§ 275. “A Federal Executive Council to Advise the Governor-General.”

Whilst the Constitution, in sec. 61, recognizes the ancient principle of the Government of England that the Executive power is vested in the Crown, it adds as a graft to that principle the modern political institution, known as responsible government, which shortly expressed means that the discretionary powers of the Crown are exercised by the wearer of the Crown or by its Representative according to the advice of ministers, having the confidence of that branch of the legislature which immediately represents the people. The practical result is that the Executive power is placed in the hands of a Parliamentary Committee, called the Cabinet, and the real head of the Executive is not the Queen but the Chairman of the Cabinet, or in other words the Prime Minister. (Dicey; Law of the Const. p. 9.) There is therefore a great and fundamental difference between the traditional ideal of the British Constitution, as embodied in sec. 61, giving full expression to the picture of Royal authority painted by Blackstone (Comm. I. p. 249) and by Hearn (Gov. of Eng. p. 17), and the modern practice of the Constitution as crystallized in the polite language of sec. 62, “there shall be a Federal Executive Council to advise the Governor-General in the Government of the Commonwealth.” (See Note on the Cabinet, p. 382, supra.)

“There are perhaps few political or historical subjects with respect to which so much misconception has arisen in Australia as that of Responsible Government. It is, of course, an elementary principle that the person at whose volition an act is done is the proper person to be held responsible for it. So long as acts of State are done at the

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volition of the head of the State he alone is responsible for them. But, if he owns no superior who can call him to account, the only remedy against intolerable acts is revolution. The system called Responsible Government is based on the notion that the head of the State can himself do no wrong, that he does not do any act of State of his own motion, but follows the advice of his ministers, on whom the responsibility for acts done, in order to give effect to their volition, naturally falls. They are therefore called Responsible Ministers. If they do wrong, they can be punished or dismissed from office without effecting any change in the Headship of the State. Revolution is therefore no longer a necessary possibility; for a change of Ministers effects peacefully the desired result. The system is in practice so intimately connected with Parliamentary Government and Party Government that the terms are often used as convertible. The present form of development of Responsible Government is that, when the branch of the Legislature which more immediately represents the people disapproves of the actions of Ministers, or ceases to have confidence in them, the head of the State dismisses them, or accepts their resignation, and appoints new ones. The effect is that the actual government of the State is conducted by officers who enjoy the confidence of the people. In practice they are themselves members of the Legislature. … The ‘sanction’ of this unwritten law is found in the power of the Parliament to withhold the necessary supplies for carrying on the business of the Government until the Ministers appointed by the Head of the State command their confidence. In practice, also, the Ministers work together as one body, and are appointed on the recommendation of one of them, called the Prime Minister. And, usually, an expression of want of confidence in one is accepted as a censure of all. This is not, however, the invariable rule; and it is evidently an accidental and not a fundamental feature of Responsible Government.” (Sir Samuel Griffith, Notes on Australian Federation, 1896, pp. 17–18.)

The gradual transfer of the executive power from the sovereign to Responsible Ministers forms one of the most remarkable and interesting revolutions recorded in the history of England. Ever since the resignation of Sir Robert Walpole in 1742, it has been recognized that the Crown could not for any length of time continue to carry on the government of the country, except through Ministers having the confidence of the House of Commons. That constitutes the essence of Responsible Government. It was the great ambition of the framers of the Australian Constitutions of 1855–6 to acclimatize, in the colonies which they were then helping to found, the system thus known as Responsible Government. The Constitution Act of New South Wales, as well as those of Victoria and South Australia, contained a clause which to some extent amounted to a statutory recognition of that system. It was to the effect that “the appointment of all public offices under the Government of the colony hereafter to become vacant or to be created, whether such offices be salaried or not, shall be vested in the Governor with the advice of the Executive Council, with the exception of the appointments of the officers liable to retire from office on political grounds, as hereinafter mentioned, which appointments shall be vested in the Governor alone. Provided always that this enactment shall not extend to minor appointments which by the Act of the Legislature or by order of the Governor and Executive Council may be vested in heads of departments or other officers or persons within the colony.” (Sec. 37.)

Annexed to each of those Constitutions was a civil list providing compensation for the holders of high departmental offices in each colony on their retirement from office on political grounds. The Constitution of South Australia was clear in the expression of its intention to introduce Responsible Government, for, by sec. 32, it required the holders of certain public offices to occupy seats in Parliament; whilst sec. 39 was particularly explicit in its intention that officers administering public departments would have to retire from office upon their ceasing to retain the confidence of the Colonial Parliament.

The Federal Executive Council is founded on the model of the Executive Council established in each colony. The members of the Executive Council will be chosen, summoned and sworn in by the Governor-General; they will hold office during his pleasure, in the same manner that members of the Executive Council in each State are chosen, summoned, sworn in, and hold office.

It must be remembered, however, that the Executive Council as created by statute is not the Cabinet as known in parliamentary practice. The Cabinet is an informal

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body having no definite legal status; it is in fact an institution unknown to the law; it exists by custom alone, and yet it is the dominant force in the Executive Government of every British country. The Executive Council corresponds to the Privy Council of England, a Council of the Crown whose origin can be traced back to the earliest period of English history. The Executive Council also corresponds to the Privy Council of Canada, which was established in the Dominion by the British North America Act, 1867. As the Crown in England may appoint and summon to the Imperial Privy Council worthy and distinguished subjects of the Queen, whether they be members of Parliament or not, so the Crown in the Commonwealth may appoint, and summon to the Executive Council, citizens of merit and ability who are considered worthy of the honour, without reference to Parliamentary qualifications. Their tenure of office is during the pleasure of the Crown. Membership of the Imperial Privy Council, like membership of the Federal Executive Council, carries with it titular honours and distinction, but not necessarily any office or place of profit under the Crown. It is, however, from among those members of the Privy Council in England, and of the Executive Council of the Commonwealth, who are also members of Parliament, that persons are selected to become officers administering departments of State, and hence responsible servants of the Crown. The persons so selected constitute the Ministry or Cabinet, and are styled “the Queen's Ministers of State.” Membership of Parliament is, as a matter of custom, essential as a qualification for appointment as a political minister, although in the absence of express statutory enactment it is not absolutely necessary, either in England or the colonies.

As to the question whether under the Constitution of the Commonwealth there can be, as there frequently are in the Cabinets of the States, “Ministers without portfolios,” who partake of the general responsibility of the Ministry, but do not administer departments of State, see Note “The Queen's Ministers of State,” § 278, infra.

There are thus two commonly recognized qualifications necessary for ministerial appointment, (1) membership of the Privy or Executive Council, (2) membership of Parliament. From the point of view of the first qualification the ministry may be described as a select committee of the Privy or Executive Council; the remaining members of that body not being summoned to attend either the meetings of committees or the ordinary meetings of the Council. From the point of view of the second qualification the ministry may be called a Parliamentary committee, whose composition and policy is determined by the party commanding a majority in the national chamber.

In the formation of a Cabinet the first step is the choice and appointment of its President or spokesman, the Prime Minister; he is chosen and appointed by the Crown or by its representative. In the choice of a Prime Minister, however, the discretion of the Crown is fettered; it can only select one who can command the confidence of a majority of the popular House. The other members of the Cabinet are chosen by the Prime Minister and appointed by the Crown on his recommendation.

Some of the pre-eminent features of Cabinet organization, and some of the rules of Cabinet discipline and government, may be here presented. The proceedings of the Cabinet are conducted in secret and apart from the Crown. The deliberations of the Executive Council are presided over by the representative of the Crown. Resolutions and matters of administrative policy requiring the concurrence of the Crown, decided at meetings of the Cabinet, are formally and officially submitted to the Executive Council, where they are recorded and confirmed. The principle of the corporate unity and solidarity of the Cabinet requires that the Cabinet should have one harmonious policy, both in administration and in legislation; that the advice tendered by the Cabinet to the Crown should be unanimous and consistent; that the Cabinet should stand or fall together.

The Cabinet as a whole is responsible for the advice and conduct of each of its members. If any member of the Cabinet seriously dissents from the opinion and policy approved by the majority of his colleagues it is his duty as a man of honour to resign.

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Advice is generally communicated to the Crown by the Prime Minister, either personally or by Cabinet minute. Through the Prime Minister the Cabinet speaks with united voice. The Cabinet depends for its existence on its possession of the confidence of that House directly elected by the people, which has the principal control over the finances of the country. It is not so dependent on the favour and support of the second Chamber, but at the same time a Cabinet in antagonism with the second Chamber will be likely to suffer serious difficulty, if not obstruction, in the conduct of public business.

This brings us to a review of some of the objections which have been raised to the application of the Cabinet system of Executive Government to a federation. These objections have been formulated with great ability and sustained with force and earnestness by several Australian federalists of eminence, among whom may be mentioned the names of Sir Samuel Griffith, Sir Richard C. Baker, Sir John Cockburn, Mr. Justice Inglis Clark, and Mr. G. W. Hackett, who have taken the view that the Cabinet system of Executive is incompatible with a true Federation. (See “The Executive in a Federation,” by Sir Richard C. Baker, K.C.M.G., p.l.)

In support of this contention it is argued that, in a Federation, it is a fundamental rule that no new law shall be passed and no old law shall be altered without the consent of (1) a majority of the people speaking by their representatives in one House, and (2) a majority of the States speaking by their representatives in the other house; that the same principle of State approval as well as popular approval should apply to Executive action, as well as to legislative action; that the State should not be forced to support Executive policy and Executive acts merely because ministers enjoyed the confidence of the popular Chamber; that the State House would be justified in withdrawing its support from a ministry of whose policy and executive acts it disapproved; that the State House could, as effectually as the primary Chamber, enforce its want of confidence by refusing to provide the necessary supplies. The Senate of the French Republic, it is pointed out, has established a precedent showing how an Upper House can enforce its opinions and cause a change of ministry. On these grounds it is contended that the introduction of the Cabinet system of Responsible Government into a Federation, in which the relations of two branches of the legislature, having equal and co-ordinate authority, are quite different from those existing in a single autonomous State, is repugnant to the spirit and intention of a scheme of Federal Government. In the end it is predicted that either Responsible Government will kill the Federation and change it into a unified State, or the Federation will kill Responsible Government and substitute a new form of Executive more compatible with the Federal theory. In particular, strong objection is taken to the insertion in the Constitution of a cast-iron condition that Federal Ministers must be members of Parliament. Membership of Parliament, it is argued, is not of the essence of Responsible Government, but only an incident or an accidental feature, which has been introduced by modern practice and by statutory innovation.

Two suggestions have been made, the adoption of either of which will tend to mould a form of Executive in harmony with the Federal principle. The first is that the approval of the Senate should be demanded as a condition precedent to the original appointment of Federal Ministers, subject to the understanding that once Ministers were so approved by the Senate, the Senate should not withdraw its approval, but that Ministers should remain in office as long as they retained the confidence of the House of Representatives. The second proposal is that Federal Ministers should be elected for a fixed term, at a joint sitting of the members of both Federal Houses. (Sir Samuel Griffith, Notes on Australian Federation, 1896, p. 20.) If it is desired to prevent a theoretical Federation from becoming a practical amalgamation “we must look for an adaptation of a Swiss form for our ideal of a Federal Executive.” (Sir Richard C. Baker, The Executive in a Federation, 1897, p. 18.)

It is not our province to comment on the opinions and contentions of these eminent federalists. Their views have not been accepted; and, for better or for worse, the

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system of Responsible Government as known to the British Constitution has been practically embedded in the Federal Constitution, in such a manner that it cannot be disturbed without an amendment of the instrument. There can be no doubt that it will tend in the direction of the nationalization of the people of the Commonwealth, and will promote the concentration of Executive control in the House of Representatives. At the same time it ought not to impair the equal and co-ordinate authority of the Senate in all matters of legislation, except the origination and amendment of Bills imposing taxation and Bills appropriating revenue or money for the ordinary annual services of the Government.

Provisions referring to Governor-General.

63. The provisions of this Constitution referring to the Governor-General in Council276 shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.

HISTORICAL NOTE.—This section is identical with clause 3 of Chap. II. in the Commonwealth Bill of 1891, and has appeared in every subsequent draft of the Bill without alteration and without debate.