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Foreword
Published online by Cambridge University Press: 24 January 2025
Robin Creyke was the Conference Director for the Public Law Weekend Special Theme conference on executive power. She holds the Alumni Chair of Administrative Law at the Australian National University, is Vice-President of the Australian Institute of Administrative Law, a member of the Administrative Review Council, and Special Counsel with Phillips Fox Lawyers. Robin acknowledges with gratitude the assistance in the preparation of this paper of Sandy Flecknoe-Brown, and Anais D'Arville.
1 This figure is based on the number of pages of Acts and Statutory Rules combined, over the period 1946–2000. The number of pages of Acts alone increased fifteenfold over 1946–2002. By contrast, the number of Acts only increased 83% over the period 1946–2002, which indicates the increased intensity of regulation of different subjects.
2 See, eg, Ruddock v Vadarlis (2001) 110 FCR 491; Oates v Attorney-General (Cth) (2003) 197 ALR 105; Commissioner of Police for NSW v Jarratt [2003] NSWCA 326 (Unreported, Mason P, Meagher and Santow JJA, 11 November 2003); cf Bromet v Oddie [2003] FCAFC 213 (Unreported, Spender, Madgwick and Dowsett JJ, 29 August 2003); Anderson v Sullivan (1997) 78 FCR 380. The latter two cases concern the power of command at common law in the context of the police and armed forces. While that principle is not described as being of the order of an executive or prerogative power, it matches the general description of executive power in many ways (cf Ruddock v Vadarlis (2001) 110 FCR 491, 539 (French J)). For an indication of the small number of cases on executive power before the High Court see George, Winterton, 'The Limits and Use of Executive Power by Governments' (2004) 31 Federal Law Review 421Google Scholar.
3 See, eg, Sykes, E, Lanham, D, Tracey, R Esser, K, General Principles of Administrative Law (4th ed, 1997) 110–12Google Scholar; Mark, Aronson Bruce, Dyer, Judicial Review of Administrative Action (2nd ed, 2000) 96–8, 114–15Google Scholar; Peter, Cane, An Introduction to Administrative Law (3rd ed, 1996) 23–4, 34–5Google Scholar; Stanley, Hotop, Cases on Review of Administrative Action (3rd ed, 1995) 449–51 (only giving extracts of case law)Google Scholar; Roger, Douglas, Douglas and Jones' Administrative Law (4th ed, 2002) 429–37 (only extracting Ruddock v Vadarlis)Google Scholar; Margaret, Allars, Administrative Law: Cases and Commentary (1997) 800–4, 816–20 (predominantly extracts from case law)Google Scholar. It is also worthy of note that many of these discussions merely take the prerogative power as the starting point of a general discussion of the concept of justiciability, rather than focussing on executive and prerogative power in their own right.
4 Tony, Blackshield, Michael, Coper George, Williams (eds), The Oxford Companion to the High Court of Australia (2001)Google Scholar.
5 See Winterton, above n 2, 421; Chris, Horan, 'Judicial Review of Non-Statutory Executive Powers' (2004) 31 Federal Law Review 551Google Scholar.
6 See, eg, the Migration Act 1958 (Cth), discussed in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; the Extradition (Foreign States) Act 1966 (Cth), discussed in Barton v Commonwealth (1974) 131 CLR 477. For examples of the use of executive power to fill the interstices of a legislative scheme, see Anderson v Sullivan (1997) 78 FCR 380, and Bromet v Oddie [2003] FCAFC 213 (Unreported, Spender, Madgwick and Dowsett JJ, 29 August 2003). See also (for the growth of references to the incidental power and to statutory assumptions) below, nn 8–10 and text accompanying.
7 See, eg, R v Hughes (2000) 202 CLR 535; Re Wakim; Ex parte McNally (1999) 198 CLR 511; cf Graeme Hill, 'Will the High Court “Wakim” Chapter II of the Constitution ?' (2004) 31 Federal Law Review 445.
8 See, eg, Binse v Williams [1998] 1 VR 381; Anthony Lagoon Station Pty Ltd v Maurice (1987) 74 ALR 77; Kent v Johnson (1972) 21 FLR 177; Benning v Wong (1969) 122 CLR 249; Thompson v Randwick Corporation (1950) 81 CLR 87; Attorney-General v Smethwick Corporation [1932] 1 Ch 562.
9 Federal Court Act 1976 (Cth) ss 21-23, 32. The Family Court and the Federal Magistrate Service each has an equivalent provision (see Family Law Act 1975 (Cth) s 33; Federal Magistrates Act 1999 (Cth) s 18. It must be conceded that the additional jurisdiction conferred on the Federal Court in 1997 by the Judiciary Act 1903 (Cth) s 39B(1A)(c) has diminished the need for reliance on the associated jurisdiction. For the case law see: Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563; Vietnam Veterans' Association of Australia (NSW Branch) v Cohen (1996) 70 FCR 449; Turelin Nominees Pty Ltd v Dainford (1983) 47 ALR 326; Westpac Banking Corp v Eltran Pty Ltd (1987) 74 ALR 45; Allied Mills Industries Pty Ltd v Trade Practices Commission (No 1) (1981) 34 ALR 105; Buck v Comcare (1996) 66 FCR 359. Fencott v Muller (1983) 152 CLR 570; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 177 ALR 329; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643. See also Enid, Campbell, 'Accrued Jurisdiction of the Federal Court in Administrative Law Matters' (1998) 17 Australian Bar Review 127Google Scholar; Justice James, Allsop, 'Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002' (2002) 23 Australian Bar Review 29Google Scholar.
10 See, eg, Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, 164 (McHugh JA); Paterson v Director-General of Community Welfare Services [1982] VR 883; Corporation of the Town of Gawler v Minister for Transport and Urban Planning and the State of South Australia [2002] SASC 85 (unreported, Debelle J, 5 March 2002), [29]– [30]; but see Cassell v The Queen (2000) 201 CLR 189, 207–10 (Kirby J). See also Enid, Campbell, 'Ostensible Authority in Public Law' (1999) 27 Federal Law Review 1Google Scholar.
11 Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75; British Broadcasting Corporation v Johns (Inspector of Taxes) [1964] 1 All ER 923.
12 See, eg, MacDonald v Hamence (1984) 53 ALR 136 (conducting government public relations); Kent v Johnston [1972] FLR 177 (management and development of government property); New South Wales v Bardolph (1934) 52 CLR 455; Hughes Aircraft Systems International v Air Services Australia (1997) 146 ALR 1; JS McMillan Pty Ltd v Commonwealth (1997) 147 ALR 419 (the latter three concerning government contracting and tendering); Davis v Commonwealth (1988) 166 CLR 79; Victoria v Commonwealth and Hayden (1975) 134 CLR 338 ('AAP Case').
13 Winterton, above n 2; Justice Bradley, Selway, 'All at Sea – Constitutional Assumptions and 'The Executive Power of the Commonwealth' (2004) 31 Federal Law Review 495Google Scholar; Horan, above n 5.
14 The principal themes in Horan's article are considered later in this commentary.
15 Selway, above n 13, 496.
16 Ruddock v Vadarlis (2001) 110 FCR 491.
17 The issue is also adverted to, but not explored, in the article by Horan.
18 (2001) 110 FCR 491.
19 (2001) 110 FCR 491, 538–9 [179]. This view has antecedents in the opinion of Gummow J in Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 369.
20 Justice Selway does concede that it was not clear that French J had 'appreciated that he was interpreting s 61 in light of that assumption': Selway, above n 13, 505.
21 Ibid 497.
22 Recent authority in the High Court has also signalled a broader willingness on the part of that Court to develop autochthonous, distinctively Australian, interpretations of constitutional provisions: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Sue v Hill (1999) 199 CLR 462; see also Dan, Meagher, 'Guided by Voices? Constitutional Interpretation on the Gleeson Court' (2002) 7 Deakin Law Review 261Google Scholar; Winterton, above n 2, 431; cf David Bennett QC, 'Tuxedos, Robes or Mountain Boots? Formalism, Legalism and Adventurism on the High Court of Australia' (Paper delivered to the Annual Public Law Weekend, Canberra, 7–9 November 2003). The 'Australian' dimension of the legalism espoused by the High Court is a feature of its jurisprudence which commentators frequently overlook.
23 Selway, above n 13, 505; cf Winterton, above n 2, 432; see further below, text accompanying nn 45–6.
24 Selway, above n 13, 499, 505–6.
25 Ibid.
26 Various figures are available to illustrate this growth. For example, the number of migration matters filed in the Federal Court has doubled between 1998–99 (941 matters) and 2002–03 (1836 matters): Federal Court of Australia, Annual Report 2002–03 (2003) appendix 5; see also Philip Ruddock MP, 'Immigration Litigation at Record Levels' (Press Release, 3 February 2003). The Federal Magistrates Court, having only received migration jurisdiction in 2001, could claim at 30 June 2003 to hear 54 of migration matters filed in both that Court and the Federal Court (see Federal Magistrates Court, Annual Report 2002–03 (2003) 23, 26). Bearing in mind the substantial proportion of the federal caseload that migration matters make up, these figures are instructive of overall trends in administrative law caseloads. In the High Court, applications for constitutional writs jumped from 300 in 2001–02 to 2131 in 2002–03; the majority of this increase is attributable to migration matters, the vast majority of which were subsequently to be remitted to the lower courts (see High Court of Australia, Annual Report 2002–03 (2003) 93; see also Philip Ruddock MP, 'High Court workload needs addressing' (Press Release, 22 January 2004)). Statistics concerning the number of (non-migration) applications filed under the Administrative Decision (Judicial Review) Act 1977 (Cth) ('ADJR Act') are scarce, but in general suggest a decline over the last decade. The annual total of ADJR Act applications in the Federal Court in 1990–91 was 232; in 1996–97 it was 243; in 1997–98 it was 177; in 2000–2001 it was 117; and in 2001–02 it was 94: see Federal Court of Australia, Annual Report 1990–91 (1991) 73; Federal Court of Australia, Annual Report 2001–02 (2002) appendix 7. The introduction of the Federal Magistrates Court in 1999 does not account for this decline. In 2000–01 the number of ADJR Act applications filed in that Court was 11; in 2001–02, it was 28 and in 2002–03 it was 31: see Federal Magistrate Court, Annual Report 2002–03 (2003) 25. Overall, though, it is clear that the federal courts' caseloads have increased dramatically in the last five years.
27 See, eg, Barratt v Howard (2000) 96 FCR 428; Brown v West (1990) 169 CLR 195.
28 [1993] 1 FLR 940.
29 In practice, the Court avoided a jurisdictional glitch through a combination of its inherent jurisdiction and/or its statutory jurisdiction under RSC Ord 15, r 16 to grant declaratory relief (Re C (Mental Patient: Contact) [1993] 1 FLR 940 at 942 per Eastham J).
30 Barton v Commonwealth (1974) 131 CLR 477; Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25; Ruddock v Vadarlis (2001) 110 FCR 491, 501–4 (Black CJ, who was in dissent on the outcome but not on this principle).
31 See, eg, Bromet v Oddie [2003] FCAFC 213 (Unreported, Spender, Madgwick and Dowsett JJ, 29 August 2003) [54]–[56] (Madgwick J); Bromet v Oddie [2002] FCA 1148 (Unreported, Finn J, 16 September 2002) [41]–[42]; Commonwealth v Welsh (1947) 74 CLR 245, 268 (Dixon J); Coutts v Commonwealth (1985) 157 CLR 91.
32 For the full text of s 7A see Horan, above n 5, 553.
33 Ibid 554–66.
34 See above n 3.
35 Although not impossible: eg for error of law see Molomby v Whitehead (1985) 7 FCR 541.
36 Public lawyers had been aware of the possibility that contract would come to play a major role in modern administrative law for a long time. At the National Administrative Law Forum Administrative Law: Does the Public Benefit? in April 1992, Alan Rose warned that citizens would increasingly need to rely on private, rather than public law to protect their rights as public administration sees a trend towards privatisation and corporatisation: see Robin, Creyke, 'The Contracting Out of Government Services – Final Report: A Salutation' (1999) 51 Admin Review 6, 9 n 13Google Scholar. See also the prescient paper by Terence, Daintith, 'Regulation by Contract: The New Prerogative' (1979) 32 Current Legal Problems 41Google Scholar,discussed by Nick, Seddon, 'The Interaction of Contract and Executive Power' (2004) 31 Federal Law Review 541, 547Google Scholar.
37 See Seddon, above n 36, 541.
38 But note the comment by the majority in R v Hughes (2000) 202 CLR 535 that 'the scope to enact coercive laws under the executive power “remains open to some debate"' (Hill, above n 7, 457 n 73, quoting Hughes at 555 [39]). Note too the argument in Hill's paper that 'executive power supports some coercive laws' (Hill, above n 7, 458–9).
39 Congreve v Home Office [1976] QB 629; A v Hayden (1984) 156 CLR 532; and Ridgeway v The Queen (1995) 184 CLR 19. Other cases like Coco v The Queen (1994) 179 CLR 427, and Attorney-General v Smethwick Corporation [1933] 1 Ch 562 that define the approach to construing government statutory powers, can also be relevant. Compare some prerogative powers which, by their nature, authorise coercive action, for example, the prerogative powers to conduct war, and to keep the peace: see R v Secretary of State for the Home Department; Ex parte Northumbria Police Authority [1988] 1 ALL ER 556; Ruddock v Vadarlis (Tampa) (2001) 110 FCR 491.
40 Winterton, , 'The Limits and Use of Executive Power by Government', above n 2, 422–3Google Scholar.
41 The content or 'subjects in respect of which Commonwealth executive power can be exercised': ibid 428.
42 The 'activities the government can undertake with regard to those subjects': ibid.
43 Ibid.
44 Ibid 427.
45 Ibid 431.
46 Ibid 432; cf above, nn 20–3 and text accompanying.
47 Ibid 432.
48 Ibid 433.
49 The issue is also discussed at some length in the article by Horan.
50 Anne, Twomey, 'Federal Limitations on the Legislative Power of the States and the Commonwealth to Bind One Another' (2004) 31 Federal Law Review 507Google Scholar.
51 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.
52 Twomey, above n 49, 508.
53 Ibid.
54 Ibid.
55 Austin v Commonwealth (2003) 195 ALR 321.
56 Twomey, above n 49, 512.
57 Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372 as extended in Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410.
58 Twomey, above n 49, 516.
59 Ibid 519.
60 See Hill, above n 7, Part 4(A)(i).
61 See ibid Part 4(B).
62 See also Graeme, Hill, 'Revisiting Wakim and Hughes: The Distinct Demands of Federalism (2002) 13 Public Law Review 205Google Scholar.
63 (2000) 202 CLR 535. Hill also finds that such indications in High Court decisions are further reflected in lower court decisions such as R v Fukusato [2003] 1 Qd R 272.
64 Hill, above n 7, 445–7.
65 Ibid 446.
66 Ibid 4746.
67 Ibid 476.
68 Ibid 478.
69 See the authorities cited above, n 22.
70 (1988) 166 CLR 79, 92.