Limits of Statutory Regulation on Displacement & Executive Powers in Australian Law, Study notes of Law

Download Limits of Statutory Regulation on Displacement & Executive Powers in Australian Law and more Study notes Law in PDF only on Docsity! 1001 THE REL ATIONSHIP BET WEEN THE ROYAL PREROGATIVE AND STATUTE IN AUSTRALIA PE TA ST E P H E N S O N * It is a longstanding principle that a prerogative of the Crown may be abrogated, curtailed or displaced by a statute that directly regulates the same subject matter. This article exam- ines the application of this ‘displacement principle’ in Australian case law and its interac- tion with principles of statutory interpretation. It offers an analysis of the interpretive ap- proach that has been adopted by Australian courts in ascertaining whether the prerogative has been displaced by statute. It interrogates a core feature of this approach, namely, the adoption of a strong presumption against displacement of prerogative powers that are im- portant to national sovereignty and the functioning of the executive government. It is ar- gued that the application of this presumption has prevented the full expression of the dis- placement principle in Australia and should be reconsidered. CO N T E N T S I Introduction ........................................................................................................... 1002 II The Royal Prerogative ........................................................................................... 1007 III The Principle Governing the Relationship between the Prerogative and Statute ..................................................................................................................... 1012 A Attorney-General v De Keyser’s Royal Hotel Ltd .................................... 1013 B Application of De Keyser in Australian Case Law ................................ 1017 IV The Interpretive Approach ................................................................................... 1024 A Strong Presumption against Displacement of ‘Important’ Prerogative Powers ................................................................................... 1025 B Requirement of an Inconsistency between Statute and the Prerogative and Its Relationship with Legislative Intention ............... 1032 * BA, LLB (Hons), PhD (UQ); Lecturer, School of Law, Queensland University of Technology. This article develops and expands on arguments that I have made in Peta Stephenson, ‘Statu- tory Displacement of the Prerogative in Australia’ in Janina Boughey and Lisa Burton Craw- ford (eds), Interpreting Executive Power (Federation Press, 2020) 203. I thank Adrienne Stone and Erika Arban for the invitation to present an earlier version of this article at the Centre for Comparative Constitutional Studies ‘Brown Bag’ Seminar at Melbourne Law School on 28 May 2019 and all of the participants at that seminar for a helpful discussion on that occa- sion. Special thanks are due to Jonathan Crowe, Teagan Matthews and the two anonymous reviewers for their valuable comments and suggestions. Any errors, oversights or omissions are my own. 1002 Melbourne University Law Review [Vol 44(3):1002 V Conclusion ............................................................................................................. 1040 I IN T R O D U C T I O N The royal prerogative remains an important source of authority for government action in Australia. The power to declare war and peace,1 enter into treaties with foreign governments,2 request the surrender and extradition of fugitives from foreign states,3 call out the military to maintain the peace,4 and exclude non- citizens from Australia5 are all executive acts that are understood as falling within the prerogative. In his Honour’s tripartite classification of prerogative powers in Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (in liq) (‘Farley’s Case’), Evatt J referred to these powers as the ‘executive prerogatives’ that were generally vested exclusively in the Crown in right of the Commonwealth of Australia.6 Today, these prerogative powers are exercised by Commonwealth ministers or the Governor-General, who almost always acts on ministerial advice.7 The term ‘prerogative’ refers collectively to the bundle of discretionary rights, powers, privileges and immunities that were enjoyed exclusively by the Monarch in the United Kingdom (‘UK’). The prerogative has been described as 1 Farey v Burvett (1916) 21 CLR 433, 452 (Isaacs J) (‘Farey’). 2 R v Burgess; Ex parte Henry (1936) 55 CLR 608, 635–6 (Latham CJ), 681 (Evatt and McTiernan JJ) (‘Burgess’); Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 193 (Gibbs CJ). 3 Barton v Commonwealth (1974) 131 CLR 477, 485 (Barwick CJ), 498–9 (Mason J), 505–6 (Jacobs J) (‘Barton’); Oates v A-G (Cth) (2003) 214 CLR 496, 511 [37] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ) (‘Oates’). 4 See R v Secretary of State for the Home Department; Ex parte Northumbria Police Authority [1989] 1 QB 26, 44 (Croom-Johnson LJ), 45–6 (Purchas LJ), 58–9 (Nourse LJ) (‘Northumbria’). In Australia, the exercise of this power would be subject to s 119 of the Australian Constitution. It is unclear whether, and to what extent, this prerogative has survived the enactment of pt IIIAAA of the Defence Act 1903 (Cth) (‘Commonwealth Defence Act’), which sets out a com- prehensive regime for the deployment of the Australian Defence Force when it is called out to protect the states against domestic violence or to protect Commonwealth interests. This ques- tion has not yet received judicial consideration. 5 See Ruddock v Vadarlis (2001) 110 FCR 491, 495–501 [9]–[29] (Black CJ) (‘Tampa Case’). 6 (1940) 63 CLR 278, 320–1 (‘Farley’s Case’). The prerogative powers of the Crown also include legal preferences, immunities and exceptions which were denied to its subjects and certain proprietary rights: at 321. 7 The Governor-General is generally not required to act on advice in the exercise of ‘reserve powers’, which resemble the personal prerogatives of the Monarch. The exercise of reserve powers is guided by the conventions of responsible government: see Anne Twomey, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018) 6–7. There are some prerogative powers that are expressly contemplated by the Australian Constitution. These powers are not the subject of this article. 2021] The Royal Prerogative and Statute in Australia 1005 This principle, which will be referred to in this article as the ‘displacement principle’,24 has been incorporated in Australian case law,25 but has received rel- atively little judicial consideration or attention from scholars.26 However, we are now living in an ‘age of statutes’.27 The vast majority of executive powers are conferred and regulated by legislation.28 The question of whether non-statutory executive powers, including prerogative powers, have been altered or displaced by legislation is an important one that courts will be required to grapple with as a result of this proliferation of statutes. Australian courts have also insisted on increased parliamentary oversight of executive action that was historically undertaken in the absence of statutory authorisation, such as the capacity to 24 This principle has been referred to as the ‘abeyance principle’ in the United Kingdom (‘UK’), which has been distinguished from the ‘frustration principle’: Robert Craig, ‘Casting Aside Clanking Medieval Chains: Prerogative, Statute and Article 50 after the EU Referendum’ (2016) 79(6) Modern Law Review 1041, 1046 (‘Medieval Chains’); Robert Craig, ‘A Simple Ap- plication of the Frustration Principle: Prerogative, Statute and Miller’ [2017] (November Sup- plement) Public Law 25, 28–9, 33 (‘A Simple Application’). There are obiter dicta to suggest that the prerogative is not extinguished by the statute but is held in abeyance until the statute is repealed: De Keyser (n 20) 539–40 (Lord Atkinson), 554 (Lord Moulton), 562 (Lord Sumner). However, as this question has not been authoritatively determined, it is preferable to adopt the terminology of ‘displacement’ rather than ‘abeyance’: see also Winterton, ‘The Relationship’ (n 10) 43 n 150. 25 Re Richard Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508, 514 (Latham CJ) (‘Uther’s Case’); Barton (n 3) 488 (Barwick CJ), 501 (Mason J); Brown v West (1990) 169 CLR 195, 202, 205 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ) (‘Brown’); Ling v Commonwealth (1994) 51 FCR 88, 92 (Gummow, Lee and Hill JJ) (‘Ling’); Henderson’s Case (n 21) 459 (McHugh J); Tampa Case (n 5) 501 [33] (Black CJ), 539– 40 [181]–[182] (French J, Beaumont J agreeing at 514 [95]); Oates (n 3) 511 [37] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ); Jarratt (n 21) 69–70 [85] (McHugh, Gummow and Hayne JJ), 84–5 [129] (Callinan J); Arnhem Land Trust (n 21) 58 [27] (Gleeson CJ, Gummow, Hayne and Crennan JJ); CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514, 600–1 [279] (Kiefel J) (‘CPCF ’); Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195, 204 [14] (French CJ), 228 [94] (Gummow, Hayne, Heydon and Crennan JJ) (‘Cadia’). 26 But see Saunders, Democracy, Liberty and the Prerogative (n 22); Simon Evans, ‘The Rule of Law, Constitutionalism and the MV Tampa’ (2002) 13(2) Public Law Review 94, 98–9; Winterton, ‘The Relationship’ (n 10) 42–9; Goldring (n 22). 27 See Guido Calabresi, A Common Law for the Age of Statutes (Harvard University Press, 1982) 1. See also Anthony J Connolly and Daniel Stewart (eds), Public Law in the Age of Statutes: Essays in Honour of Dennis Pearce (Federation Press, 2015); Paul Finn, ‘Statutes and the Com- mon Law’ (1992) 22(1) University of Western Australia Law Review 7, 13; Justice Mark Leem- ing, ‘Equity: Ageless in the “Age of Statutes”’ (2015) 9(2) Journal of Equity 108; Janina Boughey and Lisa Burton Crawford, ‘Executive Power in an Age of Statutes’ in Janina Boughey and Lisa Burton Crawford (eds), Interpreting Executive Power (Federation Press, 2020) 1, 1. 28 See Finn, ‘Statutes and the Common Law’ (n 27) 11. 1006 Melbourne University Law Review [Vol 44(3):1002 contract and spend.29 There is, seemingly, a shrinking field of non-statutory executive power in Australia.30 The aim of this article is to examine the application of the displacement principle in Australian case law and its interaction with principles of statutory interpretation, in order to gain a better understanding of the contemporary relationship between the prerogative and statute in Australia.31 As will be shown, the central question in these cases is whether a legislative intention to displace or otherwise deprive the executive of the prerogative can be discerned from the statute. That is not a question of searching for the actual intention of the Parliament or its members, which a majority of the High Court has dismissed as a ‘fiction’.32 The prevailing understanding of legislative intention is that it is the product, rather than the ultimate goal, of the judicial interpretation of statutes.33 The relevant ‘intention’ of a statute is one which is revealed to the court by applying the rules and principles of statutory construction. The meaning that is produced from undertaking the objective exercise of constru- ing the statutory text in its context and with reference to its purpose and the ‘canons of construction’ is the meaning that the Parliament can be taken to have intended.34 Statutory interpretation is, therefore, the principal task undertaken by courts in these cases. The question of whether a statute can be taken to have 29 See, eg, Williams v Commonwealth (2012) 248 CLR 156, 216–17 [83] (French CJ), 233 [138] (Gummow and Bell JJ), 270–1 [249]–[253] (Hayne J), 355 [534] (Crennan J) (‘Williams [No 1]’); Williams v Commonwealth [No 2] (2014) 252 CLR 416, 465 [66]–[68] (French CJ, Hayne, Kiefel, Bell and Keane JJ) (‘Williams [No 2]’). 30 A similar observation has been made by Twomey, ‘Pushing the Boundaries’ (n 13) 325; Saun- ders, Democracy, Liberty and the Prerogative (n 22) 365. See also Thomas Poole, ‘The Strange Death of Prerogative in England’ (2018) 43(2) University of Western Australia Law Review 42, 58 (‘The Strange Death of Prerogative’). 31 See also Peta Stephenson, ‘Statutory Displacement of the Prerogative in Australia’ in Janina Boughey and Lisa Burton Crawford (eds), Interpreting Executive Power (Federation Press, 2020) 203 (‘Statutory Displacement’). 32 See, eg, Lacey v A-G (Qld) (2011) 242 CLR 573, 591–2 [43]–[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (‘Lacey’). It is beyond the scope of this article to engage in the debate in the literature about legislative intention: see, eg, Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (Cambridge University Press, 2010); Richard Ekins, The Nature of Legislative Intent (Oxford University Press, 2012); Richard Ekins and Jeffrey Goldsworthy, ‘The Reality and Indispensability of Legislative Intentions’ (2014) 36(1) Sydney Law Review 39. 33 See, eg, Zheng v Cai (2009) 239 CLR 446, 455–6 [28] (French CJ, Gummow, Crennan, Kiefel and Bell JJ), quoted in Lacey (n 32) 592 [43] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 34 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ) (‘Project Blue Sky ’); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). 2021] The Royal Prerogative and Statute in Australia 1007 displaced the prerogative requires a careful analysis of the meaning, operation and scope of the statute. The outcomes of these cases will, to a large extent, turn on the provisions of the particular statute and the circumstances of the individual case.35 Nevertheless, it is possible to extract broader statements of principle from the case law that have guided the courts’ approach to displacement in Australia. This article offers an analysis of the interpretive approach that has been adopted by Australian courts in ascertaining whether the prerogative has been displaced by statute. It interrogates a core feature of this approach, namely, the adoption of a strong presumption against displacement of prerogative powers that are important to national sovereignty and the functioning of the executive government. It is argued that the application of this presumption has prevented the full expression of the displacement principle in Australia and should be re- considered. This article proceeds as follows. Part II provides an overview of the royal prerogative and its incorporation as an aspect of the executive power of the Commonwealth in s 61 of the Australian Constitution. Part III examines the emergence of the displacement principle in De Keyser before examining its ap- plication in Australian case law. Part IV of the article critically examines the interpretive approach that has been adopted by Australian courts in ascertain- ing whether the prerogative has been displaced by statute. II TH E ROYA L PR E R O G AT I V E As the subject of this article is statutory displacement of the prerogative, it is helpful to begin by providing a brief overview of the royal prerogative and its relationship with the executive power of the Commonwealth in s 61 of the Australian Constitution. It is necessary to have an understanding of the prerog- ative because, in evaluating whether it has been displaced by statute, courts must identify the prerogative that is engaged in any particular case. As will be shown, this is not always a straightforward task because the precise content and scope of the prerogative are uncertain. Section 61 is the principal provision dealing with the executive power of the Commonwealth in the Australian Constitution. Section 61 is situated in ch II of the Australian Constitution, which is entitled ‘The Executive Government’. Sec- tion 61 vests the executive power of the Commonwealth in the Queen and states that it is exercisable by the Governor-General and ‘extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth’. 35 See also Saunders, Democracy, Liberty and the Prerogative (n 22) 390; BS Markesinis, ‘The Royal Prerogative Re-Visited’ (1973) 32(2) Cambridge Law Journal 287, 305. 1010 Melbourne University Law Review [Vol 44(3):1002 Australian judges have tended to prefer Blackstone’s definition of the preroga- tive in recent decisions. In the Commentaries on the Laws of England, Blackstone used the term ‘pre- rogative’ to describe those powers that were unique to the Crown.53 Blackstone divided the common law powers of the Crown into two categories, namely, pre- rogatives and other capacities.54 Unlike Dicey, Blackstone’s definition recog- nises the different nature of these common law powers of the Crown. Black- stone defined the prerogative as ‘that special pre-eminence, which the king hath, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity’ and added that it is in its nature singular and eccentrical; that it can only be applied to those rights and capacities which the king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects: for if once any one prerog- ative of the crown could be held in common with the subject, it would cease to be prerogative any longer.55 Blackstone placed emphasis on the fact that the prerogative was unique to the Monarch, in the sense that it was derived from the Monarch’s royal authority.56 Blackstone observed that there was a fundamental difference in the nature of prerogative powers and other capacities. According to Blackstone, prerogative powers were capable of being exercised by the Crown in a way that could inter- fere with, or override, the legal rights and duties of individuals.57 While both definitions of the prerogative have received judicial endorsement, in its more recent decisions, several members of the High Court have expressly adopted Blackstone’s distinction between the two categories of non-statutory executive power.58 Accordingly, in this article I use the term ‘prerogative’ as Blackstone used it — to describe those rights, powers, immunities and privileges that be- longed exclusively to the Monarch, that have since been inherited by the Crown in right of the Commonwealth of Australia. 53 William Blackstone, Commentaries on the Laws of England, ed Wilfrid Prest (Oxford University Press, 2016) bk 1, 155 [232]. 54 Ibid. 55 Ibid. 56 See also Saunders, Democracy, Liberty and the Prerogative (n 22) 365. 57 Blackstone (n 53) bk 1, 155 [232], quoted in Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42, 98 [135] (Gageler J) (‘Plaintiff M68’). See also Miller (n 18) 140–1 [52]–[53] citing, as examples, the prerogative to decide on, and alter, terms of service of servants of the Crown: GCHQ (n 52), and the prerogative power to destroy property in wartime: Burmah Oil (n 8). 58 See especially Davis (n 15) 107–9 (Brennan J); Williams [No 1] (n 29) 185–6 [25] (French CJ), 344 [488] (Crennan J); Plaintiff M68 (n 57) 97–9 [132]–[136]. 2021] The Royal Prerogative and Statute in Australia 1011 In his judgment in Farley’s Case, Evatt J suggested that the prerogative can be classified as falling within three categories.59 Pursuant to its ‘executive pre- rogatives’, the Commonwealth could perform certain acts, such as declare war and peace, negotiate and enter into treaties, appoint ambassadors, confer hon- ours, coin money, acquire territory and grant pardons.60 By virtue of its ‘com- mon law prerogatives’, the Crown was entitled to the benefit of legal preferences, immunities and exceptions which were denied to its subjects. This included pri- ority in payment of debts and immunity from court processes.61 The third cat- egory of prerogative enjoyed by the Crown included proprietary rights in rela- tion to royal metals, ‘treasure trove’, and the foreshore, seabed and subsoil within territorial limits.62 While it was accepted that s 61 incorporated the prerogative, it was left unclear how the prerogative powers, rights, privileges and immunities would be distributed between the Commonwealth and state executives.63 The prerog- ative needed to be adapted to the Australian federal constitutional context, which differed from that of the UK as a unitary state. Justice Evatt argued that the division of the executive prerogatives broadly followed the federal distribu- tion of legislative powers in ss 51, 52 and 122 of the Australian Constitution.64 Accordingly, most of the executive prerogatives were transferred to, and exer- cised exclusively by, the Commonwealth. As Australia acquired independence, these included the prerogative powers of the Imperial government,65 relating to foreign affairs and treaties,66 extradition67 and war.68 The preferences and immunities of the Crown, on the other hand, were shared by both the 59 Farley’s Case (n 6) 320–1. This classification was first presented in HV Evatt’s doctoral thesis, which was subsequently published in HV Evatt, The Royal Prerogative (Law Book, 1987) 30–1. 60 See Farley’s Case (n 6) 320–1; Evatt (n 59) 30–1. 61 Farley’s Case (n 6) 321. 62 Ibid. 63 Ibid. See also Cadia (n 25) 226 [87] (Gummow, Hayne, Heydon and Crennan JJ). 64 Farley’s Case (n 6) 321–2. 65 Leslie Zines, ‘The Growth of Australian Nationhood and Its Effect on the Powers of the Com- monwealth’ in Leslie Zines (ed), Commentaries on the Australian Constitution: A Tribute to Geoffrey Sawer (Butterworths, 1977) 1, 6–10; Zines, ‘Commentary’ (n 41) C10–C17. 66 Burgess (n 2) 643–4 (Latham CJ), affd Barton (n 3) 498 (Mason J). See also New South Wales v Commonwealth (1975) 135 CLR 337, 379, 381 (McTiernan J), 503 (Murphy J) (‘Seas and Sub- merged Lands Case’). 67 Barton (n 3) 485, 488 (Barwick CJ), 490–1 (McTiernan and Menzies JJ), 498–9 (Mason J), 505 (Jacobs J). 68 Farey (n 1) 452 (Isaacs J). 1012 Melbourne University Law Review [Vol 44(3):1002 Commonwealth and the states.69 It was also understood by Evatt J that the states retained the proprietary rights of the Crown,70 with the exception of rights in respect of the territorial sea, which were vested in the Crown in right of the Commonwealth.71 As Evatt J’s classification demonstrates, the prerogative is not confined to executive powers, but includes common law privileges and immunities, as well as property rights. This classification also has interpretive significance because ‘important’ prerogative powers attract the application of the strong presump- tion against displacement, which is discussed in more detail below. Courts have declared that the power to request extradition of a fugitive from a foreign state72 and the power to prevent the entry of non-citizens into Australia,73 both of which fall within the category of ‘executive prerogatives’, are ‘important’ prerogative powers. III TH E PR I N C I P L E GO V E R N I N G T H E RE L AT I O N S H I P B E T W E E N T H E PR E R O G AT I V E A N D STAT U T E De Keyser is the leading 20th century case on displacement.74 Although De Key- ser was decided in 1920, the principle that it established continues to govern the relationship between the prerogative and statute in both the UK and Aus- tralia.75 The contemporary relevance of the displacement principle was 69 Farley’s Case (n 6) 322–3 (Evatt J). See also Winterton, Parliament (n 10) 49; Zines, ‘Commen- tary’ (n 41) C14. 70 Farley’s Case (n 6) 322. Some doubt has been cast on this assumption following Cadia (n 25) 210–11 [30]–[34] (French CJ), 226–7 [87]–[89] (Gummow, Hayne, Heydon and Crennan JJ). 71 See Seas and Submerged Lands Case (n 66) 371, 373 (Barwick CJ), 379 (McTiernan J). 72 Barton (n 3) 501 (Mason J), 505, 507–8 (Jacobs J); Oates (n 3) 511 [37] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ). 73 Tampa Case (n 5) 542–3 [192]–[193] (French J, Beaumont J agreeing at 514 [95]). 74 Miller (n 18) 139 [48] (Lord Neuberger PSC, Baroness Hale DPSC, Lords Mance, Kerr, Clarke, Wilson, Sumption and Hodge JJSC). The majority also cites Fire Brigades Union (n 23), but it has been suggested that this case is authority for the ‘frustration principle’: Craig, ‘Medieval Chains’ (n 24) 1045–6; Craig, ‘A Simple Application’ (n 24) 33–5. 75 In the UK, see, eg, Laker Airways (n 23) 719–21 (Roskill LJ); Fire Brigades Union (n 23) 552 (Lord Browne-Wilkinson); Northumbria (n 4) 44 (Croom-Johnson LJ), 52–3 (Purchas LJ); Mil- ler (n 18) 139–40 [48]. In Australia see, eg, Uther’s Case (n 25) 514 (Latham CJ); Barton (n 3) 488 (Barwick CJ), 501 (Mason J); Brown (n 25) 205 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ); Ling (n 25) 92 (Gummow, Lee and Hill JJ); Henderson’s Case (n 21) 459 (McHugh J); Tampa Case (n 5) 501 [33] (Black CJ), 539 [181]–[182] (French J, Beaumont J agreeing at 514 [95]); Oates (n 3) 511 [37] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ); Jarratt (n 21) 69–70 [85] (McHugh, Gummow and Hayne JJ); Arnhem Land Trust (n 21) 58 [27] (Gleeson CJ, Gummow, Hayne and Crennan JJ); Cadia (n 25) 204 [14] 2021] The Royal Prerogative and Statute in Australia 1015 [t]he constitutional principle is that when the power of the Executive to interfere with the property or liberty of subjects has been placed under Parliamentary con- trol, and directly regulated by statute, the Executive no longer derives its author- ity from the Royal Prerogative of the Crown but from Parliament, and that in exercising such authority the Executive is bound to observe the restrictions which Parliament has imposed in favour of the subject.89 As the Parliament had enacted statutory provisions which directly regulated requisitions of private property by the Crown, including the creation of a stat- utory right of compensation, Lord Parmoor was satisfied that the case was brought within this principle.90 Lord Parmoor’s judgment also demonstrates the centrality of statutory con- struction to the application of the displacement principle. Historically, the gen- eral approach adopted by courts in construing statutes was that the prerogative could only be taken away by express words or necessary implication.91 This ap- proach was confirmed in Lord Parmoor’s judgment in De Keyser, where he explained that [t]he principles of construction to be applied in deciding whether the Royal Pre- rogative has been taken away or abridged are well ascertained. It may be taken away or abridged by express words, by necessary implication, or … where an Act of Parliament is made for the public good, the advancement of religion and jus- tice, and to prevent injury or wrong.92 As the Defence Acts in De Keyser made provision for the payment of compen- sation for a compulsory acquisition of property by the Crown during wartime, Lord Parmoor classified them as ‘statutes made for the advancement of justice and to prevent injury and wrong’93 and concluded that they had displaced the prerogative. Relevantly, however, Lord Parmoor also observed that ‘where a matter has been directly regulated by statute there is a necessary implication that the statutory regulation must be obeyed, and that as far as such regulation is inconsistent with the claim of a Royal Prerogative right, such right can no longer be enforced’.94 89 De Keyser (n 20) 575. 90 Ibid 576–9. 91 See, eg, The Case of the Master and Fellows of Magdalen College in Cambridge (1615) 11 Co Rep 66b; 77 ER 1235, 1247. For an extensive list of the historical cases, see Saunders, Democracy, Liberty and the Prerogative (n 22) 371 n 57. 92 De Keyser (n 20) 576. 93 Ibid. 94 Ibid. 1016 Melbourne University Law Review [Vol 44(3):1002 An important feature of Lord Parmoor’s approach was the requirement of an inconsistency, or conflict, between the statute and the prerogative before the prerogative would be taken to have been displaced.95 In this respect, it was sig- nificant that the Defence Acts made provision for the payment of compensation upon an acquisition of property by the Crown.96 The conflict arose because the Defence Acts directly regulated the same subject matter as the prerogative, but also conferred a right to compensation that could have been taken away or avoided by the Crown if the prerogative was found to have survived.97 The ex- istence of this inconsistency between the provisions of the statute and the con- tinued exercise of the prerogative was evidence of the Parliament’s intention to displace the prerogative by enacting the statutory regime.98 By necessary impli- cation, the prerogative had been displaced by the Defence Acts. The judges in De Keyser adopted different approaches in determining whether the Defence Acts had displaced the prerogative. However, it was a fea- ture of all of the judgments that the executive government should be prevented from relying on the prerogative in order to circumvent conditions, limitations or restrictions imposed on the exercise of its power by the Parliament.99 The decision in De Keyser established the displacement principle as an important limitation on the prerogative powers of the executive branch of government. This principle reflects fundamental constitutional values of parliamentary sov- ereignty and responsible government that are common to both the UK and Australia, and confirms that the prerogative is subject to the control of the Par- liament.100 The displacement principle also gives expression to an aspect of the rule of law, namely certainty.101 It is important that, in those areas where a pre- rogative power exists alongside equivalent executive powers conferred by stat- ute, individuals know what the law is. It is equally important to understand whether executive officers are acting in accordance with the powers and obli- gations conferred on them by statute, or whether they are exercising the 95 Ibid. 96 Ibid 575–6, 579. 97 Ibid 575–6. 98 Ibid 576. Similar observations were made at 539 (Lord Atkinson), 554 (Lord Moulton), 561–2 (Lord Sumner). 99 Ibid 526, 528 (Lord Dunedin), 538–40 (Lord Atkinson), 554 (Lord Moulton), 561–2 (Lord Sumner), 575 (Lord Parmoor). 100 See, eg, Laker Airways (n 23) 719–21 (Roskill LJ); Fire Brigades Union (n 23) 552 (Lord Browne-Wilkinson); Miller (n 18) 139–40 [48]. 101 See Evans (n 26) 99; Goldring (n 22) 442; Saunders, Democracy, Liberty and the Prerogative (n 22) 370. See also Lord Bingham, ‘The Rule of Law’ (2007) 66(1) Cambridge Law Journal 67, 69–70. 2021] The Royal Prerogative and Statute in Australia 1017 prerogative or non-statutory executive power, independent of limits imposed by the statutory regime.102 B Application of De Keyser in Australian Case Law De Keyser has been approved in Australian case law.103 However, because of the interpretive approach adopted by Australian courts, the displacement principle has not always been honoured in its application. Lord Parmoor’s formulation of the displacement principle in De Keyser has proven to be particularly influ- ential in Australia. It received judicial endorsement in the 1997 decision of Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (‘Henderson’s Case’), where McHugh J described ‘the basic constitutional prin- ciple laid down’ in De Keyser as follows: That principle is that, when a prerogative power of the Executive Government is directly regulated by statute, the Executive can no longer rely on the prerogative power but must act in accordance with the statutory regime laid down by the Parliament.104 This statement has been quoted with approval by the High Court in subsequent decisions.105 While the displacement principle has been incorporated in Australian case law, courts have generally been reluctant to find that the executive prerogatives have been displaced by statute, opting instead to preserve the prerogative, even where the Parliament has enacted detailed statutory regimes on the same sub- ject matter.106 While straightforward in theory, the displacement principle has 102 See also Evans (n 26) 99. 103 Uther’s Case (n 25) 514 (Latham CJ); Barton (n 3) 488 (Barwick CJ), 501 (Mason J); Brown (n 25) 202, 205 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ); Ling (n 25) 92 (Gummow, Lee and Hill JJ); Henderson’s Case (n 21) 459 (McHugh J); Tampa Case (n 5) 501 [33] (Black CJ), 539 [181]–[182] (French J, Beaumont J agreeing at 514 [95]); Oates (n 3) 511 [37] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ); Jarratt (n 21) 69–70 [85] (McHugh, Gummow and Hayne JJ), 84–5 [129] (Callinan J); Arnhem Land Trust (n 21) 58 [27] (Gleeson CJ, Gummow, Hayne and Crennan JJ); Cadia (n 25) 204 [14] (French CJ), 228 [94] (Gummow, Hayne, Heydon and Crennan JJ); CPCF (n 25) 600–1 [279] (Kiefel J). 104 Henderson’s Case (n 21) 459. 105 Jarratt (n 21) 70 [85] (McHugh, Gummow and Hayne JJ); Arnhem Land Trust (n 21) 58 [27] (Gleeson CJ, Gummow, Hayne and Crennan JJ). A similar statement of principle was made in CPCF (n 25) 600–1 [279] (Kiefel J). 106 See especially Barton (n 3) 488 (Barwick CJ), 491 (McTiernan and Menzies JJ), 501 (Mason J), 506–8 (Jacobs J); Ling (n 25) 94, 97 (Gummow, Lee and Hill JJ); Tampa Case (n 5) 544–6 [199]–[204] (French J, Beaumont J agreeing at 514 [95]); Oates (n 3) 511 [37]–[40], 512–13 [45]–[46] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ). 1020 Melbourne University Law Review [Vol 44(3):1002 continued existence of the prerogative or executive power.123 In Ling, the Act did not confer powers on the Commonwealth government to take the assign- ments. The statute assumed that the prerogative right to take assignments had already been exercised and the assignments taken. The Act merely set out how proceedings for the recovery of debt would take place. Therefore, the preroga- tive survived in Ling, and that was appropriate in the circumstances. It was not necessary for the Court to apply a presumption against displacement. In Ling, the provisions in the Act were not inconsistent with the continued existence of the prerogative. An intention to displace the prerogative could not, therefore, be inferred from the provisions of the statute. The strength of the presumption against displacement varies depending on the nature of the prerogative power that is engaged in a particular case. The presumption is strongest in its application to prerogative powers that are ‘im- portant’ to national sovereignty or the functioning of the executive govern- ment.124 The power to request the surrender and extradition of a fugitive of- fender and the power to prevent the entry of non-citizens into Australia have been classified as ‘important’ prerogative powers that attract the application of the strong presumption against displacement. This was evident in the 1974 decision of Barton v Commonwealth (‘Bar- ton’).125 The High Court was required to consider whether the Extradition (For- eign States) Act 1966–1973 (Cth) had displaced the prerogative power to request the surrender and extradition of a fugitive from Brazil, a country with which Australia did not have an extradition treaty at the time.126 The Court unanimously held that the Act only regulated extradition requests from foreign states with which Australia had an extradition treaty. The Act did not have the effect of displacing the prerogative to request the surrender of a fugitive from a non-treaty state, such as Brazil.127 Accordingly, the prerogative to request extradition from non-treaty states survived and the request for extradition was valid.128 The presumption against displacement was applied by the majority in Barton. It was accepted that a statute will not be held to have abrogated or dis- placed a prerogative of the Crown unless it does so by ‘express words or 123 For example, the Royal Commissions Act 1923 (NSW) s 5 applies after the royal prerogative to establish a royal commission has been exercised by the making of letters patent. 124 Barton (n 3) 501 (Mason J), 505, 508 (Jacobs J); Tampa Case (n 5) 540–1 [185], 545 [201]–[202] (French J, Beaumont J agreeing at 514 [95]). 125 Barton (n 3). 126 Ibid 491–3 (Mason J). 127 Ibid 488 (Barwick CJ), 501 (Mason J), 505–8 (Jacobs J). 128 Ibid 488 (Barwick CJ), 491 (McTiernan and Menzies JJ), 501 (Mason J), 507–8 (Jacobs J). 2021] The Royal Prerogative and Statute in Australia 1021 necessary implication’.129 Three judges, however, considered that the power to request extradition was important to the Australian government, and applied a stronger presumption against its displacement in their construction of the Act. Chief Justice Barwick described the presumption as ‘extremely strong’ and de- clared that a statute will not displace a prerogative power of the Crown unless it does so by ‘a clear and unambiguous provision’.130 Justice Mason stated that ‘the decisive consideration’ in his analysis was that the prerogative power to seek and accept extradition of a fugitive was ‘an important power essential to a proper vindication and an effective enforcement of Australian municipal law’.131 It was not, therefore ‘to be supposed that Parliament intended to abrogate the power in the absence of a clearly expressed intention to that effect’.132 In that regard, not only was there a ‘conspicuous absence of express words’, but because the Act did not extend to cover extradition of fugitive offenders from non- treaty states, Mason J concluded that there was nothing in the Act which evinced a sufficiently clear intention on the part of the Parliament to displace the prerogative.133 Justice Jacobs similarly reasoned that ‘the free right of the Australian Government to communicate at will with a foreign government is an essential attribute of this country as a sovereign nation’.134 It followed that ‘an intention to withdraw or curtail a prerogative power must be clearly shown’.135 According to Jacobs J, there was ‘nothing in the legislation which would suggest … that the executive power stemming from the prerogative is intended wholly to be replaced by the statutory power’.136 The High Court subsequently affirmed the approach to displacement adopted by the majority in Barton in the decision of Oates v Attorney-General (Cth) (‘Oates’), where it was held that the prerogative to request extradition survived the enactment of the Extradition Act 1988 (Cth).137 In its construction of the Act, the Court applied the presumption against displacement, noting that ‘the statute will not be held to have abrogated the power unless it does so by express words or necessary implication’.138 The Court also attributed 129 Ibid 491, 501. 130 Ibid 488. 131 Ibid 501. 132 Ibid. 133 Ibid. 134 Ibid 505. 135 Ibid 508. 136 Ibid. 137 Oates (n 3) 511 [37], 512–13 [45]–[46] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ). 138 Ibid 511 [37]. 1022 Melbourne University Law Review [Vol 44(3):1002 significance to the importance of the power, quoting with approval Mason J’s observation in Barton that it is ‘essential to a proper vindication and an effective enforcement of Australian municipal law’.139 The Court reasoned that the Act operated to facilitate the making of requests from foreign countries for extra- dition to Australia.140 It did not confer power on the Attorney-General to make a request for extradition, but rather it was predicated on the existence of the prerogative power to make such a request.141 The Act supplemented, rather than displaced, the prerogative and the Court could not discern from the Act an intention to deprive the executive of the prerogative in this case. The majority of the Full Court of the Federal Court applied the strong pre- sumption against displacement in the 2001 decision of Ruddock v Vadarlis (‘Tampa Case’).142 In that case, the Court was required to consider the effect of the Migration Act 1958 (Cth) (‘Migration Act’) on the inherent executive power to exclude non-citizens from Australia.143 Justice French, with whom Beaumont J agreed, held that actions taken by the Commonwealth government to effect the exclusion and expulsion of non-citizens from Australia, including the deployment of troops on board a vessel carrying hundreds of rescued per- sons to prevent it from entering Australian territorial waters, were within the scope of the Commonwealth’s non-statutory executive power, and this power had not been displaced by the Migration Act.144 Central to the majority judgment in the Tampa Case was the finding that the executive power of the Commonwealth extended beyond the prerogative and included an inherent power derived from Australia’s status as an independ- ent, sovereign nation.145 This power was understood by French J as being im- portant to the expression of Australia’s sovereignty and it provided the consti- tutional basis for the action taken by the Commonwealth to prevent the entry of non-citizens into Australia, including the deployment of troops for this pur- pose.146 It is important to note that in his consideration of the relationship be- tween the Migration Act and the inherent executive power, the central question for French J was whether an intention to abrogate or displace the executive power could be discerned from the statute.147 Even though French J thought 139 Ibid, quoting Barton (n 3) 501. 140 Oates (n 3) 511 [38]. 141 Ibid 511 [39]. 142 Tampa Case (n 5) 540–1 [184]–[185] (French J, Beaumont J agreeing at 514 [95]). 143 See ibid 532 [159]. 144 Ibid 522 [128], 545–6 [202]–[204]. 145 Ibid 540–1 [185], 543 [193]. 146 Ibid 543 [193]. 147 Ibid 545 [201]–[202]. 2021] The Royal Prerogative and Statute in Australia 1025 reconsidered. In this respect, the more flexible approach to the presumption that was adopted by the minority judges in the decisions of the Tampa Case and CPCF is to be preferred. It is demonstrated that the application of the strong presumption has set a high threshold for statutory displacement of the prerogative in Australia. Courts need to be able to ascertain from the statute a sufficiently clear intention to displace or deprive the executive of its power in order to rebut the presump- tion. As the presumption varies in strength depending on the nature of the pre- rogative power that is engaged, courts require a higher degree of certainty as to the Parliament’s intention to displace important prerogative powers, as evi- denced by the courts’ insistence on ‘clear words’ or a ‘clear and unambiguous’ intention in Barton and the Tampa Case.164 Whether such an intention can be discerned from the statute and attributed to the Parliament will necessarily depend on the court’s construction of the individual statute. As is shown below, courts have been more willing to infer an intention to displace the prerogative where the statute, as construed, operates in a way that is inconsistent with the continued exercise of the prerogative.165 Courts have developed principles to determine whether there is an inconsistency and there are, in this respect, similarities between the approach of the courts in displacement cases and the approach adopted by the High Court for resolving inconsistencies between Commonwealth and state laws under s 109 of the Australian Constitution.166 A Strong Presumption against Displacement of ‘Important’ Prerogative Powers In the cases considered above, the majority applied a presumption against dis- placement. Courts assume that prerogative powers have not been displaced un- less the statute reveals, either expressly or by necessary implication, an 164 Barton (n 3) 488 (Barwick CJ); Tampa Case (n 5) 545 [201], 546 [204]. 165 See also Evans (n 26) 98. 166 For a discussion of s 109 inconsistency see, eg, Gary A Rumble, ‘The Nature of Inconsistency under Section 109 of the Constitution’ (1980) 11(1) Federal Law Review 40 (‘The Nature of Inconsistency’); Gary A Rumble, ‘Manufacturing and Avoiding Constitution Section 109 In- consistency: Law and Practice’ (2010) 38(3) Federal Law Review 445; Geoffrey Lindell, ‘Grap- pling with Inconsistency between Commonwealth and State Legislation and the Link with Statutory Interpretation’ (2005) 8(2) Constitutional Law and Policy Review 25 (‘Grappling with Inconsistency’); Mark Leeming, Resolving Conflicts of Laws (Federation Press, 2011) ch 5. There are insights that could potentially be gleaned from examining how courts have resolved other types of inconsistencies between laws, such as implied repeal of an earlier statute by a later statute, the colonial doctrine of repugnancy, or inconsistency between a statute and the Australian Constitution, but this is beyond the scope of this article: see, eg, Leeming (n 166) ch 1. 1026 Melbourne University Law Review [Vol 44(3):1002 intention to displace the prerogative. Some of the judges in the majority in Bar- ton, and the majority in the Tampa Case, applied a strong presumption against displacement of prerogative powers that are important to national sovereignty or the functioning of the executive government.167 The application of this strong presumption against displacement has had the effect of preserving cer- tain prerogative powers. This is particularly evident in the Tampa Case, where the majority found that the inherent executive power to exclude non-citizens survived, even where the Parliament had enacted a detailed statutory frame- work conferring and regulating the exercise of similar executive powers in the Migration Act.168 The language of the courts in formulating the presumption suggests that its rationale, like that of other rules of construction, ‘lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear’.169 This then leads to the problem of identifying what prerogative powers are to be regarded as sufficiently ‘im- portant’ to national sovereignty or to the functioning of the executive govern- ment so as to attract the application of the strong presumption.170 Courts have, as mentioned above, declared that the power to request and obtain the extradi- tion of a fugitive offender and the power to prevent non-citizens from entering Australia are ‘important’ executive powers.171 In Barton, Mason J held that the power to seek and obtain the surrender by a foreign state of a fugitive offender is an important power ‘essential to a proper vindication and an effective enforcement of Australian municipal law’.172 However, his Honour did not provide further reasons supporting this conclusion. Justice Jacobs was also of the view that ‘the free right of the Australian Government to communicate at will with a foreign government is an essential attribute of this country as a 167 Barton (n 3) 501 (Mason J), 505, 508 (Jacobs J); Tampa Case (n 5) 540–1 [185] (French J, Beaumont J agreeing at 514 [95]). 168 Tampa Case (n 5) 545–6 [202]–[205]. 169 Bropho v Western Australia (1990) 171 CLR 1, 18 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) (‘Bropho’). 170 Similar problems arise with the principle of legality and identification of ‘fundamental’ rights: see Dan Meagher, ‘The Common Law Principle of Legality in the Age of Rights’ (2011) 35(2) Melbourne University Law Review 449, 456–9. Cf Brendan Lim, ‘The Normativity of the Prin- ciple of Legality’ (2013) 37(2) Melbourne University Law Review 372, 395–8. 171 Barton (n 3) 501 (Mason J), 505, 508 (Jacobs J); Tampa Case (n 5) 543 [193] (French J, Beaumont J agreeing at 514 [95]). 172 Barton (n 3) 501, quoted in Oates (n 3) 511 [37] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ). 2021] The Royal Prerogative and Statute in Australia 1027 sovereign nation’173 and an ‘important prerogative power’174 but did not elabo- rate on this point. In the Tampa Case, French J found that ‘[t]he greater the significance of a particular Executive power to national sovereignty, the less likely it is that, ab- sent clear words or inescapable implication, the parliament would have in- tended to extinguish the power’.175 Justice French also noted that ‘[t]he power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the Government of the nation would lack … the ability to prevent people not part of the Australia [sic] community, from enter- ing’.176 In his dissent, Black CJ conceded that ‘if a power is well used, well-es- tablished and important to the functioning of the Executive government, a very clear manifestation of an intention to abrogate will be required’.177 However, his Honour went on to observe that: [W]here an asserted power is at best doubtful, and where, if it exists at all, it does so in a field that has been the concern of the Parliament for a very long time, a less stringent view of the intention necessary to abrogate such a power is appropriate.178 Beyond these statements, the Court did not explain the process or criteria by which it came to classify a prerogative power as ‘important’. Judges may reason- ably disagree on whether a prerogative power is sufficiently important to Aus- tralian sovereignty or the continued functioning of the executive government to attract the application of this strong presumption against displacement, as illustrated by the different opinions on this matter set out by Black CJ and French J in their judgments in the Tampa Case.179 Indeed, there may be judicial disagreement on whether the prerogative has survived. Cases concerning the prerogative often require ‘extensive historical and archival research’.180 Chief Justice Black concluded that it was, at best, ‘doubtful’ as to whether the 173 Barton (n 3) 505. 174 Ibid 508. 175 Tampa Case (n 5) 540 [185]. 176 Ibid 543 [193]. 177 Ibid 504 [40]. 178 Ibid. 179 See also Ernst Willheim, ‘MV Tampa: The Australian Response’ (2003) 15(2) International Journal of Refugee Law 159, 186–8; Leslie Zines, ‘The Inherent Executive Power of the Com- monwealth’ (2005) 16(4) Public Law Review 279, 291–3 (‘The Inherent Executive Power’); Ev- ans (n 26) 97–9; Saunders, Democracy, Liberty and the Prerogative (n 22) 382. 180 Winterton, ‘The Relationship’ (n 10) 33–4. 1030 Melbourne University Law Review [Vol 44(3):1002 the prerogative, or non-statutory executive power, to prevent non-citizens from entering Australia.192 The application of the strong presumption against displacement of im- portant prerogative powers has, in recent years, caught the attention of the Parliament and parliamentary drafters. There is a growing trend in Australia where provisions that purport to preserve the prerogative and non-statutory executive powers of the Commonwealth are being included in Commonwealth statutes that confer and regulate equivalent executive powers.193 The issue of whether these express statutory provisions could operate to preserve the prerogative was considered most recently in CPCF. In their respective judgments, French CJ, Hayne and Bell JJ, and Kiefel J considered the effect of s 5 of the MPA. Section 5 is entitled ‘Effect on executive power’ and expressly states that ‘[t]his Act does not limit the executive power of the Commonwealth’. The Commonwealth argued that these express words made it clear that it was the Parliament’s intention that the MPA operate in addition to non-statutory executive power.194 It is significant that all of the judges who considered the issue rejected this argument.195 In particular, Kiefel J cited with approval an observation in John Holland Pty Ltd v Victorian Workcover Authority196 that ‘such a statement is only a statement of intention which informs the construction of the Act as a whole. It must be an intention which the substantive provisions of the Act are capable of supporting’.197 Justice Kiefel reaffirmed that the ‘relevant “intention” of a statute is that which is revealed to the court by ordinary processes of statu- tory construction’.198 In this respect, it was significant that the MPA ‘author- ise[d] a decision that the relevant powers be exercised in a particular way and detail[ed] the manner and conditions of their exercise’.199 Justice Kiefel con- cluded that the MPA did not support an intention that the Commonwealth ex- ecutive is to retain a complete discretion as to how powers of detention and 192 Tampa Case (n 5) 545 [202] (French J, Beaumont J agreeing at 514 [95]). 193 See, eg, Migration Act 1958 (Cth) s 7A (‘Migration Act’); Commonwealth Defence Act (n 4) s 51ZD; Maritime Powers Act 2013 (Cth) s 5. For a more detailed discussion of express state- ments of intention, see Stephenson, ‘Statutory Displacement’ (n 31) 219–20. 194 CPCF (n 25) 538 [40] (French CJ). 195 Ibid 538 [41] (French CJ), 564–5 [141] (Hayne and Bell JJ), 601–2 [283] (Kiefel J). 196 (2009) 239 CLR 518 (‘John Holland’). 197 CPCF (n 25) 601 [282], quoting John Holland (n 196) 527 [20] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). 198 CPCF (n 25) 601 [282], citing Momcilovic v The Queen (2011) 245 CLR 1, 74 [111]–[112] (Gummow J), 133–4 [315], 141 [341] (Hayne J), 235 [638] (Crennan and Kiefel JJ). 199 CPCF (n 25) 601 [283]. 2021] The Royal Prerogative and Statute in Australia 1031 removal of non-citizens from Australia are to be exercised.200 Section 5 was ‘better understood as preserving such other … executive powers as may be ex- ercised conformably’ with the MPA provisions.201 The decision in CPCF could be seen as signalling a more flexible approach to the application of the presumption against displacement and, if that is the case, it is to be welcomed. As mentioned above, Kiefel J adopted a similar ap- proach in ascertaining the relationship between the prerogative and statute as that of Black CJ in the Tampa Case.202 In considering whether the MPA dis- placed any non-statutory executive power, Kiefel J did not apply any presump- tion against displacement in her judgment. Justice Kiefel reasoned that the stat- utory regime in the MPA, which placed conditions on the exercise of powers of detention and removal, was inconsistent with an intention to preserve the pre- rogative power on the same topic.203 The MPA was therefore found to have dis- placed the prerogative power, and the executive government could only exer- cise its power to detain and remove non-citizens in accordance with the provi- sions in the statute.204 While the judgments of Kiefel J in CPCF and Black CJ in the Tampa Case are minority opinions, the interpretive approach that their Honours adopted gave full expression to the displacement principle and ought to be preferred. Where the Parliament has enacted a comprehensive statutory regime that im- poses conditions, limitations and restrictions on the exercise of executive pow- ers that are equivalent to the prerogative, that should be sufficient evidence of the Parliament’s intention to deprive the executive government of the preroga- tive. Courts should be willing to find that the prerogative has been displaced in these circumstances and replaced by statutory provisions that have received oversight and scrutiny from the Parliament.205 As Evans has observed: If it is assumed that the Parliament intended the law … to be clear, certain and general, it is hardly likely that it intended the parallel operation of two incon- sistent regimes, the existence and scope of one of which was uncertain. Equally, it is hardly likely that the Parliament intended to leave operating an uncertain non-statutory regime, affecting the liberties of individuals with limited channels of parliamentary accountability.206 200 Ibid 601–2 [283]. 201 Ibid. 202 Ibid 600–2 [277]–[283]. 203 Ibid 600 [277], 601–2 [283]. 204 Ibid 602 [284]–[285]. 205 See Twomey, ‘Miller and the Prerogative’ (n 18) 88. 206 Evans (n 26) 99. 1032 Melbourne University Law Review [Vol 44(3):1002 Professor George Winterton has similarly remarked that the conferral and reg- ulation of executive powers by statute is preferable because ‘this promotes ac- countability to Parliament, giving Parliament authority to examine executive action; it strengthens the rule of law by subjecting executive action to judicial review’.207 The displacement principle is an important limit on the prerogative powers of the executive government. It gives effect to the values of parliamen- tary sovereignty and the rule of law, which underpin the Australian constitu- tional system. As such, Australian courts should reconsider the application of a strong presumption against displacement of important prerogative powers in favour of a weaker presumption.208 The adoption of a more flexible approach to the presumption against displacement would, as illustrated by the minority judgments in the Tampa Case and CPCF, enable the full expression of the displacement principle in Australia. B Requirement of an Inconsistency between Statute and the Prerogative and Its Relationship with Legislative Intention In the cases discussed above, courts have held that the Parliament can be taken to have intended to have displaced the prerogative where the statute, as con- strued, operates in a way that is inconsistent with its continued exercise. In his judgment in the Tampa Case, French J summarised the relationship between legislative intention and inconsistency as follows: ‘The term “intention” of course is a fiction. What must be asked is whether the Migration Act operates in a way that is necessarily inconsistent with the subsistence of the Executive power described.’209 Equally, the absence of an inconsistency has been treated by courts as evi- dence that the Parliament did not intend to displace the prerogative. The pre- vailing view in Australia appears to be that where the statute purports to di- rectly regulate the same area as the prerogative, such that it ‘covers the field’ of the prerogative, this will not generally be sufficient to show that the Parliament had intended to displace it, although there are dissenting voices to the con- trary.210 The cases suggest that courts will be more willing to find that the pre- rogative has been displaced by statute in circumstances where there is a direct 207 Winterton, ‘The Relationship’ (n 10) 35. See also Goldring (n 22) 442. 208 The High Court weakened the presumption that statutes do not bind the Crown in Bropho (n 169) 21–4 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ). Courts could adopt a similar approach in relation to displacement: see Winterton, ‘The Relationship’ (n 10) 47–9. 209 Tampa Case (n 5) 545 [202]. 210 See, eg, ibid 501 [34] (Black CJ); CPCF (n 25) 600–1 [279] (Kiefel J). 2021] The Royal Prerogative and Statute in Australia 1035 Commonwealth as a means of avoiding its obligations to process the rescued persons in accordance with the provisions of the Migration Act.229 While the interpretive approach adopted by French J in the Tampa Case was broadly consistent with the approach adopted by the majority in earlier deci- sions, there were some significant differences between the Migration Act and the statutes that were considered in the other cases that were largely overlooked. The Migration Act differed in operation and scope from the statutes that were considered in Barton and Oates. It was significant that the statutory scheme in those cases did not cover extradition in all circumstances and, accordingly, did not extend to the whole of the area covered by the exercise of the prerogative.230 It followed from this conclusion that there was no inconsistency or conflict be- tween the provisions of the statute and the exercise of the prerogative power to request extradition in the circumstances of each case. The Migration Act, on the other hand, provided a comprehensive regime relating to the control of Aus- tralia’s borders. The provisions of the Migration Act directly regulated the same area as that covered by the exercise of the inherent executive power. Furthermore, while French J described the provisions of the Migration Act as ‘facultative’,231 they were different in nature to the provisions in Ling. The purpose of the Act and Regulations in Ling was to facilitate the enforcement of the assignments and to assist the Commonwealth in proving its case in recovery proceedings.232 The Act did not create a new statutory right to take assignments of choses in action.233 The operative provisions of the Act assumed that the pre- rogative to take the assignment had already been exercised by the Common- wealth.234 By contrast, the Migration Act conferred extensive, coercive powers on executive officers, which included powers to detain persons; chase, board and stop vessels; and in certain circumstances, fire at and into a vessel.235 It also created offences and regulated, more generally, the exclusion, expulsion and de- tention of non-citizens and interdiction at sea.236 The Migration Act conferred powers on the executive that were at least as wide as the prerogative, but subject to conditions on their exercise. Nevertheless, French J relied on similar reason- ing as the majority in Ling to find that the provisions of the Migration Act ‘may 229 Stephenson, ‘Statutory Displacement’ (n 31) 215–16. 230 Barton (n 3) 501 (Mason J), 507–8 (Jacobs J); Oates (n 3) 511 [38]–[39] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ). 231 Tampa Case (n 5) 545 [202]. 232 Ling (n 25) 97 (Gummow, Lee and Hill JJ). 233 Ibid 94. 234 Ibid. 235 Tampa Case (n 5) 505–6 [50], 506 [55] (Black CJ). 236 Ibid 507 [60]. 1036 Melbourne University Law Review [Vol 44(3):1002 yield a like result to the exercise of Executive power, [but] in this particular application of it cannot be taken as intending to deprive the Executive of the power necessary to do what it has done in this case’.237 Chief Justice Black disagreed. His Honour cited the express conferral of co- ercive powers as evidence of ‘the powerful scope and content of the Act’.238 The Migration Act provided ‘a comprehensive regime for the control of Australia’s borders’239 and, in these circumstances, Black CJ thought that the appropriate inference to draw was that the Parliament intended that the executive would exercise those powers in accordance with the procedure set out in the statutory regime.240 The comprehensive and detailed nature of the Migration Act, when coupled with the coercive nature of the powers that it conferred on the execu- tive, suggested that the Parliament intended to displace the prerogative by en- acting the statutory regime.241 Indeed, Black CJ did not think that the preser- vation of non-statutory executive powers, that would exist as a ‘parallel Execu- tive right’ alongside the extensive statutory powers conferred by the Migration Act, was the correct intention to impute to the Parliament.242 Justice French and Black CJ adopted different approaches in ascertaining whether the prerogative had been impliedly displaced by the provisions of the Migration Act. Chief Justice Black endorsed Lord Dunedin’s ‘covering the field’ approach to displacement from De Keyser and stated: It is uncontentious that the relationship between a statute and the prerogative is that where a statute, expressly or by necessary implication, purports to regulate wholly the area of a particular prerogative power or right, the exercise of the power or right is governed by the provisions of the statute, which are to prevail in that respect … The accepted test is whether the legislation has the same area of operation as the prerogative.243 In his construction of the statute, the Chief Justice ascribed particular signifi- cance to the express statement of the object in the Migration Act, being to ‘reg- ulate, in the national interest, the coming into, and presence in, Australia of non-citizens’244 and the detailed mechanisms governing visas, self-identifica- tion, removal and deportation that were designed to advance the object of the 237 Ibid 545 [202]. 238 Ibid 506 [55]. 239 Ibid 507 [60]. 240 Ibid 507 [60]–[61]. 241 Ibid 508 [64]. 242 Ibid 507 [61]. 243 Ibid 501 [33]–[34]. 244 Ibid 504 [42], quoting Migration Act (n 193) s 4(1). 2021] The Royal Prerogative and Statute in Australia 1037 Act.245 The Act conferred wide ranging, coercive powers on executive officers, created offences and imposed penalties.246 The fact that the Migration Act com- prehensively regulated the field of border protection and conferred extensive powers on executive officers to act, that were equivalent to the prerogative but subject to conditions and limitations on their exercise, was sufficient evidence of the Parliament’s intention to displace the prerogative.247 Chief Justice Black was of the view that the conclusion to be drawn from the comprehensive regime in the Migration Act was ‘that the Parliament intended that in the field of exclu- sion, entry and expulsion of aliens the Act should operate to the exclusion of any Executive power derived otherwise than from powers conferred by the Par- liament’.248 This conclusion was, in Black CJ’s view, ‘all the more readily drawn’ given that there was uncertainty about whether the prerogative continued to exist at all.249 Even in the absence of express words in the statute, Black CJ was satisfied that, after having interpreted the relevant provisions in their statutory context and in light of the purpose of the legislation and surrounding circumstances, the Migration Act exhibited a sufficiently clear intention to displace the prerog- ative power to exclude non-citizens from Australia.250 In contrast, French J thought that the relevant question in the Tampa Case was ‘whether the Migra- tion Act evince[d] a clear and unambiguous intention’251 to deprive the executive of the power to prevent non-citizens from entering Australian territory. That is because, as shown above, French J applied a strong presumption against displacement. One explanation for the difference in the approaches and conclusions drawn by the different members of the Court in the Tampa Case is that Black CJ did not apply the strong presumption against displacement. Therefore, the requisite intention did not need to be expressed as clearly. In Black CJ’s consideration of the clarity with which an intention to displace the prerogative needed to be expressed, he observed that if a power is well used, well-established and important to the functioning of the Executive government, a very clear manifestation of an intention to abrogate will be required. But, similarly, where an asserted power is at best doubtful, and 245 Tampa Case (n 5) 504 [42]–[43]. 246 Ibid 505–6 [49]–[50]. 247 Ibid 508 [64]. 248 Ibid. 249 Ibid. 250 Ibid 504–8 [42]–[64]. 251 Ibid 545 [201] (emphasis added).