
Coleman - Purpose of the law to regulate civility of discourse – Offence to use insulting words
• TEST: The law being valid must be limited to circumstances in which a violent response is either the intended or reasonably likely to result (Coleman)
166 Australian Capital Television
167 McCloy; Lange
o Plurality – Stated that ‘Australian politics has regularly included insult and emotion, calumny and invective, in its armoury of persuasion They are part and parcel of the struggle of ideas
… that bring debates of the Federal Parliament’ (Kirby J, [239]). Australian political discourse is not one of civility, there is a lot of emotion.
▪ Narrowed the permissible scope of impermissible law
o Hayden J (dissent) – Public civility might benefit from non-violent discourse
o Gleeson J (dissent) – Someone who is yelled at might disengage from public discourse Clubb – Purpose of the law is to protect the dignity of those seeking legal medical services. This was considered to be a legitimate purpose. Inconsistent with human dignity is forcing a decision upon them.
Therefore, if someone is trying to force a decision upon you, then the law can restrict this communication for the purpose of keeping human dignity
Monis –
Purpose of the law was to prevent offence168
Purpose of the law is to prevent serious form of offence that causes significant emotional reaction or psychological response169
It is likely that the second step of the McCloy test will be satisfied to the extent that the purpose includes protection against attempts to prevent the exercise of healthcare choices available under laws, those purposes are readily compatible with the system.
Is that law reasonably appropriate and adapted to advancing that legitimate object in a manner that’s compatible with the constitutionally prescribed system of representing responsible government? (means) The third test must be satisfied via three tests to determine if the burden onto freedom of political
communication is reasonable proportional to the purpose it seeks to reach.170 1. Is the law suitable in that there is a rational connection?
o Low threshold to pass this, rarely anything fails
o In Clubb, the law was suited because there was a rational connection between protecting people trying to get medical health and stopping people from being spoken to within 150m of the entrance. It is about stopping harassment, not just other people seeing the harassment.
2. Is the law necessary in that there are reasonably practical means to achieve the outcome?
o In Clubb, the aim was to prevent harm, not the protests itself. It was to protect human dignity and to prevent anxiety and distress. It was to facilitate people seeking health, because they might be deterred.
3. Is the law adequate in balance in that the benefit and burden onto political communication balance each other well?
o In Clubb, the burden was small (150m distance having to be kept and it was only communication about abortion that is restricted). The burden’s purpose is valid, it’s an important aim and it justifies the limited/targeted burden.
If the answer to the above proportionality testing is ‘no’, the measure taken will exceed the implied limitation on legislative power
If the answer to each question is ‘yes’, the law contravenes the implied freedom and is thus invalid.
168 (Monis, French, Hayne, Hayden JJ)
169 (Monis, Crane, Kiefel, Bell JJ)
170 Clubbs
