Book forum: Cheryl Saunders
Laureate Professor Cheryl Saunders AO provides the second post in our book forum on Amanda Sapienza’s Judicial Review of Non-Statutory Executive Action. To see all posts, please click here.
Cheryl Saunders
27.10.2021
Publication of a serious work on judicial review of non-statutory executive power in Australia is long overdue and Amanda Sapienza’s book is very welcome for this reason. I have watched her ideas on these complex issues develop since her presentation to the Cambridge Public Law Conference in 2016. It is great to have them available in final form and I am grateful to the AUSPUBLAW Blog for the incentive to read and engage with the book so soon after its release.
The book offers a tightly argued and meticulously researched analysis of the potential for review of non-statutory executive power in Australia with inevitable, although not exclusive, focus on the position at the Commonwealth level. Sapienza disaggregates conceptions of executive power, identifies factors relevant to the justiciability of the manner of its exercise and concludes that, at least in some circumstances, judicial review of non-statutory executive power is consistent with (and so, by inference, required by) Australian constitutionalism. The bare conclusion is unsurprising, but its working-out is important, in a country with a dearth of authority on point at the level of its highest court and in which judicial review has developed such a close association with the exercise of executive power pursuant to legislation.
The task undertaken by Sapienza is made more challenging still by the uncertainty of Australian public law on many of the key points on which her arguments builds. Sapienza responds to the challenge by choosing a reasoned position on each point, adding it to the framework she constructs, and moving on. The cohesion of the total package she explores and explains obscures the potential instability of some of the building blocks along the way. I want to focus on one of these: Sapienza’s analysis of non-statutory executive power itself.
The problems of determining the scope of the Commonwealth’s non-statutory executive power are notorious. The causes are legion: executive power is amorphous; s 61 of the Constitution is ambiguous in critical ways; chapter II of the Constitution apparently lacks the detailed guidance on the division of authority for federal purposes that chapters I and III provide. The difficulties are further compounded by history. Australia’s colonial status in 1901, when the Constitution came into effect, means that the scope of the executive power changed as Australia achieved independence, and by the same, gradual, indeterminate process. Along the way, judicial decisions determined that particular matters, of which treaty-making is an example, fell within the non-statutory executive power of the Commonwealth and s 2 of the Constitution fell into political disuse. Along the way also views shifted, within and between successive High Courts, about the extent to which the text of s 61 illuminates the scope of non-statutory executive power and the relationship between s 61 and common law conceptions of executive power, as originally developed in England. A settled understanding of s 61 remains a work in progress.
Sapienza resolves these uncertainties in favour of a view of non-statutory executive power that places considerable weight on the continuing significance of the common law. Unless qualified by the Constitution or a judicial decision, non-statutory executive powers recognised by the common law are incorporated into s 61, where they retain their common law status. For analytical purposes, Sapienza identifies three categories of such powers: prerogative powers, prerogative capacities; and non-prerogative capacities. These last are equated with the capacities of other legal persons and are described as ‘private powers’ that might, in some cases, be affected by a ‘public function factor’ (p 92). Each of these categories then is analysed, by reference to their properties at common law, to determine their potential amenity to judicial review, if questions about grounds, standing and remedies are able to be resolved.
Sapienza’s approach to this foundational issue is useful although not essential for her end project. It also resolves another old problem, about whether and, if so, why legislation can override executive power grounded in s 61 although this too, in my view, could be resolved in other ways. Taking this segment of the book in isolation, however, as a claim about the nature and scope of Commonwealth non-statutory executive power in its own right, I am not convinced that it reflects the direction in which recent cases have taken Australian constitutional law. Nor do I think that this is the direction in which Australian constitutional law should go.
As I understand it, the trajectory of the Australian cases on these issues over time has been to emphasise the significance of s 61, as an integral part of the Constitution, and to de-emphasise that of the common law. Of course, the frequent incantation that the common law ‘informs’ s 61 means that elements of what in England are understood as prerogative and common law powers or capacities find a place in the understanding of executive power in s 61, directly or through the prism of earlier High Court decisions. Exactly what that place is, depends on what ‘informs’ is intended to convey. One answer, consistent with the approach to the interpretation of the rest of the Constitution, is that the common law has helped to shape our understanding of ‘executive’ power and the properties that attach to it, much in the way that it has assisted to shape understanding of the companion terms of ‘legislative’ and ‘judicial’ power. Each now, however, has a constitutional meaning, adapted to constitutional context and no longer dependent on the common law. On this view, the non-statutory executive power of the Commonwealth might include functions that are not necessarily the product of common law experience and exclude others that are, all subject to the outer boundaries presented by the ‘execution and maintenance of this Constitution, and of the laws of the Commonwealth’.
The scope of non-statutory executive power is a significant contemporary issue for Australian constitutional law. It enables the executive government alone to commit the polity across administrations and generations without public or parliamentary deliberation, even on matters of high importance. No exercise of this power should be regarded as private, at least in my view. We need clarity about what can be done by the executive branch in reliance on such a power. Clarity may always be elusive, but the cause can be advanced by firming up the scope, properties, and role of the ‘executive power of the Commonwealth’, as an integral part of the Constitution as a whole. In 21st century Australia, it also seems to me to be undesirable to perpetuate the terminology of ‘prerogative’, with its inescapable mediaeval undertones. Of course, we can draw insights for the scope of executive power in Australia from actions that the common law concept of the prerogative recognised as exercisable without statutory authority. But the insights feed into our understanding of executive power and should not retain an identity of their own.
Amanda Sapienza has written a book that will be a force to be reckoned with in any consideration of judicial review of non-statutory executive power in Australia for some time to come. The scope of executive power itself was not her principal target. Even so, if the work serves to kickstart further serious reflection about what can and should be able to be done by an executive government in Australia without statutory authority, it will have served another valuable purpose.
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Cheryl Saunders AO is a Laureate Professor Emeritus at Melbourne Law School.
Suggested citation: Cheryl Saunders, ‘Book Forum: Cheryl Saunders’ on AUSPUBLAW (27 October 2021) <https://auspublaw.org/blog/2021/10/book-forum-cheryl-saunders/>