A Power 'Singular and Eccentrical': Royal Commissions and Executive Power After Williams

Abstract

This article addresses two questions about royal commissions that have not been fully resolved in Australian constitutional law. The first concerns the legal nature of the power of the Executive to establish and conduct a royal commission of inquiry: is it a capacity that the Crown has in common with all natural persons or is it an aspect of the prerogative, understood as a power that is unique to the government? The second question concerns the kinds of topics that Commonwealth royal commissions can be authorised to investigate using compulsive powers granted by statute: are they limited to the topics in ss 51 and 52 of the Constitution, or can they address any topic that might potentially be the subject of a proposed constitutional amendment under s 128? This article argues that the High Court’s decision in Williams v Commonwealth has implications for both of these questions, first because of its insistence that the Crown in right of the Commonwealth does not possess the contracting and spending powers of a natural person, and secondly due to its emphasis on the relevance of the federal nature of the Constitution when considering the scope of Commonwealth executive power.

Keywords: Royal commissions, constitution, Commonwealth executive power