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The Limit of the Constitutional Powers of the Executive

One of the most debated issues concerning Australia’s executive power is the so-called nationhood power. This has been likened to the America’s “inherent” executive power. This nationhood power can be seen in Section 61 of the Constitution of Australia where it includes the power of the executive to contract activities which are deemed unique to the Commonwealth Government yet integral to the nation. However, the problem lies on the fact that the exact scope of this “nationhood power” remains unclear hitherto.

The executive rooted its power from Section 61 of the Constitution which provides that The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.[1] Section 61 of the Constitution encapsulates different powers conferred upon to the executive. These include the following: 1. The power granted by the Constitution through the Governor-General but can only be exercised upon the advice of the Prime Minister; 2. Prerogative powers that were inherited by the government from the Crown of British and distributed between the federal and state executives; and lastly the so-called “nationhood” power.  It is also from this section that the “common law capacities” were derived. These powers include the power of the executive to spend, gather information, contract, give money away, hold inquiries, dispose of property, capacity to be sued and to sue, and to spend.

One of the salient problems with regard to this provision is the fact that it could be a broad-based means of power for intergovernmental agreements insofar as they are pursuant to statute or made between Ministers.[2] This was clearly examined in the case of Williams V Commonwealth (no. 1). In this case, the government posits that their power to give funds to the National Chaplaincy Program (NCP) was pursuant to the common law ability of the government to contract and spend.[3] On the other hand, William argued that said program of the government is unconstitutional on the ground that it protects a particular religion and contrary to the provisions on the separation of state and church and religious freedom. Although his contention was rejected, he successfully argued that in the absence of authorization from a statute, the federal government had no executive authority to provide funding or enter into service agreements. [4]

The Court ruled that when the government opted to exercise such capacities, it became a different character, such that the financial and political prowess of the government allows it to utilize them in order to regulate behavior and attain policy objectives. Majority of the justices agreed that the NSCP does not fall within the ambit of executive power. The Court elucidated that the “executive power of the Commonwealth extends to the doing of all things which are necessary or reasonably incidental to the execution and maintenance of a valid law of the Commonwealth once that law has taken effect”.[5]

This seemed different in the ruling enunciated by the High Court in the case of Pape V Commissioner of Taxation. The Court ruled that the power of the Commonwealth to spend money is not anchored in any constitutional provisions which require a prior parliamentary appropriation to justify the expenditures. Rather, this power of the Commonwealth to spend was based elsewhere in the Australian Constitution.[6] Further, the Court emphasized that the mere ability of the executive to appropriate moneys pursuant to sections 81 and 83 of the Australian Constitution does not necessarily mean it is tantamount to the power of the Commonwealth to contract in spending. Nonetheless, the nationhood power of the executive is essential as a means to respond to then current global financial crisis. Hence, the Bonus Act was a valid and constitutional law of the commonwealth.

While it may seem that the two decisions differ, both cases derived their premise on the existence of the “capacity” of the Commonwealth as the their starting point. This could be dangerous as it implies that the executive nationhood power is like floating above the Constitution and may be used easily as a justification for Commonwealth legislation on everything it may deem “emergency” which could be only addressed by the financial power of the Commonwealth. This may not reflect Australia’s federal system of government rather it is geared toward Commonwealth hegemony.

This argument has been supported by Saunders (2005), who contended that there is uncertainty of the application of Section 61 especially those government agreements which tend to overlap with the legislative power. The nationhood power could be traced from the “common law capacities” or those powers that has been enjoyed historically and shared by the Crown with any natural or juridical persons. For how many years, this power has been exercised and accepted yet the breadth or extent of the capacities remain undefined.

Another critic of the said executive power posits that any legislation that establishes a process for varying or eradicating the prerogative should have to be done in unambiguous and clear language, where the specific aspect of executive power is “intimately connected to Australia’s status as an independent, sovereign nation state”.[7] A matter which may be deemed of national importance does not automatically confers expansion of legislative power of the Commonwealth.

From the foregoing considerations, the problem lies in the fact that the executive power has no clear and defined boundary to the extent that it overlaps its roles with the legislative department. The dilemma becomes more evident when an attempt was made to define the clear mandate of the executive – should it be expanded or confined? In the course of ascertaining its defined roles, should the roles be enumerated or follow what has been the conventional or traditional way of exercising it? Although it may seem all-encompassing, agreements executed pursuant to this provision should always be consistent with the structure and text of the Australian Constitution.



Appleby, G and Webster, A, ‘Executive Power Under the Constitution: Presidential and Parliamentary System Compared’ (2016) 87 University of Colorado Law Review

Saunders, C, ‘Intergovernmental agreements and the executive power’, (2005) Public Law Review.

[1] Commonwealth of Australia Constitutional Act, Section 61.

[2] Cheryl Saunders, Intergovernmental agreements and the executive power, (Public Law Review 2005) 312.

[3] Williams v Commonwealth of Australia [2012] HCA 23.

[4] Ibid.

[5] Ibid.

[6] Pape v Commissioner of Taxation.

[7] Gabrielle Appleby and Adam Webster, Executive Power Under the Constitution: Presidential and Parliamentary System Compared (University of Colorado Law Review 2016) 1163.

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