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The Limits and Use of Executive Power by Government

Published online by Cambridge University Press:  24 January 2025

George Winterton
George Winterton*
Affiliation:
University of Sydney
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Extract

The executive power of the Commonwealth largely has been neglected, both by the High Court and by commentators, receiving scant attention in comparison with the Commonwealth's legislative and judicial powers. The High Court has examined executive power on fewer than 10 occasions – principally three cases in the Whitlam era: Barton v Commonwealth, the AAP Case and Johnson v Kent – and, most recently, in the Bicentennial Authority Act Case in 1988. (The power has, of course, also arisen in several Federal Court cases, most notably the Tampa Case in 2001.) The relative neglect of this power is reflected in constitutional commentary, for which High Court cases represent primary 'authority'. The Commonwealth's legislative powers have, of course, received detailed examination in every major text since Quick and Garran in 1901. But, while the first monograph on Commonwealth judicial power appeared as early as 1904, almost 80 years were to elapse before publication of a book devoted to the executive power of the Commonwealth.

Type
Research Article
Information
Federal Law Review , Volume 31 , Issue 3 , September 2003 , pp. 421 - 444
Copyright
Copyright © 2003 The Australian National University

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References

1 (1974) 131 CLR 477.

2 Victoria v Commonwealth and Hayden (1975) 134 CLR 338 ( 'AAP').

3 (1975) 132 CLR 164.

4 Davis v Commonwealth (1988) 166 CLR 79.

5 Ruddock v Vadarlis (2001) 110 FCR 491 ('Vadarlis'), reversing Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452. Special leave to appeal to the High Court refused: (2001) 205 CLR 694.

6 John, Quick Robert, Garran, The Annotated Constitution of the Australian Commonwealth (1901)Google Scholar.

7 John, Quick Littleton, Groom, The Judicial Power of the Commonwealth (1904)Google Scholar. The next major text was Zelman, Cowen, Federal Jurisdiction in Australia (1959)Google Scholar, now Leslie, Zines, Cowen and Zines's Federal Jurisdiction in Australia (3rd ed, 2002)Google Scholar.

8 George, Winterton, Parliament, the Executive and the Governor-General (1983)Google Scholar. See also Renfree, H E, The Executive Power of the Commonwealth of Australia (1984)Google Scholar.

9 Thus, an Irish commentator remarked that '[c]onstitutions which provide for an executive in parliament are rarely troubled about executive power': James, Casey, Constitutional Law in Ireland (3rd ed, 2000) 231Google Scholar.

10 See Winterton, above n 8, 70, 264; Anthony, Bradley Keith, Ewing, Constitutional and Administrative Law (13th ed, 2003) 80Google Scholar; Butterworths, , Halsbury's Laws of England (4th ed re- issue, 1996 vol 8(2)) 22Google Scholar, [9] ('Executive functions are incapable of comprehensive definition, for they are merely the residue of functions of government after legislative and judicial functions have been taken away'); Renfree, above n 8, 389; Bishamber Dayal Chandra Mohan v Uttar Pradesh AIR 1982 SC 33, 41 [20]; Durga Das, Basu, Shorter Constitution of India (10th ed, 1989) 281CrossRefGoogle Scholar; Casey, above n 9, 231.

11 See Quick and Garran, above n 6, 701.

12 See ss 1, 2, 64, 66, 68 and 126.

13 See Winterton, above n 8, 236.

14 See, likewise, Christos, Mantziaris, 'The Executive: A Common Law Understanding of Legal Form and Responsibility' in Robert, French, Geoffrey, Lindell Cheryl, Saunders (eds), Reflections on the Australian Constitution(2003) 125, 128Google Scholar.

15 Constitution Act 1867, 30 and 31 Vict, c 3, s 9.

16 South Africa Act 1909, 9 Edw 7, c 9, s 8.

17 Casey, above n 9, 231.

18 Constitution of Ireland 1937, Art 28.2. See also Art 29.4.

19 Constitution of India 1949, Art 53(1).

20 Official Record of the Debates of the Australasian Federal Convention, Sydney, 6 April 1891, 778 (Sir Samuel Griffith).

21 See Michael, Crommelin, 'The Executive' in Gregory, Craven (ed), The Convention Debates 1891–1898: Commentaries, Indices and Guide (1986) 127, 131–2Google Scholar.

22 Commonwealth and the Central Wool Committee v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421, 440 ('Wooltops'). See likewise, 437 (Isaacs J).

23 Ibid 442. See likewise, 446 (Isaacs J).

24 Ibid 461.

25 R v Hush, Ex parte Devanny (1932) 48 CLR 487, 511. See, likewise, Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278, 321 (Evatt J).

26 Davis v Commonwealth (1988) 166 CLR 79, 92 (Mason CJ, Deane and Gaudron JJ).

27 Ibid 107 (Brennan J).

28 R v Hughes (2000) 202 CLR 535, 555 [39] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

29 Leslie, Zines, 'Commentary' in Evatt, H V, The Royal Prerogative (1987) C5Google Scholar.

30 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 230, adopted in respect of 'execution and maintenance' of Commonwealth laws by Gummow J in Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410, 464 ('Residential Tenancies').

31 (1922) 31 CLR 421, 432.

32 The 1891 Convention adopted Griffith's words. Their slight alteration in the final provision is, presumably, the work of the 1898 Drafting Committee.

33 Constitution s 119.

34 Brown v West (1990) 169 CLR 195, 201 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ).

35 See Winterton, above n 8, 28.

36 See AAP (1975) 134 CLR 338, 397 (Mason J), 412–3 (Jacobs J), 424 (Murphy J). See also 370 (McTiernan J).

37 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 230.

38 See Residential Tenancies (1997) 190 CLR 410, 457 (McHugh J); In re Richard Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508, 521 (Latham CJ); Sir Owen Dixon, , 'The Common Law as an Ultimate Constitutional Foundation' (1957) 31 Australian Law Journal 240Google Scholar.

39 See Barton v Commonwealth (1974) 131 CLR 477, 498 (Mason J, Barwick CJ and Jacobs J impliedly agreeing); Johnson v Kent (1975) 132 CLR 164, 169 (Barwick CJ), 174 (Jacobs J); AAP (1975) 134 CLR 338, 405–6 (Jacobs J); Davis v Commonwealth (1988) 166 CLR 79, 93 (Mason CJ, Deane and Gaudron JJ), 108 (Brennan J); Residential Tenancies (1997) 190 CLR 410, 424 (Brennan CJ), 438 (Dawson, Toohey and Gaudron JJ), 464, 474 (Gummow J); Winterton, above n 8, 31, 48–51. Pursuant to this interpretation of s 61, the Queen in December 1987 revoked the two current instruments (of 1954 and 1973) by which she had purported to assign powers to the Governor-General pursuant to s 2 of the Constitution: see Commonwealth of Australia Gazette, No S 270 (9 September 1988).

40 These range from the extremely narrow (Sir William Wade) through the view that prerogative powers are those unique to the Crown (Blackstone) to Dicey's view which would include all the Crown's non-statutory powers. Judicial and academic support can be found for both Blackstone's and Dicey's views, with academics preponderantly supporting the former. However, Dicey appears to have prevailed in the courts, as Wade has acknowledged: Wade, H W R, 'Procedure and Prerogative in Public Law' (1985) 101 Law Quarterly Review 180, 194Google Scholar ('Dicey has triumphed once again'). Sir William Wade himself has remarked that his comments on the proper meaning of the word 'were made purely for purposes of terminological accuracy, without any suggestion that they had legal consequences': Sir William, Wade, 'The Crown, Ministers and Officials: Legal Status and Liability' in Maurice, Sunkin Sebastian, Payne (eds), The Nature of the Crown: A Legal and Political Analysis (1999) 23, 31Google Scholar.

41 See Barton v Commonwealth (1974) 131 CLR 477, 498 (Mason J); Commonwealth v Western Australia (1999) 196 CLR 392, 430 [106] (Gummow J). Cf R v Secretary of State for the Home Department, Ex parte Fire Brigades Union [1995] 2 AC 513, 573 (Lord Nicholls) ('Fire Brigades'): 'the residue of discretionary power left at any moment in the hands of the Crown' (reflecting Dicey: see above n 40).

42 Commonwealth v Western Australia (1999) 196 CLR 392, 430 [106] (Gummow J).

43 The widest (Dicey) view is preferable since it includes common law powers not unique to the Crown and supposedly shared by natural persons. However, it is doubtful whether these common powers of the Crown are truly analogous to those exercised by natural persons, bearing in mind the power and authority of the Government. Is a Crown contract truly analogous to one between private citizens? Is private snooping really analogous to official surveillance? See Winterton, above n 8, 121–2.

44 See ibid 227, n 29.

45 AAP (1975) 134 CLR 338, 362 (Barwick CJ), 379 (Gibbs J), 396–7 (Mason J), 405–6 (Jacobs J).

46 Ibid 396.

47 Ibid.

48 Ibid 397 (emphasis added).

49 Ibid.

50 See above n 47 and accompanying text.

51 See Leslie Zines, The High Court and the Constitution (4th ed, 1997) 297–303.

52 See Davis v Commonwealth (1988) 166 CLR 79, 101–3 (Wilson and Dawson JJ), 118 (Toohey J).

53 See above n 47 and accompanying text.

54 R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535, 560, apparently adopted in R v Hughes (2000) 202 CLR 535, 554–5 [38] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

55 AAP (1975) 134 CLR 338, 406.

56 Ibid 405–6.

57 Ibid 412–13.

58 (1975) 134 CLR 338.

59 Winterton, above n 8, 29-30, 40–4.

60 See, likewise, Simon, Evans, 'The Rule of Law, Constitutionalism and the MV Tampa'(2002) 13 Public Law Review 94, 97Google Scholar, repeated 'Australia' (2003) 1 I.CON 123, 127–8.

61 Winterton, above n 8, 31–4.

62 Harrison Moore noted that '[i]n pursuance of its duty to maintain the Constitution and the law [sic] of the Commonwealth, the Executive may, without any further statutory authority, take whatever measures are ordinarily allowed to the Executive by the common law, to protect every branch … of the Federal Government in the performance of its duties': W Harrison, Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1910) 297–8Google Scholar. However, Moore does not state that the executive is confined to these powers.

63 (1975) 132 CLR 164.

64 (1974) 131 CLR 477.

65 AAP (1975) 134 CLR 338, 379.

66 Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452, 478–82 [110]–[122].

67 Vadarlis (2001) 110 FCR 491, 495–501 [9]–[29].

68 Ibid 501 [31].

69 Ibid 501 [30].

70 Ibid 540 [183]. Justice Beaumont concurred with the judgment of French J.

71 Ibid 542 [191].

72 Ibid 542 [192].

73 Ibid.

74 Ibid 543 [193]. Recent Irish Supreme Court authority supports the conclusion of French J: Laurentiu v Minister for Justice, Equality and Law Reform [1999] 4 IR 26, 60 (Denham J, with Hamilton CJ concurring): ('Historically, the control of aliens is for the executive ... [T]he executive of a state, as an incident of sovereignty, has power and control over aliens'); 62 (Denham J, with Hamilton CJ concurring), 91 (Keane J, with Hamilton CJ concurring): ('It was accepted by counsel in the present case that the power of the State to deport aliens independently of any statutory power was part of the prerogative power'), 93 (the 'sovereign power of the State to deport aliens … is clearly a power of an executive nature'). These remarks were entirely obiter, and it was conceded that this executive power could be 'controlled by legislation': at 93.

75 (1975) 134 CLR 338.

76 Vadarlis (2001) 110 FCR 491, 501 [31].

77 Davis v Commonwealth (1988) 166 CLR 79.

78 Ibid.

79 Ibid 93 (Mason CJ, Deane and Gaudron JJ), 103 (Wilson and Dawson JJ), 111 (Brennan J), 119 (Toohey J).

80 Ibid 94.

81 Ibid 104.

82 Ibid 114.

83 Ibid 119.

84 Ibid 110.

85 Ibid.

86 Residential Tenancies (1997) 190 CLR 410, 459 (emphasis added).

87 Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 369 (emphasis added). The second sentence essentially quotes Mason J in Barton v Commonwealth (1974) 131 CLR 477, 498.

88 Geoffrey, Sawer, 'The Executive Power of the Commonwealth and the Whitlam Government' (unpublished Octagon Lecture, University of Western Australia, 1976) 10 (emphasis added)Google Scholar. Sawer referred especially to the judgment of Mason J in AAP. Sawer later suggested that the Commonwealth government's treaty-making power might be derived from s 61 'and that there is no need to invoke any Royal prerogative at all': Geoffrey, Sawer, 'Some Little-Noticed Aspects of the Tasmanian Dams Case', Canberra Times (Canberra), 13 July 1983Google Scholar, 2. However, he subsequently based that power on 'a combination of s 61 and so much of the prerogative relevant to this matter as is required': Geoffrey, Sawer, 'The External Affairs Power' (1984) 14 Federal Law Review 199, 200Google Scholar. Sawer was unsympathetic to the notion of 'inherent' executive power; he would have preferred to confine it to 'the carrying out of the powers conferred by statute': Advisory Committee on Executive Government, Report of the Executive Government Advisory Committee to the Constitutional Commission (1987) 55. Neither the Committee nor the Commission adopted this view: ibid 56; Constitutional Commission, Final Report of the Constitutional Commission (1988) vol 1, 355, [5.214].

89 Davis v Commonwealth (1988) 166 CLR 79.

90 (1975) 134 CLR 338.

91 Colin, Munro, Studies in Constitutional Law (2nd ed, 1999) 257Google Scholar. See likewise, 'The prerogatives that remain are relics': at 258. Lord Reid likewise remarked that '[t]he prerogative is really a relic of a past age, not lost by disuse': Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75, 101 ('Burmah Oil'). For more favourable perspectives, see Sebastian, Payne, 'The Royal Prerogative' in Maurice, Sunkin Sebastian, Payne (eds), The Nature of the Crown: A Legal and Political Analysis (1999) 77, 86–7Google Scholar; and Laker Airways Ltd v Department of Trade [1977] QB 643, 705 (Lord Denning MR, noting the views of Locke and Blackstone that the prerogative is 'a discretionary power to be exercised for the public good').

92 Lord Justice, Sedley, Freedom, Law and Justice (1999) 8 n 24Google Scholar.

93 [1920] AC 508 ('De Keyser'). See also Winterton, above n 8, 300 n 58.

94 Vadarlis (2001) 110 FCR 491, 542–3 [192].

95 Ibid 542 [192].

96 Ibid 539 [181].

97 Bradley, Selway, 'Constitutional Assumptions and the Meaning of Commonwealth Executive Power' (Paper presented at Annual Public Law Weekend, Canberra, 1 November 2002) 13Google Scholar. In his verbal remarks, Selway commented further on the High Court's apparent wish to break from the past, instancing its preference for the term 'constitutional writs' instead of 'prerogative writs' in s 75(v) of the Constitution: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.

98 Commonwealth v Western Australia (1999) 196 CLR 392, 410 [33].

99 See Winterton, above n 8, 3.

100 See George, Winterton, 'Popular Sovereignty and Constitutional Continuity' (1998) 26 Federal Law Review 1, 13Google Scholar.

101 See Winterton, above n 8, 115–16. Significantly, a similar view has been expressed even in Ireland, which did not generally inherit the royal prerogative: David Gwynn Morgan, The Separation of Powers in the Irish Constitution (1997) 272.

102 See, eg, Burmah Oil [1965] AC 75; China Navigation Co Ltd v Attorney-General [1932] 2 KB 197.

103 See, eg, De Keyser [1920] AC 508.

104 See Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL); Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274, 278 (Bowen CJ), 280 (Sheppard J), 302–4 (Wilcox J). Special leave to appeal refused: (1987) 165 CLR 668.

105 See, likewise, Evans, , 'The Rule of Law', above n 60, 99Google Scholar.

106 See New South Wales v Commonwealth (1915) 20 CLR 54 ('Wheat Case').

107 See Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73, 96, 98 ('Dignan'); Sir Owen, Dixon, Jesting Pilate (1965) 52CrossRefGoogle Scholar; Sir Owen, Dixon, 'The Separation of Powers in the Australian Constitution' (Speech delivered to the American Foreign Law Association, New York City, December 1942) in 24 American Foreign Law Association Proceedings 3Google Scholar.

108 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, 275 ('Boilermakers').

109 Attorney-General (Australia) v The Queen [1957] AC 288, 315.

110 See, especially, ss 53, 57, 63 and 64.

111 See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 558, 561; Winterton, above n 8, 75–6.

112 (1956) 94 CLR 254, 275 (Dixon CJ, McTiernan, Fullagar and Kitto JJ): 'But that is a matter of the relation between the two organs of government and the political operation of the institution. It does not affect legal powers' (emphasis added).

113 Dixon, , 'The Separation of Powers in the Australian Constitution', above n 107, 5Google Scholar. For the complete passage, see 'Sir Owen Dixon on Separation of Powers in the Constitution' (1998) 1 Constitutional Law & Policy Review 38.

114 Residential Tenancies (1997) 190 CLR 410, 441.

115 Boilermakers (1956) 94 CLR 254, 275 (Dixon CJ, McTiernan, Fullagar and Kitto JJ; emphasis added).

116 Geoffrey, Sawer, 'The Separation of Powers in Australian Federalism' (1961) 35 Australian Law Journal 177, 179Google Scholar.

117 See Laurentiu v Minister for Justice, Equality and Law Reform [1999] 4 IR 26.

118 See, especially, Dignan (1931) 46 CLR 73; Winterton, above n 8, 85–92.

119 See Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365, 379 (Kitto J); Dignan (1931) 46 CLR 73, 101 (Dixon J).

120 See Winterton, above n 8, 101–10; see at 102–3: Professor J E Richardson has argued that s 61 does impose legal constraints in this respect.

121 Commonwealth, Parliamentary Debates, Senate, 16 July 1975, vol 64, 2784 (Sir Maurice Byers).

122 Submission to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, 8 February 1995, vol 2, 255 and 252 respectively (Sir Maurice Byers).

123 Senate Legal and Constitutional References Committee, Parliament of Australia, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (1995) [16.17].

124 Ibid [16.18].

125 Ibid [16.20] and [16.24] respectively. Professor Campbell's conclusion on the latter point was tentative. She had earlier expressed stronger reservations regarding the validity of such legislation: Enid, Campbell, 'Parliament and the Executive' in Leslie, Zines (ed), Commentaries on the Australian Constitution (1977), 88, 92Google Scholar. For the present writer's comments on this issue, see George, Winterton, 'Limits to the Use of the “Treaty Power”' in Philip, Alston Madelaine, Chiam (eds), Treaty-Making and Australia: Globalisation versus Sovereignty? (1995) 29, 47–6Google Scholar.

126 See Winterton, above n 8, 98–101; Zines, above n 51, 271–3.

127 See Winterton, above n 8, 69–71. See also above, text accompanying n 10.

128 Moore, above n 62, 98.

129 See Residential Tenancies (1997) 190 CLR 410, 424 (Brennan CJ), 438, 441, 446 (Dawson, Toohey and Gaudron JJ); AAP (1975) 134 CLR 338, 406 (Jacobs J); Johnson v Kent (1975) 132 CLR 164, 170 (Barwick CJ, McTiernan, Stephen and Jacobs JJ concurring). See also Sawer, Octagon Lecture, above n 88, 10–11, 15; Zines, above n 51, 265; Submission to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, 13 January 1995, vol 1, 93 (Enid Campbell) ('although s. 61 “picks up” certain royal prerogatives, it does not thereby entrench them').

130 See Brown v West (1990) 169 CLR 195, 202: 'Whatever the scope of the executive power of the Commonwealth might otherwise be, it is susceptible of control by statute' (Mason CJ, Brennan, Deane, Dawson and Toohey JJ). Their Honours earlier remarked that 'it may be that our Constitution provides such a separation of powers as would preclude any exercise of the executive power which takes the form of the discretionary conferring of benefits having a pecuniary value on individual members of the Parliament, not being mere facilities for the functioning of Parliament' (ibid). This appears merely to state that such benefits, unlike those conferred on Parliament itself, would not amount to an 'execution of this Constitution' within s 61, essentially repeating their Honours' earlier observations (at 201). But see Zines, above n 51, 273. Judicial enforcement of the moral integrity of government is a very slippery slope: see George, Winterton, 'Justice Kirby's Coda in Durham' (2002) 13 Public Law Review 165, 169Google Scholar.

131 This was expressly acknowledged by Dawson, , Toohey, Gaudron, JJ in Residential Tenancies (1997) 190 CLR 410, 446Google Scholar: 'The reason why a Commonwealth statute extending to the Crown binds the Commonwealth executive is to be found in the supremacy of parliament over the executive'. Cf New South Wales v Commonwealth ('Offshore Sovereignty Case') (1975) 135 CLR 337, 365: 'In the long run the Parliament … is in a position to control the Executive Government' (Barwick CJ).

132 (1975) 134 CLR 338, 406.

133 Ibid.

134 Commonwealth Constitution s 51.

135 See Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, 228, 229.

136 Jacobsen v Rogers (1995) 182 CLR 572, 598.

137 South Australia v Commonwealth (1942) 65 CLR 373, ('First Uniform Tax Case') 442 (Starke J): 'The maintenance of the States and their powers is as much the object of the Constitution as the maintenance of the Commonwealth and its powers. Therefore it is beyond the power of either to abolish or destroy the other').

138 A distinction should analogously be drawn between impairment of capacity to function and 'interference with or impairment of' specific executive functions: see Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, 228.

139 The judgment of French J in Vadarlis (2001) 110 FCR 491 is an exception, but his Honour applied the same principles as apply to ouster of the prerogative, the 'common law ancestor' of s 61 (at 539 [181]): see at 539–41 [183][185].

140 Payne, above n 91, 107 ('complexity'), 86 ('not unproblematic').

141 Stanley, de Smith Rodney, Brazier, Constitutional and Administrative Law (7th ed, 1994), 144Google Scholar.

142 [1920] AC 508.

143 Opinion is divided on the question whether the prerogative power revives upon repeal of legislation which displaced it. (Consequently, it is preferable to speak of legislation 'ousting' or 'displacing' prerogative powers, rather than 'abrogating' them.) Lords Atkinson, Moulton and Sumner in De Keyser [1920] AC 508, 539–40, 554, 561 suggested (obiter) that it might, though this would, of course, be subject to any contrary inference in the repealing legislation: see Winterton, above n 8, 117–18, 301 n 71; Payne, above n 91, 109 ('unless the repealing statute adds some new twist'). For a contrary view (non-revival 'unless it is a major governmental attribute'), see Lord, Lester Dawn, Oliver (eds), Constitutional Law and Human Rights (1997) 246 [369]Google Scholar; cf de Smith and Brazier, above n 141, 145.

144 De Keyser [1920] AC 508, 531, 548, 556, 557. Contrast the Tampa situation, in which the government deliberately avoided following the procedures prescribed by the Migration Act.

145 Ibid 575 (Lord Parmoor).

146 Paul, Craig, 'Prerogative, Precedent and Power' in Christopher, Forsyth Ivan, Hare (eds), The Golden Metwand and the Crooked Cord (1998), 65, 81CrossRefGoogle Scholar.

147 De Keyser [1920] AC 508, 539-40 (Lord Atkinson), 554 (Lord Moulton), 561–2 (Lord Sumner).

148 In re De Keyser's Royal Hotel Ltd [1919] 2 Ch 197, 216, adopted in De Keyser [1920] AC 508, 526 (Lord Dunedin), 539 (Lord Atkinson).

149 Ibid 526. See likewise, at 576 (Lord Parmoor): '[W]here a matter has been directly regulated by statute there is a necessary implication that the statutory regulation must be obeyed'.

150 Craig, above n 146, 80.

151 De Keyser [1920] AC 508, 576, 579.

152 Ibid 576. Lord Parmoor cited Bacon's Abridgement for the third category.

153 Ibid. Dr Evatt was critical of Lord Parmoor's approach, considering it 'dangerous', as raising 'political questions': Evatt, above n 29, 43.

154 De Keyser [1920] AC 508, 575.

155 See Robert, Ward, 'Baton Rounds and Circulars' [1988] Cambridge Law Journal 155, 156–7Google Scholar.

156 Fire Brigades [1995] 2 AC 513, 552. However, Lord Mustill preferred to state 'the principle of [De Keyser]' in the broader terms of Lord Dunedin (at 564).

157 [1977] QB 643 .

158 Ibid 706–7 (Lord Denning MR), 721–2 (Roskill LJ), 728 (Lawton LJ).

159 See above, text accompanying n 148.

160 Laker Airways Ltd v Department of Trade [1977] QB 643, 719, repeated at 722.

161 (1974) 131 CLR 477 ('Barton').

162 However, McTiernan and Menzies JJ considered that, as a matter of construction, the Act authorized a request for extradition even in the absence of an extradition treaty: ibid 491.

163 Ibid 488 (emphasis added).

164 Ibid.

165 Ibid 501 (emphasis added).

166 Ibid.

167 Ibid 500.

168 Ibid 508 (emphasis added).

169 Ibid.

170 Vadarlis (2001) 110 FCR 491.

171 [1920] AC 508.

172 Laker Airways Ltd v Department of Trade [1977] QB 643. Chief Justice Black incorrectlys considered this to be a decision of the House of Lords: Vadarlis (2001) 110 FCR 491, 502 [35].

173 Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452, 482 [122].

174 Vadarlis (2001) 110 FCR 491, 507 [60], 508 [64].

175 Ibid 501 [34]; see, likewise, 503 [37], 507 [61].

176 (1974) 131 CLR 477.

177 Vadarlis (2001) 110 FCR 491, 503 [38].

178 Ibid 540–1 [183]–[185], 545–6 [201]–[204]. Beaumont J concurred in the judgment of French J.

179 Ibid 545 [201].

180 Ibid 542 [192], 545 [202].

181 Ibid 540 [185].

182 (1974) 131 CLR 477.

183 (1994) 51 FCR 88 ('Ling').

184 (1909) 9 SR (NSW) 421 ('Booth').

185 (1994) 51 FCR 88, 92 (Gummow, Lee and Hill JJ).

186 (1909) 9 SR (NSW) 421, 440 (Street J, quoting Maxwell on Statutes).

187 Migration Act s 7A, introduced by the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) sch 2.

188 However the High Court in Oates v Attorney-General (Cth) (2003) 197 ALR 105 referred only to Barton v Commonwealth (1974) 131 CLR 477 on the issue of legislative abrogation of executive power, although it held that decision 'not determinative' of the instant case (at 114 [36]).

189 (1990) 171 CLR 1 ('Bropho').

190 Commonwealth v Western Australia (1999) 196 CLR 392, 410 [35] (Gleeson CJ and Gaudron J, adopting Story J).

191 Bropho (1990) 171 CLR 1, 17, quoting Province of Bombay v Municipal Corporation of Bombay [1947] AC 58, 63 (PC).

192 Bropho (1990) 171 CLR 1, 22 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Brennan J also added 'the nature of the activities of the Executive Government which would be affected if the Crown is bound' (at 28).

193 Ibid 23.

194 Ibid 14. See also Peter Hogg and Patrick Monahan, Liability of the Crown (3rd ed, 2000) 276.

195 Commonwealth v Western Australia (1999) 196 CLR 392, 410 [34], 411 [36].

196 The question remains whether the legislation has 'abrogated' the executive power 'by express words or necessary implication': Oates v Attorney-General (Cth) (2003) 197 ALR 105, 114 [37].

197 (1990) 171 CLR 1.

198 [1920] AC 508.

199 See, eg, R v Secretary of State for the Home Department; Ex parte Northumbria Police Authority [1989] QB 26, 53 (Purchas LJ, Court of Appeal).

200 See de Smith and Brazier, above n 141, 144 ('intention to cover the field in question exhaustively'); Fire Brigades [1995] 2 AC 513, 564 ('occupied the territory' (Lord Mustill)); Barton v Commonwealth (1974) 131 CLR 477, 501 ('extend to the whole of the area' (Mason J)), 508 ('cover the whole field' (Jacobs J)); De Keyser [1920] AC 508, 526 (covers 'the whole ground' (Lord Dunedin)).

201 Laker Airways Ltd v Department of Trade [1977] QB 643, 721, 722: 'elaborate code' (Roskill LJ). Cf O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565, 592 (Fullagar J, Dixon CJ and Kitto J concurring).

202 Ling v Commonwealth (1994) 51 FCR 88, 94. Cf Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237, 247–8 (Stephen J), 262, 263 (Mason J).

203 De Keyser [1920] AC 508, 554 (Lord Moulton), 575–6, 579 (Lord Parmoor). Cf Viskauskas v Niland (1983) 153 CLR 280, 292 (Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ).

204 R v Secretary of State for the Home Department, Ex parte Northumbria Police Authority [1989] QB 26, 53 (Purchas LJ). Cf Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237, 248–9 (Stephen J).