LAWS1115 Lecture 9

LAWS1115 L9 – Executive Power and the Commonwealth
• Focus on the sections about constitutional convention
The State: A body politic
• ie. nation state, or jurisdiction
• A formal entity; or
o Commonwealth of Australia Constitution Act 1900 cl 3.
• ‘State of Queensland’
o Crown Proceedings Act (Qld) s 8.
The Executive government
• ‘The Australian government’ (Prime Minister + Cabinet)
o A political creature, usually understood as the ministry of the day.
o Cannot sue ‘The Australian government’
• The Queensland government: The Premier + Cabinet

• Constitution specifies the government to consist of Queen, G-G, Senate and the House of Reps.

• Governor-General In-Council: G-G and at least two ministers
Constitutional blind spots
• Queen and G-G: all over Constitution.
• PM and Cabinet is not mentioned
• Parliament is mentioned, which has been defined as the Queen and both houses.
• Federal Executive Council: in a formal sense, it’s a key mechanism
The Crown: ‘verbally impressive mysticism’
• In monarchical system, Crown was ‘sovereign’ and source of all public power
• ‘Crown’ represented by Governor-General: Constitution s 2.
• Sovereignty divided: Crown in right of Australia and its States (cf UK Crown)
• Three in one, one in three: Courts formally sworn to Crown, Crown’s role in Parliament
o However, chief manifestation of Crown is through executive government.
Constitutional Monarchy (via conventions) and Responsible government
• Oh Graeme … ‘the Queen’s wings have been clipped’.
• Crown operates on advice of her ministry, except for ‘reserve power’
• Ministry sits in, is responsible to Parliament: Constitution s 64
o Political accountability simplified (but weakened) by party system
• Executive is restricted by law (including law it makes, eg. Regulations)
o Accountability through administrative law.
o Especially:
 (1) judicial review and merits review
 (2) ‘integrity branch’ (eg. Ombudsman) and open government (eg. FOI)
o Exception:
 Crown ‘prerogatives’ (some unreviewable by courts)
 Example:
• (a) to do things: international relations, diplomacy, war (eg. Constitution s 68) or power of ‘mercy’ (esp. State Governors)
• (b) preference or immunity: eg. to priority of debts, Crown not bound by legislation unless explicitly
• (c) property rights: eg. mineral ‘royalties’, foreshore
Tax and Spend
• Key monopoly power is to tax
o Compulsory levy for public purposes, not as fee for service (eg. licence or toll)
o Parliamentary oversight: tax must be struck by Act.
o Constitution ss 53, 55: Tax is not a prerogative power of Crown – legislated by Parliament
o Taxing power theoretically shared by Crowns in Australia.
o NB: Uniform income tax, no State ‘excise’: Constitution s 90
• Executive power is illustrated:
o Cth is largest single employer
o Cth 2010-11 est: $354.6 bn
• Executive is complex, multi-layered:
o Some arms in tension (eg Dept of Environment)
o Some arms quite independent (eg Aust Electoral Commission)
o Some also check on other parts of the Executive (eg Human Rights Commission; Auditor-General)
Federalism, executive power and ‘VFI’
• Vertical Fiscal Imbalance
o Commonwealth dominant in revenue raising: ~ 82% versus 14% and 4% local government
o On the face of it, Constitution s 51 enumerates only limited legislative power to Commonwealth.
o However:
 Constitution s 96 permits ‘tied grants’ to States.
 Direct expenditure: eg. higher education funding.
o Carrots not a bundle of sticks: power to give money on conditions, but not to erect a whole system of regulation
• Benefits
o Enabling national policies (eg. education)
o Vertical competitive federalism
• Problems
o Eroding federal division of powers, including accountabilities