§ 276. “Governor-General in Council.”

Certain Executive powers and functions are, by the Constitution, vested in the Governor-General; others are vested in the Governor-General in Council. The distinction between these two classes of powers and functions is historical and technical, rather than practical or substantial. The particular powers and functions vested in the Governor-General belong to that part of the Executive authority which was originally vested in the Crown at common law, and is not at present controlled by statute; they are called prerogatives of the Crown. For example, the prorogation and dissolution of Parliament, the appointment of ministers of state, and the command of the army and navy, are prerogatives of the Crown, which have been exercised by the Crown from time immemorial. Contrasted with these prerogative powers are other powers and functions, the exercise of which by the Crown is now controlled by statute law; these are not prerogatives of the Crown, and consequently, without any appearance of invasion or encroachment on the domain of prerogative, they are vested in and exercised by the Governor-General in Council. Among these may be mentioned the issue of writs for the general election of members of the House of Representatives; the establishment of departments of state; the appointment and removal of public officers.

Sec. 63 is an interpretation section; its object is to make it clear that wherever in the Constitution there is a provision that the Governor-General in Council may do certain acts, such provision refers to the Governor-General acting with the advice of the Federal Executive Council. This, as we have already seen, means the advice of the select committee of the Federal Executive Council known as the Ministry.

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Ministers of State. Ministers to sit in Parliament279.

64. The Governor-General may appoint officers to administer such departments277 of State of the Commonwealth as the Governor-General in Council may establish.

Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State278 for the Commonwealth.

After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.

HISTORICAL NOTE.—The original draft in 1891 was as follows:—

“For the administration of the Executive Government of the Commonwealth, the Governor-General may from time to time appoint officers to administer such Departments of State as the Governor-General in Council may from time to time establish, and such officers shall hold office during the pleasure of the Governor-General, and shall be capable of being chosen and of sitting as members of either House of the Parliament. Such officers shall be members of the Federal Executive Council.”

In Committee, Sir John Bray proposed to add that two members at least should be senators, but this was negatived. Mr. Wrixon proposed to add “and responsible Ministers of the Crown.” Sir Samuel Griffith objected that this was a mere “epithet,” and that the Ministers must be responsible in any case. Mr. Deakin cited the judgment of the Supreme Court of Victoria in Ah Toy v. Musgrove (14 V.L.R. 349; 1891, App. Ca. 272), and supported the introduction of “words claiming all the prerogatives of the Crown directly relating to Australia.” After debate, Sir Samuel Griffith suggested the words “and shall be the Queen's Ministers of State for the Commonwealth,” which were agreed to. (Conv. Deb., Syd., 1891, pp. 765-76.)

At the Adelaide session, the clause was introduced in the same form, with the additional provision that after the first election no Minister should hold office for more than three months without a seat in the Parliament.

At the Sydney session, a proposal of the Legislative Council of South Australia to omit the first portion of the clause, with a view to leaving the question of elective Ministers open, was negatived. An amendment of the House of Assembly of Tasmania, giving every Minister a right to sit and speak in either House (but not to vote, unless a member) was negatived on division by 21 votes to 14. (Conv. Deb., Syd., 1897, pp. 793-9.)

At the Melbourne session, drafting amendments were made before the first report, and after the fourth report.