Prerogative powers find their basis in historical usage. One significant consequence is that they cannot be found in a codified source. Their existence can only be confirmed by finding records of examples of their use, sometimes in historical works, sometimes collected by legal commentators and sometimes in court records of disputes about their exercise. But as the exercise of prerogative powers, (as opposed to their existence and extent), was not generally regarded as justiciable until the 1980s, court challenges were few and court records are accordingly scarce. The case law on the prerogative is at best thin, and in some cases non-existent.
The result is that while some prerogative powers are commonly exercised and well known, such as the prerogative to enter into treaties or to declare war or grant mercy, there are disputes as to whether other prerogatives exist at all or about whether or how a prerogative may be adapted to operate in the modern world. The scope of many prerogatives, such as those concerning self-protection and the maintenance of order during an emergency, remains unclear.
This article commences by discussing in Part I the nature of the royal prerogative and how it is affected by factors uniquely relevant to Australia’s history and Constitution. It then proceeds in Part II to illustrate the difficulties that lie in identifying the scope and application of prerogative powers, by reference to a case study concerning the provision of civil aid by the Australian Defence Force (“ADF”) during natural disasters and pandemics. This is an issue of contemporary importance in Australia, given the use of the ADF to support rescue and recovery during major bushfires in January 2020 and to support border closures, contact tracing and isolation compliance during the COVID-19 pandemic from March 2020. The Australian Prime Minister, Scott Morrison, has expressed a concern that the Commonwealth Government, in using the ADF in this way, was acting at the very edge of its constitutional powers. This article seeks to clarify where that edge lies.
Part III addresses the other highly contentious issue concerning the prerogative, namely whether its exercise can be the subject of judicial review. This was recently a hotly contested issue in the United Kingdom in relation to the judicial review of the exercise of the prerogative to prorogue Parliament. In this Part the prerogative of mercy is used as a case study to show how the courts in the United Kingdom have expanded the concept of justiciability, and how the Australian courts have been slowly taking steps in the same direction. The article concludes by noting the ongoing uncertainty with respect to the application of prerogative powers and that in some cases, such as where coercive action may be needed, the conferral of executive power by statute would be a preferable approach.
II. The Prerogative in the Australian Constitutional Context
The Sources and Status of the Prerogative
The prerogative in Australia, as in other Realms, finds its source in historic royal powers, rights, privileges and immunities. Originally, they had a legislative aspect (such as the power to legislate for colonies by the making of letters patent) and a judicial aspect. These have diminished over time, and this article will focus solely on the prerogative as an executive power.
Section 61 of the Commonwealth Constitution provides that the “executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative and extends to the execution and maintenance of this Constitution, and the laws of the Commonwealth”. It does not define executive power. Accordingly, while all Commonwealth executive power falls within s 61, its original source can include other provisions of the Constitution, statute or the prerogative.
Prerogative acts have the force of law. They are recognised by the common law and their exercise, has to be accommodated by the courts with other common law rights and interests. While the prerogative cannot be used to alter statutes, the exercise of the prerogative is in some cases “capable of interfering with the legal rights of others”, at least where this is “inherent in the prerogative power”, such as the alteration of the terms of service of civil servants or the destruction of property for the purposes of national defence. Other examples would include the power to detain enemy aliens and destroy private property during a war, the power to keep the peace and protect the polity during an emergency, the exercise of the prerogative of mercy to grant a person liberty, the exercise of prosecutorial discretions and the issue of the Attorney-General’s fiat to commence legal proceedings to protect a public right.
In other cases, however, the exercise of a prerogative power, such as entering into a treaty, cannot affect the legal rights and interests of individuals unless legislative action is taken to give effect to it.
The key distinction, however, must be drawn with the capacities that may be exercised by a polity, as a legal person, such as the capacity to enter into contracts, own property, employ people and spend money. Depending on whether one takes Dicey’s broad view or Blackstone’s narrower view of the prerogative, these capacities may or may not fall within the prerogative. But regardless of the definition adopted, the capacities are different from prerogative powers because they cannot interfere with the legal rights of others. At most they are facultative and their effects on legal relations are limited to those that arise as a consequence of the application of the general law to all.
Factors Affecting the Operation of the Prerogative in Australia
Australia’s colonial history has affected the exercise of the prerogative in Australia. While prerogative powers were regarded as arriving in Australia with the first British settlers, along with the common law, not all prerogative powers were regarded as suitable for exercise in Australia at the time of its settlement, or even at the time of federation. Some, such as the power to enter into treaties and declare war, were retained in the United Kingdom for exercise by the Sovereign on the advice of British ministers. They were eventually transferred to Australia, primarily by changes in convention, as recorded by the Imperial Conferences of 1923, 1926 and 1930, but in some cases by express delegation by the King under s 2 of the Constitution. For example, the power to declare war was formally delegated to the Governor-General by this means at the end of 1941, in order to avoid any doubt.
In 1901 the Australian colonies joined in a federation. While the Constitution distributes legislative power between the Commonwealth and the States, it does not address the distribution of executive power. Nor has there been any formal legal ruling about how the prerogatives are to be distributed. As a consequence there remains uncertainty, but the assumption has been made that the executive power should follow the distribution of legislative powers amongst the Commonwealth and the States. The connection is necessary because all executive power must be subject to legislative control and supervision, or there would be islands of executive power that the Parliament could not regulate or abrogate. Hence, the Commonwealth, which has legislative power to deal with external affairs and defence, exercises prerogatives with respect to treaties, diplomacy and defence matters. The States exercise prerogatives with respect to matters that fall outside the areas of Commonwealth legislative power, including prerogatives related to land, animals and resources within the State. Some prerogatives – particularly those concerning the immunities and privileges of the Crown – are exercised by both levels of government.
But this distribution of prerogative powers is not always straightforward. Even when the issue appears settled, an alternative view can be proffered. This occurred in Cadia Holdings Pty Ltd v New South Wales. The parties had proceeded on the assumption that the prerogative right to mines of gold and silver, including the right to impose royalties on the mining of these royal metals, was vested in the States, as they held the radical title to the land in which the mines were situated. But the High Court of Australia noted the argument that the prerogative in relation to the mining of gold and silver was originally intended to support the defence of the Realm and the minting of coinage, both of which fall within Commonwealth heads of legislative power, and that it might therefore be regarded as a Commonwealth prerogative. The Court went no further than making such a suggestion, as all parties to the case had argued on the basis that the prerogative was held by the States, but it was enough to worry the States that they might lose this important source of revenue.
Litigation about the exercise of prerogative powers in Australia therefore usually has two dimensions – whether an executive act falls within the scope of the prerogative and whether the subject-matter of the exercise of the prerogative falls within the powers of the polity that is purporting to exercise it. This is sometimes known as the depth and breadth of executive power.
A further consideration is that the Constitution is entrenched and can only be amended with the approval of the people in a referendum. As the prerogative falls within the executive power in s 61 of the Constitution, it is affected not only by federalism, but by other constitutional principles and implications, such as representative and responsible government, the separation of powers and implied constitutional freedoms. Hence, the scope of the prerogative must be read in this constitutional context. In particular, s 75 of the Constitution confers an entrenched original jurisdiction on the High Court of Australia to undertake judicial review, pursuant to prerogative writs, of acts of any officer of the Commonwealth and to hear any matter in which the Commonwealth is a party. The prerogative immunity of the Crown from suit is therefore diminished with respect to the Crown and its officers. The exercise of prerogative powers is accordingly liable to judicial review in most cases.
Another peculiarity about prerogative powers in Australia is that they often have a constitutional or legislative source of some kind. For example, the prerogatives to prorogue and dissolve Parliament are found in s 5 of the Constitution and the prerogative to appoint Ministers is contained in s 64. In any case, all prerogative powers fall within the scope of s 61 of the Constitution. But these statutory or constitutional sources do not obliterate the common law status of the prerogative. Instead, s 61 picks up the prerogative, as recognised by the common law. This means that it is still within the power of the courts to determine the existence of a prerogative (if its existence has not already been identified by the Constitution) and the extent of the prerogative. The same occurs where prerogative powers are recognized and preserved as such by statute.
In interpreting the extent of a prerogative power, a court must therefore ensure that the common law is applied in a manner that is consistent with constitutional principle and with the constraints that have historically been applied to the prerogative. A prerogative can therefore not be exercised so as to dispense with the application of the law, create an offence, impose taxation or authorise or enforce the deprivation of liberty of a person.
The Prerogative and the “Nationhood” Power
As the Australian Constitution was written for a self-governing colony of the British Crown, it did not, in its distribution of legislative power, include some of the powers that would ordinarily attach to a national government. This has made it difficult to attribute associated prerogative powers to the Commonwealth, even when the matter should more appropriately be dealt with by a national government. A minor example is the absence of any legislative power to establish national symbols, a national anthem or flag.
To fill this lacuna in the distribution of powers, the High Court has identified a form of non-statutory executive power that arises from the status of Australia’s nationhood. Mason J described the Commonwealth as having “the capacity to engage in enterprises and activities peculiarly adapted to the government of a nation” which “cannot otherwise be carried on for the benefit of the nation”. Whether this is an inherent or implied power derived from nationhood itself, incorporating the Commonwealth’s power to protect itself, or whether it is a facultative capacity derived from the combination of ss 61 and 51(xxxix) of the Constitution, which allows the Commonwealth to engage in activities that are “national” in nature but which involve no competition with the States, has not been adequately resolved.
In Pape v Federal Commissioner of Taxation, a majority of the High Court considered that the nationhood power extended to addressing a short-term financial emergency to which only the Commonwealth could adequately respond. The High Court was unwilling, however, to expand this power, as advocated by the Commonwealth, to include “all those matters that are reasonably capable of being seen as of national benefit or concern, that is, all those matters that befit the national government of the federation, as discerned from the text and structure of the Constitution”. The Court rightly observed that it was hard to think of any program requiring government expenditure that the Commonwealth would not regard as benefiting the nation. It rejected the attempt by the Commonwealth to expand the scope of its non-statutory executive power.
In Australia there is a lack of clarity about whether the nationhood power is essentially separate from the prerogatives and capacities of the Crown, or is rather a touchstone for identifying which non-statutory executive powers may be exercised by the Commonwealth as opposed to the States. Alternatively, one could view it as providing a means of adapting and expanding the prerogative to deal with matters relevant to nationhood today. If nationhood is a standalone source of non-statutory executive power, further questions arise as to the scope of the power, whether the common law limits on the prerogative also apply to it, whether the rules regarding the abrogation of the prerogative apply to it, and whether statute can permanently displace it, as can occur in relation to the prerogative.
Regardless of whether a non-statutory executive power finds its source in the prerogative or a nationhood power, its existence triggers a capacity to legislate in the execution of that executive power, by virtue of s 51(xxxix) of the Constitution. Indeed, the nationhood power has primarily been addressed by the courts as providing constitutional support for legislation, rather than as a non-statutory executive power in its own right. But the scope of this power is questionable, as it is an incidental power rather than a substantive power. It is therefore unlikely, for example, that a prerogative power that could not be exercised in a coercive manner could be transformed, by employing the incidental power in s 51(xxxix), into a coercive legislative power. There therefore remain significant questions about the extent to which legislation which is coercive in nature can rely on s 51(xxxix) and s 61 for support, unless it is giving effect to a prerogative which inherently permits coercion, such as a prerogative concerning war, the protection of Commonwealth interests or the keeping of the peace.
III. Prerogatives in Relation to Emergencies and the Deployment of the Armed Forces
The exercise of prerogative power with respect to the military, when it is being used for non-military purposes, such as providing civilian aid during a disaster, exposes all the difficulties discussed above, such as the uncertainty as to the scope of the prerogative, how it sits within the constitutional context, and its legal effects, including whether it can support coercive action. This Part uses the case study of defence aid to the civil power as a means of exploring these issues. It commences with a discussion of the complex constitutional and statutory context in which non-statutory executive powers may need to be exercised. It then addresses how these powers were exercised during the 2020 bushfires and pandemic. It then considers the different types of non-statutory executive powers that were relied upon, and whether or not they had been abrogated by the enactment of legislation in the field.
Constitutional, Legislative and Executive Powers Regarding the ADF and Civil Aid
Section 68 of the Constitution provides that the command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General. In this regard, the Governor-General, pursuant to the system of responsible government, acts upon the advice of his or her responsible ministers. This means that ultimate command of the ADF is in civilian hands.
Section 51(vi) of the Constitution gives the Commonwealth Parliament power to make laws with respect to the “naval and military defence of the Commonwealth and the several States, and the control of the forces to execute and maintain the laws of the Commonwealth”. It is a purposive power, meaning that any law made pursuant to it must be reasonably capable of being seen as appropriate and adapted to achieving the purpose of the defence of Australia. It permits the enactment of legislation for the establishment of the ADF, the enlistment of its members, its equipment and training.
In addition, s 114 of the Constitution provides that the Australian States may not, without the consent of the Commonwealth Parliament, raise or maintain any naval or military force. The quid pro quo is that s 119 provides that the “Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence”. Accordingly, a law that provided for protection of a State, upon its request, against domestic violence, such as terrorism, would be incidental to the execution of s 119 of the Constitution, and therefore supported by the combination of ss 61 and 51(xxxix) of the Constitution.
The requirement for a request from a State before the Commonwealth can intervene in relation to domestic violence is important. In R v Sharkey, Dixon J accepted that none of the subjects of Commonwealth legislative power relate to “public order” or “to the maintenance of the King’s peace or to social order”. He referred to s 119 of the Constitution and concluded that “except on the application of the Executive Government of the State, it is not within the province of the Commonwealth to protect the State against domestic violence”. However, quoting with approval from the work of Quick and Garran, he also accepted that where domestic violence within a State interferes with the operations of the Commonwealth Government, the Commonwealth may, “without a summons from the State, interfere to restore order”. The Commonwealth may therefore act to protect the carriage of the mail or the right of electors to vote in federal elections, lest it otherwise be dependent upon the States “for the effective exercise of its powers”. Another example is the protection of foreign dignitaries, which would appear to fall within the public order prerogative of the Commonwealth, rather than the States. White has argued that the Commonwealth, in protecting its laws or property, is exercising an executive power under s 61 of the Constitution, rather than its s 119 power, and therefore does not have to wait for the necessary request from a State.
These constitutional provisions collectively show that the Commonwealth Parliament has power to legislate for the defence of Australia from external threats, and may also protect a State against “domestic violence” (such as terrorist attacks, riots and other forms of serious internal violence) at the request of a State. The High Court has also held that the defence power supports the enactment of laws regarding terrorism, including the imposition of control orders. While it has been accepted that it “is not the ordinary function of the armed services to ‘execute and maintain the laws of the Commonwealth’”, the Commonwealth may act to protect its own functions and property within a State, such as the protection of post offices and other government buildings, without any request from the State.
Accordingly, the Commonwealth Parliament has enacted Part IIIAAA of the Defence Act 1903 (Cth), which is titled “Calling out the Defence Force to protect Commonwealth interest, States and self-governing Territories”. It provides for the Governor-General to issue a call-out order, on the advice of authorising Ministers. The orders can be contingent or immediate. The purpose of the order may be to protect Commonwealth interests or to protect a State or self-governing territory from domestic violence. In all cases, however, there must be domestic violence, or the threat or risk of it, to justify the call-out. If called-out under these provisions, the ADF may be authorised to exercise coercive powers.
Neither Part IIIAAA, nor the constitutional provisions discussed above, support the Commonwealth using its armed forces for the purposes of civil aid to deal with non-violence, such as a bushfire, cyclone, flood or earthquake, or during a pandemic. Yet, the ADF may be the one body with the capability, in terms of personnel, resources (eg ships and aircraft) and skills (eg the ability to build temporary bridges) that can best deal with these kinds of non-violent emergencies. This leaves the ADF in an uncertain legal position, forcing it to fall back on non-statutory executive power to support its role in providing aid to the civil power.
Defence Aid to the Civil Power during the 2020 Bushfires and Pandemic
In Australia in early 2020 devastating bushfires occurred, creating simultaneous crises in a number of States. Dealing with emergencies, including bushfires, is primarily a matter for the Australian States, but the scale of the emergency was such that there were public calls for, and expectations of, national leadership and the deployment of the resources of the ADF. This eventually resulted in the use of naval vessels to evacuate communities from beaches that were surrounded by fires and the use of more than 6500 ADF personnel for civil aid.
As noted above, the Prime Minister, Scott Morrison, expressed concern that in engaging in these roles, the Commonwealth was “testing the limits of constitutionally defined roles and responsibilities”. A question arose as to whether the Commonwealth had executive powers to act, based either on the prerogative or the nationhood power. A further issue arose as to whether it was necessary for a State first to request assistance. If it did not, could the Commonwealth simply impose its assistance, if it judged it necessary, and could it do so without consultation with the State or any coordination with State personnel who were managing the crisis?
During the height of the bushfire crisis in New South Wales, on 4 January 2020, the Rural Fire Service Commissioner, Shane Fitzsimmons, who was in charge of the bushfire response, was informed by the media that the Commonwealth was about to deploy 3000 army reservists to respond to the crisis. There was a lack of communication or consultation about what was needed. The Commonwealth had decided to issue a formal “call-out” of 3000 ADF Reserves by the Governor-General under s 28(1) of the Defence Act 1903 “to provide civil aid, humanitarian assistance, medical or civil emergency or disaster relief”. But there was no call-out under Part IIIAAA of the Defence Act, which would have permitted coercive action, because there was no “domestic violence” that could have justified it. In addition to the Reserve forces, an additional 3500 regular members of the ADF were deployed. The deployment relied upon non-statutory executive power.
Concerns were publicly expressed at the time that ADF personnel did not have sufficient legal protection, particularly if they needed to deal with people who were not prepared to obey instructions to leave areas that were under threat. In previous bushfires members of the ADF had been required to enter private property, without obtaining permission, to create firebreaks or search for deceased persons, which might have left them subject to civil liability. The Prime Minister established a royal commission to investigate the Commonwealth’s powers to deal with emergencies of this kind. Legislation was later enacted to provide an immunity from legal liability to members of the ADF when acting in good faith in the performance of their duty, if that duty was in respect of the provision of assistance by the ADF in relation to a natural disaster or other emergency and the assistance was provided at the direction of the Minister.
In March 2020, the spread of the COVID-19 pandemic led to the declaration by the Governor-General of a human biosecurity emergency. Again, members of the ADF were deployed in supporting the police in relation to activities including contact tracing, restricting movement across State borders, logistics and checking that self-isolation orders were being complied with. No action was taken to call-out the ADF under Part IIIAAA or to call-out the reserve forces.
The deployment of the ADF took place in accordance with an existing policy framework, set out in the “Defence Force Aid to the Civil Community” Manual (“DACC”), in conjunction with the Commonwealth’s Disaster Response Plan, both of which rely on executive power. DACC is only activated where the use of physical force against the civilian population is not anticipated. If the use of force may be required in dealing with the civilian population in Australia, statutory authorisation is required under Part IIIAAA of the Defence Act 1903 (Cth). However, as noted above, this is only available in cases of “domestic violence” which was not relevant in relation to the COVID-19 pandemic (unless it had led to riots or other forms of serious violence, which fortunately it did not).
The Minister for Defence therefore announced that no coercive powers had been conferred upon ADF officers, even though their roles included manning road-blocks on State borders and aiding in the enforcement of lock-downs, both of which involve giving effect to restrictions on freedom of movement. It appears that reliance was placed upon local police to act in the enforcement of State laws, while the ADF provided the visual and psychological impression of additional force. The Department of Defence announced that the “ADF will not be authorised as law enforcement officers as this remains the responsibility of the states and territories”.
It appears that the Commonwealth relied primarily upon its prerogative power to control and dispose of its defence forces and the capacity of the defence forces to perform acts that any legal person can validly perform. This was bolstered by a prerogative or nationhood power to deal with emergencies.
The Prerogative for the Control and Disposition of the Defence Forces
There has been a long recognised royal prerogative in the United Kingdom for the control and disposition of the defence forces. In New Zealand, the Court of Appeal acknowledged that the decision to disband the Air Combat Force of the Royal New Zealand Air Force was an instance of the prerogative for the control and disposition of the defence forces.
In Australia, this prerogative is given a constitutional source in s 68 of the Constitution. It vests the command in chief of naval and military forces in the Governor-General, acting on ministerial advice. While its source is constitutional, the nature and scope of the power is prerogative. It gives the Crown the power to move and place its defence forces, as it chooses. The Crown does not require permission to move its forces to different locations in Australia. It does not need a request or approval from a State for members of the ADF to enter a State – although due to the application of s 119 of the Constitution, a request from the Executive Government of a State is required before the ADF is deployed in the State for the purpose of protecting the State from domestic violence.
There is therefore a critical connection between the prerogative to dispose of the defence forces and the purpose for which they are to be deployed. Geoffrey Marshall observed with respect to the prerogative in the United Kingdom:
The deployment and use of the armed forces is a prerogative power at the disposal of the Crown and there seems no reason why the Crown should need express authority to order troops to do what it is lawful for anyone to do (to fight fires, for example).
In Australia, the prerogative permits the Crown to place or “dispose” of its defence forces as it chooses, so no formal call-out is required to provide non-coercive assistance in response to a national disaster. Further, as discussed below, those forces can, subject to some limitations, perform activities that any person can legally perform, such as fighting fires, removing debris and repairing bridges or communications.
While the legislative structure in Australia leaves non-coercive civil aid to be dealt with by non-statutory executive power, such as the prerogative, capacities or the nationhood power, its exercise is still partially regulated. For example, Regulation 69 of the Defence Regulation 2016 (Cth) provides that if the ADF is called out to protect a State or Commonwealth interest, other than under statute, the ADF must be utilised in a way that is reasonable and necessary to provide that protection, but must not be used to stop or restrict any protest, dissent, assembly or industrial action, unless there is reasonable likelihood of death or serious injury, or serious damage to property. Hence the exercise of the prerogative and capacities is regulated and limited by subordinate legislation.
The Power or Capacity to Perform Acts that Any Person May Legally Perform
While the Commonwealth may have a prerogative to place its defence forces in a State and to control their conduct, this does not empower them to provide civil aid during an emergency. Reliance seems instead to be based upon the proposition that members of the ADF can perform acts that are not unlawful, just as other people can do. But this raises the question of whether it is the ADF that is exercising the capacities of the Commonwealth of Australia as a polity, and thus a legal person, or whether each individual member of the ADF is being treated as exercising their own personal capacities as individuals. There are problems with both propositions.
While individual persons may perform acts that are not unlawful, such as removing debris from a road or extinguishing a fire, members of the ADF would not be acting in their personal capacity, but in their official capacity as part of their work functions, within the military command structure and subject to orders. ADF members wear uniforms and are subject to different laws due to their status. For example, a member of the ADF may, in that capacity, carry a weapon or drive a Commonwealth vehicle without being subject to State licencing laws, unlike everyone else. In certain circumstances acting on superior orders is also a defence against criminal acts done pursuant to such orders. Section 123(1)(b) of the Defence Act also provides that a member of the ADF is not bound by any State law that would require the member to have permission to do anything in the course of his or her duties as a member of the ADF. The key element here is that the ADF member is acting in the course of his or her duties, not as a private individual.
The matter becomes more difficult if the ADF member imposes force or detains a person. While it is true that ordinary persons can make a citizen’s arrest for certain offences and act in self-defence or the defence of others, it is a different matter if members of the ADF are ordered to exercise such powers as part of their duties, outside of legislative authority. In such a case, the question arises as to the source of the power to do so.
In Williams v Commonwealth (No 1), the Commonwealth Government argued that the Commonwealth, as a polity, had full power to do anything which a citizen could do, such as spend money, own property, employ persons, sue and enter into contracts. In this case the Commonwealth was spending money to support a chaplaincy scheme in schools. The High Court of Australia, however, rejected the proposition that the Commonwealth had the full legal powers of an individual. First, as a constituent part of a federal system of government, the Commonwealth is limited in the powers it can exercise. It can only spend money for any purposes which fall within its legislative or executive power. The limits of the Commonwealth’s executive capacities must therefore be assessed by reference to the federal system established by the Constitution.
Second, while the Commonwealth may have the capacity to spend, this does not mean that it is always entitled to exercise that capacity. There may be limits imposed upon it, for example, by the system of government, such as the requirement for the passage of an appropriation bill and scrutiny by the Senate. As the High Court pointed out in Williams, the difference between an individual and the Commonwealth when it comes to spending money, is that it is not the Commonwealth’s own money that it is spending – it is public money. Accordingly, greater scrutiny obligations apply. This means that in addition to the passage of an appropriation bill, there will in most cases need to be separate legislation to authorise the expenditure of public money, triggering parliamentary scrutiny, except where that expenditure falls within the scope of a prerogative power, the ordinary administration of a government function, or (possibly) the nationhood power.
Justices Gummow and Bell, for example, thought that where public money was involved, one needed to look at such expenditure through “different spectacles”, rather than in the same way as expenditure by a natural person. Justice Crennan referred to the principles of representative and responsible government, including the accountability of the Executive to Parliament and Parliament’s control over supply and expenditure, noting that these inevitably constrained the Commonwealth’s capacity to contract and to spend, in contrast to “the common law freedom to contract and to spend enjoyed by non-governmental juristic persons”. Justice Gageler later observed that drawing on the various strands of reasoning in the Williams case, it stood as a “rejection of any notion that the non-statutory and non-prerogative capacity of the Executive Government of the Commonwealth is to be equated for all purposes with the capacity of an individual”.
Accordingly, while the Commonwealth, as a polity, is a legal person with the capacities of a legal person, it does not have the same power to exercise those capacities as any other legal person. The Commonwealth, as a polity, is different from an ordinary individual. It sits within a constitutional framework of constitutional principles, such as federalism, representative and responsible government, the rule of law and the separation of powers, that affect it in ways that do not apply to an ordinary person.
This leaves uncertain what other kinds of limitations might apply to the Commonwealth’s capacity to act as a legal person. It is likely that the ADF can only provide aid to the civil power in relation to those matters that would otherwise fall within the Commonwealth’s legislative heads of power, acknowledged prerogative powers, or the nationhood power. This would still allow the ADF to provide aid in relation to national emergencies or where a request is received from a State to protect it against domestic violence, but it is unlikely it would cover an ordinary policing role, which is a matter for the States (or the Australian Federal Police with respect to Commonwealth offences).
Further, a distinction must be drawn in relation to the potential effects of the exercise of a mere capacity to act as a legal person. As Gageler J observed in Plaintiff M68/2015:
An act done in the execution of a prerogative executive power is an act which is capable of interfering with legal rights of others. An act done in the execution of a non-prerogative executive capacity, in contrast, involves nothing more than the utilisation of a bare capacity or permission, which can also be described as ability to act or as a “faculty”.
The exercise of a capacity, while it may still have legal effects (eg entering into a contract), does so in the course of the application of the general law to all persons. As Gageler J observed, such “effects as the act might have on legal rights or juridical relations result not from the act being uniquely that of the Executive Government but from the application to the act of the same substantive law as would be applicable in respect of the act had it been done by any other actor.” Hence, another source of power is needed if the ADF is to engage in any manner with the civilian population that may be regarded as coercive.
The Prerogative to Deal with Emergencies and Self-Protection
A royal prerogative to deal with emergencies exists, but is not clear in its scope. Sometimes it is regarded as derived from the war prerogative. Chitty, for example noted that the “King may … do various acts growing out of sudden emergencies; but in all these cases the emergency is the avowed cause, and the act is as temporary as the occasion”. In Crown of Leon (Owners) v Admiralty Commissioners, the Earl of Reading CJ referred to the statement by Chitty above, and concluded that for the prerogative to be exercised, “there must be a national emergency, an urgent necessity for taking extreme steps for the protection of the Realm”.
This view of the prerogative to act in a national emergency was also supported by Lord Hodson in Burmah Oil Co Ltd v Lord Advocate, who described it as an “accurate description of the prerogative”. Viscount Radcliffe, in the same case, referred to some prerogatives as derived from duties vested in the Sovereign for the protection of public safety, which could be exercised in “circumstances of sudden and extreme emergency which put that safety in peril”. He added:
There is no need to say that the imminence or outbreak of war was the only circumstance in which that prerogative could be invoked. Riot, pestilence and conflagration might well be other circumstances; but without much more recorded history of unchallenged exercises of such a prerogative I do not think that for present purposes we need say more than that the outbreak or imminence of war… did arm the Crown with what may be called the war prerogative.
The prerogative therefore arguably extends to emergencies, such as natural disasters, which require an urgent governmental response. Viscount Radcliffe also pointed out that no one can categorise the type of acts that may be authorised by such a prerogative because it depends upon the nature of the occasion and what is necessary in the circumstances.
In the United Kingdom, recognition has also been given to a “prerogative with respect to keeping the peace or maintaining public order”, which was treated as a “sister prerogative” of the war prerogative.
As Australia inherited its prerogatives from the United Kingdom, such prerogatives would also apply in Australia, subject to constitutional limits and abrogation by legislation. But as discussed above, factors such as federalism will affect whether or not such a prerogative can be exercised by the Commonwealth Government. The prerogative to keep the peace and maintain public order, if not completely abrogated by legislation, will ordinarily be one exercised by the States and given effect by State police. While prerogatives such as the power to enter into treaties, the power to declare war, and the prerogatives relating to the disposition and control of the armed forces clearly fall within the bounds of federal legislative heads of powers, such as external affairs (s 51(xxix)) and defence (s 51(vi)), the prerogative to deal with emergencies does not, except to the extent that the emergency involves defence matters, such as an emergency arising from invasion, or external affairs matters, such as the protection of visiting foreign heads of state.
It is certainly arguable, however, that where an emergency is national in nature and only the Commonwealth has the capacity to respond adequately to it, then the Commonwealth may exercise a prerogative power to do so. However, there is no clear authority to this effect, as there has been no litigation about such action.
Instead, the courts have focused their attention on the nationhood power to fulfil this role. In the Pape case, Gummow, Crennan and Bell JJ observed:
The Executive Government is the arm of government capable of and empowered to respond to a crisis be it war, natural disaster or a financial crisis on the scale here. This power has its roots in the executive power exercised in the United Kingdom up to the time of the adoption of the Constitution but in form today in Australia it is a power to act on behalf of the federal polity.
But here there may still be difficulties. The nationhood power has been supported to the extent that it is facultative – enabling certain activities of a national character to occur, such as by the expenditure of public money. This may occur during an emergency, such as the expenditure of public money to stimulate the economy during a global financial crisis or a pandemic. But where action of a coercive nature is involved, the High Court has shown itself reluctant to accept that s 51(xxxix) is sufficient to support it in its legislative form, and would appear even less likely to support the validity of an exercise of executive power, relying on the nationhood power, that was coercive.
For example, French CJ observed in the Pape case that:
Future questions about the application of the executive power to the control or regulation of conduct or activities under coercive laws, absent authority supplied by a statute made under some head of power other than s 51(xxxix) alone, are likely to be answered conservatively.
In contrast, the prerogative is capable of affecting legal rights and interests of individuals, and in some circumstances, such as the internment of enemy aliens during war, can be used in a coercive manner. It remains uncertain whether the High Court, in its conservative approach, would treat the nationhood power in the same way as the prerogative when it comes to coercive usage, or whether this is a distinctive difference between them, marking them out as separate powers with separate limitations.
Abrogation of the Prerogative
Given the extensive application of legislation to the ADF, particularly in the Defence Act 1903 (Cth), many aspects of the prerogative with respect to the ADF are likely to have been abrogated, unless expressly preserved. Two factors are relevant to determining whether the prerogative has been abrogated.
In the absence of express abrogation of the prerogative, the first factor involves determining whether there was a necessary implication that the prerogative be displaced. Some judges have held that a prerogative “is not displaced except by a clear and unambiguous provision”. Others, however, have taken the view that once Parliament has legislated on a subject, it is the legislation that applies and the prerogative ceases to operate. The ease with which a prerogative power may be abrogated by legislation remains a contentious issue in Australia.
Second, the statute may itself seek to preserve the existence of the prerogative. For example, s 51ZD of the Defence Act provides that Part IIIAAA (which deals with calling out the ADF to protect Commonwealth interests, the States and the self-governing Territories) “does not affect any utilisation of the Defence Force that would be permitted or required, or any powers that the Defence Force would have, if this Part were disregarded”. Equally, after the controversy over the power of the ADF to remove asylum-seekers from Australian waters, s 7A was inserted in the Migration Act 1958 (Cth). It states: “The existence of statutory powers under this Act does not prevent the exercise of any executive power of the Commonwealth to protect Australia’s borders, including, where necessary, by ejecting persons who have crossed those borders”.
Such provisions may not be effective, however, in preserving a parallel prerogative power when the equivalent statutory executive power is subject to limitations. This issue was considered by the High Court in CPCF v Minister for Immigration and Border Protection. Section 5 of the Maritime Powers Act 2013 (Cth) provided that the Act did not limit the executive power of the Commonwealth. The Commonwealth had contended that if the Commonwealth’s actions in detaining and removing asylum-seekers from Australian waters were not supported by statute, they were supported by the prerogative. As a majority of the court held that there was statutory support for the Commonwealth’s actions, the case did not turn on the point.
But a number of judges still addressed it. French CJ noted that the Act imposed many constraints upon Commonwealth executive power and that s 5 “cannot be taken as preserving unconstrained an executive power the exercise of which is constrained by the [Act]”. As Kiefel J pointed out, it could hardly be said that if the Act limits the way in which a power can be exercised by the executive, it simultaneously supports complete discretion about how such powers are to be exercised. She considered that s 5 was “better understood as preserving such other Commonwealth executive powers as may be exercised conformably with [the Act’s] provisions”. Hence, a provision that indicates a legislative intent to preserve the prerogative will not necessarily be effective if the exercise of such a prerogative would be contrary to limitations on executive power imposed by the statute. The prerogative can only be preserved to the extent that its exercise is not inconsistent with provisions of the statute.
Other prerogatives with respect to the defence forces have been recognized by the courts as having been abrogated, particularly in relation to the employment relationship between the Crown and members of the armed forces. Windeyer J noted that the old prerogative that allowed the King to demand that citizens take up arms to defend the Realm from sudden invasion or formidable insurrection has now been replaced by statute, which determines if and when conscription in time of war or compulsory service in peacetime is required. Once a “prerogative power is directly regulated by statute, the Executive Government must act in accordance with the statutory regime”.
When it comes to a pandemic, the extensive and detailed powers conferred by the Biosecurity Act 2015 (Cth) are likely to have abrogated most prerogative powers of the ADF to respond to it. For example, s 103 permits the detention of an individual who fails to comply with a requirement to remain in isolation or at a particular place. But it specifies that detention must be by a member of the Australian Federal Police or a State or Territory police force. The ADF would appear to be excluded from acting to give effect to this provision, unless its members are made “special members” of the Australian Federal Police under s 40E of the Australian Federal Police Act 1979 (Cth).
There are provisions of the Biosecurity Act, however, which permit ADF members, if appropriately qualified, to be “biosecurity officers” or “human biosecurity officers”, who can exercise various coercive powers under the Biosecurity Act. Accordingly, any consideration of the prerogative powers of the ADF to engage in civil aid during emergencies must take into account whether the prerogative has been abrogated by legislation. Any exercise of an executive nationhood power would also be subject to the contrary application of statute, although it is unclear whether the same theory regarding the abrogation of the prerogative would apply.
IV. The Justiciability of Prerogative Powers
Justiciability incorporates the questions of whether a court is capable of determining a dispute by the application of legal criteria or ascertainable objective standards and the suitability of a court to make such a determination. They are inter-related. A court will ordinarily be a suitable venue to resolve a legal dispute if it can be resolved by the application of legal principles and judicial standards of reasoning, and the court is able to give an effective remedy to quell the controversy. If a court would be required to make a choice between policy outcomes or take into account a multitude of policy factors in reaching a decision, then it is not likely to be justiciable. Equally, if it could not give a remedy that bound the parties and resolved the dispute, it would not be justiciable.
As noted above, the courts have long claimed the power to determine the existence and extent of a prerogative power. In Australia, s 75 of the Constitution ensures that the High Court of Australia has jurisdiction to review the legality of the exercise of executive power by any officer of the Commonwealth. Hence, the Court is able to determine both the existence of a prerogative power purportedly exercised by the Commonwealth, as well as its limits. But the manner in which such a prerogative was exercised, is another matter. In the past, it was not capable of judicial review. For example, in 1908 the High Court of Australia held that “no Court has jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy”. In that case there was no doubt that the prerogative existed and no dispute as to the extent of the power. The question was whether it had been appropriately exercised and the High Court was not prepared to address it.
In the United Kingdom in 1985, the blanket proposition that exercises of the prerogative are unreviewable was fractured by the House of Lords in Council of Civil Service Unions v Minister for the Civil Service (“CCSU”). Their Lordships held that an executive decision was not immune from judicial review simply because it was a prerogative power. Their Lordships also rejected making any distinction based on the status of the person exercising the power. Instead, they looked to whether the “subject matter” of the exercise of the prerogative is justiciable.
Lord Roskill listed as subjects that may fall within the non-justiciable area, “the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers”. Lord Diplock also considered that the impugned decision must affect persons or a body of persons by altering rights or obligations or depriving the affected person or group of some benefit or advantage.
The CCSU approach was soon adopted in Australia where the Federal Court held in 1987 in Minister for Arts Heritage and the Environment v Peko-Wallsend, that a prerogative decision could in some cases be justiciable, but that in this case it was not. The factors considered by the Court were those addressed in the CCSU case, including whether complex policy considerations were involved and the effect upon the rights or obligations of persons.
In the early 1980s, the High Court of Australia, broke the other barrier, which had prevented judicial review of the actions of vice-regal officers such as a Governor or Governor-General. The view had previously been taken that a prerogative writ for judicial review could not be issued by the Crown against itself. Mason J indicated that he was prepared to accept that a prerogative writ could apply where the vice-regal officer was acting upon the advice of Ministers and the act affected the rights of a citizen. He considered that the relevant test was not who was exercising the power, but the subject matter of the power and whether it was amenable to judicial review.
Nonetheless, in practice writs were issued against the relevant official or the Attorney-General – not the vice-regal officer concerned. Since then the practice in Australia has been to seek a remedy against the Attorney-General or the minister responsible for advising the vice-regal officer concerning the making of the decision. This reflects the principle of responsible government that when a vice-regal officer acts upon ministerial advice, responsibility for that act shifts to the minister who advised it.
Since the 1980s, however, that test of justiciability has gradually become more refined. Instead of putting subject-matters in a locked box of complete immunity from judicial review, courts in both the United Kingdom and Australia have started to look at whether particular claims or grounds of review can be determined in a manner that involves the judicial application of legal standards.
Hence, while a court will not be capable of reviewing a decision as to whether a person deserves to receive an honour, as this is a political decision involving factors that cannot be determined by the judicial application of legal standards, a court may review a decision that has been made as a consequence of a bribe. Sedley LJ raised this distinction in R (Bancoult) v Foreign Secretary (No 2) when he observed that a number of Lord Roskill’s examples in CCSU might now be regarded as questionable. He considered that the grant of honours for reward or the refusal to dissolve Parliament at all might well call in question an immunity based purely on subject matter.
A claim for judicial review that would involve a court in deciding matters that cannot be determined by legal standards, such as those that involve the balancing of foreign policy interests, economic interests, budgetary considerations and social cohesion, will remain non-justiciable as these matters do not fall within the judicial power. For example, in Aye v Minister for Immigration and Citizenship, the Federal Court of Australia held that the appellant’s claim was non-justiciable, because she was challenging the propriety of the Government’s policy of imposing sanctions on the family members of senior military officers in Burma. If, instead, she had challenged the decision about whether or not she fell within the terms of the policy, that would have been justiciable, as it would have been capable of determination by legal standards.
Similarly, in New Zealand in Curtis v Minister of Defence, the Court of Appeal took the view that the decision of the New Zealand Government to disband the Air Combat Force of the Royal New Zealand Air Force and whether this left the Air Force insufficiently armed was not justiciable, because there was “no satisfactory legal yardstick by which the issue can be resolved”. Tipping J referred to the judgment of Wilson J of the Supreme Court of Canada in Operation Dismantle v The Queen, where she considered that a claim of judicial review of a decision regarding the testing of US cruise missiles over Canadian territory involved “moral and political considerations” which were not within the province of the courts to address.
Prerogative of Mercy
One of the subjects cited by Lord Roskill in CCSU as non-justiciable was the prerogative of mercy. The High Court of Australia, in 1908, had already stated that no court could review the discretion of the Governor in Council in exercising the prerogative of mercy. The development of how the courts have dealt with challenges to exercises of the prerogative of mercy since 1985 in both the United Kingdom and Australia shows a general trend of change in the doctrine of justiciability.
In Australia, criminal law is a matter for the States, unless the particular crime concerns something that falls within a Commonwealth head of power (such as interfering with the post, bribing a federal public servant or the importation of drugs). Each State therefore has its own criminal statutes which usually recognise and preserve the prerogative of mercy while also providing a specific statutory mechanism for the review of convictions.
For example, s 327 of the Criminal Procedure Act 2009 (Vic) expressly preserves the prerogative of mercy, while allowing the Attorney-General to refer petitions for mercy to the Court of Appeal for rehearing or to the Trial Division of the Supreme Court in relation to a particular point. The statutory provisions are not intended to abrogate the prerogative, as is made clear by express words preserving the prerogative. Moreover, courts in Australia have also been reluctant to interfere with the statutory alternatives, such as referral to a court for a rehearing, because they are regarded as adjunct or ancillary to the exercise of a prerogative power.
Courts in the United Kingdom and the Judicial Committee of the Privy Council have to some extent relaxed the rules of justiciability with respect to this prerogative. In R v Home Secretary, Ex parte Bentley, for example, the Divisional Court upheld a challenge based upon the failure of the Home Secretary to consider the full extent of the discretion to pardon. While it tentatively supported the view that “the formulation of criteria for the exercise of the prerogative by the grant of a free pardon was entirely a matter of policy which is not justiciable”, it considered that in some cases review was available. Watkins LJ observed: “If, for example, it was clear that the Home Secretary had refused to pardon someone solely on the grounds of their sex, race or religion, the courts would be expected to interfere and in our judgment would be entitled to do so”. The Court therefore distinguished between the discretion exercised in deciding whether to grant a pardon, which involves the consideration of policy and other matters that could not be determined by legal standards, while accepting that a claim as to the procedure by which the discretion was exercised, including a failure on the part of the decision-maker to recognise the full scope of the prerogative or some other procedural failure, such as bias, was amenable to review on ordinary administrative law grounds.
Similarly, the Judicial Committee of the Privy Council in Lewis v Attorney-General (Jamaica) permitted judicial review of the procedures required to be followed in considering a petition for mercy, as opposed to the actual exercise of discretion itself. Their Lordships accepted that the “ultimate decision as to whether there should be commutation or pardon, the exercise of mercy, is for the Governor General” acting on ministerial advice from the Jamaican Privy Council and that the “merits are not for the courts to review”. But it held that it does not follow that the whole process is beyond review by the courts. A court could, for example, consider whether the powers of the Jamaican Privy Council were being exercised by persons not qualified to sit on it, or whether it had refused to look at information it was obliged to consider. Their Lordships also approved the approach taken in Bentley. The authority of Lewis was later upheld by the Judicial Committee in Pitman v State of Trinidad and Tobago.
In the controversial case of R (Miller) v Prime Minister; Cherry v Advocate General for Scotland, which dealt with the different prerogative power of prorogation, the UK Supreme Court noted that it did not need to decide upon the justiciability of whether the prerogative had been exercised in a legally valid manner. This was because the case could be resolved by reference to the prior question of whether the power was exercised within the scope of its limits, which was a legal question that the courts in England had asserted authority to address for centuries. The broader justiciability question was therefore left unresolved.
In Australia, the High Court has not yet had the opportunity to review the 1908 authority of Horwitz v Connor with respect to the prerogative of mercy. But in Osland v Secretary, Department of Justice, the High Court noted the divergence between UK and Australian authorities on the amenability of the prerogative of mercy to judicial review, leaving its resolution open. The Full Court of the Federal Court also regarded the state of the law on the reviewability of the prerogative of mercy as “unsettled” but that the “clear trend of authority is towards some degree of judicial supervision of, at least, the process by which the mercy prerogative is exercised”.
Earlier, in the case of Eastman v Attorney-General (ACT), Lander J of the Supreme Court of the Australian Capital Territory took the view that the authority of Horwitz only extended to the exercise of the discretion reposed in the vice-regal officer, whereas the Privy Council in Lewis had directed itself towards judicial review of the procedures mandated by law concerning its exercise. He concluded that he was:
entitled to inquire into whether the decision maker in the Executive discharged its obligations at law in reaching its decision. The decision itself is for the Executive and not subject to review. However, if the Executive has not conducted itself in accordance with the law in reaching that decision and, in particular, not observed the rules of natural justice, the decision must be set aside.
If the decision maker has not accorded the applicant natural justice, then he or she has not exercised the prerogative of mercy. Lander J concluded that this did not mean that the decision itself was being reviewed. Rather the review was to the process by which the decision was made. In this case, however, the claim was not made out on the evidence.
More recently, a judge of the Federal Court held at first instance in Ogawa v Attorney-General (No 2) that despite the authority in Horwitz, the prerogative of mercy can in some circumstances be the subject of judicial review. Logan J concluded that it is “difficult to see how the evaluative merits of a prerogative of mercy decision could ever be amenable to judicial review”, but considered that this did not make the process by which it is reached “immune from judicial review”.
In reviewing the authorities, Logan J noted that “Lewis v Attorney General of Jamaica represents a deliberate departure by the Board from the view expressed by Lord Roskill in Council of Civil Service Unions v Minister for the Civil Service … that the prerogative of mercy was one of those prerogative powers the exercise of which, by its nature and subject matter, was not amenable to judicial review”.
On appeal, the Full Federal Court overturned the outcome of the case, but observed that while it was unnecessary to determine the issue of justiciability, “we doubt whether it is correct to state that the exercise of Constitutional executive power to grant or refuse a pardon to a petitioner is totally immune from judicial review”. Their Honours resorted to the conclusion that the “current state of the law in Australia is ‘somewhat unsettled’”. They acknowledged that the “fact that there may well be some aspects of the decision-making power to grant or refuse mercy which are essentially political or non-justiciable, does not necessarily carry the consequence that any legal error manifest in that decision-making process should remain immune from judicial scrutiny”.
While the matter has not yet been considered by the High Court of Australia, it is likely that it will accept that there are some aspects of the exercise of the prerogative of mercy that may be the subject of judicial review, even when the merits of the exercise of the prerogative are incapable of review. If so, the UK and Australian positions on the justiciability of the prerogative will coincide.
Given that prerogative powers pre-date all other kinds of executive powers, it is astonishing how little is actually known about them, including which ones still exist, the extent to which they can affect the legal rights of others, what limits apply to them, how they are affected by both the Constitution and statute, and to what extent their exercise can be the subject of judicial review.
This article has shown, through the use of example, the uncertainty that surrounds the exercise of the prerogative. In doing so, it has also shown that the prerogative, at least in Australia, rarely stands alone. It is affected by the federal distribution of powers under the Constitution as well as other constitutional doctrines, such as the separation of powers and representative and responsible government. It is also affected by the complex web of legislation, which may seek to preserve the prerogative while simultaneously regulating or abrogating it, due to the inconsistency between the prerogative and statutory limitations imposed upon the exercise of executive power.
It has also shown that a rival non-statutory executive power – the nationhood power – has been recognised by the courts to fill a gap in the federal distribution of powers, but that this has only added to the uncertainty, due to the lack of clarity about whether the limitations that apply to the prerogative also affect the nationhood power, and vice-versa. It may be that if the High Court of Australia ever gives close analysis to the nationhood power, it will be rationalised not as a separate source of executive power, but as a development of the prerogative power to suit a modern federation. But such a development is still some steps away.
The attitude of the courts in the United Kingdom and Australia to the justiciability of exercises of the prerogative evinces a heightened concern about the unsupervised exercise of non-statutory executive power and a trend towards greater judicial scrutiny of its exercise. It raises the prospect that in exercising their undoubted powers to determine the existence and scope of the prerogative, the courts may take as “conservative” a view as they would in relation to the coercive application of the nationhood power.
All of this suggests that the enactment of legislation to confer statutory executive power, especially in relation to the provision of civil aid by the defence forces during natural disasters and other non-violent emergencies, is urgently needed. Such legislation could clarify the extent of these powers, placing clear limits upon them and ensuring appropriate levels of co-operation and coordination with the States. One can only assume that the reason that this has not so far occurred is doubt as to the constitutional power of the Commonwealth to enact such legislation, as it would probably have to rely on the incidental power in s 51(xxxix) executing a nationhood executive power in s 61.
But the Commonwealth Constitution does provide a more secure alternative. Under s 51(xxxvii) of the Constitution, the States can refer a matter to the Commonwealth, allowing it to legislate with respect to it. This is usually achieved through inter-governmental cooperation and agreement upon a bill, with the States then referring to the Commonwealth the “matter” of giving effect to a bill in that form. Displacing uncertain prerogative or nationhood executive powers with clear statutory executive powers that are judicially reviewable and born of inter-governmental cooperation may limit the flexibility provided by the prerogative, but would still result in better and more accountable governance.
Cameron Moore, “Military Law and Executive Power” in Robin Creyke, Dale Stephens, and Peter Sutherland (eds), Military Law in Australia (Federation Press 2019) 69, 70.
See eg Ruddock v Vadarlis  FCA 1329, (2001) 110 FCR 491 - (Black CJ).
R v Secretary of State for the Home Department, ex p Northumbria Police Authority  1 QB 26 (QB).
Angus Livingston, “Morrison wants power to declare national emergencies in disasters” Sydney Morning Herald (29 January 2020) <www.smh.com.au/politics/federal/morrison-wants-power-to-declare-national-emergencies-in-disasters-20200128-p53vj1.html> accessed 25 July 2020.
R (Miller) v The Prime Minister; Cherry v Advocate General for Scotland  UKSC 41,  AC 373 (hereinafter “Miller II”).
R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs  UKHL 61,  1 AC 453.
Australia’s Constitution is set out in s 9 of the Commonwealth of Australia Constitution Act 1900 (Imp). For ease of reference it will hereafter be described as “the Constitution”.
For an analysis of the various sources of executive power in Australia, see Williams v Commonwealth (No 1)  HCA 23, (2012) 248 CLR 156  (French CJ) See also Anne Twomey, “The French Court, the Nature of the Executive Power and its Reconciliation with the Expenditure Power” in Henry Jackson (ed), Essays in Honour of Chief Justice French (Federation Press 2019) 27, 44-49.
See eg Federal Commissioner of Taxation v Official Liquidator of EO Farley Ltd (in Liq)  HCA 13, (1940) 63 CLR 278, 304; Barton v Commonwealth  HCA 20, (1974) 131 CLR 477, 498; Cadia Holdings Pty Ltd v New South Wales  HCA 27, (2010) 242 CLR 195 .
See further Anne Twomey, “Miller and the Prerogative” in Mark Elliott, Jack Williams, and Alison Young (eds), The UK Constitution after Miller – Brexit and Beyond (Hart 2018) 69, 74.
R (Miller) v Secretary of State for Exiting the European Union  UKSC 5,  AC 61  (hereinafter “Miller I”).
Plaintiff M68/2015 v Minister for Immigration and Border Protection  HCA 1, (2016) 257 CLR 42  (Gageler J); and James Stellios, Zines’s The High Court and the Constitution (6th edn, Federation Press 2015) 374-5.
Miller I (n 11) .
Council of Civil Service Unions v Minister for the Civil Service  AC 374 (HL).
Burmah Oil Co Ltd v Lord Advocate  AC 75 (HL).
Sir William Blackstone, Commentaries on the Laws of England, Vol 1, (1st ed facsimile, 1765) 232; and AV Dicey, Introduction to the Study of the Law of the Constitution (10th ed, Macmillan 1959) 424-5.
Plaintiff M68/2015 (n 12) .
New South Wales v Commonwealth  HCA 58, (1975) 135 CLR 337, 438.
The term “settlement” is used here in its legal sense, as recognised by the courts. Mabo v Queensland (No 2)  HCA 22, (1992) 175 CLR 1; Cadia (n 9)  (French CJ). The use of the term in Australia in its political sense remains contested.
See further Anne Twomey, “Sue v Hill – The Evolution of Australian Independence” in Adrienne Stone and George Williams (eds), The High Court at the Crossroads (Federation Press 2000) 77, 80-86.
See further Anne Twomey, “Federal Parliament’s Changing Role in Treaty Making and External Affairs” in G Lindell and R Bennett (eds), Parliament – The Vision in Hindsight (Federation Press 2001) 37, 67-8.
Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd  HCA 13, (1940) 63 CLR 278, 320. See further HV Evatt, The Royal Prerogative (Law Book Co 1987).
Note that the incidental power in s 51(xxxix) of the Constitution also facilitates the legislative supervision, control and abrogation of Commonwealth executive powers. Brown v West  HCA 7, (1990) 169 CLR 195, 202; Plaintiff M68/2015 (n 12) . This is no justification, however, for subverting the distribution of legislative power amongst the Commonwealth and the States.
Cadia (n 9).
See further George Winterton, Parliament, the Executive and the Governor-General (Melbourne University Press 1983) 29. For an alternative formulation, see Twomey, The French Court, (n 8) 43-4.
Commonwealth Constitution, s 128.
Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd  HCA 62, (1922) 31 CLR 421.
For example, the implied freedom of political communication operates as a limit on executive power, as well as legislative power: Lange v Australian Broadcasting Corporation  HCA 25, (1997) 189 CLR 520, 560.
Plaintiff M68/2015 (n 12) -.
Leslie Zines, “The inherent executive power of the Commonwealth” (2005) 16 Public L Rev 279, 280.
For examples see Royal Commissions Act 1902 (Cth) s 1A; and Mining Act 1992 (NSW) s 379. On the latter Act, see also Cadia (n 9) -.
Lange v Australian Broadcasting Corporation  HCA 25, (1997) 189 CLR 520, 566; John Pfeiffer Pty Ltd v Rogerson  HCA 36, (2000) 203 CLR 503 .
Port of Portland Pty Ltd v Victoria  HCA 44, (2010) 242 CLR 348 -; A v Hayden  HCA 67, (1984) 156 CLR 532, 580.
Case of Proclamations (1611) 12 Co Rep 74, 77 ER 1352; Davis v Commonwealth  HCA 63, (1988) 166 CLR 70, 112; R v Hughes  HCA 22, (2000) 202 CLR 535 ; Pfeiffer v Stevens  HCA 71, (2001) 209 CLR 57 .
Bill of Rights (Act) 1689 (England) 1688 c 2 (1 Will and Mar Sess 2); Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd  HCA 62, (1922) 31 CLR 421, 433-4.
Plaintiff M68/2015 (n 12) .
Victoria v Commonwealth and Hayden  HCA 52, (1975) 134 CLR 338, 397.
See the detailed analysis in Anne Twomey, “Pushing the Boundaries of Executive Power – Pape, The Prerogative and Nationhood Powers” (2010) 34 MULR 313, 327-342.
Pape v Federal Commissioner of Taxation  HCA 23, (2009) 238 CLR 1,  (French CJ), , - (Gummow, Crennan and Bell JJ).
Williams v Commonwealth (No 2)  HCA 23, (2014) 252 CLR 416, .
Pape (n 40) ; CPCF v Minister for Immigration and Border Protection  HCA 1, (2015) 255 CLR 514 .
Barton (n 9) 498; Plaintiff M68/2015 (n 12) .
See further Twomey, The French Court (n 8) 49-35; Peta Stephenson, “Nationhood and Section 61 of the Constitution” (2018) 43 Western Australia L Rev 149; Nicholas Condylis, “Debating the Nature and Ambit of the Commonwealth’s Non-Statutory Executive Power” (2015) 39 MULR 385; 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 OUCLJ 97.
If the source of the nationhood power is the Constitution rather than the historical powers of the Crown, it is possible that the common law could not limit it, except through the application of constitutional interpretation.
Stephenson has taken the view that the rules for the abrogation or displacement of the nationhood power are the same as for the prerogative: Peta Stephenson, “Statutory Displacement of the Prerogative in Australia” in Janina Boughey and Lisa Burton Crawford (eds), Interpreting Executive Power (Federation Press 2020) 203, 205. Moore has observed that it would be unlikely that the nationhood power could be less susceptible than prerogative power to legislative abrogation or regulation. Moore (n 1) 74. But no court has directly addressed the issue.
See eg Tasmania v Commonwealth  HCA 21, (1983) 158 CLR 1; Davis v Commonwealth  HCA 63, (1988) 166 CLR 70; and Pape (n 40).
Stephenson Nationhood (n 45) 164; Twomey, Pape (n 39) 327.
Sir Ninian Stephen, “The Governor-General as commander in Chief” (1984) 14 MULR 563, 570-1; Margaret White, “The Executive and the Military” (2005) 28 UNSW LJ 438, 442-3.
Stenhouse v Coleman  HCA 36, (1944) 69 CLR 457, 471.
Australian Communist Party v Commonwealth  HCA 5, (1951) 83 CLR 1, 254.
See further Twomey, The French Court (n 8) 45.
R v Sharkey  HCA 46, (1949) 79 CLR 121, 151.
John Quick and Robert R Garran, The Annotated Constitution of the Australian Commonwealth (Angus & Robertson 1901) 964.
R v Sharkey  HCA 46, (1949) 79 CLR 121, 151. See also Australian Communist Party v Commonwealth  HCA 5, (1951) 83 CLR 1, 188, where Dixon J referred to a deeper and wider source of power to protect the Commonwealth against subversive conduct, being the necessary power to protect its existence and the unhindered play of its legitimate activities.
Note, however, Moore’s view that the nationhood power would need to be applied instead. Moore (n 1) 76.
White (n 50) 441.
Thomas v Mowbray  HCA 33, (2007) 233 CLR 307.
Re Tracey, ex p Ryan  HCA 12, (1989) 166 CLR 518, 540. Compare Li Chia Hsing v Rankin  HCA 56, (1978) 141 CLR 182, where it was held at 192 (Barwick CJ), 195 (Gibbs J), 196 (Stephen, Jacobs and Mason JJ agreeing), and 203 (Aickin J agreeing), that there was no constitutional objection to a naval officer enforcing fisheries legislation. See also Re Aird, ex p Alpert  HCA 44, (2004) 220 CLR 308  (Callinan and Heydon JJ dissenting).
See eg the protection of Commonwealth Government buildings by the armed forces in Melbourne in 1923 during a police strike. Michael Head, Calling Out the Troops – The Australian Military and Civil and Unrest (Federation Press 2009) 46. Note that now there are express powers for the ADF to protect declared infrastructure in particular circumstances: Defence Act 1903 (Cth), Part IIIAAA, Div 5.
See the opinion to this effect by R R Garran, Solicitor-General, “Protection of States Against Domestic Violence”, 22 October 1920, in Patrick Brazil (ed), Opinions of Attorneys-General of the Commonwealth of Australia (Vol 2, 1914-1923, AGPS, Canberra 1988) 599-601.
See eg Defence Act 1903 (Cth), Part IIIAAA, Div 3.
Angus Livingston, “Morrison wants power to declare national emergencies in disasters” Sydney Morning Herald (Sydney, 29 January 2020) <www.smh.com.au/politics/federal/morrison-wants-power-to-declare-national-emergencies-in-disasters-20200128-p53vj1.html> accessed 25 July 2020.
Anne Davies, “Australian bushfires: how the Morrison government failed to heed warnings of catastrophe” *The Guardian (UK) (*2 June 2020) <www.theguardian.com/australia-news/2020/jun/03/australian-bushfires-fois-shed-new-light-on-why-morrison-government-was-ill-prepared> accessed 25 July 2020.
Operation Bushfire Assist 2019-2020, which was in effect from 4 January to 7 February 2020.
Lisa Cox, “Australian fires: RFS commissioner not told of Scott Morrison’s call-up of ADF reserves” *The Guardian (UK) (*5 January 2020) <www.theguardian.com/australia-news/2020/jan/05/australia-fires-rfs-commissioner-not-told-of-scott-morrisons-call-up-of-adf-reserve> accessed 25 July 2020.
Order to Call Out the Australian Defence Force Reserves (4 January 2020) <www.legislation.gov.au/Details/F2020N00001> accessed 25 July 2020. The order was revoked with effect from 7 February 2020.
If there is a call-out under Part IIIAAA of the Defence Act 1903 (Cth), there is a requirement under s 40 of the Act for co-operation with the police force of the relevant State or Territory.
Doug Dingwall and Kirsten Lawson, “Legal protections ‘needed in ADF fire call-out’ says military law expert” *The Canberra Times (*8 January 2020) <www.canberratimes.com.au/story/6567963/legal-protections-needed-in-adf-fire-call-out/#gsc.tab=0> accessed 25 July 2020.
Penny Saultry and Damian Copeland, “Domestic Legal Framework for Operations” in Robin Creyke, Dale Stephens, and Peter Sutherland (eds), Military Law in Australia (Federation Press 2019) 161, 164-5.
See further Royal Commission into National Natural Disaster Arrangements, Background Paper: Constitutional issues and national natural disaster arrangements (Commonwealth of Australia, May 2020): <naturaldisaster.royalcommission.gov.au/publications/background-paper-constitutional-issues-and-national-natural-disaster-arrangements> accessed 25 July 2020. The Commission’s final report was published on 30 October 2020.
Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Act 2020 (Cth), inserting s 123AA in the Defence Act 1903 (Cth).
Biosecurity Act 2015 (Cth), s 475. The declaration was made on 18 March 2020, triggering the application of numerous powers under the Act.
Department of Defence, Defence Assistance to the Civil Community Manual (17 August 2020) <https://www.defence.gov.au/publications/docs/DACC-Manual.pdf> accessed 14 March 2021.
See the explanations in Royal Commission into National Natural Disaster Arrangements, Issues Paper: Constitutional Framework for the Declaration of a State of National Emergency (Commonwealth of Australia, May 2020): <naturaldisaster.royalcommission.gov.au/publications/issues-paper-constitutional-framework-declaration-state-national-emergency> accessed 25 July 2020. For background to DACC, see David Letts and Rob McLaughlin, “Military Aid to the Civil Power” in Robin Creyke, Dale Stephens, and Peter Sutherland (eds), Military Law in Australia (Federation Press 2019) 115, 128-9.
For example, the Minister may authorise a member of the ADF, acting under a call out under Part IIIAAA, to exercise special powers including the power to search, seize, control the movement of persons, detain persons, provide security by patrolling or securing areas, and direct persons to answer questions or operate equipment: Defence Act 1903 (Cth), s 46(7).
Minister for Defence, Senator Reynolds, “Defence support to mandatory quarantine measures commences” Media Release (29 March 2020) <www.minister.defence.gov.au/minister/lreynolds/media-releases/defence-support-mandatory-quarantine-measures-commences> accessed 25 July 2020.
Royal Commission into National Natural Disaster Arrangements, Issues Paper: Constitutional Framework for the Declaration of a State of National Emergency, (Commonwealth of Australia, May 2020) .
Department of Defence, Latest updates – Operation COVID-19 Assist (11 July 2020) <news.defence.gov.au/national/latest-updates-operation-covid-19-assist-sat-07112020-0900> accessed 25 July 2020.
See eg China Navigation Co Ltd v Attorney-General  2 KB 197 (KB) 228; Chandler v Director of Public Prosecutions  AC 763 (HL) 800; Burmah (n 15).
Curtis v Minister of Defence  NZCA 47,  2 NZLR 744.
John Quick and Robert R Garran, The Annotated Constitution of the Australian Commonwealth (Angus & Robertson, 1901) 713.
Geoffrey Marshall, Constitutional Conventions – The Rules and Forms of Political Accountability (OUP 1984) 164.
Cameron Moore, Crown and Sword – Executive Power and the Use of Force by the Australian Defence Force (ANU Press 2017) 169.
Note, however, the observation by Moore that if action would fall within the scope of Part IIIAAA, use of the prerogative would not appear to be “necessary” and would therefore be unjustifiable. Ibid 174.
Defence Regulation 2016 (Cth), Reg 69. Note that the same restriction with regard to protest, dissent, assembly and industrial action is applied in s 39 of the Defence Act 1903 (Cth) regarding call-outs under Part IIIAAA of the Act.
The High Court of Australia has regarded the Commonwealth and the States as polities that are artificial legal persons. Williams (n 8)  (French CJ); - (Gummow and Bell JJ);  (Hayne J); and Cadia (n 9) . See further Sebastian Hartford Davis, “The Legal Personality of the Commonwealth of Australia” (2019) 47(1) Federal L Rev 3.
Defence Act 1903 (Cth), s 123. This Commonwealth law creates an inconsistency with State laws and therefore prevails over them due to the application of s 109 of the Commonwealth Constitution.
Defence Act 1903 (Cth), s 51Z(2).
Note also the relevance of acting in the course of duties for obtaining an indemnity against harm resulting from actions taken: Defence Act 1903 (Cth), s 123AA.
See eg Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 100. See further Moore, Crown and Sword (n 85) 177-8.
 HCA 23, (2012) 248 CLR 156.
Ibid  (French CJ), - (Gummow and Bell JJ),  (Hayne J),  (Crennan J)  (Kiefel J).
Pape (n 40) ,  (French CJ), - (Gummow, Crennan and Bell JJ),  (Hayne and Kiefel JJ), - (Heydon J).
Williams (n 8)  (French CJ);  and  (Gummow and Bell JJ); - (Hayne J); - (Crennan J); and  (Kiefel J).
Ibid  (Hayne J),  (Kiefel J).
Ibid  (Gummow and Bell JJ);  and  (Hayne J);  (Crennan J); and  (Kiefel J). See also Australian Woollen Mills Pty Ltd v The Commonwealth  HCA 20, (1954) 92 CLR 454, 461.
Williams (n 8) .
Williams (n 8) .
Plaintiff M68/2015 (n 12) .
Moore, Crown and Sword (n 85) 184.
Plaintiff M68/2015 (n 12) .
Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown; and the Relative Duties and Rights of the Subject, (Butterworths 1820) 50.
Crown of Leon (Owners v Admiralty Commissioners)  1 KB 590 (KB) 604.
Burmah (n 15) 136.
R v Secretary of State for the Home Department, ex p Northumbria Police Authority  1 QB 26 (QB) 58. Note, however, the criticism by Zines of this case: Leslie Zines, “The Inherent Executive Power of the Commonwealth” (2005) 16 Public L Rev 279, 287.
Renfree saw it as a prerogative to preserve public safety described by the maxim salus populi supreme lex. HE Renfree, The Executive Power of the Commonwealth of Australia (Legal Books 1984) 466. See also Michael Eburn, “Responding to Catastrophic Natural Disasters and the Need for Commonwealth Legislation” (2011) 10 Canberra L Rev 81, 89.
Note that call-outs of the ADF have occurred to protect foreign heads of state after the Hilton bombing in 1978 during a Commonwealth Heads of Government Regional Meeting and to protect international summits and meetings, such as APEC, held in Australia. Head (n 61) 82-85.
Pape (n 40)  (Gummow, Crennan and Bell JJ).
See eg the controversy about the coercive application of nationhood power in Davis v Commonwealth  HCA 63, (1988) 166 CLR 70, where Mason CJ, Deane and Gaudron JJ accepted at 99 that it could be exercised coercively, but Brennan J at 112-3 sought to confine the circumstances in which it could be done. See also Wilson and Dawson JJ, in Tasmania v Commonwealth  HCA 21, (1983) 158 CLR 1, 203-204 and 252-253, who considered the executive power could not be exercised coercively. See also Plaintiff M68/2015 (n 12) - regarding the capacity of prerogative powers to interfere with the legal rights of others.
Williams (n 8) .
Pape (n 40) .
Cadia (n 9) .
Barton (n 9) 488 (Barwick CJ), 491 (McTiernan and Menzies JJ), 501 (Mason J), and 508 (Jacobs J). See further Ruddock (n 2) -, .
See eg CPCF (n 43) ; Attorney-General v De Keyser’s Royal Hotel Ltd  AC 508 (HL) 575.
See the detailed analysis in Stephenson, Statutory Displacement (n 47) 203-221.
Ruddock (n 2).
CPCF (n 43).
CPCF (n 43)  (Kiefel J). See also ibid  (Hayne and Bell JJ).
Moore (n 1) 73.
Marks v Commonwealth  HCA 45, (1964) 111 CLR 549, 564. See also Coutts v Commonwealth  HCA 40, (1985) 157 CLR 91, 99 (Wilson J) and 109, 115 (Deane J).
Marks (n 127) 574.
Williams (n 8) .
Biosecurity Act 2015 (Cth), ss 545 and 563. See also s 452 regarding the declaration of the ADF as a “national response Agency” in relation to a biosecurity emergency.
Case of Proclamations (n 35) 1354; Council of Civil Service Unions (n 14); Coutts (n 127) 100 (Wilson J).
Habib v Commonwealth  FCACF 12, (2010) 183 FCR 62  (Perram J).
Horwitz v Connor  HCA 33, (1908) 6 CLR 38, 40.
Council of Civil Service Unions (n 14). For its origins see R v Criminal Injuries Compensation Board, ex p Lain  2 QB 864 (QB).
See eg Council of Civil Service Unions (n 14) 407.
Minister for Arts Heritage and the Environment v Peko-Wallsend (1987) 15 FCR 274.
See R v Toohey, ex p Northern Land Council  HCA 74, (1981) 151 CLR 170; FAI Insurances Ltd v Winneke  HCA 26, (1982) 151 CLR 342.
Note that the position is likely to be different if it is a reserve power. This is both because there is no minister giving advice and because the validity of an act such as the dismissal of a Prime Minister or Premier is not “susceptible of determination by reference to objectively definable standards; it is not justiciable”. Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 (NSWSC), 142.
R v Toohey (n 139) 220.
See eg Stewart v Ronalds  NSWCA 277, (2009) NSWLR 99.
See eg Tamberlin J’s observation that foreign policy cannot be treated as a “forbidden area” when it comes to judicial review, given that the executive power in Australia is subject to constitutional limitations. Hicks v Ruddock  FCA 299 .
Belhaj v Straw  UKSC 3,  AC 964, .
Kline v Official Secretary to the Governor-General  HCA 52, (2013) 249 CLR 645, , -.
R (Bancoult) v Foreign Secretary (No 2)  EWCA Civ 498,  QB 365, .
Aye v Minister for Immigration  FCAFC 69, (2010) 187 FCR 449 - (Spender J),  (Lander J),  (McKerracher J).
Curtis (n 82) .
Operation Dismantle v The Queen  1 SCR 441 , referred to by Tipping J in Curtis (n 82) .
Horwitz v Connor  HCA 33, (1908) 6 CLR 38, 40.
See eg Mallard v The Queen  HCA 68, (2005) 224 CLR 125 .
Von Einem v Griffin  SASC 6858, (1998) 72 SASR 110, 114; Zhong v Attorney-General (Vic)  VSC 302, ; but compare Yasmin v Attorney-General (Cth)  FCAFC 145, (2015) 236 FCR 169 -.
R v Home Secretary, ex p Bentley  QB 349 (QB) 363.
Lewis v Attorney-General (Jamaica)  UKPC 35,  2 AC 50.
Pitman v State of Trinidad and Tobago  UKPC 6,  AC 35 .
Miller II (n 5).
Miller II (n 5) -.
Osland v Secretary, Department of Justice  HCA 37, (2008) 234 CLR 275 .
Yasmin (n 152) . See also Zhong (n 152) .
Eastman v Attorney-General (ACT)  ACTSC 28, (2007) 210 FLR 440.
Ibid -, -.
Ogawa v Attorney-General (No 2)  FCA 1003.
Attorney-General (Cth) v Ogawa  FCAFC 180, . Special leave to appeal to the High Court of Australia was refused.
In response to the 2020 crises, the Commonwealth Parliament enacted s 123AA of the Defence Act 1903 (Cth) to ensure that members of the ADF are immune from liability with respect to actions performed in good faith in providing assistance in the course of their duties during natural disasters and other emergencies. It also enacted the National Emergency Declaration Act 2020 (Cth), allowing the Governor-General to make a national emergency declaration, which activates certain powers. Neither Act, however, deals with the use of the ADF during non-violent civil emergencies in a comprehensive manner.