The breadth of executive power is a topic of enduring concern. Yet, it is rarely considered through an interpretive lens. This collection of papers from some of Australia’s leading judges, practitioners and academics explores how Australian courts do construe the scope of executive power, and how they should.
In particular, the collection focuses on the ways in which courts should interpret statutes which confer powers on the executive branch, and the challenges posed in this regard by the proliferation of statute law, contemporary legislative drafting techniques, and broader developments in the field of statutory interpretation. These themes of statutory interpretation and executive power have dominated recent High Court decisions in public law as well as the speeches and extra-curial writings of High Court judges in recent years.
The collection also examines the related topic of the interpretation of non-statutory executive power, with a particular focus on how statutory and non-statutory power might interact, and whether the principles which guide the interpretation of powers that come from statute might also be deployed in the non-statutory realm.
Foreword by the Hon Justice James Edelman, High Court of Australia
1. Executive Power in an Age of Statutes
Janina Boughey and Lisa Burton Crawford
2. Between a Rock and a Hard Place: Executive Guidance in the Administrative State
Lisa Burton Crawford
3. Statutory Interpretation and Deference: An Executive Perspective
Emeritus Professor John McMillan AO
4. The Case for ‘Deference’ to (Some) Executive Interpretations of Law
5. Construing Statutes Conferring Powers – A Process of Implication or Applying Values?
6. Executive Power and the Principle of Legality
7. Delegated Legislation and Rights-Based Interpretation
8. Executive Power in the Digital Age: Automation, Statutory Interpretation and Administrative Law
9. The Return of the (Almost) Absolute Statutory Discretion
10. Regional Processing of Asylum Seekers, Democratic Accountability and Statutory Interpretation
Sangeetha Pillai and Shreeya Smith
11. Statutory Backing of Commonwealth Government Contracts
12. A Statutory Shield of the Executive: To What Extent does Legislation Help Administrative Action Evade Judicial Scrutiny?
Dominique Dalla-Pozza and Greg Weeks
13. Statutory Displacement of the Prerogative in Australia
14. Interpreting the Limits of Non-Statutory Executive Action: What Role for Grounds of Judicial Review?