As the retirement of Chief Justice Robert French from the High Court draws closer, there will be many occasions for reflecting on his legacy. The focus of this post is on an area in which he perhaps hasn’t made the particular contribution that the government might have been hoping for: the executive power of the Commonwealth conferred by s 61 of the Commonwealth Constitution. More specifically, the post explores the Chief Justice’s development of the jurisprudence pertaining to the subset of that power that is the Commonwealth’s non-statutory executive power.
The expectation arises: Ruddock v Vadarlis – the Tampa affair
Chief Justice French came to national prominence when, in 2001 as a justice of the Federal Court, he was part of the majority of the Full Court that upheld the government’s actions in relation to the asylum seekers on board the Norwegian ship, the MV Tampa. In Ruddock v Vadarlis (2001) 110 FCR 491 (‘Tampa’), Beaumont J and French J (as he then was) held that the Commonwealth government’s non-statutory executive power authorised action to prevent the entry of non-citizens to Australia and action necessary to give effect to that exclusion, including detention.
Justice French, with Beaumont J agreeing, found that:
The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the Government of the nation would lack under the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australian community, from entering.
On the question of whether this power had been extinguished by subsequent legislative enactment, and specifically the Migration Act 1958 (Cth), French J invoked High Court authority to set a narrow test for when legislation would displace the Commonwealth’s non-statutory executive power:
The greater the significance of a particular Executive power to national sovereignty, the less likely it is that, absent clear words or inescapable implication, the parliament would have intended to extinguish the power.
Applying this test to his conclusion about the importance of the power, French J held that the Act, which was predominantly ‘facultative’ in nature, had not abrogated the non-statutory executive power to prevent entry to Australia.
Justice French referred briefly to the principle laid down by the High Court in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 and other cases that the Commonwealth Executive can only authorise or enforce the detention of a person where such conduct is justified by a valid statutory provision (‘the Lim principle’). His Honour distinguished the principle on the basis that Lim did not deal with the constitutionality of a non-statutory power to exclude or prevent entry to Australia and incidental powers, such as detention. Lim was a case about the validity of statutory provisions for the detention of unlawful non-citizens by the Executive whereas the present case involved the ambit of s 61 of the Constitution. It is implicit in his Honour’s remarks that the limiting nature of the Lim principle had no automatic application in a non-statutory context.
In light of French J’s reasoning in Tampa, one might wonder if the government appointing his Honour as Chief Justice was hoping to cement at the highest level of Australia’s legal system an expansive approach to non-statutory executive power.
The earlier cases: 2008-2012
Superficially, at least, the early signs looked good for the government. In Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, French CJ and a majority of the Court upheld the use of s 61 as a basis for exercise of the incidental legislative power in s 51(xxxix) of the Constitution to authorise the payment of a ‘tax bonus’ to forestall the negative consequences of the 2008 Global Financial Crisis. The Chief Justice stated that s 61 ‘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’ while being subject to other constitutional principles such as federalism and the separation of powers. By this, his Honour reiterated his approach in Tampa of untying the Commonwealth’s non-statutory executive power from the prerogatives of the British Crown. The prerogatives of the British Crown could inform the content of executive power, but could not be determinative. His Honour indicated in Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195 that this approach applied also to State executive power.
However, underlying the ‘win’ for the government in Pape was an important, unanimous, finding about the source of the government’s power to spend. All justices held that the appropriation provisions of the Constitution, ss 81 and 83, do not themselves confer substantive spending power but that power to spend must be found either in another section of the Constitution or in a statute made under it. This resolved against the government the ambiguities surrounding the source of the Commonwealth’s spending power that arose from the divisions in the High Court in the AAP Case (1975) 134 CLR 338. Thus, although the majority in Pape took a broad approach to what would fall within non-statutory executive power under s 61, it occurred in the context of a narrowed understanding of the sources of the Commonwealth’s power to spend, particularly in the absence of statutory authority.
The government’s designs in this area suffered a further defeat when, in Williams v Commonwealth (2012) 248 CLR 156, French CJ led a majority of the Court in invalidating a non-statutory executive scheme for funding chaplains in schools. The majority held that, even if such a scheme fell within Commonwealth legislative power (a proviso that was negated in Williams v Commonwealth (No 2) (2014) 252 CLR 416), Parliament needed to enact legislation authorising the scheme for spending pursuant to it to be constitutionally valid. This debunked the ‘common assumption’ that, subject to the requirements of the Constitution relating to appropriations, the Commonwealth Executive can expend moneys on any subject matter falling within a head of Commonwealth legislative power regardless of whether such legislative power has been exercised in relation to the expenditure. Although it might have been considered a somewhat surprising result at the time, this conclusion was in fact consistent with the comment of French CJ in Tampa  that:
Given that the legislative powers conferred by s 51 are concurrent with those of the States, subject to the paramountcy of Commonwealth statutes, (covering cl 5 and s 109), it could not be said that, absent statutory authority, Executive power may be exercised in relation to all those matters.
However, unlike Tampa, Williams had the effect of curtailing the zones in which the Commonwealth’s non-statutory executive power could operate, at least in respect of schemes for Commonwealth expenditure. The reasons of the Chief Justice indicate that a non-statutory power to spend could only be derived from the proper construction of the prerogatives properly attributable to the Commonwealth, the character and status of the Commonwealth as the national government or the requirements of government administration pursuant to s 64 of the Constitution. There is no ‘residual’ source of power to contract and spend in the heads of Commonwealth legislative power.
During this period there were other indications that French CJ would not take an excursion into non-statutory executive power lightly. In the Christmas Island Detainees case (2010) 243 CLR 319, the High Court considered the inquiries made by independent officials to determine whether asylum seekers held offshore had claims engaging Australia’s obligations under the Refugees Convention. A unanimous Court (in a single judgment) found that the inquiries were not freestanding, non-statutory inquiries as the government parties and one of the plaintiffs had argued. Rather, the inquiries had a statutory basis (albeit indirect). This allowed the High Court to avoid the question of whether exercises of non-statutory executive power were attended by procedural fairness obligations.
A similar finding was made in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, another unanimous decision. This case involved a challenge to procedures used by the Minister for Immigration (and departmental officers) to determine whether the Minister should exercise his ‘dispensing powers’ under the Migration Act – non-compellable powers to allow a person to make another visa application or have a visa granted in circumstances where that would otherwise not be permitted (such as where an application for a protection visa had already been refused). The Minister argued that the inquiries informing the exercise of such powers were non-statutory inquiries and that they therefore did not attract procedural fairness obligations. In a joint judgment, Gummow, Hayne, Crennan and Bell JJ determined that the inquiries were not divorced from the statutory powers they informed, but that the exercise of those powers did not attract procedural fairness so neither did the antecedent inquiries. Chief Justice French and Kiefel J (with Heydon J agreeing in a separate judgment) came to the same conclusion, but decided that it wasn’t even necessary to determine whether the inquiries were non-statutory or not. I have previously explored these cases in more detail. From these cases it became clear that the French High Court was not going to engage with non-statutory executive power unless it had to; that is, unless there was no statute in sight on which it could pin its analysis instead.
CPCF v Minister for Immigration and Border Protection
This made the outcome of CPCF v MIBP (2015) 255 CLR 514 somewhat more predictable. This case examined the validity of provisions of the Maritime Powers Act 2013 (Cth) that purported to authorise the government’s ‘turn back the boats’ policy. In separate judgments, four of the justices (French CJ, Crennan, Gageler and Keane JJ) determined that s 72(4) of the Maritime Powers Act authorised the actions of executive officers in question in the case (the detention of the plaintiff, a Sri Lankan asylum seeker on an Indian boat in Australia’s contiguous zone, and the taking of the plaintiff to India, with whom there was no agreement for the plaintiff to disembark). It was therefore not necessary to answer the questions posed about whether the action fell within the non-statutory executive power of the Commonwealth. However, French CJ and Keane J (as well as Hayne and Bell JJ in a joint judgment and Kiefel J, for whom it was necessary to determine the questions due to their conclusions that the Maritime Powers Act did not authorise the detention and taking of the plaintiffs) made enough comments about non-statutory executive power to give the government pause in any ambitions it had for an expansive interpretation of non-statutory executive power by the Court as then composed.
Again, the reasons of French CJ, at least on their face, would have encouraged the government. The Chief Justice made his (by now common – see references to Pape and Tampa above and also the joint judgment in Williams (No 2)) observation that while the history of the prerogative powers in the United Kingdom informs consideration of the non-statutory executive power under s 61 of the Constitution:
It does not follow that the prerogative content comprehensively defines the limits of the aspects of executive power to which it relates.
This is an ambulatory approach: keen not to close off the executive power in case something needs authorising by it one day that hitherto it has not been required to authorise. There is a suggestion in this passage that even if there is a prerogative that has vested in the Commonwealth Executive in relation to a particular matter, the non-statutory executive power in respect of that matter may go beyond what the relevant prerogative power authorises. Such an approach makes it very difficult to ascertain at any point in time just how far the non-statutory executive power extends. Indeed, French CJ in Pape, Williams and now CPCF seemed determined that an exhaustive taxonomy of the power should not be carried out.
However, it is worth noting that, in the course of the brief discourse on non-statutory executive power in his reasons, French CJ did not refer to his judgment in Tampa, nor to his finding in that case that the Lim principle did not necessarily apply to an exercise of non-statutory executive power or to the prevention of entry to Australia. It fell to Keane J, in a wide-ranging (though ultimately obiter) discussion on non-statutory executive power, to defend the majority conclusion in Tampa. His Honour explicitly recorded his view that the case was rightly decided, both as to the application of Lim and on whether the Migration Act had abrogated an executive power. This is in marked contrast to the decisions of Hayne and Bell JJ and Kiefel J. With Crennan J and Gageler J not expressing an opinion in this case on the correctness of Tampa, it is impossible to say whether the decision had the support of a majority of the High Court.
Further, an attempt by the government to preserve its non-statutory executive power even in the face of legislation covering the same ground was defeated. Section 5 of the Maritime Powers Act states that ‘[t]his Act does not limit the executive power of the Commonwealth’. Given that the inspiration for the section was s 7A of the Migration Act, which was inserted immediately following the Tampa affair, one might assume that s 5 was enacted to avoid the controversy in Tampa about whether the Migration Act had abrogated any executive power to prevent the entry of a non-citizen to Australia. Indeed, the government parties to CPCF submitted that s 5 negates any implication that might otherwise be available that the Act abrogates Commonwealth executive power in respect of the matters dealt with by the Act. But both French CJ and Kiefel J made short work of this submission, French CJ holding that ‘[c]onsiderations of coherence in the legislative scheme point to [the] conclusion’ that the section could not mean that the executive power of the Commonwealth was unaffected even by matters governed directly by the Act. It was not necessary for French CJ to determine whether the Act in fact abrogated any executive power that may have authorised the challenged actions, as he had determined that the Act authorised the actions. Justice Kiefel determined that the Act indeed abrogated any executive power to expel and detain aliens (without concluding that such a power could have been exercised in the absence of a statute) but that the Act did not authorise the challenged actions due to the absence of an agreement with India for the disembarking of the plaintiff, and so would have granted the plaintiff relief.
Plaintiff M68/2015 v Minister for Immigration and Border Protection
The most recent case with the potential to raise issues of non-statutory executive power was Plaintiff M68 v MIBP (2016) 257 CLR 42, the constitutional challenge to the Commonwealth government’s arrangements for offshore detention. All justices agreed that the power to make the arrangements fell within the executive power of the Commonwealth under s 61. However, the passing of retrospective legislation (after the commencement of proceedings) that purported to authorise the actions taken pursuant to the arrangements, including detention and spending, meant that the majority was not required to consider the validity of the initial, non-statutory, execution of the arrangements. Rather, the majority was able to dispose of the challenge by considering the validity of that legislation and whether the legislation authorised the detention of the plaintiff pursuant to the arrangements. The constitutional validity of the legislation and the validity of the offshore detention arrangements were upheld by a majority of 6:1 (Gordon J dissenting). None of the justices specifically examined the constitutional validity of the retrospective aspect of the legislation. Both justices who discussed non-statutory executive power in depth (Gageler J in obiter and Gordon J) agreed that the non-statutory executive power of the Commonwealth would not authorise detention in this case.
In light of what is written above regarding the Lim principle, it is worth noting what was said in Plaintiff M68 about it. The majority determined that the Lim principle either was of no application because the case involved the Commonwealth only participating in the detention, not actually doing the detaining (French CJ, Kiefel and Nettle JJ and Keane J) or that the principle applied to Commonwealth involvement in detention but its requirements were satisfied as the detention was for the limited purpose of processing claims and removing aliens not found in need of protection (Bell J and Gageler J). However, the focus of the case on the constitutional validity of legislation meant that the questions that arise from Tampa and CPCF regarding the application of the Lim principle to non-statutory detention remain unanswered.
The legacy of Robert French’s time as Chief Justice is beyond doubt. It has been and will be explored in more depth in many papers, lectures and symposia. The French court’s resolution of the issues left open by the judgments in the AAP case (referred to above) was gratefully received by constitutional law lecturers tasked with explaining the principles to students and, more generally, all in favour of greater government accountability for spending. His Honour’s contribution in the area of non-statutory executive power is also clear. His explication of the informative yet non-limiting relationship between the British prerogatives and the executive power of the Commonwealth is of particular note. But, ultimately, when it comes to non-statutory executive power, the French court is likely to be remembered for its debunking of the ‘common assumption’ that the Commonwealth’s non-statutory executive power to spend exists in any area in which the Commonwealth has legislative power, even where that legislative power has not been exercised. The conclusion of French J, as a justice of the Federal Court in Tampa, that the Commonwealth has a non-statutory power to detain to prevent the entry of a non-citizen to Australia, and his Honour’s suggestion that the Lim principle might not invalidate instances of non-statutory detention by the Commonwealth, never commanded a majority on the High Court. The Court’s approach of tying everything possible back to legislation, rendering most government action at least ‘in connection with a statute’ (particularly in migration law), has also become something of a hallmark. These are serious handbrakes on the expansion of (at least Commonwealth) non-statutory executive power and might have been disappointing to any government hoping to capitalise on the approach of French J in Tampa during his tenure as the highest judicial officer in the nation. Then again, as the other French would say, c’est la vie.
Amanda Sapienza is a PhD Candidate at the University of Sydney, examining judicial review of non-statutory executive power. She is grateful to Gabrielle Appleby for providing comments and suggestions on an earlier draft. All errors are Amanda’s own.
Suggested citation: Amanda Sapienza ‘Chief Justice French on Non-Statutory Executive Power: A Timely Reflection’ on AUSPUBLAW (20 December 2016) <https://auspublaw.org/2016/12/chief-justice-french-a-timely-reflection>