§ 271. “The Executive Government.”

The term government is sometimes specially used to denote the Executive authority of a political State. Strictly speaking, however, it comprehends all the organic agencies engaged in the legislative, administrative, and judicial regulation of public affairs. The Commonwealth is a united political community, composed of the people and of the States. The organization and distribution of its governing instrumentalities are determined by the Constitution. Under that instrument the political government of the Commonwealth is partitioned and divided among two separate sets of ruling organs, (1) the organs of Federal Government as provided in Chapters I., II., and III., and (2) the organs of State Governments as provided in Chapter V. The Federal Government consists of a Parliament, an Executive, and a Judiciary, and the Government of each State similarly consists of a Parliament, an Executive, and a Judiciary. Chapter I. defines the structure and power of the Federal Parliament; we now come to the consideration of Chapter II. which defines the structure and power of the Federal Executive.

The tripartite division of every government into Legislative, Executive, and Judicial departments has been already referred to and illustrated; it is a division common to and inherent in alike federal and unitarian governmental systems. In the Constitution of the Commonwealth there is a sharp distinction drawn between the Legislative, Executive, and Judicial powers, and a separate and independent organization is secured for the exercise of each. The Legislative functions of the Federal Parliament are clearly and expressly defined by the Federal Constitution; so also the Legislative functions of each State Parliament are defined in the Constitution of each State which continues in full force and effect, subject only to the Federal Constitution (secs. 106–7). The Executive functions of the Federal Government are clearly and expressly defined by the Federal Constitution; so also the Executive functions of each State Government are defined by the State Constitution and State laws founded thereon, subject only to the Federal Constitution. The Judicial powers of the Federal Courts are clearly and expressly defined by the Federal Constitution; so also the Judicial powers of the State Courts are preserved by the State Constitutions, subject only to the Federal Constitution.

The Executive authority, in the system of government established by the Federal Constitution, includes all those discretionary or mandatory acts of government which can be lawfully done or permitted by the Executive Government, in pursuance of powers vested in it, or in pursuance of duties imposed upon it partly by the Constitution and partly by Federal legislation. Generally described, the powers and duties of the Federal Executive Government relate to the execution and maintenance of the Constitution and the execution and maintenance of the laws of the Federal Parliament, passed in pursuance of the Federal Constitution.

Among the principal executive powers and functions which may be found in various sections of the Constitution may be mentioned the following, viz., the appointment of times for the holding of sessions of Parliament, the prorogation of Parliament, the dissolution of the House of Representatives, the summoning of Parliament to meet (sec. 5); the issue of writs for general elections of members of the House of Representatives (sec. 32); the transmission of messages to the Federal Parliament recommending the appropriation of revenue or money (sec. 56); the dissolution of the Senate and the

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House of Representatives simultaneously (sec. 57); the convening of a joint sitting of the members of the Senate and of the House of Representatives (sec. 57); the choice and summoning of Executive Councillors (sec. 62); the establishment of departments of State and the appointment of political officers to administer departments of State (sec. 64); the command of the naval and military forces of the Commonwealth (sec. 68); the proclamation of dates on which certain departments of the public service shall become transferred to the Commonwealth (sec. 69); the appointment of Justices of the High Court and of other Federal Courts (sec. 72); the drawing of money from the treasury of the Commonwealth in pursuance of appropriation made by law (sec. 83); the control of departments of the public service transferred to the Commonwealth (sec. 84); the appointment and control of public officers in the service of the Commonwealth (sec. 67). The foregoing are some of the powers and duties of the Federal Executive, as enumerated in the Constitution. But other powers, duties, and functions will hereafter form the subject of Federal legislation.

NATIONALISM OF THE EXECUTIVE.—The Executive Government established by this Constitution is essentially national in form, as well as in its powers and functions. It is true that the Council of the Crown, from which political officers to administer the departments of state are selected, is described as the Federal Executive Council. In that collocation the phrase “federal” is not inconsistent with “national.” (Foster on the Constitution, I. p. 92.) In structure the Executive is certainly national. The framers of the Constitution refused to build it according to federal principles, by making it dependent upon or partly elected by the Senate. The Governor-General, as the official head of the Executive, does not in the smallest degree represent any federal element; if he represents anything he is the image and embodiment of national unity and the outward and visible representation of the Imperial relationship of the Commonwealth. In selecting his Prime Minister, the Governor-General will be constrained to choose the statesman who possesses the confidence of the people of the Commonwealth as a whole, and that confidence will be mainly evidenced by the majority which he can command in the national Chamber. In a speech delivered at Halifax in August, 1873, Lord Dufferin, then Governor-General of Canada, indicated the ideal position of a representative of the Crown as follows:—

My only guiding star in the conduct and maintenance of my official relations with your public men is the Parliament of Canada. I believe in Parliament, no matter which way it votes; and to those men alone whom the deliberate will of the Confederate Parliament of Canada may assign to me as my responsible advisers, can I give my confidence. Whether they are heads of this party, or of that party, must be a matter of indifference to the Governor-General; so long as they are maintained he is bound to give them his unreserved confidence, to defer to their advice, and to loyally assist them with his counsels. As a reasonable being he cannot help having convictions on the merits of different policies, but these considerations are abstract and speculative and devoid of practical effect in his official relations. As the head of a constitutional State, engaged in the administration of Parliamentary government, the Governor-General has no political friends—still less can he have political enemies. The possession, or being suspected of such possession, would destroy his usefulness. (Leggo's Life of Lord Dufferin, 662.)

The powers and functions of the Executive of the Commonwealth are for the most part national. The execution and maintenance of the Constitution, the execution and maintenance of the Federal laws, and the Command-in-Chief of the naval and military forces, are the foremost attributes of a national government. Annexed, however, to the Command-in-Chief of the naval and military forces are obligations of a federal character. One of those obligations is imposed by sec. 119, which requires the Commonwealth to protect every State against invasion, and, on the application of the Executive Government of the State, against domestic violence.

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Executive power.

61. The executive power of the Commonwealth272 is vested in the Queen273, and is exerciseable by the Governor-General273 as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

CANADA.—The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen. (B.N.A. Act, 1867, sec. 9.)

HISTORICAL NOTE.—In the Commonwealth Bill of 1891, the substance of this section was contained in clauses 1 and 8 of Chap. II. (Conv. Deb., Syd. (1891) pp. 777–8.)

At the Adelaide session, the clauses were introduced in the same form. In Committee, Mr. Reid and Mr. Carruthers suggested adding “in Council” after “Governor-General.” Mr. Reid argued that the prerogative, so far as the colonies were concerned, was limited to the right of assembling, proroguing, and dissolving Parliament, pardoning offenders, issuing proclamations, &c. Executive acts were always done on the advice of the Executive Council; the refusal to receive advice was not an Executive Act at all. Mr. Barton replied that Executive acts were either (1) exercised by prerogative, or (2) statutory. Constitutional practice would prevent the prerogative, except occasionally, being exercised without ministerial advice, and the words were unnecessary and opposed to usage. No amendment was moved. (Conv. Deb., Adel., pp. 908–15.)

At Sydney, Mr. Reid obtained the substitution of “exercisable” for “exercised”—apparently to avoid a direction to the Queen, and make the words declaratory. (Conv. Deb. Syd., p. 782.)

At Melbourne, the words “and authority” (after “power”) were omitted; and after the fourth report the two clauses were condensed into one. (Conv. Deb. Melb. p. 1721.)