(1)
Statute. Commonly when a statute is made it authorises administrative
decisions to further the purpose of the statute.
(2)
Constitution. Frequently the Constitution will confer power to make
administrative decisions. Typically these operate at a high level.
(3)
Common law confers power. An obvious example is where a member
of the executive government owns property. In this case they exercise the
common law powers of an owner.
(4)
Royal Prerogative. In Westminster systems powers are conferred on the
Crown and on the Attorney General as first law officer of the Crown as part of
the royal prerogative. However, the royal prerogative can be viewed as part of
the common law.
(5)
Contract. When an organ of the executive government makes a contract
it receives power by virtue of the contract.
(6)
Implied Powers. Almost any grant of express power confers an implied
power, commonly described as an ancillary power. This is expressed in a
Latin maxim, quando lex aliquid concedit, concedere videtur et illud sine quo
res ipsa valere non potest – an express grant of a power implicitly confers as
much power as is reasonably necessary to make the express grant of power
effective.
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This maxim reveals not only the rule, but its rationale. This is as
much a principle of law as a rule of necessity.
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Duty and Discretion
Powers of executive government are either a discretion or a duty. When an
official exercises a discretion (eg to grant a licence) she makes a decision.
When an official carries out or implements the decision (eg issuing the licence
pursuant to the decision) he takes action. Where there is a duty and an official
performs a duty he or she takes action. And just as an official takes action or
makes a decision, the official can fail to do, or refuse to do, these things. We
then refer to a failure or refusal to decide or act.
In specific terms, executive government affects us legally when it does (or fails
to do) either of two things. One, the most common, is that it exercises a
discretion. A discretion is conferred by any words which confer a choice, for
example, the Minister may grant a permit, or the Controller of Roads is
allowed to revoke licences. Sometimes a discretion will authorise the decision
maker to impose conditions which are a means of control.
For example, a
person may be given a licence to fly an aeroplane on condition that they not fly
at night.
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D'Emden v Pedder (1904) 1 CLR 91, 109 per Griffith CJ
75
D'Emden v Pedder
(1904) 1
CLR 91, 110 per Griffith CJ, and see Grannall v
Marrickville Margarine
(1955) 93 CLR 55, 77 per Dixon CJ, McTiernan, Webb and
Kitto JJ
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