Prerogatives like common law are subjected to modification by statutes and this arises in 2 ways:
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1 Modification or regulating such removing discretion and imposing strict procedures as to control exercise of prerogatives. Conceptual source remains
2 Extinguish the prerogative such that its power is derived from statutes.
Can statutes override prerogatives?
ATTORNEY GENERAL V DE
KEYSER’S HOTEL (1920) p484 Facts
Hotel was used as a govt HQ during WWII. Claims for compensation was denied b govt, govt asserted that they exercised royal prerogatives take property.
Issue
Do statutory provisions override prerogatives? YES Held
Sir John KC & Dunedin– if statutory provisions cover same grounds as prerogative then the 2 cannot co-exist and so no longer needed
Lord Atkinson – crowns powers are exercised in accordance to statute that confers it
Moulton – it is in intention of the nation that power of Crown should exercise powers in an equitable manner.
Sumner – nothing is gained by simply transferring prerogative to statute except it removes arbitrary exercise of royal power. Executive not under prerogative.
Parmoor - when power of Executive to interfere with property or liberty of subjects has been placed under Parliamentary control, and directly regulated by statute, Executive no longer derives its authority from the Royal Prerogative of Crown but from Parliament.
Does prerogative extend to exclusion of aliens?
RUDDOCK v VADARLIS (Tampa powers does not mean it becomes extinguished; this is different to repealing legislations).
Facts
People were rescued at sea in international waters by commercial vessel MV Tampa. Urgent medical attention required so vessel requested assistance from Aus. When assistance was declined vessel was landed within Aus territory BUT Howard Govt permitted asylum seekers to land.
Issue
Can non-Australian residents be expelled from Australian waters based on prerogative powers?
Held
North J (trial judge)- was doubtful as to whether the prerogative existed, but if it did it would have been abrogated by statute (migration Act) .
French J (Federal) – executive powers and prerogative are different. It may derive some content from prerogatives but its powers mainly conferred as a part of federal agreement expressed in the constitution that distributes powers between the 3 arms of govt.
The migration Act did not expressly abrogate the prerogative although a statute usually can override the prerogative in this case it did not.
Although the executive power is limited to both the constitution & legislation, in the present case the government acted within its power because it was merely exercising its national sovereignty (power to determine who may come into Australia is so central to its sovereignty) that French J doubts that the government of Australia would lack this power conferred by the constitution.
o The greater the significance of a executive power to national sovereignty the less likely that parliament intended to extinguish the power if words are unclear.
Black CJ (Federal – Dissent) – doubts whether executive power to exclude aliens in time of peace existed. Even if there was such power, the comprehensive Migration Act meant that the legislation covered the area and so there was no
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need for the prerogative.
o If statute covers the same fields then there is no room for prerogative.
Difference – French J believed the prerogative came from the constitution while Black thought it came from common law hence the executive should work within the Migration act.
Should such prerogative rights be legislated? (Lindell – p493)
Prerogative power can be exercised without parliamentary approval subject only to the existence of any statutory provision which regulate the power
The advantage of including such rights in statutes includes:
1 Poses limits upon the actions by Executives 2 It is a representative decision
3 Increase credibility
4 So the government will go into war knowing what they are doing
9.3 Responsible Government & the Control of the Executive
What is responsible government? (p521)
Responsible government refers to a series of institutions and political relations between them which interlock to provide both a system of government and a distinct mode of organising and exercising political power at disposal of state.
The queen (represented by GG) acts on the advice of the Ministers. The ministers who are members of the parliament (s64 constitution46) are accountable to parliament who is then accountable to the people.
Features of responsible government
Chain of accountability
The components of responsible government(Emy p522)
1 Executive Authority – the power of final political decision vested in the ministers, responsible to departments, parliament and electorate
2 Governor general – final component of the legislative power, residual and reserved powers – ensure government’s laws are constitutional.
3 Dismissal of Executive – by losing an election or by losing a vote of confidence on lower house 4 Executive – is supported and advised by a bureaucracy whose members are chosen independently
on basis of merit, politically neutral, freedom from public praise/blame.
5 Direct chain of accountability officialministers cabinetparliamentelectorate/people
Individual ministry responsibility – ministers are responsible to parliament for affairs of their own parliament
Collective ministerial responsibility – all ministers responsible to parliament & the electorate for overall conduct of govt policy irrespective of whether or no they sit in cabinet. (e.g. Costello had to defend non-ratification of Kyoto protocol although his opinion differed to Howard).
How is responsible government implanted?
1 Voting – selected by voters, govt has majority in House of Rep
46 S64 – no minister of state shall hold office for a longer period than three months unless he is or becomes a senator or a member of the house of rep.
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2 No confidence motion – a motion accepted as a want of confidence or censure motion takes precedence over all other business until disposed of. If govt no longer has confidence in lower house then it must resign.
3 Question time – parliament has greatly apparent powers in checking public expenditure and supervising administration, by asking questions, demanding answers an d holding ministers accountable. However, government is so complex that backbenchers are often lost as to what questions to ask.
4 Senate-committee system – when parliament has upper house where govt does not have majority, there is greater opportunity of scrutiny of govt actions. The committees have patiently stretched their room to manoeuvre and evolved operating procedures for improving cooperation with the administration.
Problems with the concept of responsible government (Hugh & Emy p522)
May have different meaning for different people
Obliged to answer for something?
In charge of something?
Accountable or liable for something? (implications or penalties for poor performance)
Question of ministerial responsibility? departmental errors a just explanation or strict accountability which may result in resignation.
The four main problem with responsible government in Australia
1 Problems with chain of accountability (esp relationship and extent of control over their ministers