Can Parliament Confer Plenary Executive Power? the Limitations Imposed by Sections 51 and 52 of the Australian Consitution

Abstract

Plenary executive power seems repugnant to the rule of law. It is often said that such power cannot exist: that all executive power must have legal limits. Yet, it remains unclear which principle or principles of Australian constitutional law would prevent the federal Parliament from conferring plenary executive power. The High Court has suggested that a federal statute purporting to confer an entirely open-ended discretion on a Minister would simply not be a ‘law’, or else lack the requisite connection to a head of power found in ss 51 or 52 of the Australian Constitution. This article examines the latter claim. It explains the nature of the limitations imposed by ss 51 and 52 and the role of the High Court in ensuring that those limitations are complied with. It concludes that the scope of executive power that Parliament may confer is constrained by ss 51 and 52, but not to the extent that has been suggested by the High Court.