§ 278. “The Queen's Ministers of State.”

These remarkable words seem to be an entirely new departure in the direction of expressing in a Constitutional Act the principles of responsible government. The words “and shall be the Queen's Ministers of State for the Commonwealth” were introduced by Sir Samuel Griffith at the Sydney Convention in 1891, in substitution for the words “and responsible Ministers of the Crown,” which Mr. Wrixon had proposed to insert. Mr. Wrixon had no doubt that the effect of the clause as it then stood—providing for members of an Executive Council, who should administer departments of State, hold office during the Governor-General's pleasure, and be capable of sitting in Parliament— provided for a system of responsible government; but he did not think that it would clothe them with all the vast constitutional powers which, under the system of the English Government, belong to responsible Ministers of the Crown. The greatness of those powers, and the vastness of the authority which any responsible Minister of the Crown exercises in binding the Crown and the sovereign, was well illustrated in the old case of Buron v. Denman (2 Exch. 167); and he thought it highly important that the Ministers of the Crown here should, in regard to all Australian matters, be invested with exactly the same presumptions of authority and ratification from the Crown as apply to Imperial Ministers.

“I myself would propose that we add to the last sub-clause ‘and responsible Ministers of the Crown;’ and I believe that then the Court would interpret that with reference to ordinary constitutional usage, of which they would take judicial notice, and it is well known, of course, in England, what a responsible Minister is. It is known as a matter of fact and constitutional law. The courts recognize that, and if we declared that these officers were responsible Ministers of the Crown I believe the court would import to that definition the knowledge which they would get from reading in the light of ordinary constitutional law.” (Mr. Wrixon, Conv. Deb., Syd., 1891, p. 767.)

Sir Samuel Griffith took an entirely different view. He thought that Mr. Wrixon's object was already clearly provided for in the Bill, and would be made no clearer by the amendment.

“‘Responsible Ministers of the Crown’ is a term which is used in common conversation to describe the form of government that we have. It is really an epithet, but a bill is not the place for an epithet. What we should put into the bill is a definition of the powers and functions of the officers—not call them by names. We might as well say that they shall be called ‘Honourable.’ The Executive Government is vested in the

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Queen. The Queen cannot act in person. She therefore, by the Governor-General, appoints officers to administer departments of State. Is not that exactly expressing the real theory of government—the head of the State, through her officers, administering departments of State? The common name by which they are called is ‘Ministers of the Crown,’ and because they hold office during pleasure, which pleasure is exercised nominally by the head of the State, but in reality by Parliament, they are called responsible, because, if their conduct is not such as to give satisfaction, they have to answer for it by going out of office. The whole theory of responsibility is contained in clauses 1 and 4. To say that they shall be called Ministers of the Crown would not make them so more than they are already. The powers of officers are not vested in them because they are called responsible Ministers, but because they are Ministers.” (Sir Samuel Griffith, Conv. Deb., Syd., 1891, p. 767.)

Sir John Bray put the matter very clearly by pointing out that though the Constitution provided that these officers should administer certain departments of State, it did not provide that they should administer the entire Government of the Commonwealth, and though the provision that they were to be members of the Federal Executive Council would probably be sufficient, he thought all doubts ought to be removed by the adoption of Mr. Wrixon's amendment. Mr. Inglis Clark contended that the responsibility of Ministers flowed, not from their administering departments of State, but from their being members of the Executive Council. But Mr. Deakin pointed out that in some of the colonies a man remained an Executive Councillor after he had ceased to be a Minister, and contended that a distinction should be expressed between those who were Executive Councillors and not Ministers, and those who were Executive Councillors and Ministers. Moreover, it might be contended that the authority given to members of the Executive Council was given to them as a whole, sitting in Council, and that it did not clothe the Ministers individually with that power and authority which Ministers in Great Britain possess as Responsible Ministers of the Crown. Doubts had already been raised as to the authority of Ministers in the colonies (Ah Toy v. Musgrove, 14 V.L.R. 349), and there should be no doubt as to the authority of Ministers of the Commonwealth.

“Complete as is the skeleton of constitutional government which the hon. member Sir Samuel Griffith has given us in these clauses, I maintain that it is, after all, only a skeleton, and that the life which is implied by its being administered by Responsible Ministers has yet to be imparted to it. We do not desire to introduce words which might seem to claim for Australia royal prerogatives; but we do wish to introduce words claiming all the prerogatives of the Crown directly relating to Australia. What we say is that these clauses, as they stand, do not with sufficient distinctness make that claim, and that we should seize every opportunity of placing points of this importance beyond all dispute, that we should embody in these clauses the claim of Ministers of the Commonwealth to exercise all the prerogatives of the Crown which may be necessary in the interests of the Commonwealth. I would ask the hon. member, Sir Samuel Griffith, to himself suggest a phrase, and in default of that to accept my hon. colleague's amendment.” (Mr. A. Deakin, Conv. Deb., Syd., 1891, p. 773.)

Mr. Kingston agreed that every effort ought to be made to secure Mr. Wrixon's object, and to ensure that the Ministers of the Commonwealth should be clothed with all necessary powers. At the same time, he thought that there was some room for objection to the word “responsible.”

“We know what we wish to do. We desire to confer on the executive Ministers the right to exercise this prerogative as far as the Commonwealth is concerned, but I do not think we desire to expressly perpetuate responsible government. I am certainly an advocate for the continuance of that system; but in view of the discussion which took place at a previous stage, I think we have done well in avoiding the use of any expression which, it might be urged, would have the effect of preventing us from altering our practice with reference to responsible government in future as occasion may require. I hope the hon. member who has moved the amendment will leave out this word to which I have referred, and to which it seems that objection can fairly be taken.” (Mr. C. C. Kingston, Conv. Deb., Syd., 1891, p. 775.)

Finally Sir Samuel Griffith suggested the words “and shall be the Queen's Ministers of State for the Commonwealth,” which Mr. Wrixon accepted as adequately carrying out his object.

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The above debate is valuable, not merely as a guide to the intentions of the framers, but as an exposition of the meaning of the words under discussion. It remains, however, to discuss some other aspects of the matter.

The object of the words is to secure a formal recognition of the authority of the Ministers of the Commonwealth individually and collectively. But they do more than that; they formally recognize, not indeed every phase or feature of what is currently known as “responsible government,” but the existence of a body something like a Cabinet within the Executive Council—a committee whose members are individually Ministers of Departments, and collectively “the Queen's Ministers of State for the Commonwealth.” In other words, some kind of Cabinet, or Ministry, as distinct from the Executive Council, or from its English equivalent the Privy Council, has a status recognized by the express words of the Constitution. The Ministers must all be members of the Executive Council, but the members of the Executive Council need not all be Ministers; and thus the Constitution expressly makes the distinction, for which Mr. Deakin contended, between the merely titular members of the Federal Executive Council, and the responsible Ministers of the Crown.

One other point deserves mention. In some of the Australian colonies the practice has grown up of including in the Cabinet one or more “Ministers without portfolios;' that is to say, members of the Executive Council who join in the deliberations of the Ministry, and represent it in one of the Chambers, but who do not administer any department. This practice is especially resorted to in order to secure the adequate representation of a Ministry in the Upper House; but it does not appear to be contemplated by this Constitution. The heads of the chief departments are to be “the Queen's Ministers of State”—a phrase which appears to mean not only that these officers are to be Ministers of the Queen, but that they are to be the Ministers of the Queen; in other words, that all the Ministers of State are to administer departments of State.