The executive power of the Commonwealth largely has been neglected, both by the High Court and by commentators, receiving scant attention in comparison with the Commonwealth's legislative and judicial powers. The High Court has examined executive power on fewer than 10 occasions – principally three cases in the Whitlam era: Barton v Commonwealth, the AAP Case and Johnson v Kent – and, most recently, in the Bicentennial Authority Act Case in 1988. (The power has, of course, also arisen in several Federal Court cases, most notably the Tampa Case in 2001.) The relative neglect of this power is reflected in constitutional commentary, for which High Court cases represent primary 'authority'. The Commonwealth's legislative powers have, of course, received detailed examination in every major text since Quick and Garran in 1901. But, while the first monograph on Commonwealth judicial power appeared as early as 1904, almost 80 years were to elapse before publication of a book devoted to the executive power of the Commonwealth.

As is well known, the High Court held in Re Wakim; Ex parte McNally that federal courts can only exercise the judicial power of the Commonwealth, and cannot exercise State judicial power. In this article I ask whether the Court would ever take a similar approach to Chapter II of the Constitution, and hold that the Commonwealth executive can only exercise the executive power of the Commonwealth, and not State executive power. If it did, it would probably follow that the executive power of the Commonwealth could only be exercised by the Commonwealth executive, and not by a State executive. Obviously, these twin conclusions would have major implications for existing Commonwealth–State cooperative legislative schemes.

I should stress immediately that I do not think that this is the preferable view. However, for reasons that I explain in Part 2 below, there is an undercurrent in recent decisions that could be taken to suggest that the Commonwealth executive government is limited to performing functions within the scope of Commonwealth legislative power, and cannot be given additional functions.

There has been a vigorous debate both judicially and academically about the correct approach to constitutional interpretation. An aspect of that debate has involved the role of assumptions in informing our interpretation of the Constitution. I have argued elsewhere that ‘some assumptions form part of the fabric upon which the written words of the Constitution are superimposed … where the assumption is integral to a proper understanding of the structure and text of the Constitution, it can be both used and applied in constitutional interpretation.’

The ‘executive power of the Commonwealth’ is conferred by s 61 of the Commonwealth Constitution. Section 61 provides that ‘the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General’. Neither that section nor any other informs us as to what ‘the executive power’ is. Nor does the structure of the Commonwealth Constitution provide much of a hint of it.

The principle that the legislature can enact laws which bind the executive is a familiar one. The prerogative can be abrogated or abolished by legislation and the decisions of the executive made subject to administrative review.

More interesting, however, is the relationship within the federation between the legislature of one polity and the executive of another. To what extent can the laws of one polity bind the executive of another, or abrogate or abolish its prerogatives?

The High Court, over the last century, has had a very difficult time in answering these questions. Fundamental though they be to our governmental system, there has never been a clear and consistent principle established to provide ready answers to them. After the centenary of federation, one would think we would understand how the polities within that federation are intended to interact, but we do not.

Over the last 25 years, governments of all persuasions in western democracies have increasingly resorted to contract as a means of carrying out governmental tasks and achieving policy outcomes. The use of contract by government is not a new phenomenon but, in more recent times, the increasing use of contract in areas that were traditionally the province of direct government action has been a marked feature of public administration. This movement has spawned a vast literature covering many disciplines and has generated new theories about public administration. One of the difficult issues to resolve in connection with this phenomenon is the sometimes awkward mixture of a private institution – contract – to achieve public purposes.

This paper is one of a group of papers on the theme of the interaction between the government's executive power and legislation. This paper is about contract and the executive power. Combining these together, it is appropriate to discuss the interaction between legislation and the use by government of the executive power to make contracts.

In current times, most executive action affecting individuals involves the exercise of powers conferred by or under statute. Administrative lawyers are familiar with the use of judicial review in order to enforce limits placed on such powers by the empowering legislation. Indeed, the development of the modern principles of administrative law over the latter half of the 20th century has largely taken place in a statutory setting. As recent history demonstrates, however, there are circumstances in which an executive government may seek to rely on non-statutory sources of power. The exercise of non-statutory powers will often raise distinct issues in the context of judicial review. The review of non-statutory powers may involve questions concerning the extent to which governmental actions are justiciable, that is, suitable to be examined by the courts. Further, the application of many of the traditional grounds of judicial review can be problematic without the touchstones of validity that are usually provided by statute.