The Dimensions of ‘The Executive Power of the Commonwealth’: Apology, Fidelity and Dissent

On the centenary of the Commonwealth in 2001, recognition was given by a superior Australian court to an inherent executive ‘nationhood’ power as part of the non-statutory ‘executive power of the Commonwealth’. Applied in the case to resolve the ‘Tampa Affair’ in favour of the government, it resulted in political and legal controversies that have not quite abated. The nature, content and ambit of the government’s non-statutory power remains a constitutional issue of the first order, one that engages that perennial dilemma confronting the constitutional order of democratic polities: regulating government power to provide for the welfare of the people and the protection of the constitutional order from threats to its viability without compromising the rule of law and the survival of that very order itself.In addressing these issues, this article explores the types of executive power for which the <i>Constitution</i> provides and evaluates which are best suited to address this dilemma. The current state and possible future direction of Australian law will be examined in the context of the intentions of the framers, leading cases and dissenting judgments, comparative analysis, relevant jurisprudential considerations and the contributions of leading Australian constitutional scholars to the resulting constitutional dialogues.