The Entrenched Minimum Provision of Judicial Review and the Limits of ‘Law’

Abstract

The Australian Constitution constrains the scope of executive power that Parliament is capable of conferring in several ways. This article examines whether any constraints flow from the inherent requirements of ‘law’ itself. That is, is Parliament incapable of conferring executive power of a certain kind or breadth, because the statute that would be required to do so is simply not a ‘law’ for the purposes of the Australian Constitution? More broadly, the article explores the connection between constitutional doctrine and legal theory, and the ways in which statutory conferrals of very broad executive powers can diminish the rule of law.