Executive Power in Australia - Nurtured and Bound in Anxiety

• Author: The Hon Robert French AC
• Position: Chancellor, The University of Western Australia; Adjunct Professor, Law School, The University of Western Australia
• Pages: 16-41

EXECUTIVE POWER IN AUSTRALIA – NURTURED

AND BOUND IN ANXIETY

The Hon Robert French AC*

This paper reviews the place of executive power within the

Commonwealth

Constitution

in light of historical and recent developments. It summarises, in

particular, the scope of executive power and the extent to which it is informed and

constrained by its federal constitutional setting. It also considers the role of the

traditional prerogatives of the Crown in defining the content of executive power,

and of non-statutory executive power generally, and executive power under the

constitutions of the various States.

Executive power in representative democracies is associated with two

kinds of societal anxiety – anxiety which

fuels

expansive approaches to its

content and anxiety

about

expansive approaches to its content. The first kind

arises out of perceived threats to the social order, the character of civil society

and,

in extremis

, its existence. The second kind is concerned with the

sufficiency of checks on abuses of executive power. Non-statutory executive

power, sourced directly from the

Constitution

, engenders particular anxiety

because it is not easy to attach to it justiciable constraints of the kind that can

be derived from the text, subject matter and purpose of a statutory grant of

power. Perhaps the most high profile anxiety-generating issue feeding into the

exercise of executive power in Australia in recent times has been the entry of

non-citizens into the country by sea with the assistance of people smugglers. In

responding to what may broadly be called ‘border control issues’, both statutory

and non-statutory executive powers have been invoked by the Commonwealth

Government.

Anxious ambivalence about executive power was reflected in the

approach of the drafters of the

United States Constitution

who were said to

have ‘feared both executive power and executive weakness, regarding the

former as the seed of tyranny and the latter as the wellspring of anarchy.’1 The

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* Chancellor, The University of Western Australia; Adjunct Professor, Law School, The University of

Western Australia.

1 Michael Nelson, ‘The Evolving Presidency’, Landmark Document 1787-2014.

[2018]

Executive Power in Australia – Nurtured and Bound in Anxiety

17

drafters no doubt had in mind recent unhappy experiences with monarchical

powers.

Dystopian visions of overblown executive power find frequent

expressions in the popular culture of the United States and, given the porosity

of our cultural boundaries, may trouble Australian perspectives from time to

time. The graphic novel

Watchmen

, made into a film in 2009, imagined a

history in which Richard Nixon won the Vietnam War with the help of a

nuclear powered superhero and served at least five successive terms with an

executive power virtually unchecked so that he could meet the threat of nuclear

war with the Soviet Union. In one of a collection of essays published in 2010

linking popular culture to political possibilities, the authors said of

Watchmen

:

Neither Reagan nor Bush were so audacious but to the extent that

Watchmen

reflects real world growth of executive power, it raises the

spectre of possibility.2

The distinctly B-grade film,

Judge Dredd

, is a fine depiction of muscular

executive power operating at street level and subsuming judicial functions.

Sylvester Stallone stars as a police officer in a future New York. He is armed

with coercive investigative, adjudicatory and punitive powers. His class of

officer has replaced an effete and ineffective judiciary. He expresses his

constitutional position succinctly with the words ‘I am the law’, which he

announces from the saddle of a levitating Harley-Davidson.

The executive power of the United States is vested, by § 1 of Art 2, in the

President. Within three months of his inauguration in 2017, the newly elected

President had signed 32 executive orders, actions and memoranda. They

purported to suspend the country’s refugee program and to limit inbound

travel from largely Muslim countries. They also included an order authorising

the construction of a border wall between Mexico and the United States.3 For

those of an anxious disposition a dystopia, exceeding filmic imagination, had

arrived and was living in the White House. Even some not so anxious about

executive power were concerned. Professor John Yoo of the University of

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2 Trevor Parry-Giles, Will P Howell and Devin Scott, ‘Reflection and Deflection: An Approach to

Popular Culture and Politics’ in Andrew E Herrmann and Art Ferbig (eds),

Communication

Perspectives in Popular Culture

(Lexington Books, 2010).

3 ‘List of Trump’s Executive Orders’,

Fox News

(online), 28 April 2017

<http://www.foxnews.com/politics/2017/04/28/list-trumps-executive-orders.html>.