THE RELATIONSHIP BETWEEN THE ROYAL PREROGATIVE AND STATUTE IN AUSTRALIA.

• Date: 01 April 2021
• Author: Stephenson, Peta

CONTENTS I Introduction II The Royal Prerogative III The Principle Governing the Relationship between the Prerogative and Statute A Attorney-General v De Keyser's Royal Hotel Ltd B Application of De Keyser in Australian Case Law IV The Interpretive Approach A Strong Presumption against Displacement of 'Important' Prerogative Powers B Requirement of an Inconsistency between Statute and the Prerogative and Its Relationship with Legislative Intention V Conclusion I INTRODUCTION

The royal prerogative remains an important source of authority for government action in Australia. The power to declare war and peace, (1) enter into treaties with foreign governments, (2) request the surrender and extradition of fugitives from foreign states, (3) call out the military to maintain the peace, (4) and exclude non-citizens from Australia (5) are all executive acts that are understood as falling within the prerogative. In his Honour's tripartite classification of prerogative powers in Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (in liq) ('Farleys Case'), Evatt J referred to these powers as the 'executive prerogatives' that were generally vested exclusively in the Crown in right of the Commonwealth of Australia. (6) Today, these prerogative powers are exercised by Commonwealth ministers or the Governor-General, who almost always acts on ministerial advice. (7)

The term 'prerogative' refers collectively to the bundle of discretionary rights, powers, privileges and immunities that were enjoyed exclusively by the Monarch in the United Kingdom ('UK'). The prerogative has been described as 'a relic of a past age', (8) left over from a time when the Monarch was directly involved in the administration of government. (9) A defining characteristic of the prerogative is that it can be exercised independently of legislation, but its precise content and scope otherwise remain uncertain.

While the prerogative can be exercised without statutory authorisation, it is subject to limitations derived from the common law. These limits have been cited by some constitutional scholars in support of confining the scope of Commonwealth executive power to the prerogative. (10) Prerogative powers can lapse due to disuse. (11) The prerogative is also limited to historically exercised powers. (12) While the prerogative can evolve and adapt to changing circumstances, new prerogatives cannot be created. (13) The executive government cannot exercise the prerogative to deprive a person of liberty or interfere with their private property, (14) create an offence, (15) raise taxes, (16) or compel persons to give evidence or produce documents in relation to a government inquiry. (17) Nor can the prerogative be exercised to change statutes or the common law. (18)

As the prerogative originated from the UK under a system of parliamentary sovereignty, it is susceptible to control by the Parliament. (19) The relationship between the prerogative and statute was clarified in the important and influential decision of the House of Lords in Attorney-General v De Keysers Royal Hotel Ltd ('De Keyser'). (20) That case laid down the principle that 'when a prerogative power of the Executive Government is directly regulated by statute, the Executive can no longer rely on the prerogative power but must act in accordance with the statutory regime laid down by the Parliament'. (21) In these circumstances, the prerogative is to be regarded as abrogated, abridged or 'displaced' (22) by the statute. The statutory displacement of the prerogative may occur by express words or by necessary implication. (23)

This principle, which will be referred to in this article as the 'displacement principle,' (24) has been incorporated in Australian case law, (25) but has received relatively little judicial consideration or attention from scholars. (26) However, we are now living in an 'age of statutes'. (27) The vast majority of executive powers are conferred and regulated by legislation. (28) The question of whether non-statutory executive powers, including prerogative powers, have been altered or displaced by legislation is an important one that courts will be required to grapple with as a result of this proliferation of statutes. Australian courts have also insisted on increased parliamentary oversight of executive action that was historically undertaken in the absence of statutory authorisation, such as the capacity to contract and spend. (29) There is, seemingly, a shrinking field of non-statutory executive power in Australia. (30)

The aim of this article is to examine the application of the displacement principle in Australian case law and its interaction with principles of statutory interpretation, in order to gain a better understanding of the contemporary relationship between the prerogative and statute in Australia. (31) As will be shown, the central question in these cases is whether a legislative intention to displace or otherwise deprive the executive of the prerogative can be discerned from the statute. That is not a question of searching for the actual intention of the Parliament or its members, which a majority of the High Court has dismissed as a 'fiction'. (32) The prevailing understanding of legislative intention is that it is the product, rather than the ultimate goal, of the judicial interpretation of statutes. (33) The relevant 'intention' of a statute is one which is revealed to the court by applying the rules and principles of statutory construction. The meaning that is produced from undertaking the objective exercise of construing the statutory text in its context and with reference to its purpose and the 'canons of construction' is the meaning that the Parliament can be taken to have intended. (34)

Statutory interpretation is, therefore, the principal task undertaken by courts in these cases. The question of whether a statute can be taken to have displaced the prerogative requires a careful analysis of the meaning, operation and scope of the statute. The outcomes of these cases will, to a large extent, turn on the provisions of the particular statute and the circumstances of the individual case. (35) Nevertheless, it is possible to extract broader statements of principle from the case law that have guided the courts' approach to displacement in Australia.

This article offers an analysis of the interpretive approach that has been adopted by Australian courts in ascertaining whether the prerogative has been displaced by statute. It interrogates a core feature of this approach, namely, the adoption of a strong presumption against displacement of prerogative powers that are important to national sovereignty and the functioning of the executive government. It is argued that the application of this presumption has prevented the full expression of the displacement principle in Australia and should be reconsidered. This article proceeds as follows. Part II provides an overview of the royal prerogative and its incorporation as an aspect of the executive power of the Commonwealth in s 61 of the Australian Constitution. Part III examines the emergence of the displacement principle in De Keyser before examining its application in Australian case law. Part IV of the article critically examines the interpretive approach that has been adopted by Australian courts in ascertaining whether the prerogative has been displaced by statute.

II THE ROYAL PREROGATIVE

As the subject of this article is statutory displacement of the prerogative, it is helpful to begin by providing a brief overview of the royal prerogative and its relationship with the executive power of the Commonwealth in s 61 of the Australian Constitution. It is necessary to have an understanding of the prerogative because, in evaluating whether it has been displaced by statute, courts must identify the prerogative that is engaged in any particular case. As will be shown, this is not always a straightforward task because the precise content and scope of the prerogative are uncertain.

Section 61 is the principal provision dealing with the executive power of the Commonwealth in the Australian Constitution. Section 61 is situated in ch II of the Australian Constitution, which is entitled 'The Executive Government'. Section 61 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' (36) of Commonwealth executive power but does not define it. (37) The High Court has accepted that British constitutional history and practice inform the meaning of s 61 and are important to 'a proper understanding of the executive power of the Commonwealth.' (38) However, the High Court has also emphasised that the executive power conferred by s 61 is not identical to the power of the British executive. (39) The Australian Constitution created a different legal system from that which exists in the UK and, as such, it cannot be assumed that the powers enjoyed by the Commonwealth executive in Australia are identical to the prerogative powers that were enjoyed by the Monarch in the UK. (40)

It is now generally accepted that, in addition to executive powers sourced directly in the Australian Constitution and conferred by statute, s 61 incorporates all of the common law powers of the Crown that are 'appropriate' to the Commonwealth, subject to the federal distribution of powers effected by the Australian Constitution. (41) Australian courts have divided the common law powers into two categories, namely, the 'prerogatives' and 'capacities' of the Crown. (42)

The High Court has also held that the executive power of the Commonwealth extends beyond the prerogative and includes an 'inherent' or 'implied' executive power derived, in part, from Australia's national status. (43) Australian courts have applied the...