63A Control of executive power

 

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[Not in current Constitution]

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Executive powers must be exercised in accordance with this Constitution and the laws of Australia, including any law made by the Commonwealth Parliament to control the exercise of such powers

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Executive powers must be exercised in accordance with this Constitution and the laws of Australia, including any law made by the Commonwealth Parliament to control the exercise of such powers.

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63A.1 Although there is no comparable provision in the current Constitution, this section merely restates the present law, as set out in constitutional principles and case law. To avoid misunderstandings, such an important concept be expressed rather than implied.
63A.2 There is a long-standing principle that executive action cannot override legislation or the common law. The executive has no power to dispense with compliance with the law. This was reiterated recently in Port of Portland Pty Ltd v Victoria [2010] HCA 44, by French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ at [9] - [13]. Their Honours noted that one issue which lead to the ‘glorious revolution’ of 1688 was the actions of James II in dispensing with compliance with laws passed by Parliament. Any such power was removed by the ensuing Bill of Rights.
    “The constitutional rearrangements made by the Convention Parliament had the effect in England, and thereafter in the United Kingdom, of settling the scope of the executive power in various respects. In Australia it was with these limitations upon the executive that the constitutions of the States took their shape. ..... From the grundnorm represented by the constitutional settlement by the Convention Parliament there was to be no turning back in England, or thereafter in the United Kingdom. In Australia the absence of a power of executive dispensation of statute law, what Dixon CJ called a "general constitutional principle"[16], became an aspect of the rule of law  .... Such a power is absent from the Constitutions of the States which are identified in s 106 of the Constitution.”
Section 63A confirms this rule.
63A.3 In accordance with this Constitution: The effect of these words should be the same as “subject to this Constitution” in ss.51 and 52. They ensure that ss.61A and 62A are not seen as provisions which override others; rather they are subject to the restrictions in s. 83, s.116 and other provisions.
63A.4 The laws of Australia: The term “laws of Australia” has been used to distinguish them from the “laws of the Commonwealth” in s.62A(ii), which is a much narrower concept. “Laws of the Commonwealth” means only laws enacted by the Commonwealth Parliament - see Note 62A.24. The broader term “laws of Australia” includes Commonwealth legislation, State and Territory legislation as well as the common law. The High Court has confirmed in Re Residential Tenancies Tribunal of New South Wales; ex Parte Defence Housing Authority (1997) 146 ALR 495 that the Commonwealth Government is bound by State laws of general application: per Brennan CJ at 499, Dawson, Toohey & Gaudron JJ at 508 and McHugh J at 519. “Laws of Australia” confirms this principle remains unchanged, and also makes it clear to ordinary voters reading the Constitution what the position is. The principle recognised in the section prevents there being any inconsistency between Commonwealth executive action which is authorised, but not required, by a law, and State executive action which is authorised but not required by a law. Where State executive action has already created legal rights or duties, such as contractual obligations, the Commonwealth Government has no power to alter existing contractual rights, without statutory authority. In the absence of the subsection, the point would not be obvious to non-lawyers.
63A.5 Any law made by the Commonwealth Parliament to control the exercise of such powers: At one time there was controversy under the present s.61 about whether there is any field of executive power which is beyond control by the legislature - see the discussion in Part 2 of Chapter 5 of Winterton’s Parliament, The Executive and the Governor-General (1983, Melbourne University Press). The concern to avoid a gap between the extent of legislative and executive powers seems to underpin the dissenting judgments of Wilson & Toohey JJ in Davis v The Commonwealth. This controversy pre-dated Brown v West (1990) 91 ALR 197 where at 200 Mason CJ, Brennan, Deane, Dawson and Toohey JJ. said:
    “Whatever the scope of the executive power of the Commonwealth might otherwise be, it is susceptible of control by statute. A valid law of the Commonwealth may so limit or impose conditions on the exercise of the executive power that acts which would otherwise be supported by the executive power fall outside its scope.”
(The source of legislative power would be s.51(xxxix), if no other power was available.) Brown v West is consistent with recent statements in Williams v The Commonwealth about the supremacy of the legislature over the executive. Section 63A confirms that supremacy, and makes the rule clear to voters.
63A.5 The inclusion of a specific reference to “the Commonwealth Parliament” as the entity which may make laws controlling executive power negates any suggestion which might otherwise be made that State Parliaments may pass laws affecting the exercise of Commonwealth executive power. While the word "Commonwealth" is arguably not required to identify the relevant Parliament, due to section 1, its inclusion assists in the conclusion that "laws of Australia" is broader than "laws of the Commonwealth", and it has an educative effect - it makes the position clear to non-lawyers.
63A.6 What Parliament may do is “control” executive power. It should be clear that Parliament cannot abolish a power conferred by the Constitution. It may only regulate the way in which it is used. This is a natural consequence of including powers in the Constitution. Parliament, being the creation of the Constitution, cannot alter the Constitution itself, except in so far as the Constitution permits it to do so.