Topic: The relationship between the executive power of the Commonwealth and the prerogatives of the Crown: a historical understanding of a species and a subspecies of power

Presenter: Ryan Haddrick - PhD Candidate, TC Beirne School of Law

Since Barton v Commonwealth in 1974, the High Court of Australia has been on an interpretative journey to reveal the nature of the executive power of the Commonwealth, and to ascertain what is included within (and beyond) the scope and ambit of s 61 of the Constitution. That interpretative journey gathered momentum with the Pape and Williams (No 1) and Williams (No 2) decisions in the last five years. Beginning with the Wootops case in 1922, and affirmed in the Pape, and two Williams decisions, it has been accepted wisdom that the “ancient prerogatives of the Crown” have been textually incorporated into the executive power of the Commonwealth by the language of s 61 of the Constitution. Pape made it clear that the High Court views the prerogative powers as a subset of the species of power described as the “executive power of the Commonwealth”.

This thesis attacks that basal assumption. A theory is advanced that the executive power of the Commonwealth is, itself, a subset of the prerogatives of the Crown (textually coupled together with the legislative and judicial powers in the constitutional text), and the prerogative is, at least historically, the wider and larger source of powers, capacities and functions which pre-date Federation. The prerogative was only modified by Federation in so far as the executive power was carved out from the prerogative, and the prerogative remains vested in the Crown after Federation. In a textual sense, the theory advanced is that the prerogative is recognised (being a power outside the executive power of the Commonwealth) by the language of s 2 (“such powers and functions of the Queen”) and s 64 (“and shall be the Queen’s Ministers of State for the Commonwealth”) of the Constitution. 

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