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61 Executive power |
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Current Constitution |
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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.
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Proposed Constitution |
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[Deleted. To be replaced by proposed ss.61A, 62A, 62B and 63A:
61A Vesting of executive power in the Commonwealth Government
The executive power of the Commonwealth is vested in the Government of the Commonwealth, comprised of the Prime Minister, the Deputy Prime Minister and Ministers of State.
62A The power to govern defined
The executive power of the Commonwealth is the power to govern the Commonwealth. It is comprised of and limited to:
(i) The administration, implementation and protection of this Constitution;
(ii) The administration and implementation of the laws of the Commonwealth;
(iii) The administration of the Government of the Commonwealth;
(iv) The power on behalf of Australia to make agreements and arrangements with, and take action with, against or with respect to, those outside Australia, and to exercise any rights conferred, and fulfill any obligations imposed, on Australia by international law;
(v) The command of such naval, military and defence forces as are established by law;
(vi) The power to engage in activities for the benefit of Australia where in the circumstances prevailing at the time of such engagement the States lack the practical power to engage in those activities;
(vii) The power to make contracts, acquire property and spend appropriated money with respect to any subject on which the Commonwealth Parliament has the power to make laws;
(viii) The power to research or conduct an inquiry with respect to any subject other than the administration of a Government or entity which is accountable to a State Parliament; and
(ix) With respect to the exercise of the above powers, such of the powers of a natural person as can be exercised by a Government.
62B Executive power - abolition of prerogative and reserve powers
On commencement of this section, in respect of the Crown in right of the Commonwealth:
(i) The prerogative powers and any reserve powers formerly vested in the Queen or the Governor-General are abolished;
(ii) All proprietary interests formerly vested in the Queen or the Governor-General shall, subject to any law to the contrary, vest in the Commonwealth Government; and
(iii) All other prerogative rights, immunities and capacities formerly vested in the Queen or the Governor-General are abolished;
provided that such abolition does not affect any powers, rights, immunities or capacities which are conferred by this Constitution expressly or by necessary implication
63A Control of executive power
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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All Changes Displayed |
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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.
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Drafting Notes |
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61.1 This section will be deleted because:
▸ Section 61 refers to the Queen, who will be removed;
▸ It allocates executive power to the Governor-General, which is inconsistent with the new role for the position under the Advancing Democracy model; and
▸ The current interpretation of the section bears no resemblance to the words of the section. For example, according to the High Court’s decision in Victoria v Commonwealth and Hayden (the AAP case) (1975) 134 CLR 338 at 397, s.61 confers on the Commonwealth Government "a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation" (per Mason J.) No ordinary person reading s.61 would understand it includes such a power. In the case of Pape v Commissioner of Taxation [2009] HCA 23; 238 CLR 1; 257 ALR 1, Chief Justice French summarised his conclusions by saying at paragraph [8]:
“The executive power of the Commonwealth conferred by s 61 of the Constitution extends to the power to expend public moneys for the purpose of avoiding or mitigating the large scale adverse effects of the circumstances affecting the national economy ...., and which expenditure is on a scale and within a time-frame peculiarly within the capacity of the national government.”
An Australian without considerable experience of Constitutional law could be forgiven for wondering which words in s.61 relate to spending at a time of economic crisis. A final example concerns control of the military. This is regarded in most comparable political systems as a part of executive power. In our Constitution though, it is granted separately to the Governor-General in s.68. So does that mean control of the armed forces is not part of “executive power” under s.61?
▸ The divergence between the legal interpretation and the meaning apparent to ordinary voters arises partly from the antiquated and ambiguous words in the section. It defines executive power as ‘extending’ to the execution and maintenance of the Constitution and Commonwealth laws. “Extends” could mean ‘extends only so far as’ which would set a limit, or it could mean ‘extends at least as far as’, which would not set a limit. The High Court has held in Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (the Wool Tops Case) (1922) 31 CLR 421 that the phrase sets a limit to executive power. Justice Gibbs in Victoria v Commonwealth (The AAP Case) (1975) 134 CLR 338 at 378-9; (1975) 7 ALR 277 at 312 came to a similar view: “Those words limit the power of the Executive and, in my opinion, make it clear that the Executive cannot act in respect of a matter which falls entirely outside the legislative competence of the Commonwealth.” Yet the interpretations of the section, such as in AAP Case referred to above, are hardly consistent with this approach. Similarly the word “maintenance” as applied to an inert document like a Constitution has no obvious meaning. If there were no doctrine of separation of powers, its most likely meaning would be “enforcement”, but under our system laws are enforced by courts, rather than the executive.
61.2 Section 61 will be replaced with new sections:
▸ s.61A, which vests executive power in the Government comprised of the Prime Minister, Deputy Prime Minister and Ministers, not the Governor-General;
▸ 62A, which will define executive power; and
▸ 63A, which will abolish prerogative powers. |
Current Constitution |
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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.
< Previous section Next section > |
Proposed Constitution |
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[Deleted. To be replaced by proposed ss.61A, 62A, 62B and 63A:
61A Vesting of executive power in the Commonwealth Government
The executive power of the Commonwealth is vested in the Government of the Commonwealth, comprised of the Prime Minister, the Deputy Prime Minister and Ministers of State.
62A The power to govern defined
The executive power of the Commonwealth is the power to govern the Commonwealth. It is comprised of and limited to:
(i) The administration, implementation and protection of this Constitution;
(ii) The administration and implementation of the laws of the Commonwealth;
(iii) The administration of the Government of the Commonwealth;
(iv) The power on behalf of Australia to make agreements and arrangements with, and take action with, against or with respect to, those outside Australia, and to exercise any rights conferred, and fulfill any obligations imposed, on Australia by international law;
(v) The command of such naval, military and defence forces as are established by law;
(vi) The power to engage in activities for the benefit of Australia where in the circumstances prevailing at the time of such engagement the States lack the practical power to engage in those activities;
(vii) The power to make contracts, acquire property and spend appropriated money with respect to any subject on which the Commonwealth Parliament has the power to make laws;
(viii) The power to research or conduct an inquiry with respect to any subject other than the administration of a Government or entity which is accountable to a State Parliament; and
(ix) With respect to the exercise of the above powers, such of the powers of a natural person as can be exercised by a Government.
62B Executive power - abolition of prerogative and reserve powers
On commencement of this section, in respect of the Crown in right of the Commonwealth:
(i) The prerogative powers and any reserve powers formerly vested in the Queen or the Governor-General are abolished;
(ii) All proprietary interests formerly vested in the Queen or the Governor-General shall, subject to any law to the contrary, vest in the Commonwealth Government; and
(iii) All other prerogative rights, immunities and capacities formerly vested in the Queen or the Governor-General are abolished;
provided that such abolition does not affect any powers, rights, immunities or capacities which are conferred by this Constitution expressly or by necessary implication
63A Control of executive power
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.]
< Previous section Next section > |
All Changes Displayed |
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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.
|
Drafting Notes |
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61.1 This section will be deleted because:
▸ Section 61 refers to the Queen, who will be removed;
▸ It allocates executive power to the Governor-General, which is inconsistent with the new role for the position under the Advancing Democracy model; and
▸ The current interpretation of the section bears no resemblance to the words of the section. For example, according to the High Court’s decision in Victoria v Commonwealth and Hayden (the AAP case) (1975) 134 CLR 338 at 397, s.61 confers on the Commonwealth Government "a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation" (per Mason J.) No ordinary person reading s.61 would understand it includes such a power. In the case of Pape v Commissioner of Taxation [2009] HCA 23; 238 CLR 1; 257 ALR 1, Chief Justice French summarised his conclusions by saying at paragraph [8]:
“The executive power of the Commonwealth conferred by s 61 of the Constitution extends to the power to expend public moneys for the purpose of avoiding or mitigating the large scale adverse effects of the circumstances affecting the national economy ...., and which expenditure is on a scale and within a time-frame peculiarly within the capacity of the national government.”
An Australian without considerable experience of Constitutional law could be forgiven for wondering which words in s.61 relate to spending at a time of economic crisis. A final example concerns control of the military. This is regarded in most comparable political systems as a part of executive power. In our Constitution though, it is granted separately to the Governor-General in s.68. So does that mean control of the armed forces is not part of “executive power” under s.61?
▸ The divergence between the legal interpretation and the meaning apparent to ordinary voters arises partly from the antiquated and ambiguous words in the section. It defines executive power as ‘extending’ to the execution and maintenance of the Constitution and Commonwealth laws. “Extends” could mean ‘extends only so far as’ which would set a limit, or it could mean ‘extends at least as far as’, which would not set a limit. The High Court has held in Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (the Wool Tops Case) (1922) 31 CLR 421 that the phrase sets a limit to executive power. Justice Gibbs in Victoria v Commonwealth (The AAP Case) (1975) 134 CLR 338 at 378-9; (1975) 7 ALR 277 at 312 came to a similar view: “Those words limit the power of the Executive and, in my opinion, make it clear that the Executive cannot act in respect of a matter which falls entirely outside the legislative competence of the Commonwealth.” Yet the interpretations of the section, such as in AAP Case referred to above, are hardly consistent with this approach. Similarly the word “maintenance” as applied to an inert document like a Constitution has no obvious meaning. If there were no doctrine of separation of powers, its most likely meaning would be “enforcement”, but under our system laws are enforced by courts, rather than the executive.
61.2 Section 61 will be replaced with new sections:
▸ s.61A, which vests executive power in the Government comprised of the Prime Minister, Deputy Prime Minister and Ministers, not the Governor-General;
▸ 62A, which will define executive power; and
▸ 63A, which will abolish prerogative powers. |
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