Pushing the Boundaries of Executive Power – Pape, the Prerogative and Nationhood Powers

Abstract:     
A majority of the High Court in Pape v. Commissioner of Taxation accepted that the Commonwealth has executive powers beyond those derived from statute, the prerogative and its capacities as a person. This fourth category of executive power, left nameless by the Court but generally described as the ‘nationhood’ power, remains ill-defined and ill-confined. This article explores the limits on the different categories of executive power, why it was perceived necessary to imply a nationhood power, whether this justification is adequate and how such a power might be limited.

Number of Pages in PDF File: 32

Keywords: executive power, prerogative power, emergency powers, federalism, nationhood power, constitutional implications, spending power, appropriations, legislative power, capacities of the crown

JEL Classification: K10, K30

Accepted Paper Series