Section 61 of the Commonwealth Constitution and an 'Historical Constitutional Approach': An Excursus on Justice Gageler's Reasoning in the M68 Case

Abstract

This seeks to supplement the other papers in the UWA Law Journal’s Special Edition on Executive Power by reflecting upon the value of the interpretative methodology articulated by J W R Allison, “the historical constitutional approach” that appears to be particularly suited to resolving difficult questions arising from s 61 of the Constitution and the ambit of the Commonwealth’s executive power. It articulates an approach to constitutional interpretation that explains why and how constitutional history, historical sources of law, their interplay with the evolution of forms of government and the relationship between its various branches, may be very useful, if not essential, in resolving contemporary legal issues. It will do so by using as a case study the reasoning of Gageler J in Plaintiff M68/2015 v Minister for Immigration (2016) 257 CLR 42, the first expansive analysis of non-statutory executive power following Pape (2009) 238 CLR 1 and the Williams cases (2012) 248 CLR 156; (2014) 252 CLR 416. In its reasoning there can be discerned an application of Allison’s approach to Australian circumstances, and current Australian issues, uncanny as it is inadvertent. It placed heavy, indeed almost exclusive, reliance on “traditional conceptions” to interpret s 61.

Keywords: Executive power, s 61 of the Commonwealth Constitution, 'nationhood power', prerogative, capacities, 'historical constitutional approach', 'traditional conceptions', separation of powers, Gageler J in M68, executive detention, border protection

JEL Classification: K10, K30