The royal prerogative powers of the executive government in Australia: past, present, and future

This thesis examines the royal prerogative powers of the Executive Branch of Government in Australia, with a particular focus on the Commonwealth, and argues that the royal prerogative remains relevant for determining the nature and scope of the non-statutory executive power. In determining the scope of this power, the thesis recommends adopting an historical constitutional approach. This involves consideration of the prerogative and related historical constitutional doctrines which are recognised in the common law and form part of the Australian constitutional landscape.

The nature and scope of the non-statutory executive power in Australia, particularly that of the Commonwealth, has recently been subject to increased debate. On one side, there is the view of the High Court of Australia that the text of s 61 of the Australian Constitution contains an inherent non-statutory executive power that a sovereign nation must of necessity possess by virtue of its national status. On the other side, many commentators argue that the scope of nonstatutory executive power is limited by the royal prerogative and the common law.

The thesis accepts that the prerogatives are recognised in s 61 of the Australian Constitution, but this is not the source of these prerogatives. The prerogatives emanate from the Crown itself and from the common law. Therefore, this thesis challenges the method of construing the nonstatutory executive power by reference to s 61 alone, as the prerogatives and common law are essential to understanding the nature and limits of executive power. In order to support this argument, the thesis examines the historical origins and evolution of the prerogatives of the Crown in Britain and demonstrates how this body of constitutional doctrine continues to form part of the Australian common law.

This thesis is topical as the non-statutory executive power has been subject to increasing judicial and academic scrutiny. It makes an original contribution through the examination of history in order to determine the nature and scope of the prerogative powers of the Australian executive governments. The application of this approach may assist in resolving the current debate between the competing views of the non-statutory executive power by providing a framework for future interpretations and exercises of the prerogative. Understanding the nature and role of the prerogative and its relationship with the executive power of government will not only affect the formulation and execution of government policy, but also how the executive is held to account for exercises of non-statutory executive power.