Democracy, liberty and the prerogative: the displacement of inherent executive power by statute

Saunders, Benjamin B. 2013, Democracy, liberty and the prerogative: the displacement of inherent executive power by statute, Federal law review, vol. 41, no. 2, pp. 363-392.

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Title Democracy, liberty and the prerogative: the displacement of inherent executive power by statute
Author(s) Saunders, Benjamin B.ORCID iD for Saunders, Benjamin B. orcid.org/0000-0003-2379-4395
Journal name Federal law review
Volume number 41
Issue number 2
Start page 363
End page 392
Total pages 30
Publisher ANU College of Law
Place of publication Acton, A.C.T.
Publication date 2013
ISSN 0067-205X
1444-6928
Summary This article analyses arguments that the prerogative should be readily displaced by statute, where a statute deals with a subject matter similar to a prerogative. It does so by examining the leading cases on displacement of the prerogative in the United Kingdom and the Australian states, and displacement of the Australian Commonwealth's inherent executive power. The cases do not adopt a single rule but the question of whether a statute will be taken to displace a prerogative is highly dependent of the facts and the provisions of the particular staute.This article defends the current approach to displacement, for three reasons. First, the courts do not allow governments to subvert or ignore statutes by using the prerogative. Secondly, the courts have almost always decided in favour of liberty and against the conferral of coercive powers on government. Thirdly, a single rule could not do justice to all the variables involved in displacement cases. Ordinary principles of statutory interpretation are sufficient to deal with questions of displacement.
Language eng
Field of Research 180108 Constitutional Law
1801 Law
Socio Economic Objective 940499 Justice and the Law not elsewhere classified
HERDC Research category C1.1 Refereed article in a scholarly journal
ERA Research output type C Journal article
Copyright notice ©2013, The Author
Persistent URL http://hdl.handle.net/10536/DRO/DU:30085897

Document type: Journal Article
Collections: Law
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