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

32 Pages Posted: 7 Nov 2010

See all articles by Anne Twomey

Anne Twomey

The University of Sydney Law School

Date Written: November 4, 2010

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.

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

Suggested Citation

Twomey, Anne, Pushing the Boundaries of Executive Power – Pape, the Prerogative and Nationhood Powers (November 4, 2010). Melbourne University Law Review, Vol. 34, No. 1, pp. 313-343, 2010; Sydney Law School Research Paper No. 10/117. Available at SSRN: https://ssrn.com/abstract=1703232

Anne Twomey (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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