Introduction

• Author: Murray Wesson
• Position: Senior Lecturer, School of Law, the University of Western Australia
• Pages: 1-15

INTRODUCTION

Dr Murray Wesson*

We live in unsettled times. In recent years, we have witnessed a spate of Islamist

terrorist atrocities, the resurgence of authoritarianism, increasing and

apparently intractable concerns about inequality, and a weakening of the liberal

consensus. In circumstances such as these, questions about executive power are

likely to be particularly relevant. As the Honourable Robert French AC notes in

his contribution to this special issue, anxieties about perceived threats to the

social order are capable of fuelling expansive approaches to executive power, as

the public seek the reassurance of ‘strong’ forms of government.1 On the other

hand, executive power, especially non-statutory executive power, is itself

anxiety provoking and may be a factor in democratic decay. In an oft-cited

observation in the

Communist Party Case

, Sir Owen Dixon noted that

‘[h]istory, and not only ancient history, shows that in countries where

democratic institutions have been unconstitutionally superseded, it had been

done not seldom by those holding the executive power.’2

In this light, it is perhaps unsurprising that executive power and its

attendant anxieties have featured prominently in many recent events. In the

United Kingdom, the Supreme Court found in

Miller

that the government

could not rely upon the prerogative to trigger withdrawal from the European

Union but required an Act of Parliament.3 This decision was welcomed by

some commentators on the basis that the prerogative is the ‘enemy of the

people’,4 but was also resisted by others due to the ‘unanimity, strength and

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* Senior Lecturer, School of Law, the University of Western Australia. Many of the contributions to

this special issue of the

University of Western Australia Law Review

derive from an Executive Power

workshop held at the Institute of Advanced Studies, the University of Western Australia, on 7 April

2017. The workshop, and hence the special issue, would not have been possible without the generous

support of the Institute of Advanced Studies. I would also like to thank the University of Western

Australia Law School for financially supporting the production of the special issue, and Professor

Michael Blakeney as staff editor for his advice and encouragement. Finally, I would like to thank

Stephen Puttick for his excellent work as student editor.

1 ‘Executive Power in Australia – Nurtured and Bound in Anxiety’.

2

Australian Communist Party v Commonwealth

(1951) 83 CLR 1, 187.

3

R (Miller) v Secretary of State for Exiting the European Union

[2017] UKSC 5 (24 January 2017).

4 Thomas Poole, ‘Losing our Religion? Public Law and Brexit’ on UK Constitutional Law Association,

UK Constitutional Law Blog

(2 Dec 2016) <https://ukconstitutionallaw.org/>.