Prerogative Power In Australia

‘The Tampa Decision: Examining the Australian Government’s prerogative power to detain and expel unlawful non-citizens in 2001’

The executive power of the Commonwealth has largely been neglected, both by the High Court and by commentators, receiving scant attention in comparison with the Commonwealth 's legislative and judicial powers. However, it was just fourteen years ago, in 2001, when a Norwegian cargo vessel MV Tampa being denied entry into Australia after rescuing 438 asylum seekers sparked one of the most controversial yet illuminating civil cases in Australian legal history. The result was a civil suit (Ruddock vs Vadarlis 2001) in which the Federal Government successfully appealed the initial ruling to the Full Court of the Federal Court of Australia, where it was found that the government does indeed possess a prerogative power to prevent the entry of non-citizens into

First, it vests 'the executive power ' of the federal polity created by the Commonwealth Constitution in the Queen; this, together with other provisions in the Constitution, established Australia as a monarchy with the Queen of the United Kingdom as its Head of State. Secondly, the Commonwealth 's executive power is 'exercisable ' by the Governor-General, which means that it is exercised on the advice of the Ministers, since it is the former who advise the Governor-General. The third provision in s 61 is the most cryptic, stating to what subjects Commonwealth executive power 'extends '. This third provision has, naturally, been the most important and the only aspect of s 61 to raise justifiable