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37 Pages • Complete Study Notes • Year: Pre-2018
Principle of legality is the presumption that parliament does not intend to override fundamental common law rights and freedoms except when it does so by clear and unequivocal language. There are different forms of government legal entity: 1. Executive Agencies: which are established by executive action. 2. Statutory Agencies: (also called statutory authorities and statutory corporations), which are established by or in accordance with an Act of Parliament. As the agency can exercise only the power conferred by statute. 3. Government Corporations: (often described as government business enterprises), which are established in accordance with the Corporation Act. Corporation has the legal capacities of a natural person (s124) and is not subject to the ultra vires doctrine applying to statutory agencies. An unauthorized decision by a court is described as made without jurisdiction. Whereas a breach by an administrative official is described as ultra vires (beyond the power). Cases • Entick v Carrington: Government action is unlawful unless there is legal authority to support the action. • A v Hayden: Pursuit of national security objectives does not inherently possess power to authorize officials to defy criminal law. • Church of Scientology v Woodward: Judiciary can examine whether the administrative action undertaken by national security agencies are supported by legislation. • Congreve v Home Office: Coercive and threatening government activities are unlawful unless clear statutory authority states otherwise. • Momcilovic v R: Abrogation of human rights is ultra vires. Executive Power Non-coercive and facilitatory activities can be undertaken without statutory backing. The authority to do so is described as executive, prerogative, inherent, common law power or the capacity of a legal person. (s61 of Constitution). Cases Clogh v Leahy: Government is a legal person with the power of any natural person. Individuals can do act that is not explicitly prohibited. Clough thus reveals 3 main constraints on executive power: 1. It can be overridden by statute and cannot act inconsistently with it. 2. It cannot justify an unlawful act at common law.
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