Nationhood and Section 61 of the Constitution

• Author: Peta Stephenson
• Position: Lecturer, School of Law, Faculty of Law, Queensland University of Technology
• Pages: 149-187

NATIONHOOD AND SECTION 61 OF THE

CONSTITUTION

Peta Stephenson*

This article explores the relationship between the nationhood power and s 61 of the

Constitution

. It argues that, in the majority of decided cases, the nationhood power

has not supported the Commonwealth Government engaging in coercive activities

that would have been denied to it at common law. The key issue that has arisen in

the case law has been whether an executive act fell within a subject matter of

Commonwealth executive power. In this regard, the Court has found that

Australia’s attainment of nationhood expanded the areas of Commonwealth

responsibility over which the executive power could be exercised. It is further

shown that the nationhood power has not undermined the federal distribution of

powers. The Court has, in ascertaining whether an executive act is supported by the

nationhood power, consistently applied Mason J’s ‘peculiarly adapted’ test, which

was set out in

Victoria v Commonwealth

and Hayden

(

‘AAP Case’

). This test

incorporates federalism to condition and limit the nationhood power.

I INTRODUCTION

Section 61 is the principal repository of Commonwealth executive power in the

Constitution.

It vests the executive power of the Commonwealth in the Queen

and states that it is exercisable by the Governor-General and ‘extends to the

execution and maintenance of this Constitution, and of the laws of the

Commonwealth’. Section 61 ‘marks the external boundaries’1 of

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* Lecturer, School of Law, Faculty of Law, Queensland University of Technology. Special thanks are

due to Anne Twomey, Jonathan Crowe, Benjamin Saunders and the anonymous reviewer for their

helpful comments on an earlier version of this article. This article was presented as a paper at the

Institute for Advanced Studies Executive Power Workshop at The University of Western Australia on

7 April 2017. I am grateful to all who participated in the discussion. All errors and opinions expressed

are my own.

1

Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd

(1922) 31 CLR 421, 437-40,

447-8 (Isaacs J) (‘

Wooltops Case

’).

150

University of Western Australia Law Review

Vol 43(2):149

Commonwealth executive power but does not define it.2 The meaning of s 61

can only be properly understood if it is considered in the light of British

constitutional history, conventions and the common law.3

Consistent with our British heritage, it is now generally accepted that, in

addition to executive powers sourced directly in the

Constitution

and conferred

by statute, s 61 incorporates all of the common law or ‘non-statutory’ powers of

the Crown that are appropriate to the Commonwealth, subject to the federal

distribution of powers effected by the

Constitution

.4 In a classification that has

since received judicial endorsement, Sir William Blackstone divided the

common law powers into two categories, namely, the prerogative powers and

capacities of the Crown.5 The ‘prerogative’ was understood as referring to

‘those rights and capacities which the King enjoys alone, in contradistinction to

others, and not to those which he enjoys in common with any of his subjects’,

such as the power to declare war and peace, enter into treaties and confer

honours.6 ‘Capacities’, on the other hand, were those powers that the Crown

shared in common with its subjects. Of the Crown’s common law capacities,

the power to contract and spend has received the most judicial consideration in

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2

Davis v Commonwealth

(1988) 166 CLR 79,

92 (Mason CJ, Deane and Gaudron JJ) (‘

Davis

’) quoted

in

Pape v Commissioner of Taxation

(2009) 238 CLR 1, 62 [131] (French CJ) (‘

Pape

’) and

Williams v

Commonwealth (No 1)

(2012) 248 CLR 156, 372 [588] (Kiefel J) (‘

Williams (No 1)

’).

3 See, eg,

Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd

(1940) 63 CLR

278, 304 (Dixon J)

(‘

Farley’s Case

’); George Winterton,

Parliament, the Executive and the Governor-

General: A Constitutional Analysis

(Melbourne University Press, 1983) 1-13, 29, 71-85; Sir Victor

Windeyer, ‘Responsible Government – Highlights, Sidelights and Reflections’ (1957) 41

Royal

Australian Historical Society Journal and Proceedings

257, 259; W M C Gummow, ‘The

Constitution:

Ultimate Foundation of Australian Law?’ (2005) 79

Australian Law Journal

167, 172, 178–9; Leslie

Zines,

The High Court and the Constitution

(Federation Press, 5th ed, 2008) 339-41; Bradley Selway,

‘All at Sea – Constitutional Assumptions and “the Executive Power of the Commonwealth”’ (2003) 31

Federal Law Review

495, 501-4.

4

Barton v Commonwealth

(1974) 131 CLR 477, 498 (Mason J). See also Enid Campbell, ‘Parliament

and the Executive’ in Leslie Zines (ed),

Commentaries on the Australian Constitution: A Tribute to

Geoffrey Sawer

(Butterworths, 1977) 88, 88-90; Leslie Zines, ‘Commentary’ in H V Evatt,

The Royal

Prerogative

(Law Book Co, 1987) C1, C4-5; Winterton,

Parliament,

above n 3, 24-5, 50-1; Gummow,

above n 3, 172-3, 178-80.

5 Sir William Blackstone,

Commentaries on the Laws of England

(Clarendon Press, 1765-69) Book I,

232 endorsed in

Davis

(1988) 166 CLR 79, 108 (Brennan J);

Williams (No 1)

(2012) 248 CLR 156, 186

[25] (French CJ), 343-4 [488] (Crennan J);

Plaintiff M68/2015 v Minister for Immigration and Border

Protection

(2016) 257 CLR 42, 97 [133], 98 [135] (Gageler J) (‘

Plaintiff M68

’).

6 Blackstone, above n 5, 232 endorsed in

Davis

(1988) 166 CLR 79, 108 (Brennan J);

Williams (No 1)

(2012) 248 CLR 156, 186 [25] (French CJ), 343-4 [488] (Crennan J). See also Leslie Zines, ‘The

Inherent Executive Power of the Commonwealth’ (2005) 16

Public Law Review

279, 280; Anne

Twomey, ‘Pushing the Boundaries of Executive Power:

Pape,

the Prerogative and Nationhood

Powers’ (2010) 34

Melbourne University Law Review

313, 316.

[2018]

Nationhood and Section 61 of the

Constitution

151

recent years, following a spate of High Court challenges to controversial

Commonwealth spending programs.7

In

Victoria v Commonwealth and Hayden

(‘

AAP Case

’),8

four Justices

of the High Court confirmed that the executive power in s 61 also incorporated

an implied executive power derived, in part, from Australia’s national status.9

Mason J gave the most precise formulation of it, describing it as ‘a capacity to

engage in enterprises and activities peculiarly adapted to the government of a

nation and which cannot otherwise be carried on for the benefit of the nation’.10

This aspect of the executive power has been described as the ‘inherent power’,11

or ‘implied national power’.12 More commonly, scholars have referred to it as

the ‘nationhood power’,13 notwithstanding that, until fairly recently, this

description was not adopted by a majority of the High Court of Australia.14

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7 See, especially

Pape

(2009) 238 CLR 1;

Williams (No 1)

(2012) 248 CLR 156;

Williams v

Commonwealth (No 2)

(2014) 252 CLR 416 (‘

Williams (No 2)

’). On the distinction between

prerogatives and capacities see Blackstone, above n 5, 232 endorsed in

Davis

(1988) 166 CLR 79, 108-

9 (Brennan J);

Williams (No 1)

(2012) 248 CLR 156, 186 [25] (French CJ), 343-4 [488] (Crennan J);

Plaintiff M68

(2016) 257 CLR 42, 97 [133], 98 [135] (Gageler J). See also Zines, ‘Inherent’, above n 6,

280; B V Harris, ‘The “Third Source” of Authority for Government Action Revisited’ (2007) 123

Law

Quarterly Review

225, 635-6; Twomey, above n 6, 322-3, 326-7.

8 (1975) 134 CLR 338.

9 Ibid 362 (Barwick CJ), 375 (Gibbs J), 397 (Mason J), 412 (Jacobs J).

10 Ibid 397.

11 Zines, ‘Inherent’, above n 6; H P Lee,

Emergency Powers

(The Law Book Company Ltd, 1984) 125-

6, 206-7; Jennifer Clarke, Patrick Keyzer and James Stellios,

Hanks’ Australian Constitutional Law

(LexisNexis Butterworths, 9th ed, 2013) 934-5.

12 Zines,

High Court,

above n 3, 414-5; Cheryl Saunders, ‘The National Implied Power and Implied

Restrictions on Commonwealth Power’ (1984) 14

Federal Law Review

267.

13 See, eg, Winterton,

Parliament,

above n 3, 40-4; P H Lane,

Lane’s Commentary on the Australian

Constitution

(Law Book, 2nd ed, 1997) 438-9; Jeremy Kirk, ‘Constitutional Implications (I): Nature,

Legitimacy, Classification, Examples’ (2000) 24

Melbourne University Law Review

645, 669-71;

Gabrielle Appleby, ‘There Must be Limits: The Commonwealth Spending Power’ (2009) 37

Federal

Law Review

93, 111-2, 128-130; Twomey, ‘

Pape

’, above n 6; Peter Gerangelos, ‘The Executive Power

of the Commonwealth of Australia: Section 61 of the Commonwealth Constitution, ‘Nationhood’ and

the Future of the Prerogative’ (2012) 12

Oxford University Commonwealth Law Journal

97, 104, 128,

130; Peter Gerangelos, H P Lee, Nicholas Aroney, Sarah Murray, Simon Evans and Patrick Emerton,

Winterton’s Australian Federal Constitutional Law: Commentary and Materials

(Thomson Reuters,

3rd ed, 2013) 325-6 [3.390];

Gabrielle Appleby and Stephen McDonald, ‘Looking at Executive Power

through the High Court’s New Spectacles’ (2013) 35

Sydney Law Review

253, 258, 262, 274, 276;

Anne Twomey, ‘Post-

Williams

Expenditure – When can the Commonwealth and States Spend Public

Money Without Parliamentary Authorisation’ (2014) 33

University of Queensland Law Journal

9, 23-

5; Geoffrey Lindell, ‘The Changed Landscape of the Executive Power of the Commonwealth after the

Williams

Case’ (2014) 39

Monash Law Review

348, 353, 384; George Williams, Sean Brennan and

Andrew Lynch,

Blackshield and Williams Australian Constitutional Law and Theory: Commentary

and Materials

(Federation Press, 6th ed, 2014) 379-397; Peter Gerangelos, ‘Executive Power’ in

Nicholas Aroney, Peter Gerangelos, Sarah Murray and James Stellios (eds),

The Constitution of the

Commonwealth of Australia: History, Principle and Interpretation

(Cambridge University Press,