The breadth of executive power is a topic of enduring concern, yet it is rarely considered through an interpretive lens. This collection of papers from some of Australia’s leading judges, practitioners and academics explores how Australian courts do construe the scope of executive power, and how they should.
In particular, the collection focuses on the ways in which courts should interpret statutes which confer powers on the executive branch, and the challenges posed in this regard by the proliferation of statute law, contemporary legislative drafting techniques, and broader developments in the field of statutory interpretation. These themes of statutory interpretation and executive power have dominated recent High Court decisions in public law as well as the speeches and extra-curial writings of High Court judges in recent years.
The collection also examines the related topic of the interpretation of non-statutory executive power, with a particular focus on how statutory and non-statutory power might interact, and whether the principles which guide the interpretation of powers that come from statute might also be deployed in the non-statutory realm.
Foreword by the Hon Justice James Edelman, High Court of Australia – click “Foreword” to download this free as a preview
List of Contributors
Table of Cases
Table of Statutes
1. Executive Power in an Age of Statutes
Janina Boughey and Lisa Burton Crawford
2. Between a Rock and a Hard Place: Executive Guidance in the Administrative State
Lisa Burton Crawford
3. Statutory Interpretation and Deference: An Executive Perspective
Emeritus Professor John McMillan AO
4. The Case for ‘Deference’ to (Some) Executive Interpretations of Law
5. Construing Statutes Conferring Powers – A Process of Implication or Applying Values?
6. Executive Power and the Principle of Legality
7. Delegated Legislation and Rights-Based Interpretation
8. Executive Power in the Digital Age: Automation, Statutory Interpretation and Administrative Law
9. The Return of the (Almost) Absolute Statutory Discretion
10. Regional Processing of Asylum Seekers, Democratic Accountability and Statutory Interpretation
Sangeetha Pillai and Shreeya Smith
11. Statutory Backing of Commonwealth Government Contracts
12. A Statutory Shield of the Executive: To What Extent does Legislation Help Administrative Action Evade Judicial Scrutiny?
Dominique Dalla-Pozza and Greg Weeks
13. Statutory Displacement of the Prerogative in Australia
14. Interpreting the Limits of Non-Statutory Executive Action: What Role for Grounds of Judicial Review?
Interpreting Executive Power is another work from the Boughey and Crawford Production House. And very good it is indeed. B&C are fast becoming the new academic denizens of public law. Their works are prodigious, analytically fulfilling and of immense interest.
Graeme Johnson, Lawyer (2021) 95 ALJ 218
Groves’ essay is one of the many gems you will find in this excellent collection of essays for any barrister who has to ponder the depth and breadth of executive power. The minefield of theory surrounding executive power, deference to the administrative state, statutory displacement of the prerogative, and the values that underpin the application of the principle of legality can be navigated a little more easily after reading chapters clearly explaining these concepts …
Justin Wheelahan, Victorian Bar News, Issue 167, Winter 2020
“ … The fact that the volume is so clearly expressed and structured is no surprise given the quality of both the editors (Boughey and Burton Crawford) and the contributors but is worth noting. Second, the contributors come from a wide variety of backgrounds and include academics, practitioners and judges. This very much adds to the richness of the analysis presented in the individual chapters and ensures that many of the insights are informed by the practical realities of administrative decision-making. … The chapters are all of great interest and relevance to public law and are uniformly excellent… To conclude, this collection of papers on an important issue of public law represents a welcome addition to the analysis of executive power. It is characterised by the fact that contributors do not simply critique the law but offer recommendations for its future application. This book will therefore be of great interest to researchers of public law and policy and practitioners alike and I highly recommend it.”
Dr Maria O’Sullivan (2020) 27 AJ Admin L 181
Whereas some legal texts on the issue of executive power are peculiarly bereft of contributions by those who have actually wielded such decision-making powers, Interpreting Executive Power embraces practical experience, making it a particularly strong addition to the literature.
Matthew Hales, Queensland Lawyer 271 (2020)
….an interesting collection of essays edited by two of Australia’s leading innovative thinkers on judicial review of executive action, Janina Boughey and Lisa Burton Crawford.
Stephen Gageler AC, Sydney Law Review, Vol 42(4):469
The intended market for the book is practitioners with an interest in public law and statutory interpretation, judges, scholars and advanced/research students. It is not written as a textbook, though various chapters may be essential reading in advanced public law subjects and masters courses.
Paul Latimer, Law Institute Vic Journal, March 2021