The Australian Defence Force and the executive power : limiting the indefinable?

Abstract

This thesis seeks to establish the limits to the exercise of executive power by the Australian Defence Force (ADF). It will argue that there are identifiable limits, although they cannot be precise limits because executive power is meant to deal with the unpredictable and the external. Within Australia, these limits turn on two key concepts, the written Constitution and necessity, as informed by legal history and theory. It is not possible to effect an enduring change to the Constitution through executive power, nor can executive power exceed the limits of Commonwealth legislative power. Executive power should also not operate where parliament has enabled the ADF to act through statutory power, which means that a resort to executive power is unnecessary. The history and theory of executive power recognise that it is designed to respond to contingencies, the unpredictable, or Fortuna. It is not possible to have a case authority for every possible eventuality and, given the lack of litigation on some of these questions, there is little authority at all. Instead, the exercise of such powers is limited primarily by necessity. The circumstances of the case dictate the limits of the power, which can temporarily displace the written law, as with martial law, or provide a standing exception to it, as with war. This is a concept of necessity which operates upon those powers which only the Crown can exercise and which in this thesis are the identified prerogative powers with respect to martial law, internal emergencies, war and external affairs as well as nationhood power to some extent in respect of internal security. Beyond the realm, the exercise of executive power by the ADF is much less constrained because it does not interfere with the federal structure or the separation of powers. The limits are only those statutes which apply extra-territorially, although they should be interpreted to allow prerogative power to operate where it has not been expressly curtailed or extinguished. Act of State doctrine should also operate to cover any action by the ADF sufficiently connected to the purpose of its mission.