Limits on executive power under Australian law
Limits on Executive Power under Australian Law
Overview
In Australia, the executive power—vested mainly in the Prime Minister, Cabinet, and ministers—operates under strict constitutional and legal limits to prevent abuse and ensure accountability. These limits arise from:
The Australian Constitution
Judicial Review by Courts
Parliamentary oversight and legislation
Principles of Administrative Law
Key Constitutional Limits
Separation of Powers:
Executive power is distinct from legislative and judicial power (Chapter III of the Constitution).
Courts act as a check on executive actions (judicial review).
Section 61:
Confers executive power on the Governor-General, exercisable by the Prime Minister and Cabinet, but this power must be exercised lawfully and within statutory limits.
Section 75(v):
Guarantees the High Court jurisdiction to review executive action affecting constitutional rights.
Section 51 and 52:
Limits executive’s legislative power; executive action must be supported by legislation.
Judicial and Legal Limits on Executive Power
Executive power must be lawful, reasonable, and not arbitrary.
Must comply with natural justice and procedural fairness.
Decisions can be challenged if they are ultra vires (beyond power).
Privative clauses cannot exclude judicial review entirely.
Key Australian Case Laws on Limits of Executive Power
1. Plaintiff S157/2002 v. Commonwealth (2003) 211 CLR 476
Issue: Whether Parliament can exclude judicial review of executive decisions through privative clauses.
Held: The High Court ruled that such clauses cannot completely oust the jurisdiction of courts to review executive decisions for legality. Judicial review is a constitutional safeguard.
Significance: Confirms courts' essential role in limiting executive power by ensuring legality and preventing abuse.
2. Williams v. Commonwealth (No 1) (2012) 248 CLR 156
Issue: Whether the executive government can spend public money without specific parliamentary authorization.
Held: The High Court held that executive expenditure must have legislative backing; the executive cannot spend money on programs without parliamentary approval.
Significance: Limits the executive’s power to spend public funds, reinforcing parliamentary control over finances.
3. Australian Communist Party v. Commonwealth (1951) 83 CLR 1
Issue: Validity of legislation banning the Communist Party.
Held: The High Court struck down the legislation as unconstitutional, holding that the executive cannot act beyond the powers conferred by the Constitution and legislation.
Significance: Limits executive and legislative overreach; executive actions must conform to constitutional limits.
4. Minister for Immigration and Citizenship v. SZMDS (2010) 240 CLR 611
Issue: Whether procedural fairness was owed in a visa cancellation decision.
Held: The High Court confirmed that the executive must observe procedural fairness when making decisions affecting individuals’ rights.
Significance: Reinforces administrative law principles limiting arbitrary or unfair executive decisions.
5. R v. Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254
Issue: Whether a tribunal could exercise both judicial and executive powers.
Held: The High Court held that judicial power cannot be exercised by bodies also exercising executive power.
Significance: Reinforces the separation of powers, preventing the executive from usurping judicial functions.
Summary Table
| Case Name | Key Principle | Limitation on Executive Power |
|---|---|---|
| Plaintiff S157/2002 v. Commonwealth | Judicial review not excluded | Courts can review executive actions despite privative clauses |
| Williams v. Commonwealth (No 1) | Legislative backing for expenditure | Executive can’t spend without parliamentary authorization |
| Australian Communist Party v. Commonwealth | Constitutional limits on power | Executive cannot act beyond constitutional authority |
| Minister for Immigration v. SZMDS | Procedural fairness required | Executive must observe fairness in decision-making |
| R v. Kirby; Ex parte Boilermakers’ Society | Separation of powers | Executive cannot exercise judicial power |
Conclusion
In Australian law, executive power is firmly constrained by constitutional provisions, judicial review, and administrative law principles. The courts act as guardians of legality and fairness, ensuring that executive actions do not exceed their lawful authority and respect procedural fairness and parliamentary supremacy.
RELATED Blog
0 comments