Overview
This lecture covers the historical and theoretical development of the executive branch of government, its structure and powers in Australia, and its relevance to statutory interpretation.
Historical and Theoretical Origins of the Executive
- The executive is the government branch responsible for implementing law and policy.
- In Ancient Greece, Aristotle and Plato debated executive-heavy government versus participatory democracy.
- The Magna Carta (1215) marked the start of limiting executive power by shifting some power from the Crown to Parliament.
- Thomas Hobbes argued for a strong, central executive (the Leviathan) based on social contract theory.
- Hobbes saw the sovereign as the source of all law, unconstrained by separation of powers.
- John Locke and Jean-Jacques Rousseau contested the centralized executive, emphasizing legislative primacy and checks on power.
- Historical abuses (e.g., Nazi Germany using "states of exception") led to demand for checks on executive power post-WWII.
- The French and American models focus on strict separation of powers; the UK and Australia use checks and balances.
The Executive in the Australian Commonwealth
- The Australian executive stems from the Crown, represented by the King (or Queen), Governor-General, and state governors.
- Actual power is exercised by the Prime Minister and Cabinet, who emerge from Parliament.
- The executive includes ministers, public service departments, agencies, statutory officeholders, police, and armed forces.
- Privatization has extended executive functions to private contractors in areas such as detention and prisons.
- The executive is constitutionally constrained, mainly by section 61 of the Constitution and by constitutional convention.
Functions and Powers of the Executive
- The executive administers law and policy and acts as a check on Parliament’s power.
- It drafts policy, signs treaties, manages foreign affairs, oversees detention, and commands war powers.
- It creates delegated legislation (rules, by-laws, regulations) when Parliament grants such powers for expertise or expediency.
- Delegated legislation by the executive is subject to statutory interpretation principles.
Accountability of the Executive
- Parliament holds the executive accountable through questions and responsible government principles.
- The judiciary reviews executive action to ensure constitutional and statutory compliance.
- Bureaucratic accountability comes via royal commissions and ombudsmen (e.g., the Robodebt Royal Commission).
- Public/political accountability occurs through elections, since the executive is chosen by Parliament, which is elected by the people.
Sources and Limits of Executive Power
- Section 61 of the Constitution vests executive power in the Governor-General, exercised on the advice of the Prime Minister and Cabinet.
- The Governor-General’s powers include dissolving Parliament, calling elections, assenting to bills, and appointing ministers, but real power lies with ministers.
- Prerogative powers (from common law and tradition) remain, e.g., treaty-making, war, and detention of aliens, but are limited by legislation, constitutional constraints, disuse, and the inability to create crimes.
- The executive’s power to spend and enter contracts is limited to ordinary government functioning unless otherwise authorized by legislation.
Key Terms & Definitions
- Executive — The branch responsible for implementing and administering law and policy.
- Leviathan — Hobbes’s term for an all-powerful sovereign or executive.
- Social Contract — Agreement among individuals to surrender freedoms to a central authority for security.
- Delegated Legislation — Laws or regulations made by the executive under authority delegated by Parliament.
- Prerogative Powers — Traditional powers exercised by the Crown, now largely absorbed by section 61.
- Section 61 — Constitutional provision conferring executive power in Australia.
- Responsible Government — Principle making ministers accountable to Parliament.
- Judicial Review — Courts’ power to ensure executive actions are within legal limits.
Action Items / Next Steps
- Review section 61 of the Australian Constitution.
- Read about delegated legislation and statutory interpretation.
- Prepare for discussion on accountability mechanisms in executive government.