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Occasional papers presented by members of Chambers 


Executive Power and the Theory of its Limits:  Still Evolving or Finally Settled?

UNSW Gilbert and Tobin Centre of Public Law 2011 Constitutional Law Conference

18 February 2011

Hon. Duncan Kerr SC[1]


In 1649 King Charles I went to his death utterly convinced of his divine right as a King declaring: ‘a sovereign and a subject are clean different things.’

Three decades earlier his father, James I, had set down in writing the legal and political doctrine his son was to pay for with his life:

Kings are justly called gods, for that they exercise a manner or resemblance of divine power on earth…God hath power to create or destroy make or unmake at his pleasure, to give life or send death, to judge all and to be judged nor accountable to none; …and the like power have kings: they make and unmake their subjects, they have the power of raising and casting down, of life and of death, judges over all their subjects and in all causes and yet accountable to none but God only…[2]

Yet, notwithstanding His Majesty’s claim to rule by divine right, it was during the reign of James I, that the status of the Crown was first explicitly stated to be subject to the law. In theCase of Proclamations[3] it was resolved ‘by the two Chief Justices, Chief Baron and Baron Althan, upon conference betwixt the Lords of the Privy Council and them, that the King by his proclamation cannot create any offence which was not an offence before…[and] that the King hath no prerogative but that which the law of the land allows him.’

Charles I’s execution was briefly followed by republican rule. However, it was the almost bloodless ‘Glorious Revolution’ which, after the Restoration, removed James II and installed William and Mary as joint sovereigns, but subject to the Declaration of Right and the Parliament[4], that finally ended all plausible claims for the Crown to govern Britain other than as a constitutional monarchy.

Whilst not without its twists and turns, the unwritten constitution of Britain continued to evolve such that it is now indisputable that the discretionary powers of a British King or Queen cannot be added to and, with some very limited exceptions arguably allowed for such prerogative powers as remain must be exercised only upon the advice of a Prime Minister who is responsible to an elected Parliament.[5]

By 1867 Bagehot was describing the Crown as exercising only the ‘dignified,’ component of the British constitution[6].

Today the modern British monarchy may lack even dignity; but it is centuries beyond those ancient times when a King or Queen could exercised personal rule and might lament, in the words Shakespeare put in the mouth of Henry IV; ‘uneasy lies the head that wears a Crown[7]’.

In 1964 Lord Diplock bluntly dismissed the argument that the British Crown could assert a monopoly over broadcasting with the statement ‘it is 350 years and a civil war too late for the Queen’s Court to broaden the prerogative’.[8]

Yet the position in Australia has recently changed and now appears starkly different. In a recent article in the Australian Bar Review the Chief Justice of New South Wales, writing extra-judicially, observed:

The extent of the executive power of the Commonwealth appears to have been cut free from the traditional conception of prerogative powers in a manner which means that there is now no source of guidance as to the boundaries of executive power[9].

His Honour continued:

In terms of our legal history, this is quite a dramatic development.  In England a King was executed and a civil war waged to limit the scope of the prerogative and to assert the supremacy of parliament.  However, the executive power is, apparently, no longer confined to well-established traditional categories[10].

The three presentations at this session will explore the implications of cutting free Australian executive power from the historic notions of limited prerogative powers.  My contribution will seek to explain how this circumstance arose, its significance and to identify what has been resolved and what remains unresolved in consequence of these changes.

Simon Evans will follow and will propose a theory to underpin the direction the law may, and should, evolve.

Peter Gerangelos will conclude this session by exploring how Australia’s ultimate evolution to a Republic might intersect with our evolving understanding of executive power.

Section 61: From Imperial doctrine to constitutional conundrum

Section 61 of the Constitution is cryptic as to the content of the Executive power. Its terms are as follows;

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 of the laws of the Commonwealth.

The actual constitutional role of the Queen and her Governor-General and the nature of the executive power that can be exercised by them cannot be discerned by a simple reading of the text of the Constitution. Assumptions, implications and unwritten conventions deriving respectively from the doctrine of responsible government and from the principle of the rule of law both ‘form part of the fabric upon which the written words of the Constitution are superimposed.’[11] 

The doctrine of responsible government and the conventions associated with it serve to restrain the exercise of any significant personal power by the Governor-General[12].

However, the notion of responsible government says nothing about the content and scope of those powers[13].

When the Commonwealth of Australia was formed in 1901 the primacy of the Constitution as law was axiomatic because the Constitution was then regarded as an enactment of the Imperial Parliament and, hence, binding on all colonial institutions.

Isaacs J explained the then orthodox position as follows:

I apprehend, therefore, that it is the duty of this Court, as the chief judicial organ of the Commonwealth, to take judicial notice, in interpreting the Australian Constitution of every fundamental [British] constitutional doctrine existing and fully recognised at the time the Constitution was passed, and therefore to be taken as influencing the meaning in which its words were used by the Imperial Legislature.[14]

Applying that doctrine inevitably led to the conclusion that the executive power conferred by s61 included aspects of the Crown’s ‘prerogative’ powers[15].

The ‘prerogative’ was that bundle of rights possessed by the Crown quite distinct in law from the rights of common persons.  Over time as the divine right of kings was displaced by responsible government the prerogative became seen to be less an element of individual Royal power as an ordinary aspect of government.[16]

The early jurisprudence of the High Court was to the effect that all of the prerogative powers of the Crown possessed by British monarch at the time of the making of the Constitution, as were capable of application in Australia, powers described by Dicey[17] as ‘the residue of discretionary or arbitrary authority which at any given time is left in the hands of the Crown’ had been conveyed to the Governor-General by s61 and were exercisable by him or her as if he or she were a constitutional monarch[18].

Thus Isaacs J said of s.61;

These provisions carry with them the royal war prerogative, and all that the common law of England includes in that prerogative so far as it is applicable to Australia.[19]

That understanding of the discretionary powers conferred by s 61 carried with it a number of legal consequences consistent with the Rule of Law.

First, the prerogative powers were vestigial, leftovers from mediaeval times when English Kings ruled as absolute monarchs; and residual—so that they could be lost by disuse or abolished by statute[20] and no new prerogative power could be created[21]

Second, the scope of the prerogative was justiciable[22].

Third, all the powers included within the prerogative, while sometimes elusive to state, were capable of classification and identification[23].

However, the view of s61 as limited by the prerogative was intimately bound up with the early High Court’s conception of the legitimacy of the Constitution as flowing from its status as binding Imperial legislation.[24]

Once the Constitution’s binding power was held not to derive from Imperial law but from a mandate sourced ‘exclusively in the original adoption and subsequent maintenance of its provisions by the people’[25] there was refocused judicial attention on its text. In a critical point of departure from earlier references to the prerogative Gummow J (then a judge of the Federal Court) reasoned;

In Australia…one looks not to the content of the prerogative in Britain, but rather to s61 of the Constitution, by which the executive power of the Commonwealth was vested in the Crown[26] .

This revolution in thinking made it possible to imagine a reading of s 61 that would differ from the position asserted by the late Professor George Winterton, that:

the government is limited to those powers falling within the Crown’s prerogative powers. In other words, the government can “maintain” the Constitution and the laws of the Commonwealth, only to the extent allowed by the Crown’s prerogative powers.[27]

Was it possible that the Australian Governor-General might exercise greater discretionary and arbitrary powers than could the Queen he or she represented and in whose name his or her powers are exercised? 

The decision in Vadarlis

Vadarlis[28] elevated this question from theoretical speculation to practical importance.  French J, later to become Chief Justice of the High Court of Australia, delivered the leading judgment in the Full Court of the Federal Court of Australia.

The Vadarlis case arose in controversial and politically charged circumstances.

The basic facts are well known. A Norwegian vessel, the MV Tampa, was boarded by Australian Defense Forces acting on instructions from the Government in order to prevent it making port in Australia and discharging rescued 433 asylum seekers. If the power to undertake that action existed, the source of the power to do so had to be located outside of those conferred by statute. The Migration Act 1958 conferred neither the power to authorize the vessel’s boarding nor the ongoing detention[29] of the asylum seekers.

Mr Vadarlis, a Victorian solicitor acting pro bono, sought orders in the nature of habeas corpus in the Federal Court seeking the release of the asylum seekers.

At first instance North J had granted the application. His Honour gave short shrift to the claim for an executive power to detain and remove those aboard the Tampa:

The [MigrationAct [1958] contains comprehensive provisions concerning the removal of aliens (ss198-9). In my view the Act was intended to regulate the whole area of removal of aliens. The long title of the Act is "[a]n Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons". It leaves no room for the exercise of any prerogative power on the subject: Attorney-General v De Keyser's Royal Hotel Ltd [1920] AC[30].

The Minister appealed.

Two critical questions fell for determination by the Full Court of the Federal Court of Australia. They were (a) whether the Commonwealth Executive possessed any power independent of statute to prevent the entry of aliens and (b) if so whether such power had been displaced by the detailed provisions of the Migration Act 1958 that regulated the identical subject matter.

A majority, French J, Beaumont J concurring, upheld the Minister’s appeal. Their Honours concluded that the necessary executive power existed[31].

Referring to the reasoning of Gummow J in Re Ditfort French J rejected the proposition that any source of the Executive’s power to exclude aliens must be an aspect of the prerogative. His Honour stated:

The executive power of the Commonwealth under s. 61 cannot be treated as a species of the royal prerogative….While the executive power may derive some of its content by reference to the royal prerogative, it is a power conferred as part of a negotiated federal compact expressed in a written Constitution distributing powers between the three arms of government reflected in Chapters I, II and III of the Constitution and, as to legislative powers, between the polities that comprise the federation. The power is subject, not only to the limitations as to subject matter that flow directly from the Constitution but also to the laws of the Commonwealth made under it. There is no place then for any doctrine that a law made on a particular subject matter is presumed to displace or regulate the operation of the executive power in respect of that subject matter. The operation of the law upon the power is a matter of construction[32].

It was thus immaterial whether or not a prerogative power to expel aliens had ever existed, still existed or had been lost through disuse. The prerogative did not constrain s.61’s bounds[33].

The problem of how to identify the additional content was dealt with cursorily, French J stating:

The "spheres of responsibility vested in the Crown by the Constitution" and referred to by Mason J in Barton were described in Davis as "...derived from the distribution of legislative powers effected by the Constitution itself and from the character and status of the Commonwealth as a national polity". In like vein Brennan J agreed generally with the observation of Jacobs J in Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 (‘AAP ‘) at 406 that the phrase "maintenance of the Constitution" imports the idea of Australia as a nation…Brennan J saw the phrase as assigning to the Executive government functions relating "not only to the institutions of government but more generally to the protection and advancement of the Australian nation" [34]

Thus included in the armory of the Executive acting under s. 61 was all that flowed from the conception of Australia as a nation— and from the Constitution’s assignment to the Executive of the role of promoting the nation’s protection and advancement.

Yet both Davis and the AAP Case had concerned legislative, rather than executive power. The direct relevance of those cases was therefore contestable[35].

There are persuasive Rule of Law reasons to reject an easy analogy between executive and legislative power. In a recent essay Stephen Gageler[36] suggested that the High Court’s approach should differ depending on whether or not it is foreseeable that political accountability can be relied on to resolve contending views of the appropriate balance and constraint on governmental powers. 

This is a crude summary of a much refined argument but if Gageler’s thesis is accepted there is a rational (if rarely articulated) explanation as to why many otherwise plausible arguments about the invalidity of legislation passed by a representative bi-cameral Parliament have been rejected by the High Court; their merits left for political rather than judicial determination— and a powerful reason, given the Executive has come to dominate the House of Representatives, such that there is little effective check through Parliamentary processes on that power, why strict judicial review must apply to any claimed discretionary executive powers which would be otherwise uncoupled from effective review.

Whatever criticisms may apply to their reasoning, the majority in Vadarlis concluded the executive power conferred by s. 61 extended beyond the prerogative. It authorized the military to board the vessel to prevent the entry into Australia of those aboard. Given the approving reference to Brennan J’s views in Davis[37] their Honours may be assumed to have formed the view that the power to board the Tampa, detain the asylum seekers and prevent their coming ashore on Australian territory was necessary ‘for the protection and advancement of the Australian nation'. French J stated:

In my opinion, absent statutory authority, there is such a [s.61] power at least to prevent entry to Australia. It is not necessary, for present purposes, to consider its full extent. It may be that, like the power to make laws with respect to defence, it will vary according to circumstances. Absent statutory abrogation it would be sufficient to authorise the barring of entry by preventing a vessel from docking at an Australian port and adopting the means necessary to achieve that result. Absent statutory authority, it would extend to a power to restrain a person or boat from proceeding into Australia or compelling it to leave[38].

Black CJ, in dissent, criticized the reasoning of the majority as leaving little or no scope for any underlying notions such as the rule of law and responsible government to operate and identified the novel constitutional significance of the majority’s conclusions. His Honour pointedly observed;

If it be accepted that the asserted executive power to exclude aliens in time of peace is at best doubtful at common law, the question arises whether s. 61 of the Constitution provides some larger source of such a power. It would be a very strange circumstance if the at best doubtful and historically long-unused power to exclude or expel should emerge in a strong modern form from s. 61 of the Constitution by virtue of general conceptions of `the national interest'. This is all the more so when according to English constitutional theory new prerogative powers cannot be created[39].

The High Court: Pape and Executive Power

Pape’s importance, in so far as this discussion is concerned, is that a majority of the High Court applied a similar approach to the source of executive power, as had the majority of the Full Court of the Federal Court in Vadarlis.

The litigation in Pape challenged the validity of The Tax Bonus for Working Australians Act (No 2) 2009 passed by the Parliament as part of a package of urgent measures the government argued were necessary to provide economic stimulus to the economy and to prevent Australia falling into recession.

The Act provided for lump sum payments of a minimum of $250 to be made to all persons with a tax liability of at least $1 in the then current tax year; expenditure the government argued was needed to create immediate increased demand in the economy. The plaintiff, a legal academic, issued a writ seeking a declaration that the Tax Bonus legislation was invalid. The case was given expedition. On 3 April 2009 the High Court by a majority of 4/3 delivered judgment in favour of the validity of the Act.  

It was not until 7 July 2009 that the Court’s reasons for decision were published. The reasons revealed that the judges, surprisingly but unanimously, had rejected the arguments the Commonwealth had put that:

  • Section 81 of the Constitution was a grant to the Parliament of the power to appropriate the Consolidated Revenue Fund for any purpose (save one explicitly prohibited) it thinks fit;
  • the Executive necessarily had power to expend any money lawfully appropriated; and,
  • the Parliament had power to enact a law requiring that payment, and to regulate the conditions to be met before payment is made[40].

Those issues having been resolved against the Commonwealth, the High Court was required to consider whether it might be incidental to the executive power vested in the Governor General by s 61 for the Parliament to legislate to appropriate the Consolidated Revenue Fund to permit the executive to spend public moneys to respond to the then global economic crisis.

In the event the legislation survived solely because a 4/3 majority of the High Court accepted that the power to legislate for an appropriation was incidental to the executive power conferred by s 61. Hayne and Kiefel JJ and Heydon J dissented.

The majority, French CJ and Gummow, Crennan and Bell JJ concluded that the executive power authorized the Commonwealth undertaking short-term measures to meet adverse economic conditions affecting the nation as a whole[41].  The joint majority judgment emphasized that the Executive was the arm of government most capable and empowered to respond to any national crisis whether it is war, natural disaster or economic crisis[42].

Aspects of that notion were far from novel. Executive power, like Legislative power, has always been permitted to expand when required in defense of the realm[43]. Extraordinary powers and discretions have been reposed in the Executive and accepted as legitimate by the High Court in times of war[44]. But whether the exigencies of ‘war’ provide an appropriate analogy to an economic crisis may be doubted—a point to be returned to later in this discussion.

French CJ explained his understanding of Commonwealth executive power as follows:

Section 61 is an important element of a written constitution for the government of an independent nation. While history and the common law inform its content, it is not a locked display cabinet in a constitutional museum. It is not limited to statutory powers and the prerogative. It has to be capable of serving the proper purposes of a national government[45].

Gummow, Crennan and Bell JJ similarly agreed that s. 61 conferred powers extending beyond those that had been historically identified as the prerogative.[46] Their Honours premised their conclusion that s 61 permitted the executive to act to combat the financial crisis on the fact that only the national government had the necessary resources to meet the then economic emergency.

It is not to the point to regret the aggregation of fiscal power in the hands of the Commonwealth over the last century. The point is that only the Commonwealth has the resources to meet the emergency which is presented to it as a nation state by responding on the scale of the Bonus Act.[47]

As had the majority in Vadarlis, their Honours adopted[48] the statement of Brennan J in Davis v The Commonwealth (1988) 166 CLR 79 at 111:

It does not follow that the Executive Government of the Commonwealth is the arbiter of its own power or that the executive power of the Commonwealth extends to whatever activity or enterprise the Executive Government deems to be in the national interest. But s 61 does confer on the Executive Government power ‘ to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation’’ to repeat want Mason J said in the AAP Case. In my respectful opinion that is an appropriate formulation for a criterion to determine whether an enterprise or activity lies within the executive power of the Commonwealth.

However, such a criterion clearly involves contestable judicial policy choices.

The dissentients disputed the majority’s underlying premise—observing that ‘words like “crisis” and “emergency” do not readily yield criteria of constitutional validity.’[49]

The minority judgments made strong claims that an equally effective economic stimulus package could have been delivered had the Commonwealth simply used uncontroversial powers and taken advantage of its financial entitlement to make grants upon condition to the States.[50]

Therefore, even accepting that there was a financial crisis requiring a national response, the dissentients nonetheless concluded that the provision of financial stimulus was not an activity’which cannot otherwise be carried on for the benefit of the nation,’ and accordingly their Honours found that there had been no occasion for any expansion of executive power [51].

The result in Pape was to confirm that there is no longer any prospect of the High Court going back to the notion that the prerogative forms a limiting boundary to the power conferred by s61. 

But Pape also highlighted that the limit of the executive power so conferred remained unpredictable and unsettled.

Probable and possible restraints on s 61 power

The reasoning of the majority in both Vadarlis and Pape releases the discretionary and arbitrary power vested in the Australian Governor-General from the known bounds of the prerogative. In both Vadarlis and Pape the justices comprising the majorities declined to make definitive statements as to the extent of s 61 leaving its scope, and the plenitude of Commonwealth executive powers, yet to be defined and inherently uncertain. 

If there are limits they must be discerned by interrogating the Delphic terms of s.61, subject of course to constitutional prohibitions[52].

As Spigelman has observed, the delineation of the permissible scope of the executive power of the Commonwealth may await development on a case by case basis[53].

However, contained in the majority judgments in Pape can be found a number of obiter statements that justify confidence that caution will be exercised before further arbitrary power is conceded to the executive.  There are also indications that many of the older cases that served to limit prerogative power will continue in force but under a new guise.

French CJ stated that future questions about the application of the executive power to the control or regulation of conduct or activities under coercive law, absent authority conferred by a statute made under some head of power other than s 51(xxxix) alone, are likely to be answered conservatively.

They are likely to be answered bearing in mind the cautionary words of Dixon J in the Communist Party Case: ‘History and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding executive power. Forms of government may need protection from dangers likely to arise from within the institutions to be protected’[54].

His Honour noted that s 61 could not operate to set aside the distribution of powers between the Commonwealth and the States or the distribution of powers between the three branches of the federal government: nor could it abrogate any constitutional prohibitions[55]. Given the earlier reference to the Communist Party Case the Chief Justice may have intended thereby that aspects of the Rule of Law must be comprehended within the notion of ‘constitutional prohibitions’ but the passage remains self-confessedly Delphic.[56]

The joint judgment of Gummow Crennan and Bell JJ reaffirmed[57] (albeit without identifying a doctrinal basis for their conclusion) their support for the authority of earlier decisions of the High Court upholding the incapacity of the Executive Government to dispense with obedience to the law[58] and imposing a need for statutory authority to support extradition from Australia of fugitive offenders[59]. Their Honours also noted the statement by Latham CJ in the Pharmaceutical Benefits Case[60] that the executive government of the United Kingdom cannot create a new offence. They appear to have approved of the conclusion that a similar limitation also applies in Australia[61].

But even acknowledging these important obiter statements large questions still remain to be answered—if the known ambit of the prerogative no longer expresses the unregulated content of executive power conferred by s 61 of the Constitution, how are future boundaries to be discerned and what might be a coherent modern rationale for the acceptance by the majority joint judgment of the authority of the earlier, differently premised, decisions of the High Court?

Executive Power and Statute Law

Differences emerged in Vadarlis not only as to the scope of executive power but also as to whether that power had been displaced by reason of the detailed statutory provisions in theMigration Act 1958. While every member of the Full Court accepted that Parliament might cut back its scope, the majority held that there was no presumption that a law on a particular subject matter displaced or regulated the operation of the executive power conferred by s. 61. The absence of that presumption elevated that which Black CJ regarded as a [disputed] ‘prerogative’ power to a constitutional grant under s. 61 which could only be removed by unambiguous legislative language. 

The majority accordingly held that the executive’s right to act independently of statute had not been limited or abrogated despite the Migration Act 1958’s very detailed terms. The parallel executive power authorizing that action was conferred directly by the Constitution and could be removed only by unambiguous text[62].

The question is whether the Act operates to abrogate the executive power under s. 61 to prevent aliens from entering into Australia. There are no express words to that effect. It is necessary then to look to whether by implication it has that effect. It is not necessary for this purpose either to determine the full extent of the executive power or the full effect of the Act upon it. It is sufficient to ask whether the Act evinces a clear and unambiguous intention to deprive the Executive of the power to prevent entry into Australian territorial waters of a vessel carrying non-citizens apparently intending to land on Australian territory and the power to prevent such a vessel from proceeding further towards Australian territory and to prevent non-citizens on it from landing upon Australian territory[63].

It is worth examining this proposition more closely.[64]

Few, if any, examples exist of the unregulated s. 61 powers vested in the Governor-General being expressly abolished by the Commonwealth Parliament.  When Parliament has legislated in detail on a subject matter the assumption has been that any parallel, unregulated, executive powers would be subsumed and abrogated by the statute and thus be incapable of further use[65].

This assumption, of course, may have been an error. In Oates v Attorney-General[66] a Full Court of the High Court referred with apparent approval to Mason J’s views in Barton v The Commonwealth[67] that the Parliament is not to be supposed to abrogate a prerogative of the Crown unless it does so by express words or necessary intendment[68].

But Oates appears to be no longer good authority for that proposition.  In Jarratt v Commissioner of Police (NSW),[69]a later case, the NSW government sought to rely on the Crown’s prerogative or common law right to dismiss its servants without cause. Rejecting that proposition McHugh, Gummow and Hayne JJ stated[70];

The applicant held, and was dismissed from, a statutory office, not one created under what appears to be the obsolete or at least obsolescent prerogative power recognised by s 47 of the Constitution Act. By necessary implication, the prerogative found in s 47, and which might have been employed to create the applicant's position as Deputy Commissioner as one at pleasure, was abrogated or displaced by the Act itself. Speaking in Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority of the principle laid down in Attorney-General v De Keyser's Royal Hotel, McHugh J said:

"That principle is that, when a prerogative power of the Executive Government is directly regulated by statute, the Executive can no longer rely on the prerogative power but must act in accordance with the statutory regime laid down by the Parliament."

In another subsequent decision, Northern Territory v Arnhem Land Trust[71] a strong High Court majority, including three justices who had participated in Oates, endorsed the approach taken in Jarratt

Glesson CJ, Gummow, Hayne and Crennan JJ observed;

“Just as ‘when a prerogative power of the Executive Government is directly regulated by statute, the Executive can no longer rely on the prerogative power but must act in accordance with the statutory regime laid down by the Parliament’ the comprehensive statutory regulation of fishing in the Northern Territory provided for by the Fisheries Act has supplanted any public right to fish in tidal waters.[72]

While neither case has explicitly distinguished or overruled Oates, as Jarrett and Northern Territory express the most recent considered views of the High Court on this crucial issue of statutory construction, the High Court’s rejection of Oates and Vadarlis on this point appears necessarily to be implicit.

Further from a ‘rule of law’ perspective the approach taken by the High Court in the Jarratt and Northern Territory seems preferable and more consistent with the modern approach to statutory interpretation. It can hardly be supposed that any Parliament would intend that unregulated executive powers would survive its comprehensive statutory codification of an area of activity.

While not beyond all doubt[73], this aspect of the relationship between the law applying to executive power and statute law would seem to have been settled.

Executive Power, s 51(vi) and Crises

As earlier noted, executive power, like legislative power, has always been permitted to expand when required in defense of the realm. As Hayne J stated in Thomas v Mobray:

…, [T]he defence of the nation is peculiarly the concern of the Executive. The wartime cases like Lloyd v Wallach, Ex parte WalshLittle v The Commonwealth and Wishart v Fraser recognise that "in war the exigencies are so many, so varied and so urgent that width and generality are a characteristic of the powers which [the Executive] must exercise"[74].

But whether the exigencies of ‘war’ provide an appropriate analogy for the peacetime expansion of executive power through the coupling of s61 with incidental legislative powers conferred by s51 (xxxix) may be doubted.

The analogy cannot hold unless Commonwealth legislation in time of war, or in response to threats such as terrorism, can be supported otherwise than though having its constitutional roots in the defence power.

Blackshield and Williams[75] point out that in Farey v Burvett (1916) 21 CLR 433 Isaacs J appeared to envisage a separate executive power being available to respond to wartime emergencies independent of the defence power in s 51(vi). On that analysis the express incidental power, s51(xxxix), would then operate to confer legislative competence on the Parliament. 

However, as Blackshield and Williams then note, ‘although these suggestions have certain resonance in later decisions on the ‘nationhood power,’ they have never been tested’. InThomas v Mowbray[76] the High Court referred exclusively to the defence power in circumstances where, if it existed, an implied executive power to protect the constitution from sedition or subversion might have been expected to have been proposed or discussed.[77]

To the extent that Pape opens the door to the use of the incidental power to respond to any national crisis—including war and war like exigencies, it poses a challenging conundrum. If the executive is entitled to claim that new powers are needed to respond to an emergency, to prepare for the defence of the realm or to address a national crisis; and that claim can then engage the incidental power to legislate in support of the claimed need, the whole process may rightly be criticized as self-referential and akin to the executive reciting itself into power.

If that is possible it poses very difficult questions as to how such power could be limited[78]. As Hayne and Keifel JJ’s dissent in Pape illuminated, public claims of a ‘crisis’ or ‘emergency’ are often made but such words do not readily yield criteria for constitutional validity[79].

An objection to ‘making the conclusion of the legislature final and so the measure of the operation of its own power’ underpinned Dixon J’s reluctance to sanction legislation incidental to an implied power to protect the constitution in the Communist Party Case[80].

Logically a similar objection to the executive setting the measure of its own powers should be equally, or more, potent.

In Pape Hayne and Keifel JJ drew on the legacy of the Communist Party Case to reinforce their rejection of the approach that had commended itself to the majority observing, that if their view was correct ‘the extensive litigation about the ambit of the defence power during World War II was beside the point[81]’.

How this fundamental tension will be resolved in future cases remains to be seen.

A Separation of Powers Conundrum

Lord Birkenhead highlighted the blurred and overlapping boundaries of British history and politics and the law governing the prerogative when he observed the latter represented ‘not in truth the statement of a legal doctrine but the result of a constitutional struggle.[82]

Once the former Imperial basis for constitutional doctrine regarding the content of executive power is discarded, the absence of any textual markers as to the limit of s 61 invites the suggestion that establishing its boundaries is in its nature more a political or legislative act than a judicial function.

Given that Australia’s Constitution, unlike that of Britain, mandates a strict requirement for the separation of powers it prompts the query as to whether a Ch III court can lawfully undertake that task?  It may be asked: What right has the judicial arm of government to legislate its view of which powers the Executive should or should not exercise ‘for the protection and advancement of the Australian nation’?

In Pape, Heydon J apprehended the difficulty of dealing with such questions as a reason for rejecting all such claims[83].

Modern linguistic usage suggests that the present age is one of ‘emergencies’, ‘crises’, ‘dangers’, and ‘intense difficulties’, of ‘scourges’ and other problems…The public is continually told that it is facing ‘decisive’ junctures, ‘crucial’ turning points and ‘critical’ decisions…Even if only a very narrow power to deal with an emergency on the scale of the global financial crisis were recognised, it would not take long before constitutional lawyers and politicians between them managed to convert that power into something capable of almost daily use…it is far from clear what, for constitutional purposes, the meaning of the words ‘crises’ and ‘emergencies’ would be. It would be regrettable if the field were one in which the courts deferred to, and declined to substitute their judgment for, the opinion of the executive or the legislature. That would be to give an ‘unexaminable’ power to the executive, and history has shown, as Dixon J said, that it is often the executive which engages in the unconstitutional suppression of democratic institutions. On the other hand, if the courts do not defer to the executive or the legislature, it would be difficult to assess what would be within and what is beyond power.

However, despite the reservations expressed by Heydon J in his dissent, given that the High Court has decided that s 61 does include additional discretionary powers beyond those included within the prerogative, any suggestion that the extent of such powers is non-justiciable would conflict both with the text of s 75(v) and with firmly established doctrine[84].

Vadarlis and Pape therefore present the courts with an interesting conundrum: absent a new limiting doctrine to constrain the bounds of the executive power conferred by s 61 the High Court will need to make case by case judgments; each requiring policy or political choices, thereby straying close to, or over, the boundary of the separation of powers imposed by Ch III; yet for the Court to decline to undertake that task would be unthinkable.

Professors Evans and Gerangelos who follow, each engage in different ways with the challenge of matching the High Court’s recent approach to executive power with a modern theory of limits.

A failure to set limits on otherwise unbounded claims for the exercise of arbitrary Executive powers would be heedless of the supervisory jurisdiction explicitly conferred by s.75 (v) of the Constitution and destructive of any meaningful commitment to the rule of law.


This review of executive power has not even scratched the surface of some other issues that are yet to be finally worked through by our courts.

It has not touched on state executive powers.  Much litigation may flow as a result of the High Court’s recent decision, Kirk v Industrial Relations Commission (NSW)[85], which held that, by force of the Commonwealth Constitution, there is an entrenched minimum of judicial review vested in state Supreme Courts, such that the actions and decisions of state officials are now similarly subject to review in a like manner as the and decisions and actions of officers of the Commonwealth in the original jurisdiction of the High Court.

Nor have I referred to powerful criticism, including that of the former Chief Justice of the High Court, Sir Anthony Mason, that the requirement to show jurisdictional error has unnecessarily restricted the grounds for judicial review available in Australian courts to examine executive conduct[86]. Whether, as its composition alters, the High Court might consider expanding the already recognized grounds for review to meet such criticism is an interesting speculation.

Nor has attention been given to the increasingly pressing question, given the trend to outsource many formerly exclusive governmental functions, of whether the doctrine in R v Panel on Take-overs and Mergers; Ex parte Datafin P/c [1987] QB 815 should apply in Australia to extend judicial review to private bodies exercising regulatory functions of government[87].

Nor, and finally, has this paper touched on whether the Parliament might yet once more seek some means of excluding judicial review of refugee claims, again fruitlessly attempted and again struck down by the High Court in Plaintiff M61/2010E v Commonwealth [2010] HCA 41 (11 November 2010).

But I trust enough has been pointed to suggest that the High Court of the early 21st century may be as engaged in thinking about in Ch II of the Constitution and the nature and scope of executive power as was it regarding Ch III, and the nature and scope of judicial power, during the past two decades.


[1] Barrister, Michael Kirby Chambers Hobart; Adjunct Professor of Law, QUT

[2] King James I Works (1609) Ch 20.

[3] (1610) 12 Co. Rep. 74

[4] On 13 February 1690 William and Mary accepted the throne of England having agreed to the terms of the Parliament’s Declaration of Right. They were jointly crowned on 11 April taking the oath prescribed by theCoronation Oath Act 1688: "solemnly promis[ing] and swear[ing] to govern the people of this kingdom of England, and the dominions thereunto belonging, according to the statutes in parliament agreed on, and the laws and customs of the same".

[5] For example to refuse an election to, or to dismiss, a Prime Minister who has lost the confidence of the House of Commons when another appears to have had the confidence of the House reposed in him or her. The scope of these ‘reserve powers’ remains contentious in Australia following the dismissal of the Whitlam government by Governor-General Sir John Kerr. For a larger discussion and consideration of these ‘reserve powers’ in the Australian context see George Winterton, Parliament, the Executive and the Governor-General (1983) 13-38

[6]  Walter Bagehot The English Constitution 1867

[7] Henry IV Part 2, Act 3, Scene 1, 31.

[8] British Broadcasting Corporation v Jones [1965] Ch 32 at 79.

[9] The Hon J J Spigelman AC, Public law and the executive (2010) 34 Aust Bar Rev 10-24 at 19.

[10] Ibid at 20.

[11] Commonwealth v Kreglinger (1926) 37 CLR 393at 413 (Isaacs  J). In Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 135. Mason CJ, referring to this passage, drew a distinction between ‘implications’ and ‘unexpressed assumptions upon which the framers proceeded in drafting the Constitution’;  and applied Isaac J’s expression only to the former. The distinction is important, the former being regarded as part of the text whereas the latter’s significance might range from useful interpretive factors to assumptions that have become irrelevant with the passage of time; but in the present context such distinctions are immaterial. See B M Selway, ‘Methodologies of constitutional interpretation in the High Court of Australia’ (2003) 14 PLR 234 at 234.

[12] See fn 4 above.

[13] Save as must be implicit in any discussion of the, very limited, so called ‘reserve’ powers that stand as exceptions to the general rule that the Governor-General must act only on advice.

[14]Commonwealth v Kreglinger (1926) 37 CLR 393 at 411-412

[15] There was however a lively debate in the first decades of Federation as to whether the prerogatives as to international affairs and to declare war had been reserved to the Imperial Crown: see Herbert V Evatt, ‘Certain Aspects of the Royal Prerogative’ Doctoral Thesis University of Sydney; published as The Royal Prerogative, 1987 at 142-170

[16] ‘In itself…a striking testimony to the manner in which accepted political doctrines become part of the law of the land through recognition by the Judges:’ Evatt, ibid at 25. Some quaint personal prerogative rights of the British Crown that had survived in England had no logical application in Australia, for example those relating to the Crown’s right to land Royal Fish (sturgeon and whale) on the shores of England and Scotland.

[17] A V Dicey Law of the Constitution 10th ed 424

[18] See above fn 4.

[19] Farey v Burvett  (1916) 21 CLR 433 at 452

[20] George Winterton has persuasively dismissed the argument that prerogative powers conferred by s 61 were not subject to parliamentary control; Winterton G, Parliament, the Executive and the Governor-General,Melbourne University Press 1983, 33

[21] Case of Proclamations (1611) 77 ER 1352

[22] Ibid

[23] Identifying the precise limits of what was inherited by this means was the subject of considerable debate and scholarship. The most influential analysis of the prerogative as it applied to the Dominions was that of Herbert V Evatt, ‘Certain Aspects of the Royal Prerogative’ Doctoral Thesis University of Sydney; published as The Royal Prerogative, 1987.

[24] See for example Sir Owen Dixon, ‘The Law and the Constitution’ (1935) 51 Law Quarterly Review 590 at 597:

[The Constitution] is not a supreme law purporting to obtain its force from the direct expression of a people’s inherent authority to constitute a government.  It is a statute of the British Parliament enacted in the exercise of its legal sovereignty over the law everywhere in the King’s Dominions. In the interpretation of our Constitution this distinction has many important consequences. We treat our organs of government simply as institutions established by law, and we treat their powers simply as authorities belonging to them by law. American doctrine treats them as agents for the people who are the source of power...

[25] Theophanous v Herald &Weekly Times Ltd (1994) 182 CLR 102 at 171 (Deane J)

[26] Re Ditfort; Ex parte DCT (1988) 19 FCR 347 (‘Re Ditfort’) at 369

[27] George Winterton ‘The Limits and Use of Executive Power by Government’ (2003) 22 Federal Law Review 421, 428 

[28] Ruddock v Vadarlis (2001) 110 FCR 491 on appeal from Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs [2001] FCA 1297

[29] North J’s finding of fact  that the asylum seekers had been detained was not challenged on appeal;

[30] Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs [2001] FCA 1297at [121],[122]

[31] The question of whether the power ought to have been regarded as having been displaced is discussed later in this paper—see pp 13-16.

[32] at [183]

[33]at  [197]

[34] at [180]

[35]  Because the AAP Case is a rare example of a judgment from which no clear ratio can be derived (see L Zines, The High Court and the Constitution, 5th ed, Federation Press, 2008, 354) reliance on the dicta of Jacobs and Brennan JJ was a slender reed upon which to base strong conclusions. And, while Davis is authority for the proposition that the ‘implied nationhood’ power can support a range of legislative measures (in that case associated with appropriations for and the regulation of activities associated with the celebration of the Australian bicentennial), it is also authority for the proposition that such legislative power has only a narrow remit—the Court striking down aspects of Commonwealth legislation that purported to limit the private use of words and symbols extending beyond that which was reasonably required for the protection of the Bicentennial celebrations a point later remarked on by Heydon J in Pape v Commissioner of Taxation [2009] HCA 23 (7 July 2009); 257 ALR 1 [521]. Any limits that Davis imposed on coercive actions not authorised by legislation and supported only by executive fiat, were not explored in Vardalis.   

[36] Stephen Gageler, Beyond the text, A vision of the structure and function of the Constitution (2009) 32 Australian Bar Review 138-157. In this article Gageler suggests the Constitution is best understood as a framework designed to enlarge the powers of self government of the unified people of Australia through institutions of government, central and state, structured to be politically accountable to those people.

[37] at [180];  see the text referring to fn58

[38] at[197]

[39] at [30]

[40]  See Hayne and Keifel JJ at [287]

[41] French CJ [133]

[42] Gummow, Crennan and Bell JJ [233]

[43] Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75

[44] See the sweeping dicta of Issacs J in Farey v Burvett (1916) 21 CLR 433 at 453 in which the limits of the defence power were said to be ‘bounded only by the requirements of self-preservation’.

[45] Pape at [127]

[46] [214]-[215]

[47] Gummow, Crennan and Bell JJ [242]

[48] [228]

[49] Hayne and Keifel JJ [347]

[50] Hayne and Keifel JJ [343]-[357],Heydon J [519]-[520]

[51]Hayne and Keifel JJ [343]-[357],Heydon J [519]-[520]

[52] French CJ states that the exigencies of national government can be invoked neither to set aside the distribution of powers nor to abrogate constitutional prohibitions. But that gives little guidance. As His Honour observed; ‘This important qualification may conjure the “Delphic” spirit of Dixon J in the Pharmaceutical Benefits Case. But to say that is to say mo more than that there are broadly defined limits to the power that must be applied case by case’ Pape at [127].

[53] The Hon J J Spigelman AC, Public law and the executive (2010) 34 Aust Bar Rev 10-24 at 19

[54] at [10]

[55] at [127]

[56] ibid

[57] at [227]

[58]  A v Hayden (No 2) (1984) 156 CLR 614 and White v Director of Military Prosecutions (2007) 231 CLR 570

[59] Vasiljkovic v Commonwealth (2006) 227 CLR 614

[60] Attorney-General (Vic) v Commonwealth (1945) 71 CLR 237 (Pharmaceutical Benefits Case)

[61] at [243]-[244]

[62]  A similar approach to the continuing subsistence of the prerogative in the face of statutory language which on its face appeared cover the field and thus exclude recourse to the powers claimed was taken by the Fiji High Court in the much criticized decision Qarase v Bainimarama Unreported 9 October 2008 (Gates ACJ, Byrne and Pathik JJ). There, notwithstanding the provisions in the Fiji Constitution, which required the President to act on advice, the Court held ‘the National Security prerogative could only be abrogated by express words or by words of necessary implication’ [132]. The prerogative power of the President of Fiji therefore permitted the President lawfully to ratify the overthrow of an elected government by the military and then to appoint the military Commander as the Interim Prime Minister.

[63] at [201]

[64] See also the review of the law regarding ‘Legislative ouster of prerogative powers’ by Gerangelos P A, ‘Parliament, the Executive, the Governor General and the Republic’: The George Winterton Thesis’ in H P Lee and  P A Gerangelos, Constitutional Advancement in a Frozen Continent: Essays in Honour of George Winterton (2009) at 189-221

[65] See for example Brown v West (1990) 169 CLR 195 at [12]; White v Director of Military Prosecutions (2007) 235 ALR 455 

[66] (2003) 214 CLR 496 (‘Oates’) at [34] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ)

[67] (1974) 131 CLR 477 at 501; also referred to by French J in Vadarlis

[68]  Identical reasoning was applied in the Federal Court of Australia; Mokbel v Attorney-General 162 FCR 278

[69] (2005) 224 CLR 44 (‘Jarrett’)

[70] at [85], .

[71] (2008) 248 ALR 195; [2008] HCA 29 (‘Northern Territory’)

[72] at [27]

[73] There is a later, obiter, reference by French CJ in Cadia Holdings Pty Ltd v NSW [2010] HCA 27 at [14] to the earlier doctrine but it is expressed as an historical fact rather than as a statement of the current law.

[74] Thomas v Mobray (2007) 233 CLR 307; 237ALR 194 at [505]; internal footnotes omitted.

[75]  Tony Blackshield and George Williams, Australian Constitutional Law and Theory  (4th ed) 2006  at 854. In Thomas v Mowbray (2007) 233 CLR 307; 237ALR 194 the High Court referred only to the defence power in circumstances where, if it existed an implied executive power to protect the constitution from sedition or subversion might have been  expected to have been discussed. On the other hand it may be objected that little should be read into that example, that given that the crucial point in Thomas v Mowbray was the High Court’s ruling that the defence power extended to laws about domestic terrorism—so there was no necessity to seek an alterative basis to support the validity of the impugned legislation.

[76] (2007) 233 CLR 307

 [77] On the other hand it may be objected that little should be read into that example, that given that the crucial point in Thomas v Mowbray was the High Court’s ruling that the defence power extended to laws about domestic terrorism—so there was no necessity to seek an alterative basis to support the validity of the impugned legislation.

[78] It may be that Latham CJ reference to the very limited extent to which s 51(xxxix) empowers the Parliament to make laws not incidental to the execution of another head of legislative power[78] cited by the joint majority judgment points to the incidental legislative power being not only unavailable to support laws creating offences but also laws creating rights or imposing duties. So construed the incidental power would available only to facilitate the Executive undertaking such things as are permitted to ordinary citizens such as entering into contracts and spending money.

[79] [347]-[352]

[80] At p 193

[81] [347]

[82] Viscountess Rhondda’s Claim [1922] 2 A.C. 339 at 353, see also Herbert V Evatt Certain Aspects of the Royal Prerogative’ Doctoral Thesis University of Sydney; published as The Royal Prerogative, 1987 at 25. 

[83] Passages extracted from [551]-[552]

[84]  In Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 the High Court reaffirmed its support for the doctrine expressed in Marbury v Madison 5 US (1 Cranch) 137 (1803) that “It is emphatically the province and duty of the judicial department to say what the law is:” Gaudron, McHugh, Gummow, Kirby and Hayne JJ stating, “In any written constitution where there are disputes over such matters, there must be a decision maker. Under the Constitution of the Commonwealth the ultimate decision maker in all matters where there is a contest is this court.  The court must be obedient to its constitutional function. In the end, pursuant to s 75 of the Constitution, this limits the power of the parliament or the executive to avoid, or confine, judicial review.” [474].

[85](2010) 239 CLR 476 

[86] In a speech delivered at the 2010 Australian Institute of Administrative Law Forum Conference, Sir Anthony stated:

Australian exceptionalism has been driven very largely by separation of powers considerations…. The impact of this influence is to be seen in the marginalization of Wednesbury unreasonableness, the rejection of proportionality as a ground of review and a pre-occupation with ‘jurisdictional error’. In other jurisdictions where emphasis on the rule of law prevails, the correction of errors receives more attention. (2010) 64AIAL Forum 4 at 6.

[87] See, concluding the position remains unresolved: Basten JA in Chase Oyster v Hamo (2011) 272 ALR 750 at [64]-[81].


ANU College of Law, the National Judicial College of Australia and the National Institute of Social Sciences and Law Conference 

Confidence in the Courts

 National Museum of Australia, Canberra, Friday 9-11 February 2007  

News as entertainment and celebrity: The judge in an era of familiarity. 

Hon Duncan Kerr SC MP

All it need take is being at the wrong place at the wrong time. 

Thus it was when Robert John Walker came before Adelaide Magistrates Court on the 26 October 2005 to apply for bail.  Walker had been charged with possession of child pornography.  A psychiatric report relevant to Walker’s application was unavailable. The magistrate remanded Mr Walker in custody and adjourned the hearing of the bail application until the report could be made available to the court.  

The magistrate no doubt thought all this to be both mundane and unremarkable. 

But later that evening Bob Francis the host of a talk back programme on 5AA made something much more of it. Amongst the derogatory comments about the magistrate he broadcast during the course of that evening was the following statement made by Mr Francis: 

The worst thing about this whole situation is that bail has been refused until at least Monday. They’re even thinking about bail, the judge. The judge saying ‘To let him into the community without a psychiatric examination would be irresponsible’ Irresponsible! Oh, smash the judge face in! 

I don’t pretend to any knowledge of how these comments affected the magistrate—but I think we can all put ourselves in his shoes and imagine how they might have.  For his tirade of bitter and sustained attack on the magistrate of which this is only a tiny fraction Mr Francis was subsequently convicted of contempt of court. He was sentenced to 9 weeks imprisonment wholly suspended on his entering into a bond to be of good behaviour for a period of 18 months[1]

I want to look back to and examine where we have come from, where we have got to and what we might do to improve the way in which our community and our judges interact. 

The dignified parts of the constitution 

Bagehot, writing in 1873, referred to the Crown as the head of the dignified part of the constitution.  When he wrote Queen Victoria was remote and formidable. So too were Her Majesty's judges.  That is not to say the legal system was beyond criticism. Charles Dickens drew attention to the delays and the 'fog' of Chancery in Bleak House. But the right of the judiciary to be treated with dignity was little questioned.  Little more than one hundred years later that assumption is under constant assault.

Those who in Bagehot's time comprised the 'dignified parts of the constitution' now find that not only their official and ceremonial conduct but also their private lives have become the grist of talkback radio, current affairs television and salacious gossip magazines. The monarchy has had little choice but to come to an uneasy accommodation with the intrusion of the media and the cult of celebrity. The Crown is no longer remote. 

It would be silly to suggest that most judges face the same pressure as do members of the troubled and hounded Royal family. Many, probably most, judges and magistrates survive their judicial careers in spectacular anonymity. 

Yet judges and magistrates also now live in a different age to that of Bagehot. However we may wish it to be otherwise it is no longer realistic to expect, let alone to demand, unquestioning respect for those holding judicial office. 

And as the talk-back radio attack on the magistrate who dealt with the Walker case demonstrates, the walls of a judicial officer’s personal anonymity can come crashing down at any time. No judge or magistrate can be wholly confident that this may not be their fate. 

Mr Francis’s outbursts were punished, most attacks on judges are not—nor for a community that values free speech, can they be.

Anyone in this room could give their own examples of extreme and sometimes personal attacks on magistrates and judges—even some made under the protection of Parliamentary privilege. 

Consider what His Honour Justice Kirby had to endure, in his case with courage and humility, in the face of Senator Heffernan’s widely reported allegations that His Honour had misused his Commonwealth car to trawl the streets of Sydney for rent boys. Those allegations were later proven to be false—but not before they had been published and republished many times


‘Something must be done’ 

And, just as the tip of an iceberg is merely the visible aspect of the larger mass under the water, such ferocious attacks on judges are just the most obvious—and probably the least important--manifestation of a larger phenomenon. 

Newspapers now openly ‘campaign’ on law and order issues. The print media and TV and radio broadcasters often trivialise decisions reached after great care by both judges and juries. 

The use of brutal language to attack individual judges or the judiciary as a whole is not just an Australian phenomenon. 

Prominent CNN presenter and commentator, Nancy Grace, on 17 October 2006 devoted her programme to a show entitled “Judges in Contempt’ to focus on US judges’ alleged indifference to victims and undue sympathy for perpetrators. The most superficial of research will discover thousands of similar examples in that country’s media. 

Repeatedly presented with such stories any community is likely to become persuaded that ‘something must be done’. 

In a recent paper[2] Nicolas Cowdery DPP (NSW) prefaced his remarks by referring to the following passage from the NSW Law Reform Commission’s ‘Sentencing and Juries’ Issues Paper[3]

It is right and necessary that the media report on crime and punishment and generate public debate….However, stories on sentencing are often scant on detail to the point of inaccuracy, and fail to present a balanced picture. This can slant public opinion unfairly, and create unwarranted fear by suggesting that crime is out of control, and that the courts continually flout public opinion by imposing excessively lenient sentences. In this way, while claiming to reflect public opinion, the media are in fact creating it, with no realistic or accurate basis. This can feed into the legislative and policy process, since no policy maker wants to be seen as unresponsive to public views, or soft on crime. 

Judges in the public spotlight

Getting the law right affords a judge no immunity against harsh criticism. 

Judges who decide cases on grounds firmly rooted in the soil of legal and constitutional rights nonetheless can be, and have been, attacked by politicians and media commentators. They can find their decisions portrayed as the product of a legal culture too concerned with minority issues and out of touch with mainstream democratic values[4]

Nor is there any guarantee of immunity from media blood sport outside the court room.  Consider the treatment by News Ltd of His Honour Ian Callinan while attending the 2004 biennial Australian Bar Association conference in Florence.  Whatever the wisdom of the ABA in holding such conferences overseas it can hardly be controversial that Justices of the High Court attend. They have always done so—and much to the benefit of the relationship between bench and bar and scholarship within the legal profession. 

However, to give ‘colour’ to a series of articles and editorials about judicial travel entitlements and the tax deductibility of overseas conferences for Australian professionals, photographs taken by the media of Justice Callinan ‘shopping’ were presented under the headline Judges’ Florentine foray on the taxpayer’.[5] In the text His Honour was described as ‘dressed to beat the heat in a cream linen suit and a panama hat’ and ‘strolling through cobbled streets bursting with monuments and bustling with summer tourists’.  The article continued, ‘after a late lunch at La Madia trattoria, the judge wandered past the Duomo, admired tapestries at a market and peered at jewellery along the Ponte Vecchio—known as the “bridge of gold”—before retiring to his five star hotel’. 

Perhaps His Honour should wear a tracksuit and take up power walking?

Justice Callinan was simply the fall guy—at the wrong place at the wrong time. 

Few judges seek or enjoy any aspect of this increasingly voracious public spotlight—even when the media’s attention flatters them as sometimes, if much more infrequently, it does. 

Australian judges and magistrates would shrink from emulating the example of Judge Lance Ito who appeared to revel in the public attention he received when he presided over the OJ Simpson ‘trial of the century’ in the United States of America.

But as that case revealed, in the modern media age, even a judge can become a ‘celebrity’.  

It is increasingly difficult, and possibly counter productive, for those holding judicial offices to stand aloof from all this. 

Of course we should be wary of falling for the trap of harking back to ‘the good old days’. 

There never was a time when all media criticism of judges was fair and balanced.  Sensational reporting of crime has been the staple of tabloid journalism since newspapers gained a popular audience.

But we are simply burying our heads in the sand if we don’t recognise that today’s magistrates and judges face increased pressures and challenges from media that, in an ever more competitive environment, has been forced to increasingly privilege controversy, entertainment and ratings over hard news. 

What is realistic? 

How realistic is it for judges to continue to follow the advice given by Sir Frank Kitto only a couple of decades ago? 

Every judge worthy of the name recognizes that he must take each man’s censure; he knows full well as a judge he is born to censure as sparks fly upwards; but neither in preparing a judgment nor in retrospect may it weigh with him that the harvest he gleans is praise or blame, approval or scorn. He will reply to neither; he will defend himself not at all[6].

Can the underlying judicial values of integrity, independence and openness that lawyers value as vital components of the rule of law survive the judiciary’s modern engagement with public familiarity? 

Of course we lawyers would hope that the transcendent values underlying our legal system can survive any buffeting. But it is hard to deny that they are being challenged—and in danger of being eroded. 

What then can be done? Just wishing things to be different will not change anything. 

One thing is clear--we have no big stick to wave.

Freedom of speech and freedom to report the proceedings of courts are as fundamental to our system of government as is the rule of law. 

Much as you might deplore irresponsible public statements by politicians about our judges and as much as we may be critical of the kind of reporting that Nicholas Cowdery condemned, a free society protects wise and unwise speech alike. 

Judges are not, and cannot become, censors. In a representative democracy only the most egregious of comment can be prohibited. 

So what can be done? 

I have no magic bullets but I do have some suggestions to make. 

First, judges and magistrates need to clean up their own backyards and tackle anything that invites legitimate criticism.  I know that much in that regard has already been undertaken. I applaud it. 

Courts today are much more consumer focussed than ever before.  Many courts have been pro-active establishing service charters that cover their administrative functioning—for example the Service Charter for the Registry of the High Court of Australia, the Victorian County Court’s Customer Service Charter, the Service Charter of the Federal Magistrates Court and Court Charter of the Northern Territory Magistrates Court. These are important steps. 

However not all Courts have followed these examples., Even Courts that have, have rarely (if ever) developed fair, transparent and efficient protocols extending their charters to the performance standards of, and complaints made about, judges and magistrates acting in their judicial capacity.  

Agreeing a method of extending consumer rights without compromising the necessary fierce independence of judges’ and magistrates’ substantive decision making[7] is a challenge we need to rise to. 

Second, courts should get rid of all anachronistic rules that prevent televising or radio broadcasts of their proceedings.  We cannot complain about distortion if we compel it.  

But Courts should do more. Don’t just rely on selective reporting. Be pro-active.  Stream court video on the web. Make it routine. Let people see what actually happens—except where there is legitimate policy reason for non-disclosure, such as in family and child matters.  Modern technology now makes this possible (and relatively inexpensive) for Courts at all levels of he judicial hierarchy. 

Sunshine is the best disinfectant.

Where media interest is obvious and misunderstanding of a complex decision likely, judges and magistrates should follow the example of the High Court and the Federal Court of Australia and make available a short accessible summary for the media—particularly if their actual decision is necessarily much longer. 

Third, courts shouldn’t be afraid of taking a few carefully considered risks. There are potential opportunities to go on the front foot. In that regard I hope the decision of the Victorian Chief Magistrate, Ian Gray, to allow his court to participate in the filming of ‘The Code—Crime and Justice’ screening this year on commercial television is vindicated. If the protocols have been carefully thought out in advance it seems to me to be a risk worth taking. 

There are also going to be occasions when it may be necessary for a court, through its chief justice, chief magistrate or a media officer to communicate directly with the public. 

In an address to the Australian Institute of Judicial Administration given in 2006, the Chief Justice of Canada, the Rt Hon Beverly McLachlin PC, said the following; 

It is clear as Chief Justice Murray Gleeson has said that ‘Judges cannot engage in the political process’. Yet beyond this, I believe there are times when Chief Justices must speak out for the justice system. The public is entitled to understand how the courts discharge their duties and the vital role they play in governance, and this understanding may at times be essential if confidence in the justice system is to be preserved…. A false attack on a judge may require a crisp statement setting out the facts. And an overt attack on the independence of the judiciary may demand response. All this is part of our tradition, and must be maintained.[8] 

Fourth, juries need to be treated with greater respect. Jury service is where the general public interacts most directly with the courts. 

I am a fan of Lord Devlin. I believe the jury is a pressure valve and safeguard against misuse of the criminal law.  But if we want to keep the jury system we need to treat jurors as responsible adults[9]. Jurors should be paid a decent wage for their time as part of the judicial system and we shouldn’t waste their time. Let’s insist on all but the most exceptional preliminary legal points being resolved before a jury is sworn. 

And, subject to the need to persuade a sceptical High Court, let’s not force judges to parrot complex formulaic statements in their summing up to juries. Too much of what is now required to be told to juries by judges to appeal proof a trial is expressed in language, and subject to distinctions, well beyond the understanding of many law graduates, let alone most lay jurors. 

Fifth, expanding on the last point above, judges and magistrates should take a critical look at how their decisions are written. Numbered paragraphs have been a good step forward.  That has helped accessibility. But there are countervailing trends. The length of many judgments, and sometimes their turgidity, has if anything got worse in recent decades. Don Watson has written about the decay of public language[10] and his critique would apply to much of what is written by judges.  

A short decision expressed in plain English should be the objective—not always possible—but at least the aim, of judicial writing. 

Sixth judges and magistrates should do whatever they can to address any problems of expense and delay within their courts. 

The Chief Justice of Canada, in the address I referred to earlier pointed out that assistance is readily available to the rich and, in criminal cases, to the very poor but there is a growing middle filled with people who cannot afford legal services—and that justice that is too costly for people to afford is no justice at all.  Her Honour continued; 

In societies such as ours where law has become so pervasive, the accessibility of legal services cannot be seen as a luxury.  

Judges, together with the bar, are the guardians of the legal system.  If they do not speak out for access to justice who will? …Innovative alternative dispute resolution techniques, mediation, litigant help centres, Legal Aid, pro bono bar programs. The list goes on—and must go on—until we have addressed the problem of access to justice. 

Seventh, and most importantly, judges and magistrates should become involved with civic education. 

Neville Wran AC QC recently gave an inspirational speech[11] to a recent law faculty graduation I attended. Wran pointed out that lawyers are now among the very few in our society who receive a civic education—‘and it shows’.  He explained: 

Through [the lens of a civic education] we witness the overwhelming power of the state; and come to understand why its power must be controlled. We are exposed to constitutionalism, to the rule of law and to the principles of due process.  It is a privilege indeed. And with it comes a grave responsibility; to protect the dignity of individuals and to safeguard their fundamental rights. 

Wran continued;

As lawyers we know that democracy does not inhere in the popular will alone…Democracy has certain objective values, which remain constant, no matter what the public demands today, tomorrow or next week.  Among them; that government shall be subject to law; that all persons shall have the right to due process before being punished; that every citizen shall in every circumstance be entitled to the benefits and protection of the rule of law…They are the values that guarantee the life of a democracy—from generation to generation. 

If the community as a whole knows nothing about why our legal system values such underlying principles, there will continue to be, as Wran pointed out ‘a yawning chasm between the views of lawyers and the expectations of the community…’

Judges and magistrates who pre-eminently share the privileges and responsibilities of lawyers must not misuse their position to become partisan advocates—but they can properly, and in my view should, involve themselves, and the organisations they belong to, in fostering civic education and advocating universal civic education in our schools and institutions. 

That should involve everything from judges and magistrates speaking to community groups and service clubs to their taking up positions on advisory bodies developing curriculum for schools, colleges and universities. 

A related reflection on the shrinking role of Attorneys-General 

Finally, I want very tentatively to put forward a much more contentious idea. 

I have come to have a niggling doubt about the wisdom of the decisions of the Commonwealth and the States to establish independent offices of Directors of Public Prosecution. 

I suspect those decisions played a part in fostering an increasingly unhealthy relationship between the elective and executive arms of government and the judicial arm. 

The rationale for establishing independent DPPs was wholly legitimate—it was to guarantee that any decision to prosecute would always be taken for proper reason and without partisanship. 

But the decision was a solution in search of a problem.  

No one advocating these changes thought it necessary to put forward an argument that Commonwealth or State Attorneys-General had in fact misused their power to file or withdraw Crown indictments. 

It would have been hard to abuse those powers[12]. There were institutional safeguards. The ‘small c’ constitutional conventions surrounding the role of Commonwealth and State Attorneys-General as first law officers were robust.

Deliberate abuse almost certainly would have required the connivance of other Crown Counsel and the senior legal officers who advised the Attorneys. 

Attorneys-General had to defend their contentious prosecution decisions in the media and in the Parliament. They had actual responsibility for the prosecution policy of the Crown—a weight of responsibility that anyone who has not signed an indictment can have little understanding of. The burden of carrying that responsibility is a strong antidote to cheap populism. 

The immediate gain achieved by the decision to create DPPs was the greater appearance of independence—but this gain may have come at an increasingly high price.

The accountability of the Executive to the Parliament for its part in the criminal courts was removed and replaced by an arms length professional—and with it was lost much of the understanding of the respective roles of the Executive and the Courts that that discharge of the Attorneys’-General high constitutional responsibility had required of him or her. 

Now when relationships break down over controversial issues we can be awkward spectators overhearing a very public dialogue of the deaf between DPP and Attorney-General—each with very little understanding of each others role and little stake in each others success.  It is hardly conducive to good governance. And as the recent controversial events in the Doomadgee case illustrate in the end there can never be an entirely hermetical seal. 

The Attorneys’-General retreat from their traditional role of first law officer was hastened by this divestiture of power to independent DPPs. 

In 1994 Daryl Williams QC MP argued that it was no longer appropriate for Australian Attorneys-General to defend the judiciary[13]

Mr Williams argued that Attorney-General was first and foremost a politician rather than the chief law officer of the nation.  His argument drew heavily on the fact that the Commonwealth DPP had the independent statutory authority to control prosecutions[14]

After his appointment as Attorney-General Mr Williams behaved as he had argued in 1994.

While there is no shortage of critics of this approach—as recently as January this year Julian Burnside QC attacked the current federal Attorney-General for failing to fulfil the traditional role of the office in defending the judiciary[15]--it seems to have become the norm. 

Decisions of successive State and Commonwealth Attorneys-General to restrict their appearances as counsel—and lessened reliance on their Opinions[16], have also played their part in the office of Attorney-General now being perceived primarily as a political office. 

For those anxious about the future of judges in an era of familiarity, this is a regrettable trend. As Julian Burnside QC noted judges have limited ability to defend themselves lest they enter the political fray. He observed. 

I am not aware of there being a time in Australia’s legal history when attacks were as personal as they have been…Certainly I can’t remember a time when the attorney-general was responsible for some of those attacks. Traditionally, the attorney-general would step forward and defend the judge…[17]

It would be helpful if all future Commonwealth and State Attorneys-General reconsidered where all this is leading to and committed themselves to the view that the job of first law officer must be more than ceremonial and that it still includes the duty to champion the independence and impartiality of the courts and to defend judges who cannot defend themselves against unjustifiable public vilification.

Given Australia’s constitutional requirement for a separation of powers at the federal level each of the three arms of government has an interest in the health of and a requirement to respect the roles of the other parts. That is far from the current state of affairs. Even when the relationship is publicly courteous what is said privately is too often cheap, nasty and disrespectful—on both sides. It may be vital to restore aspects of the quasi-judicial role of the Attorney-General as first law officer if we want to see a better outcome 

The health of our judicial system is bound to continue to suffer if no one in the legislature or the executive feels any requirement to take some responsibility for the well being of the relationship between those arms, and the third arm of the Australian government, the judiciary.

[1] Director of Public Prosecutions v Francis and Anor (No 2) [2006] SASC 261

[2] Tabloid Justice?  Conference Paper, 10th International Criminal Law Congress, Perth, 22 Oct 2006.

[3] ‘Sentencing and Juries’ NSW Law Reform Commission, Issues Paper No 27, June 2006, par 3.20

[4] See for example the lead article by Chris Merrit in the Weekend Australian which characterised the decision of the Victorian Court of Appeal to overturn the conviction of Mr Thomas as ‘allowing a mate of Osama bin Laden to walk free in Melbourne’ The rule that prevents confessions and admissions of guilt to be admitted in evidence unless they are voluntary was dismissed as a ‘nice legal argument’. The Weekend Australian, Legal system releases the enemy, 19-20th August 2006

[5] Natasha Bita “Judges’ Florentine foray on the taxpayer” The Australian 5 July 2004

[6] Why write judgements? (1992) 66 ALJ 787 at 790

[7] The ordinary appeal system is a strong guarantee allowing redress of substantive error—the kinds of matters I refer to here are the more humble issues like delay and complaints about unnecessary inconvenience, discourtesy or rudeness.

[8] Rt Hon Beverly McLachlin PC, Fourteenth AIJA Oration in Judicial Administration ‘The 21st Century Courts: Old Challenges and New’ April 28 2006

[9] We also need to make sure that the selection base for jury service is broader and more representative— far too many community members can claim exemptions.

[10] Don Watson Death Sentence The Decay of Public Language Random House, 2003

[11] Speech by the Honourable Neville Wran AC QC at the Graduation Ceremony, University of Tasmania, Thursday 21 December 2006

[12] I am not blind to the institutional corruption of some state governments in the not distant past. But corruption of the kind uncovered in Queensland by the Fitzgerald Enquiry extended into the police force and into other notionally independent agencies. A government prepared to debauch the appointments of senior police would hardly cavail at debauching the appointment of a DPP. If that was ever to happen again the absence of any accountability for the prosecution policy of the Crown would shield abuse, not protect against it.

[13] Daryl Williams QC MP, Paper presented to the National Conference, Courts in a Representative Democracy, 11-13 November 1994

[14] Mr Williams acknowledged that the Attorney retained residual power to give directions to the DPP but correctly observed that the power was rarely exercised.

[15] Ruddock ‘fails to defend judges’ The Australian 9 January 2006

[16] In the early years of the federation Commonwealth Attorneys-General regularly provided Opinions to other ministers and to heads of departments. The AGPS has published two volumes under the title Opinions of Attorneys-General of the Commonwealth of Australia. The first volume (published in 1981) covers the years 1901-14 and the second (published in 1988) 1914-23. The series has not been continued.

[17] Above, note 14