Samuel Murray - Inherent Executive Power in Ireland: Lessons for Australia

Inherent executive power is an underdeveloped concept in Australian public law, despite it being currently considered the predominant basis supporting the Commonwealth’s ability to engage in non-statutory executive conduct. This paper takes a closer look at inherent executive power through a comparative constitutional law lens. This paper argues that the comparative value of Irish constitutional law to an Australian audience has been hitherto underexplored, particularly in respect of executive power, where Irish courts have embraced an inherent approach to construing the ambit of the Government’s non-statutory authority under art 28.2 of the Irish Constitution. The paper contends that these Irish cases can be used to provide structure and coherence to analysis of the analogous power that is being developed in Australia. Accordingly, this paper identifies certain analytical considerations that may assist the Australian High Court in construing s 61 of the Australian Constitution without the assistance of the English common law and the royal prerogative.