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8. The Executive Government.

271

§ 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.)

§ 272. “The Executive Power of the Commonwealth.”

The expression, “The Executive power of the Commonwealth,” must be read to mean the Federal Executive power as distinguished from the Executive power reserved to the States. As to the secondary meaning of the term “Commonwealth,” in which it is equivalent in signification to Federal Government, see note, § 43, supra. The Executive power reserved to the States by the Federal Constitution is as much a part of the Executive power of the Commonwealth, as a united political community, as the Federal Executive power; both powers are but sub-divisions or fractions of the one quasi-sovereign power, as will appear in the following conspectus:—

It may be said that the whole mass of the Executive authority of the Commonwealth is divided into two parts; that portion which belongs to the Federal Government, in relation to Federal affairs, being assigned to the Governor-General as the Queen's Representative, and that portion which relates to matters reserved to the States being vested in Governors of the States. The Executive authority reserved to the Governors


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of the States, is of the same origin but of higher antiquity than that newly created authority conferred on the Governor-General. The State Executive authority is of as much importance within its sphere as the Federal Executive authority is within the Federal sphere. The Executive authority possessed by a State Governor, acting as the Queen's Representative in and for a State, is not of a subordinate nature, or of an inferior quality; it is of the same nature and quality as that possessed by the Queen's Representative acting in the name of the Commonwealth. See the arguments in the Attorney-General of Canada v. Attorney-General of Ontario (1892, 3 Ont. App. 6).

§ 273. “Vested in the Queen.”

The Federal Executive power granted by this Constitution is vested in the Queen. This statement stereotypes the theory of the British Constitution that the Crown is the source and fountain of Executive authority, and that every administrative act must be done by and in the name of the Crown.

“We are at the present day so accustomed to think and to speak of the Government of Sir Robert Peel or Lord Russell, of Lord Derby or Lord Palmerston, that we almost overlook the Royal Personage whom these Statesmen serve. We forget the Queen for the Minister. The means, as so often happens, obscure the end; the object limited is lost in the limitation. Yet whatever may be our mode of speech, any such indistinctness of thought will effectually exclude all clear views of the Constitution. In our political system the Crown always has been and still is the sun.” (Hearn's Gov. of Eng. p. 16.)

“They derive everything from the Crown, and refer everything to its honour and advantage. Nor is this less true of the modern form of our Constitution than it was of an age when the prerogative was exercised chiefly for the King's personal benefit. The lustre of the triple crown of the United Kingdom is not less brilliant than the lustre of that single crown of England which rested on the brows of our Henries and our Edwards. With us no less than with all our ancestors, ever since England was a nation, the Crown enacts laws; the Crown administers justice; the Crown makes peace and war and conducts all the affairs of State at home and abroad; the Crown rewards them that have done well, and punishes the evil doers; the Crown still enjoys the other splendid prerogatives which have at all times graced the diadem of England.” (Id. p. 17.)

In our analysis of sec. 1 of this Constitution we have seen that the dictum that “the Crown still enacts the law,” is not strictly applicable to the legislative department of the Federal Government, seeing that by that section the legislative power is vested in a Federal Parliament, in which the Senate and the House of Representatives are co-ordinate branches with the Queen. The old theory of legislation has been encroached upon, to some extent, by that section. The dictum that “the Crown conducts all the affairs of State,” is still true in theory, and has been followed and maintained in form, by sec. 61, which says that the executive power of the Federal Government is vested in the Queen.

§ 274. “Exercisable by the Governor-General.”

The Executive power vested in the Queen is exercisable by the Governor-General as the Queen's Representative. The Governor-General appointed by the Queen is authorized to execute, in the Commonwealth, during the Queen's pleasure and subject to the Constitution, such powers and functions as may be assigned to him by Her Majesty (sec. 2) and by the Constitution (sec. 61). Foremost amongst those powers and functions will necessarily be the execution and maintenance of the Constitution, and the execution and maintenance of the laws passed in pursuance of the Constitution.




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Federal Executive Council.

62. There shall be a Federal Executive Council to advise the Governor-General275 in the Government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as the Executive Councillors, and shall hold office during his pleasure.

CANADA.—There shall be a Council to aid and advise in the Government of Canada, to be styled the Queen's Privy Council for Canada; and the persons who are to be members of that Council shall be from time to time chosen and summoned by the Governor-General and sworn in as Privy Councillors, and Members thereof may be from time to time removed by the Governor-General.—B.N.A. Act, 1867, sec. 11.

HISTORICAL NOTE.—The clause in the Commonwealth Bill of 1891, which was adopted verbatim at Adelaide in 1897, only differed verbally from the section as it now stands. At Adelaide Mr. Glynn suggested that the Executive Council should consist only of Cabinet Ministers; but he moved no amendment. (Conv. Deb., Adel., p. 915–6.)

At Sydney, Sir Richard C. Baker proposed to add “of six” after “Executive Council.” This he intended as a test question between Responsible Government and Elective Ministers, and he proposed to follow it up, if it were carried, with a provision that three Ministers should be chosen by the Senate and three by the House of Representatives at the commencement of each Parliament, to hold office for three years unless a joint sitting of both Houses should otherwise determine. He thought Cabinet Government inconsistent with federation, because the one meant responsibility to one predominant House, and the essence of the other was two co-ordinate and approximately co-equal Houses. Dr. Cockburn supported the amendment; Mr. Higgins and Mr. Carruthers opposed it. It was negatived without division. (Conv. Deb., Syd., 1897, pp. 782–92.)

At Melbourne, drafting amendments were made before the first report and after the fourth report. (Conv. Deb., Melb., p. 2453.)

§ 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.

§ 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.

§ 277. “Officers to Administer such Departments.”

The Governor-General may appoint officers to administer such Federal departments as may be established. This refers to the appointment of Federal Ministers for the time being. Their appointment is a prerogative act, vested in the Governor-General. The appointment, however, must be distinguished from the choice. In actual practice the choice of the Crown is limited to the selection of the Prime Minister, and even in that choice its discretion is restricted; often it has no choice at all, since it must choose one who is the official leader of the party commanding a majority in the National Chamber.


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Even in the choice of a first minister, which has been termed the only personal act the King of England has to perform, that choice is practically influenced by the necessity for its being confirmed by the approbation of Parliament. (Todd's Parl. Gov. in Col. 2nd ed. p. 17.) The other members in the Ministry are selected by the Prime Minister and by him recommended to and appointed by the Crown. The tenure of office of ministers is said to be during the pleasure of the Governor-General, which signifies that they will remain in power so long as they can carry on the Queen's Government.

It is assumed in this section that the Governor-General in Council can establish departments of state for the Commonwealth. The authority of the Governor-General in Council in that respect is restricted to the organization of such departments as may be transferred from the States to the Commonwealth, and such others as may be necessary for the maintenance of the Constitution and the execution of Federal laws.

The first Executive Act of the Governor-General will be the appointment of an Executive Council under Section 62. This appointment will no doubt be made on the day on which the Commonwealth is established. The Executive Council so appointed will be convened and presided over by the Governor-General. One of the first Executive Acts of the Governor-General in Council will be to determine and establish Departments of State under Section 64. This will be done by an order in Council. Thereupon the Governor-General will appoint, from the Executive Council, officers to administer such Departments.

§ 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


  ― 710 ―
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.




  ― 711 ―

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.

§ 279. “Ministers to sit in Parliament.”

The appointment of a Federal Ministry will necessarily precede the election of the first Federal Parliament. There must be a Ministry to assist and advise the Governor-General in the performance of Executive Acts essential for the conduct of the first general election. The first Federal Ministry cannot at their appointment be members of the Federal Parliament, because at the time of their appointment there is no such Parliament in existence. After the first general election, however, no Federal Minister is permitted to hold office for a longer period than three months, unless he is or becomes a senator or a member of the House of Representatives.

Section 32 of the Constitution Act of South Australia (4th January, 1856) contained a similar provision, viz., that after the first general election of the South Australian Parliament, no person should hold the offices of Chief Secretary, Attorney-General, Treasurer, Commissioner of Crown Lands and Immigration, or Commissioner of Public Works, for more than three calendar months, unless he should be a member of the Legislative Council or House of Assembly. The Constitution Act of Victoria (consolidated 10th July, 1890), sec. 13, provides that there may be ten Responsible Ministers of the Crown, of whom not less than four shall be members of the Legislative Council or Legislative Assembly, and not more than eight shall be members of the Assembly. The Constitution Act of Western Australia contains somewhat similar provisions.




  ― 712 ―

Number of Ministers.

65. Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs.

HISTORICAL NOTE.—In the Bill of 1891, and in the Adelaide draft of 1897, this clause occurred with merely verbal variations. (Conv. Deb., Adel., —. 916.)

At the Sydney session, in 1897, an amendment of the Legislative Council of Victoria, that two Ministers at least should be senators, was negatived on division by 19 votes to 13. (For a similar proposal in 1891, see Historical Note, sec. 64.) Mr. Dobson then moved that if there were five Ministers, one should be a senator, and if there were seven, two should be senators. This was negatived by 20 votes to 12. (Conv. Deb., Syd., 1897, pp. 799–806.)

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

Salaries of Ministers.

66. There shall be payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for the salaries of the Ministers of State, an annual sum which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year.

HISTORICAL NOTE.—As originally drafted in 1891, the clause ran:—“There shall be payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for salaries of such officers, a sum not less than fifteen thousand pounds per annum.” In Committee, at the suggestion of Mr. Adye Douglas, it was amended on the motion of Sir Samuel Griffith by fixing the amount at £15,000 “until other provision is made by the Parliament.” (Conv. Deb., Syd., 1891, pp. 776–7.)

At Adelaide, the clause was introduced and passed in substantially the same form, with the substitution of £12,000 for £15,000.

At Sydney, the words were altered to “a sum not exceeding £12,000.” A suggestion of the Legislative Council of Tasmania, to reduce the amount to £10,000, was negatived. (Conv. Deb., Syd., 1897, p. 806.)

At Melbourne, a drafting amendment was made before the first report.

Appointment of civil servants280.

67. Until the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth shall be vested in the Governor-General in Council, unless the appointment is delegated by the Governor-General in Council or by a law of the Commonwealth to some other authority.

HISTORICAL NOTE.—Clause 7 of chap. II. in the Bill of 1891 was substantially similar. At Adelaide the clause was first framed as follows:—“Until the Parliament


  ― 713 ―
otherwise provides, the appointment and removal of all other officers of the Government of the Commonwealth shall be vested in the Governor-General in Council.” In Committee, Mr. Wise, with a view to preventing the introduction of the “spoils” system, moved to add—“Provided that no such officer shall be removed except for cause assigned.” This was negatived by 28 votes to 8. (Conv. Deb., Adel., pp. 916–20.)

At Sydney the following words were added as a drafting amendment:—“except officers or persons whose appointments may be delegated by the Governor-General in Council or by a law of the Commonwealth to some other officer or person.” At Melbourne further drafting amendments were made before the first report.

§ 280. “Appointment of Civil Servants.”

The appointment and removal of all Federal officers, other than the Queen's Ministers of State, is vested in the Governor-General in Council. Pending the adoption of Federal laws regulating such appointments and removals the Governor-General in Council is empowered to delegate the making of appointments to some subordinate Federal authority, such as a Board or a commission. It does not seem that the Governor-General in Council can delegate to such a body the duty of deciding upon the removal of officers; though of course the Federal Parliament can do so.

This section must be read in conjunction with sec. 84, which provides that when any department of the public service of a State is transferred to the Commonwealth, all officers of the department whose services are retained become subject to the control of the Executive Government of the Commonwealth, but preserve all their existing and accruing rights.

Command of the naval and military forces.

68. The command in chief281 of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen's representative.

CANADA.—The Command-in-Chief of the Land and Naval Militia, and of all Naval and Military Forces, of and in Canada, is hereby declared to continue and be vested in the Queen.—B.N.A. Act, 1867, sec. 15.

HISTORICAL NOTE.—Clause 9 of Chap. II. of the Bill of 1891 was in almost identical words, as was also the clause adopted at Adelaide. Compare Volunteer Act, 1867 (N.S.W.), sec. 4.

At Melbourne, Dr. Cockburn (for Mr. Deakin) moved to substitute “acting under the advice of the Executive Council” for “as the Queen's Representative.” A debate upon the exercise of prerogative powers followed, and the amendment was negatived. (Conv. Deb., Melb., pp. 2249–64.) Drafting amendments were made before the first report and after the fourth report.

§ 281. “The Command-in-Chief.”

The command-in-chief of the naval and military forces of the Commonwealth is, in accordance with constitutional usage, vested in the Governor-General as the Queen's Representative. This is one of the oldest and most honoured prerogatives of the Crown, but it is now exercised in a constitutional manner. The Governor-General could not wield more authority in the naval and military business of the country than he could in the routine work of any other local department. Of what use would be the command without the grant of the supplies necessary for its execution? All matters, therefore, relating to the disposition and management of the federal forces will be regulated by the Governor-General with the advice of his Ministry having the confidence of Parliament. (Todd's Parl. Gov. in Col. 2nd ed. p. 377.)




  ― 714 ―

The Governor of a colony, though bearing the title of Commander-in-Chief, is not invested with the command of Her Majesty's regular forces in the colony without special appointment. He is not entitled to take the immediate direction of military operations, or, except in cases of urgent necessity, to communicate officially with subordinate military officers. (Revised Regulations, Colonial Office List, 1892, p. 301.)

Transfer of certain departments.

69. On a date or dates to be proclaimed by the Governor-General after the establishment of the Commonwealth, the following departments of the public service in each State shall become transferred282 to the Commonwealth:—

Posts, telegraphs, and telephones:

Naval and military defence:

Lighthouses, lightships, beacons, and buoys:

Quarantine.

But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its establishment.

HISTORICAL NOTE.—The clause as passed in 1891 was:—

“The control of the following Departments of the Public Service shall be at once assigned to and assumed and taken over by the Executive Government of the Commonwealth, and the Commonwealth shall assume the obligations of any State or States with respect to such matters, that is to say—Customs and Excise, Posts and Telegraphs, Military and Naval Defence, Ocean Beacons and Buoys, and Ocean Lighthouses and Lightships, Quarantine.” (Chap. II. sec. 10.)

In Committee, Mr. Wrixon asked whether sub-departments attached to the Customs department (e.g., Immigration Office, or Mercantile Marine Office) would be included. Sir Samuel Griffith was clear that they would not. Mr. Baker raised the question whether telephones would be included in “Posts and Telegraphs.” Mr. Douglas thought that the Customs and Excise Department was the only one which need be taken over at once. He moved to omit “Posts and Telegraphs,” and also “Ocean Beacons,” &c.; but this was negatived. (Conv. Deb., Syd., 1891, pp. 778–9.)

At the Adelaide session the clause was introduced in substantially the same words. In Committee Mr. Higgins raised the question whether “obligations” included public debts. Mr. Barton thought that only current obligations were meant. Mr. Walker moved to add “railways,” but after a short debate this was negatived by 18 votes to 12. (Conv. Deb., Adel., pp. 920–34.) Verbal amendments were made on reconsideration. (Id. pp. 1201–2.)

At Melbourne, a suggestion of the Legislative Assembly of New South Wales, to provide for the transfer “as soon as possible after” the establishment of the Commonwealth, was negatived, and a suggestion of the Legislative Council of New South Wales, to provide for the transfer on “a date to be proclaimed by the Governor-General after” the establishment, was adopted. On Mr. Barton's motion, the words “Executive Government of the” were omitted. Sir John Forrest suggested that the internal posts and telegraphs of each State should be retained, as the existing postal union was sufficient. On Dr. Quick's motion, “telephones” were added. (Conv. Deb., Melb., pp. 262–5.) Drafting amendments were made after the first report and before the fourth report.




  ― 715 ―

§ 282. “Departments . . Transferred.”

By the operation of the Constitution, and without the necessity of any other formal act, the departments of Customs and Excise in each State will become transferred to the Commonwealth simultaneously with the establishment of the Commonwealth, on 1st January, 1901, the day named in the Queen's proclamation (clause 4). The other departments of the Public Service in each State enumerated in this section will become transferred to the Commonwealth on the date or dates to be proclaimed by the Governor-General.

In addition to the departments mentioned in this section, which will become transferred without the necessity of federal legislation, there are other departments which will come under the control of the Commonwealth whenever the Federal Parliament chooses to authorize their transfer; such as Astronomical and Meteorological Observations (51.—viii.); Census and Statistics (51.—xi.); Currency and Coinage (51.—xii.); Bankruptcy and Insolvency (51.—xvii.); Copyrights, Patents, and Trade Marks (51.—xviii).

REVENUE AND EXPENDITURE.—One result of the transfer of a department will be that the State from which it is transferred will be relieved of the annual expenditure in respect of the department and the property used in connection therewith, and will be compensated for the value of such property. Another result will be that the State will be deprived of the revenue received in connection with the department.

The following table, based on a return presented to the Convention at the Melbourne session (Conv. Proceedings, Melb., p. 231) shows:—(1) the annual expenditure of which each State will be relieved in respect of the above mentioned services, together with interest at 3 per cent. on the value of property used in connection therewith; (2) the annual revenue of which each State will be deprived in connection with such services (apart from the taxation revenue from duties of. Customs and Excise). The figures are those of 1896 or 1895–6:—

I. ANNUAL EXPENDITURE.

                           
Department.  Victoria.  New South Wales.  Queensland.  South Australia.  Tasmania.  Western Australia.  Total 
£  £  £  £  £  £  £ 
1. Customs and Excise (less cost of border offices)  75,588  78,608  40,915  28,266  7,888  30,509  261,774 
2. Posts, telegraphs, and telephones  559,881  763,550  355,869  247,729  62,945  212,728  2,202,702 
3. Naval and military defence  198,785  214,206  105,480  33,489  12,593  10,620  575,173 
4. Lighthouses, lightships, beacons and buoys  17,356  16,908  32,844  15,018  5,950  12,077  100,153 
5. Quarantine  4,050  5,537  3,496  1,431  165  685  15,364 
6. Astronomical and  4,050  5,911  2,391  947  97  253  13,649 
7. Meteorological  4,050  5,911  2,391  947  97  253  13,649 
8. Census and Statistics  6,444  11,599  5,238  1,767  1,244  1,800  28,092 
9. Currency and Coinage  23,395  18,000  41,395 
10. Bankruptcy and Insolvency  4,542  3,599  2,685  2,241  100  1,248  14,415 
11. Copyrights, Patents, and Trade Marks  2,411  2,981  2,057  395  250  101  8,195 
Total Amounts  896,502  1,120,899  550,975  331,283  91,232  270,021  3,260,912 



  ― 716 ―

II. ANNUAL REVENUE.

                 
Department.  Victoria.  New South Wales.  Queensland.  South Australia.  Tasmania.  Western Australia.  Total. 
£  £  £  £  £  £  £ 
2. Post, telegraphs, and telephones  512,647  639,929  211,712  250,061  72,539  179,146  1,866,034 
4. Lighthouses, lightships, beacons and buoys (estimated apportionment)  17,356  16,908  32,844  15,018  5,950  12,077  100,153 
9. Currency and Coinage  40,511  41,550  .....  7,829  .....  .....  89,890 
10. Bankruptcy and Insolvency  3,767  5,151  588  777  .....  1,099  11,382 
11. Copyrights, Patents, and Trade Marks  3,683  3,584  2,547  1,544  1,465  1,500  14,323 
Total annual Revenue (except from Customs)  577,964  707,122  247,691  275,229  79,954  193,822  2,081,782 
Net Expenditure  318,538  413,777  303,284  56,054  11,278  76,199  1,179,130 

Certain powers of Governors to vest in Governor-General.

70. In respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth283, all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a Colony, or in the Governor of a Colony with the advice of his Executive Council, or in any authority of a Colony284, shall vest in the Governor-General, or in the Governor-General in Council, or in the authority exercising similar powers285 under the Commonwealth, as the case requires.

CANADA.—All powers, authorities and functions which under any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, are at the Union vested in or exercisable by the respective Governors or Lieutenant-Governors of those Provinces, with the advice, or with the advice and consent, of the respective Executive Councils thereof, or in conjunction with those Councils, or with any number of members thereof, or by those Governors or Lieutenant-Governors individually, shall, as far as the same continue in existence and capable of being exercised after the Union in relation to the Government of Canada, be vested in and exercisable by the Governor-General, with the advice, or with the advice and consent of or in conjunction with the Queen's Privy Council for Canada, or any members thereof, or by the Governor-General individually, as the case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the Parliament of Canada.—B.N.A. Act, 1867, sec. 12.

HISTORICAL NOTE.—Clause 11 of Chap. II. of the Bill of 1891 was drawn from sec. 12 of the British North America Act (supra). (Conv. Deb., Syd., 1891, p. 779.) At the Adelaide session, 1897, it was introduced and passed in the same form. In Sydney some drafting amendments were made; and at Melbourne, before the first report, it was re-drafted and condensed into its present form.




  ― 717 ―

§ 283. “Matters Which .. Pass to the .. Commonwealth.”

Among the matters which, under this Constitution, pass to the Executive Government of the Commonwealth are (1) from the establishment of the Commonwealth=the administration of the departments of customs and excise (sec. 69); the collection and control of duties of customs and excise, and the control of the payment of bounties; the control of officers and the appointment and removal of officers connected with those departments (secs. 67, 84, and 86). (2) from and after dates to be proclaimed subsequently to the establishment of the Commonwealth=the administration of other departments of the public service of each State, which become transferred to the Commonwealth, and the control, appointment, and removal of all officers connected therewith (secs. 69 and 84). In respect of such matters, from the moment when they are transferred to the Executive Government of the Commonwealth, all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a colony vest in the Governor-General of the Commonwealth; all powers and functions which are then vested in the Governor of a colony with the advice of his Executive Council vest in the Governor-General in Council; and all powers and functions which are then vested in any authority of a colony vest in the authority exercising similar powers under the Commonwealth.

§ 284. “Or in any Authority of a Colony.”

In connection with the public service of each colony there may be local authorities, boards or commissions which are endowed with special powers and functions. When a public department is transferred to the Commonwealth it is placed beyond the jurisdiction of such local authorities, boards, and commissions, and becomes subject to the exclusive control of the Federal Executive. In such cases the powers and functions, formerly exercised in respect to the department by the local authority, vest either in the Governor-General or in the Governor-General in Council, until Federal legislation creates a Federal authority to exercise similar powers and functions under the Commonwealth.

§ 285. “In the Authority Exercising Similar Powers.”

Of the administrative powers and functions which, under the Constitution, pass to the Federal Executive Government, some were previously vested in the Governors of the Colonies, some in the Governors of the Colonies with the advice of their respective Executive Councils, and some in local authorities within the Colonies appointed by law. Those described as vested in the Governors belong, technically, to the prerogatives of the Crown; those described as vested in the Governors with the advice of their respective Executive Councils, are dependent on statute law; those described as vested in “any authority of a Colony” were founded on statute and by statute were vested in Ministers, local boards, bodies, commissions, or officers. Thus in connection with the department of light-houses, light-ships, beacons, and buoys, certain powers and functions have been, under the Colonial system, generally assigned to marine boards; so in connection with the quarantine department certain powers and functions have been exercised by Boards of Health. Now, the intention of this section is that on the transfer to the Federal Executive Government of matters involving the exercise of Executive powers and functions, those powers and functions which in the pre-federal period were, by express terms, vested in the Colonial Governors, shall under the Federal regime and by express terms be vested in the Governor-General; that, likewise, those Executive powers and functions which were vested in the Colonial Governors with the advice of their respective Executive Councils shall, by express terms, be vested in the Governor-General in Council; and lastly, that those Executive powers and functions which were formerly vested in local authorities shall be vested in some Federal Authority, exercising similar powers under the Commonwealth.




  ― 718 ―

The difference between transferred powers and functions vested in the Governor-General, and transferred powers and functions vested in the Governor General in Council, is purely an historical one and not one of substance, and all such powers and functions will be exercised by the Governor-General through Ministers having the confidence of the Federal Parliament.

The substantive meaning of this section (which is adapted from section 12 of the British North America Act, quoted above) is that executive functions which were formerly exercised in relation to the separate colonies, but which are now to be exercised in relation to the Federal Government, are vested in some Federal officer or authority corresponding to the provincial officer or authority in whom they were formerly vested.

The section is intended to facilitate the proper performance of duties in connection with transferred departments, before those duties have been regulated by federal law. After the transfer, the exclusive legislative power in respect of those departments belongs to the Federal Parliament; but until the Federal Parliament acts in pursuance of its exclusive power, the departments will be administered in accordance with the provisions of this section. It does not appear to interfere in any way with the discretion of the Federal Parliament to afterwards assign any of these duties to what officers it pleases. It declares that all these powers and functions “shall vest” in the corresponding department, officer, or authority, but it does not declare that they shall continue to be so vested; and to construe the vesting as permanent would introduce a conflict with sec. 61, which declares that the executive power of the Commonwealth is vested in the Queen, and exercisable by the Governor-General as the Queen's Representative. The whole power is vested in the Queen; but particular statutory powers are to “vest in”—i.e., to be exercisable by—certain officers. The power of the Parliament (sec. 51—xxxix.) to make laws as to matters incidental to the execution of any power vested in the Governor-General of the Commonwealth, or in any department or officer of the Commonwealth, does not seem to be affected by this provisional vesting.

The only other point arising out of this section which requires consideration is, how is “the authority exercising similar powers under the Commonwealth” to be created? Could the Executive Government of the Commonwealth appoint a marine board to supervise lighthouses, &c., taken over according to the terms of a proclamation issued under sec. 90? Could the Executive Government establish a Board of Health to manage the quarantine department taken over according to a proclamation under the same section? Would Federal legislation be necessary in order to authorize certain proceedings and operations of those services to be conducted through the agency of Boards? It is conceived that such legislation would be necessary, and that pending its adoption those services, if taken over by proclamation only, would have to be managed directly by responsible Ministers of State. Probably those and other services would not be taken over by the authority of proclamation alone, but by proclamation accompanied by Federal laws, making temporary arrangements for preserving, in each State, the jurisdiction of local authorities until uniform Federal legislation is adopted.

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