Section 61 of the Commonwealth Constitution and an 'Historical Constitutional Approach': An Excursus on Justice Gageler's Reasoning in the M68 Case

• Author: Peter Gerangelos
• Position: Professor of Constitutional Law, The University of Sydney
• Pages: 103-148

SECTION 61 OF THE

COMMONWEALTH

CONSTITUTION

AND AN ‘HISTORICAL

CONSTITUTIONAL APPROACH’: AN EXCURSUS

ON JUSTICE GAGELER’S REASONING IN THE

M68

CASE

Peter Gerangelos*

This paper seeks to supplement the other papers in this Special Edition by

reflecting upon the value of the interpretative methodology articulated by J W R

Allison, ‘the historical constitutional approach’,that appears to be particularly

suited to resolving difficult questions about the ambit of the Commonwealth’s

executive power. It articulates an approach to constitutional interpretation that

explains why and how constitutional history, historical

sources

of law, their

interplay with the evolution of forms of government and the relationship between

its various branches, may be very useful, if not essential, in resolving contemporary

legal issues. It will examine this approach by comparing it with the reasoning of

Gageler J in the

M68

Case

which exhibits very interesting parallels with this

approach.

‘Yet to know is properly to understand a thin g with reason and

through its cause.’

1

I INTRODUCTION

The aim of this paper is modest. It seeks to supplement the other papers in this

Special Edition by reflecting upon the value of the interpretative methodology

articulated by J W R Allison, ‘the historical constitutional approach’2 that

appears to be particularly suited to resolving difficult questions arising from s

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* Professor of Constitutional Law, The University of Sydney.

1 Sir Edward Coke,

The First Part of the Institutes of the Laws of England

(J & WT Clarke, 18th edn,

1823), part 183b:

'

Scire autem proprie est rem ratione et per causam cognoscere.

’ Attributed

to

Aristotle,

Metaphysics, Book 1

.

2 This was set out in J W F Allison,

The English Historical Constitution

(Cambridge University Press,

2007).

University of Western Australia Law Review

Vol 43(2):103

104

61 of the

Constitution

and the ambit of the Commonwealth’s executive power.3

It articulates an approach to constitutional interpretation that explains why and

how constitutional history, historical

sources

of law, their interplay with the

evolution of forms of government and the relationship between its various

branches, may be very useful, if not essential, in resolving contemporary legal

issues. Dr Allison’s thesis will be explored in more detail in Part II. Its gist can

be stated thus: constitutional arrangements that have had a continuing history,

whether from the distant or recent past, and in which change or reform are

inherent, constitute legitimate and necessary sources of current constitutional

law and principle. In other words, it confirms the legitimacy of such sources

and also makes them more prominent in contemporary legal debates about the

nature of the constitution. Although Allison’s work is centred on the unwritten

United Kingdom constitution, it will be shown that it has much significance for

Australia’s written constitution, especially in provisions such as s 61 which

cannot be interpreted accurately by recourse to the text alone.

My interest in Dr Allison’s work was engaged when considering the

problems which arise from the very meagre text of s 61 and its failure to

provide much more than general guidance as to the content and ambit of the

non-statutory power for which it provides. How are these important issues to

be resolved when the text simply states that the power ‘extends to the execution

and maintenance of this Constitution, and of the laws of the Commonwealth’?

The problem is compounded by the fact that little, if any, assistance can be

derived from a purely abstract conceptual analysis of ‘executive power’ to

determine whether any particular powers are inherent in the notion – unless

one is speculating about an ideal polity. That ‘the executive’, the government, is

able validly to exercises a particular power in any particular polity from time to

time is purely a function of the constitution, laws, conventions and usages, as

they have evolved over time and by reference to the political and constitutional

history of that polity, which pertain at the time the power is being exercised.4

In light of s 61’s meagre text, recourse to such sources becomes particularly

material and clearly warrants a serious consideration of the value of a ‘historical

constitutional approach’.

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3 Formally vested in the Queen and made “exercisable by the Governor-General” as her

representative.

4 Nicholas Aroney, Peter Gerangelos, Sarah Murray and James Stellios,

The Constitution of the

Commonwealth of Australia: History, Principle, Interpretation

(Cambridge University Press, 2015)

384.

[2018]

Section 61 of the

Commonwealth Constitution

and an

‘ ‘Historical Constitutional Approach’

105

The sparseness of s 61 is of course not a new problem. Academic and

judicial reflection upon it has variously sought definition and resolution in

extra-textual, though not necessarily extra-constitutional, sources consistent

with the text, often historical and sometimes English. Having been referred to

as ‘traditional conceptions,’5 there are numerous examples of use being made of

these when considering s 61 and executive power. Dixon J stated that the

character of the broad division of power, for which the

Constitution

provides,

‘is determined according to traditional British conceptions’6; or, as paraphrased

by Professor Campbell, ‘conceptions founded in the common law of England

and its overlay of constitutional convention’.7 These include those residual

prerogative powers of the Crown, known to the common law, that define the

ambit of non-statutory executive power, and to the principles of responsible

government and parliamentary supremacy that subject executive power to

legislative control. In

Cadia Holdings

, French CJ interpreted s 61 to

‘include…the prerogative powers accorded the Crown by the common law’ and

approved of Dixon J’s reference to the ‘common law prerogatives of the Crown

of England’ being ‘“carried into the executive authority of the

Commonwealth”’.8 This echoed Mason J in

Barton

who had stated that s 61

‘includes the prerogative powers of the Crown, that is, those powers accorded

to the Crown by the common law.’9 Professor Winterton was able to say, in

similar vein, that ‘[b]ecause the Constitution is a British statute operating in a

common law environment, the vesting of the executive power in the Crown

automatically… brought to the Crown in right of the Commonwealth the

common law or prerogative powers of the Crown’.10 Professor Zines more

recently referred to the Commonwealth’s inheritance of these ‘Crown

prerogatives and capacities’ by virtue of the Commonwealth being ‘a

government of the Queen’.11 And in relation to the provenance of these powers,

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5 See

Australian Communist Party v Commonwealth

(1951) 83 CLR 1, 230;

R v Kirby; Ex Parte

Boilermakers’ Society of Australia

(1956) 94 CLR 254, 276.

6

R v Kirby; Ex Parte Boilermakers’ Society of Australia

(1956) 94 CLR 254, 276.

7 Enid Campbell, ‘Parliament and the Executive’ in Leslie Zines (ed),

Commentaries on the Australian

Constitution

(Butterworths, 1977) 88, 88.

8

Cadia Holdings Pty Ltd v New South Wales

(2010) 242 CLR 195, 226 citing

Federal Commissioner

of Taxation v Offıcial Liquidator of E O Farley Ltd

(1940) 63 CLR 278, 304. See also

Williams v

Commonwealth (No 1)

(2012) 248 CLR 156, 184-5 [22].

9

Barton v Commonwealth

(1947) 131 CLR 477, 498.

10 George Winterton,

Parliament, the Executive and the Governor-General

(Melbourne University

Press, 1983) 23-4.

11 Leslie Zines, ‘The Inherent Executive Power of the Commonwealth’ (2005) 16

Public Law Review

279, 280.