Talk:Chapter II of the Constitution of Australia

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Executive power[edit]

This looks to be the most appropriate place to begin a discussion on what constitutes "the executive power". I've been seeing some confusion, with some editors apparently holding the opinion that the executive power of s61 confers all power on the monarch and that the Governor-General merely exercises powers in the Queen's name. This view ignores explicit assignations of specific powers to the Governor-General throughout the Constitution, and any other assignation of powers through subsequent legislation.

I quote from a Parliamentary Research Paper (dated 1995):

the following observations may be made on the scope of the executive power:

  • the words, 'execution and maintenance of the Constitution and the laws of the Commonwealth' in section 61 are no longer words of limitation;
  • it contains those common law Crown prerogatives (eg, treaty-making; declaring war) that vest in the right of the Commonwealth rather than in the States;
  • it allows the Commonwealth to engage in activities peculiarly adapted to the government of a nation which cannot otherwise be carried out (including, for example, celebrations of the bicentenary, establishing the CSIRO and promulgating flags and other national symbols); and
  • it includes the power to enter into contracts and commercial arrangements without the sanction of the Parliament.

However, section 61:

  • does not extend beyond those responsibilities allocated to the Executive of the Commonwealth by the Constitution;
  • is subject to express constitutional limitations; and
  • it may be limited by laws enacted by the Commonwealth.

--The Executive Power of the commonwealth: its scope and limits

More recently, Anne Twomey, in the Melbourne University Law Review, states,

French CJ … identified four classes of executive power that fall within s 61 of the Constitution. The first

three classes were:

  1. The powers conferred upon the executive by statutes enacted by the Commonwealth Parliament pursuant to powers conferred by the Constitution. This power is clearly incorporated within the express reference in s 61 to the ‘execution … of the laws of the Commonwealth.’
  2. The prerogative, being the residue of the monarch’s unique powers, privileges and immunities that belong to the Commonwealth.
  3. The power derived from the legal capacities of the Commonwealth, such as the power to enter into contracts or agreements, employ staff, own and convey property, make ex gratia payments and spend.

The "fourth power" is not explicitly named or described, and is probably best named as the "nationhood power", enabling the Commonwealth to do things that pertain to its existence, such as celebrating the Bicentenary in 1988, to note the most commonly referenced example.

It should be noted that nowhere in the above descriptions are included those powers directly assigned to the Governor-General by the Constitution, such as the power to appoint ministers, prorogue Parliament, issue writs for elections etc.. I have not seen any authoritative source that "the executive power" includes these powers explicitly vested in the Governor-General. --Pete (talk) 16:55, 13 January 2015 (UTC)[reply]

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