Hello and welcome to your video on the executive. The executive has been a debated arm of government for a very very long time. Um traditional parliament would say that the executive is a political organ which is associated with the implementation of law and policy. Accordingly we have imagery of the police and um you know civil servants when we think about the executive. However, through this lecture video, we're going to look at the executive slightly differently. We're going to situate the executive in its historical and theoretical lineage to be able to come up with an abstract concept of the executive. More importantly, for your purposes in this course, the next part of the video will look at how the executive is operationalized as a political organ in Australia. We will look at what it its makeup is, what its powers are, and most importantly, its implications for our subject on statutory interpretation. All right, with that in mind, let's move on and think about the historical and theoretical lineage of the executive. The executive is a theoretical concept that really emerged many, many years ago. In fact, millennia ago when you look at the work of Aristotle and Plato, one of the key themes that comes out of their work is in fact the abandoning of executiveheavy models of government in fa favor of participatory dem democratic institutions in ancient Greece. Aristotle and Plato both believed that while an executiveheavy government through the mold of a philosopher king was the most preferable form of government, they believed it to be unstable and unsuited to life in antiquity. Accordingly, they both championed a less desirable form of government which was a deliberative and participative democracy which included every citizen of Athens or rather every citizen of Greece. With that in mind, the 12th century and really the 16th century had major movements in theories of government rooted in the executive. Notably and quite importantly um the development started with Magna Carta in 1215 wherein an absolute executive in the king or absolute executive body in the crown started to seed some of its power towards the people and more centrally towards a sovereign parliament. This caused a little bit of backlash and writing just after the glorious re revolution Thomas Hobbes came up with a concept that reinvigorated discussions about the executive. Hobbes borrowed from biblical understandings of stability and scientific reinvigoration of the concept of stability to think about how government could exist in perpetuity i.e. how government could exist without falling without having the perils of revolution threatening it. So Hobbes came up with the concept of a Leviathan. A Leviathan being a biblical monster that was all powerful, capable of asserting power over people at will. Hobbes through his understanding of Leviathan tried to champion a notion of all-encompassing totalitarian government. In order to do so, Hobbes founded his argument in an understanding of human nature. Hobbes had a fairly bad view of human beings. Hobbes believed that human beings when left to their own devices in what he called a state of nature created a conflict riddled situation which meant that individual life was quote unquote short, nasty and brutish. Hobbes believed that the state of nature which was a pre-state sort of form of living had no law and order had no ability to protect individual rights to property or to bodily autonomy and was basically a very difficult place to live. Hobbes believed that due to this difficulty individuals congru conglomerated into what he called commonwealths for shared security. As these commonwealths grew, Hobbes believed that individuals started to enter into what he termed as social contracts. Social contracts basically fortified territorial boundaries for commonwealths and institutes forms of government wherein individuals seed their power to a central figure, a dictator if you will, or a leviathan that was capable of strictly policing the boundaries of law and order within that specified commonwealth, leading Hobbes to believe that we seeded our freedoms, which was unparalleled in the state of nature. We had the freedom to do whatever we wanted to a sovereign so that we could have shared security and no longer live in fear. Hobbes's account of this state meant that the Leviathan was unconstrained. the central figure head of government was capable of making all forms of law and law in fact was a chain of authority in Hobbes's view which was open quotes fastened to this to the lips of the sovereign close quotes. What Hobbes meant by this was that the the sovereign ruled by command. Law was the command of the executive. The executive spoke law and people followed it. There was a chain of command that caused individuals to be held accountable to this law created by the sovereign. Hobbesian theory therefore has a central feature associated to the executive. The executive is the pinnacle of all government according to Hobbesian theory. The executive both makes law through declaration but also executes it in ways that may trample upon individual rights and it is unfassened from any form of separation of powers. This hobbsian view was deeply contested. We had the emergence of John Lach and Jean Jacqu Rouso who contested the centralized version of the executive. Loach for instance believed that there was a primacy of legislation and the legislative arm of government uh because of the fact that legislation aims to to confer god-given laws on individuals and therefore wise people meet together and ex in legislatures to check the power of the executive because a real divine mandate is located in in the work of monks to decode natural law principles and operationalize them into law. Rouso on the other hand believed that human nature was not in fact that bad and a hobbsian state in fact alienated people from the ground realities of the world and caused a strong executive to create problems. However, historically this hobbsian understanding of the strong executive endured. It endured through the s sustenance of European monarchies to the presence of colonial regimes and quite critically took hold in Nazi Germany specifically through the Wimar Republic. The Wimar Republic represented a democratic experiment in Germany. a democratic experiment wherein the primacy of the legislature was was given effect and the executive was subject to constraints. Drawing really from the French and American experience which were huge successes where in separation of powers was instituted by scholars like Montesqua and adopted by the founding members of the United States. We had a situation where government was seemingly in check. This idea of the monolithical executive, one rooted in the Leviathan, seemed to be receding. The idea that government was separated into three arms, the legislative arm, which is you've studied previously, the executive that we're working on now, and the judiciary that we will move on to next. Um, checks and balances each other's power was rife across the world. And Germany decided that it was time to institute this in a unified German state. And accordingly they drafted up the Weimar constitution. It was a socioliberal constitution. It protected individual rights and most importantly had poignant checks on power. This however didn't go down very well in postworld war I. Post World War I, Germany was humiliated through the treaty of West failure and um um they broadly speaking did not have the the capacity to really tolerate a more limited form of government. So you had an emerging fascist brick that came through in Germany and all of this comes to a head in Prussia. In Prussia, we had a situation where in government had sort of lost control of the Prussian lander and the then chancellor van Poppin had to declare a state of emergency under the Vimar constitution. This in turn swed the seeds for what was going to happen next with Nazi Germany. The Weimar constitution with the rise of national socialism specifically through the Nazi party was subjected to a systematic overhaul through the exercise of a state of exception. The state of exception in the Weimar regime suspended the democratic order in favor of allowing the chancellor to act like an emperor of the entire country. Accordingly, when Hitler came to power, he exploited this idea of a state of exception. The state of exception was supposed to come in at a time of a great peril to democracy to suspend the order so that democracy could defend itself through the use of a quasi dictatorial measure and then revert back to its old democratic self. But what Hitler did was exercise a permanent state of exception. After a fire at Bundistrug in in Berlin, Hitler exercised a state of emergency and never relinquished that state of exemp emergency thereby doing away with the limited form of government that was present in the Weimar regime and moving it towards the Nazi regime which had a centralized figurehead and a powerful executive. Due to the much publicized happenings in Nazi Germany, individuals thought once more to challenge the notion of a centralized executive. And as we went towards postworld war II states, there was a reinvigoration of an understanding of how the executive should be checked. Note that this legal order that came after World War II is currently the legal order that we exist within. There are a couple of different ways in which we check the executive now after World War II. One is the French and American model. The French and American model focuses on strict separation of powers. That means that the legislature makes law, the executive applies law, and the judiciary interprets law. In order to do so, the executive is broadly speaking just put in one pigeon hole where they apply law faithfully based on what the legislature drafts and the judiciary correspondingly holds the executive to account uh through the process of judicial review. In Australia, however, we haven't really jumped fully onto the bandwagon of postworld war II sort of checks on executive power. We still have a more capacious, somewhat more traditional understanding of executive power rooted in common law. Through the next part of the video, what I'm going to do is take you through what is specific to Australia through an understanding of the Commonwealth understanding of the executive. All right. So that let's move on really to understand the concept of the executive within the Australian system. To do so, we have to take a break from this historical and theoretical orientation that we had earlier in this lecture and sort of change gears to a more sort of commonwealth understanding of the executive. Note that the executive in in the Commonwealth really emerged from the remnants of the crown. The crown has consistently been the head of the executive in the Commonwealth. The crown of course symbolized by the king at this point in time and formerly the queen. However, the the sort of like crown as an institution goes far beyond just the king in general. The crown encompasses things like governor generals. It encompasses civil servants who serve at the pleasure of the crown. but most importantly the prime minister who also serves at the pleasure of the crowd. And so once again what we're seeing is this American and French model which strictly separates power that emerged in postw World War II countries does not really strictly speaking exist in Australia or in the UK for that matter. British or UK- based understandings of of the executive are anchored in an understanding of checks and balances as opposed to strict separation of powers. Notably, the executive emerges from the crown. The crown is the figurehead of the executive and exercises notional power, but real power is vested with the prime minister and the cabinet of ministers. All civil servants who may not serve at the pressure of the crown are in fact appointed on the aid and advice of the prime minister and the cabinet of ministers. This cabinet is a body that emerges from the legislature from parliament. Basically parliament is elected by the people and then parliament begins to elect the prime minister and the portfolios of ministers that form a part of the cabinet. And so the executive is in fact a body that sits in and through a sovereign parliament. It acts through parliament. It is responsible to parliament. It sits within parliament as well. And so what really is the crux of the executive in in in in Commonwealth models is a disperate set of institutional bodies that all come under this umbrella rubric of a mysterious executive. So what is this executive? In Australia, the executive references the king and his servants and agents, the king's representatives, notably the governor general at a federal level, and the governors of each Australian state, the ministers of government, the cabinet, which comprises of the prime minister at a federal level and the premier at a state level and senior government minister. ers the public service which is a broad sort of concept which includes government department such as departments of health, defense and education agencies such as Australian securities agencies and investment commissions um and statutory office holders such as the human rights commissioners, the ombbudsman's and the auditor general and finally the sort of most visible part of the execut Executive is police forces at a federal level and armed forces more specifically. So the executive as we've seen in Australia is a really really heterogeneous body. It's in fact been complicated through some amount of privatization as well. So the executive is not just comprised of state organs. Now as you've encountered before things like quarantine was administered by the executive in and through the use of private agents. Similarly with sort of detention, detention of aliens more specifically. It's run by private corporations and companies but is in fact part of a broader executive mandate. Therefore, they're contractors of the minister or of agencies or um um in general. So, broadly speaking, things like really key services such as state prisons are in fact privatized. So, what we have is this really disperate set of bodies that come under the umbrella term of the executive lawying bodies. What is the common thread that comes through with them? Broadly speaking in Australia they are all constitutionally constrained. They're constitutionally constrained through section the operation of section 61 of the Australian constitution but also through constitutional convention. Just note that the concept of the prime minister or the cabinet of ministers doesn't actually appear in the executive definition of the Australian constitution. It in fact comes through constitutional convention. Historical tradition is at the root of parts of the executive such as the cabinet of ministers. So the executive is by itself not one body but a series of different bodies that are constitutionally accountable to parliament and therefore a law applying bodies that are constitutionally responsible to our representatives within Australian parliament. Accordingly, it is a limited understanding of government that is basically replete in the executive. The executive is a limited branch of government that is responsible to parliament for its endeavors to implement faithfully laws passed by parliament. Broadly speaking, what does it do then? So if it's this disperate sort of all-encompassing body that is broadly speaking responsible to parliament, what does the executive do? The executive as we've all understood through law school and really through high school is a body that administers law and policy. But it has other functions that are really important for us to understand. A it's a check on parliament as well. The executive in many sort of senses checks sovereign parliament. Parliament has a lot of powers as we understood in our week on parliament. Parliament has powers to make and unmake any law that they please and therefore parliament is in a functional sense sovereign within Australia um and and and has unparallel law makingaking powers. But the executive in general becomes the body that faithfully applies this law. And therefore if executive decisionm which will be the subject of course is like administrative law for you is basically constraining the ability for parliament to become all powerful. It basically takes away the ability to apply general legislation to specific scenarios. Let's have a look at what that looks like. If parliament passes a law, this law is usually couched in generic language, right? No person shall steal. The question of whether an individual can be charged with theft is in fact something that the executive takes over and therefore making law determinate and practical is a central feature of the Australian executive. That being said, the executive has other powers that are really important to Australia more generally. Firstly, it drafts policy. So the executive is the chief policy drafting body. It drafts policy to give effect to law. It signs treaties and is responsible for foreign affairs. And so basically it is part of creating an internationalized sort of like legal economy within Australia. Once treaties are signed, they're not law in Australia, but it is a policy position taken by the executive that can be ratified by parliament to become law in Australia. And so, broadly speaking, treaty signing powers have traditionally exe have resided with the executive in Australia. It has powers of detention. When individuals attend the shores of Australia, they are subject to executive oversight. It has war powers. When we go to war, the executive becomes the most powerful organ within the Australian government. It also is responsible critically in this course for certain forms of delegated legislation. Specifically, Parliament can delegate its lawmaking power to the executive. It's important we pause here and really understand what this power is. Specifically, when parliament passes an act which delegates or confers power on the legis on the executive to to to pass sort of rules, bylaws and regulations, the executive can in fact in the narrow confines of the legislation which confers this power, the conferring legislation make law. When the executive exercises its power of making delegated legislation as enshrined in a conferring sort of statute, the executive is in fact exercising law makingaking power. So while the executive is considered to be solely a law applying body in certain narrow circumstances, when the legislature delegates away its legislative power, the executive can in fact make law. For the purpose of our statutory interpretation course, this is critical because executive rules and regulations are subject to principles of statutory interpretation. Why? Because parliament has delegated away its own law makingaking power to the executive. The executive is not exercising executive power when it makes delegated legislation. It is in fact exercising law makingaking power. Why would parliament do something like this? Well, the chief reason it would do something like this is for reasons of expertise. In certain scenarios, parliament will give the executive power to make delegated legislation because the executive is a larger body than parliament and is capable of having expertise that a generalist parliament doesn't have. So for instance in healthcare, it's quite common for a delegated form of legislative regime to really operate in that space. We saw this in COVID where the biocurity act really gave powers to the health minister to make legislation to respond to the pandemic. Right? The reason that was the case was because the health minister and his portfolio had the requisite expertise to tackle the pandemic when parliament made up predominantly of lawyers did not have this technical expertise um present with them to be able to accurately deal with the parliament. The second point can also be illustrated through this example of co. Sometimes we are in the throws of a crisis or in a situation where expedience is important in law makingaking. Parliamentary processes as you've encountered earlier are cumbersome. Bills need to be introduced. They must be subject to a long period of public consultation. They must then be deliberated in the house. Finally, they must be passed by both houses and signed into law by the governor general. The executive does not require all of this when it is making delegated legislation. Delegated legislation therefore can be far more expedient than parliamentary legislation. And therefore in certain areas where rapid response times are required to take into account changing economic, social and political conditions, the executive is often given narrow delegations to make law. One example of this is in fact in migration. So if you were in Australia or were sentient in Australia in 2023 and 2022, you would have noticed that there was plenty of delegated legislation being made on the issue of student visas and that was to rapidly respond to a changing financial situation within Australia. Parliament did not debate and make these laws about student visas. It was in fact a minister who passed bylaws through regulations and um and sort of circulars and so on so forth that created law um in that space and the reason was they needed it to be quick. So the executive is a varied body that that encompasses a large number of individual portfolios and institutional portfolios that has a broad swave of powers that goes beyond just the implementation of law but which also includes the drafting of policy, international relations as well as passing delegated legislation which has the force of law. So broadly speaking, what we've understood is this body is essentially a limited arm of government that can do a lot of different things. Now because of the sades of power that the executive has and its sort of varied makeup, the question of accountability is really central to understanding the Australian executive more properly. The executive is held accountable primarily judicially and through parliament. Parliament becomes the main body through which the executive is held accountable. Note, think of the executive like a pyramid. Most of the executive is funneled through ministerial portfolios, right? Ministers who are in the cabinet head these large portfolios that take into account a broad suede of the executive. These ministers through a PR constitutional principle of responsible government are in fact held responsible by parliament. Parliament asks them questions, assesses their performance and as representatives of the people of Australia begins to make sure that they fulfill their mandate in a way that is constitutionally permissible. So parliament becomes the major body that holds the executive to account through a system of checks and balances. That being said, the judiciary also plays a role in making sure that the executive doesn't exceed the bounds of constitutionally prescribed jurisdiction that is given to them. Specifically, the judiciary can hear cases about, for instance, delegated legislation to determine whether the conferring statute actually did give powers to the executive to make a particular law. So, for instance, assume that the minister of health um made sort of delegated legislation on something like space travel. It's unlikely that space travel could be regulated by the Minister of Health through any form of delegated legislation because really the delegated legislation would focus on health and space travel focuses on other things and therefore it would fall outside of the purview of the contours of the um conferring act. So that's one way in which judicial review is exercised. Uh the second way in which judicial review is exercised is to determine whether the executive's powers were in fact within the scope of their constitutional limits and that's a really important form of judicial review that holds the executive to account. Now there other forms of accountability that we need to speak about. Chiefly parliament is a form of sort of like political accountability. The judiciary is a form of legal accountability. But we also have ideas of um bureaucratic accountability. This emerges through things like royal commissions and ombbudsman's. So if you for instance read ombudsman's reports on Victorian lockdowns, you'll see that the ombbudsman really held um the Andrews government to account for their lockdowns in flats that existed in Victoria. Additionally, you'll see that royal commissions have often been sort of created to hold the executive to account. The chief example of this is the administrative appeals tribunal, which had an absolutely scathing Royal Commission report that caused parliament to completely abolish the body in favor of a new administrative review tribunal due to the bad way in which the um administrative appeals tribunal handled the robo debt scandal. So what you see is there's a complex sway of accountability that really intersects with the executive because it exercises so much power. It is held to account robustly through political, legal and bureaucratic means. Political means predominantly center around parliament. Bureaucratic means predominantly center around royal commissions and ombbudsman. And legal accountability is always through the judicial review function that is present with a court. That being said, the executive is also vicariously liable to the people. The people if if unsatisfied with executive conduct will vote out a government in favor of a new government because remember the executive specifically the cabinet is elected by parliament. So people elect the parliament and parliament exe elects the executive. If the people are unhappy with executive performance, they will punish parliament for this, creating a new government armed with a mandate to reform the executive or have it function more properly. So the accountability is in fact really really present within the Australian constitution. But where does the Australian executive get its power from? We understood earlier in this lecture that some of the power comes from convention. But a lot of this power is expressed in the constitution and present within traditional ideas of of common law such as prerogative powers or implied constitutional powers. Section 61 which deals with the executive is really the most comprehensive source of executive power. Section 61 says that open quotes 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. So section 61 confers onto the executive a role of being a guardian. The governor general is a guardian of common law and and laws of the commonwealth as well as the constitution. However, in practice, due to co constitutional convention, the governor general acts on the advice of the prime minister. Right? It doesn't always go smoothly with this as the 1975 crisis in Australia shows us, but by and large the governor general will always yield to advice given by the prime minister. In 1975, however, the governor general, Sir John Kerr, uh basically terminated uh or the government through the exercise of powers vested with him by section 61 of the constitution in contradiction to constitutional conventions. But that's really been an anomalous understanding of executive power with within Australia. Broadly speaking, the constitution gives executive power to the governor general and the governor general by constitutional convention exercises this power in line with recommendations given by the the prime minister and the cabinet of ministers. That's fairly settled. That's one aspect of executive power. The second aspect o of executive power really is in prerogative powers. Something that we'll get to later. But let's focus at some level on the governor general. The Governor General basically has a swave of powers given to them as an executive body under the Australian Constitution. For instance, section five basically gives the Governor General the power to dissolve and summon parliament, something that was exercised in 1975. Um, issue rits for general election under section 32 and um recommend money votes under section 56. They can convene joint sittings under section 57. Ascent, give ascent to bills under section 58, appoint and remove ministers under section 64, command defense forces under section 68, and appoint and remove judges under section 72. What's really curious about all of these many powers that are present within all of these many sections of the Australian Constitution is their notional powers. Real authority is exercised by the Prime Minister who will advise the Governor General on how to exercise all of these powers. That gets us on to the sticky issue of a prerogative power. A prerogative power is encompassed in many ways by the text of section 61 but is basically really residing in common law. AV dye calls prerogative powers discretionary or arbitrary powers which may be exercised by the crown. The remnants of these discretionary and arbitrary powers are now basically through constitutional convention and common law present within section 61 of the Australian constitution which absorbs all of this. One example of a prerogative power is basically immunities preventing the crown from being sued. So the crown cannot very easily be sued by citizens because they have a prerogative immunity from being sued. Other prerogative powers include things like the right to property or property rights such as priority over certain rare and expensive fish and metals. One example you could think of of such a prerogative being used in Australia is in fact a recent issue in South Australia about a platypus. So two individuals were seen sort of walking away with a platypus and that caused complete sort of media meltdowns. The reason for this was because platter pie are owned as rare animals by the Australian government. So if you find a platypus, you are not going to be able to pick it up and claim ownership over it because through prerogative rights that come from the residue of the crown and are present in common law as codified by section 61 of the Australian Constitution, the Australian government owns all cannabis, owns all rare animals, all rare minerals, right? Um, in addition to this, it's important to know that while they're broad suedes of power that come through with prerogatives, prerogative powers are subject to limitations. Prerogative powers can be abolished for three primary reasons or really four reasons. One is disuse. So if a prerogative power has not been exercised for a long time by the executive, it falls into disuse and accordingly is abolished. Secondly, prerogative powers expressly can never create new crimes. So if there is no crime on statute books, a prerogative power cannot be used by the executive to create a crime. Only parliament can do that. Parliamentary abrogations are also power possible of prerogative powers. Right? So if you look at immigration for instance, it falls broadly speaking within a prerogative power. But it is now exercised by a legislative regime which transformed and abolished the prerogative power of the past. So prerogatives when legislate when the subject matter of a prerogative is legislated upon then that prerogative will basically be superseded by the legislative regime. And finally prerogative powers cannot exceed the bounds of constitutional limitations on the executive. So prerogatives themselves are constitutionally prescribed. Some of the most common prerogatives that continue to exist in their sort of unfettered state in Australia are the power to detain aliens, the power to declare war, and the power to make and unmake any treaties. What's really important to note at this stage is the power to detain aliens, while it continues to be a perotive power, has also been subject to judicial limitation. So the executive cannot, for instance, indefinitely detain um aliens. That is a power that only vests with a court because it is tantamount to criminal sanction. Right? The legislature can of course make legislation that allows for this, but broadly speaking that must be adjudicated by a court. So prerogatives also extend to one very important power which is the power to spend and enter into contract. This has really been the most controversial form of prerogatives within Australia and has been subject to extensive sort of um extensive sort of judicial interventions. Um the executive as per in their power to spend basically through prerogatives assumes legal personality. The executive is a legal person and therefore can can engage in contract with individuals and corporations. Executives therefore have the power to enter into contracts to buy and sell and hold land and to spend money more broadly. However, as noted by the Australian judiciary, specifically in the high court in the two cases of Williams, the power to spend is subject to legislative limitations. Specifically, there's an unlimited power to spend through prerogatives or through for the u executive on matters of ordinary government functioning. So for instance, contracts to sort of clean parliament, contracts to sort of keep documents in order, having libraries, sort of safety of ministers, all of this is ordinary government functioning. So they can function and spend on contracts for these purposes. However, when their spending goes outside of the bounds of ordinary government expenditure, the executive will require parliamentary approval through appropriate legislation or the passage of appropriate legislation. Accordingly, what is being reflected again by the Australian courts is even in the domain of prerogatives and section 61 powers, the executive's powers are limited largely by parliament. All right. Well, thank you so much for your attention through the course of this lecture video. Through this video, we've really looked at the idea of the executive as as as represented through the Australian Constitution and anchored it through broader understandings of the executive as a historical and theoretical organ of government. The hope is through the course of this lecture you will be able to identify the nature of executive power theoretically and historically be able to translate that into the nature of executive power as envisaged by the commonwealth regime in Austral I mean common law regime in Australia and the constitutional nuances that exist to create a limited form of executive. See you next week.