CONSTITUTIONAL FREEDOMS AND STATUTORY EXECUTIVE POWERS

In a series of recent cases, the High Court has adopted the position that constitutional freedoms operate as direct limits on legislative power only, and do not directly constrain the exercise of statutory executive powers. In this article, we analyse and critique the rationales for, and implications of, this approach. We argue that the approach is unclear, lacks a compelling justification, and is not workable in all cases. In some cases, courts should review whether the exercise of statutory power in the particular instance has exceeded constitutional limits. We then examine how Australian courts might approach review of administrative decisions alleged to have infringed a constitutional freedom, looking to other common law countries where courts have confronted the same questions.