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12. Chapter XII. The Executive Power: Organization of the Executive.

SIR WILLIAM ANSON introduces the subject of his second volume on the Law and Custom of the Constitution, by the observation that “In every political society there must be some person or body which acts on behalf of the whole, which represents the state as dealing with other states, which represents its collective force and will in maintaining amongst its own citizens the rules which the society has made or accepted for the preservation of order and the promotion of the public welfare.” In the history of Australia, the want of such an authority to speak and to act for the whole has been as potent a factor in producing union as the absence of a common legislative power. The authority must be continuous, and not occasional; it must be capable of prompt and immediate action; it must possess knowledge and keep its secrets; it must know discipline. In a word, it must have qualities very different from those which belong to the large representative and popular bodies which in modern times exercise legislative power.

It is characteristic of English methods that there has been small attempt to analyze the nature of the threefold division of governmental functions which we recognize. When the distinction was being established, men were content to reason that this particular power belonged to the King in his Council, that to the King in his Courts,

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and that other to the King in Parliament. It was only after the lines of action were settled in England that men began to analyze for the benefit of others who had their own constitutional arrangements to make. The supremacy of Parliament has generally made it unnecessary for us to consider the distinctions with scrupulous accuracy, and the existence and undoubted validity of a number of anomalies has kept us from over refinement. It is for the King to put the law into operation and to admonish his subjects that they keep it; to execute the law by bringing offenders to justice, by maintaining and supporting courts of justice, and by carrying out the judgments of those courts. On the other hand, the King may not alter the law; may not make an offence where none is; may not establish new penalties or novel tribunals. These matters belong to the Parliament. Such are the lines upon which the distinction between executive and legislative has been founded. The typical executive officers have been the sheriff and the constable.

But there is much more in government than mere execution of the law, whether enacted or unenacted; just as there is more in human conduct than the creation of legal relations. The state is a going concern; it has affairs which must be managed with prudence and judgment and which are not necessarily related to law in any other sense than that in which all conduct may be bounded by legal restraints. It is perfectly true that a very great part of this business of the state is regulated by law more than is the like business of private individuals; as an owner of property and as an employer of labour, the state sets rules to its agents; and to a very great extent, in Australia at any rate, these rules create rights against the Crown. But were those laws directing and controlling the management of the state affairs repealed, the business would not itself come to an end; it would simply have to be carried on under conditions of greater freedom and more responsibility by the agents of the state. In modern and settled times, it is the conduct of the business of the state which men mean by government; the execution of the law is

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assumed as a thing of course; and the term “executive” has seemed little apt to describe functions which are so far removed from justice and police. Sir G. C. Lewis suggested that the term “administrative” would serve better to indicate the “stewardship” or “management” of government.

In speaking of the Executive Government, then, the term “Executive” must be understood in a very broad sense; and we are not to expect a complete statement of the functions of the Government in a legal instrument. For more than one reason, Statutes defining the Constitutions of the Colonies have been almost silent on the subject of the powers as of the organization of the Executive. In the first place, the legislative power has included the power of making full provision for the execution of the law. Secondly, a large measure of executive power resides in the prerogative of the Crown, and has been conferred through prerogative acts and not by Statute, lest thereby the prerogative should be prejudiced. Finally, the organization of the Government and the relations of the Ministry and Parliament in our system are a very type of matters which are not under the continual direction of organic laws, but are freely organized as utility has suggested or may suggest within the ultimate bounds of law. The attempts which have from time to time been made to reproduce in terms of law for the colonies some of the conventions of the British Constitution—as in the relations of the two Houses of the Legislature as to Money Bills—have not been very successful. Constitutional Statutes for the colonies, and even the prerogative instruments which accompany them, do no more than hint at the Cabinet System, and the delicate relations of the Crown and Parliament. They differ from the British Constitution on which they are modelled, principally in this—that they do hint at the Cabinet System. They contain some provisions which imply a Parliamentary executive; they speak of “officers liable to retire upon political grounds,” even of “responsible ministers of the Crown.” It would be impossible to frame a

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constitution upon the Law of Victoria such as the Convention at Philadelphia in 1787 framed upon the Law of the British Constitution as expounded by Blackstone.

Extent of Executive Power.

The short chapter ii. on the “Executive Government,” then, is necessarily suggestive rather than expressive; it passes in rapid survey a very great extent of ground. By section 61, the executive power of the Commonwealth “extends to the execution and maintenance of this Constitution and of the laws of the Commonwealth.” The executive power therefore is not limited to the execution of the enactments of the Commonwealth Parliament; it is to maintain the Constitution, a duty the import of which can of course be gathered only from a consideration of the whole instrument. It has been already pointed out, in considering the incidental powers of the Legislature, that the executive numbers amongst its duties the protection according to the common law, of the organs of the Commonwealth government—that in fact there is a peace of the Commonwealth as well as a peace of the States,note and of this peace the Executive is the guardian.

There are of course many powers conferred expressly upon the principal executive officer in the Commonwealth, the Governor-General. This is notably the case in the chapter on the Parliament, where the Governor-General has important powers and duties in relation to constituting, summoning, proroguing, and dissolving the Parliament. But there are other powers and duties which, though not in terms conveyed to any department, primarily at any rate fall to the Executive as the appropriate organ for Commonwealth action, e.g. by section 119 “The Commonwealth shall protect every State against invasion, and on the application of the Executive Government of the State against domestic violence.”

Incidentally, the declaration that the executive power extends to the execution and maintenance of this Constitution

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is a warning against a not unlikely tendency to exaggerate the jurisdiction of the Courts as guardians of the Constitution. There is no provision in the Constitution applicable to the Judiciary which makes it in any special way the guardian of the Constitution; that protection arises, as will be seen, solely as an incident of judicial power. It is not to be assumed that every power and function, because it is provided for in the Constitution, is necessarily cognizable in some way by the Courts. In many matters the legislature, and in many others the executive, will be the final interpreters of their duties. The duty of the executive government to execute and maintain the Constitution, as every other duty involving the exercise of a discretion, is a duty attended by political sanctions only.

Organization of the Executive Government.

The establishment of a federal executive power of course adds to the complexity of governmental relations. Although in the past complexity and not simplicity in the sources of laws has been characteristic of our colonial institutions, there has been in each of the colonies but a single executive and a single system of courts to enforce those laws. In the Commonwealth duality runs through all the functions of government.note It is true that the scheme of the Constitution is to reproduce the Crown in the Commonwealth; and just as the Queen is a constituent part of the Parliament, so the Executive power of the Commonwealth is vested in the Queen (as is the executive government in Canada), though it is exerciseable by the Governor-General as the Queen's representative. It has alreadynote been pointed out that, except in a few cases, colonial governments have no corporate existence save in the Crown, and that it has been a question whether colonial ministers hold office under the Crown. The Letters Patent command “Our Ministers and

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Officers” in the colonies to be obedient, and the Instructions speak of “Our Executive Council”; but despatches from the Colonial Office to the Governor generally speak of “Your Ministers.” The ordinary usage of the Colonial Office was perhaps not unconnected with the fact that the “Colonial Ministers of the Crown,” “Her Majesty's Ministers for Victoria,” were associated with awkward claims. The Commonwealth Constitution brushes aside all doubts on this question by declaring that Commonwealth Ministers are the “Queen's Ministers of State for the Commonwealth” (section 64); and in section 44 it speaks of the “Queen's Ministers for a State.”

Notwithstanding the general vesting of executive power by section 61, it is within the discretion of the Parliament to provide the machinery for carrying out its own laws, to establish bodies or offices to which their execution is entrusted, and it would appear even to designate the persons who shall constitute such bodies or fill such offices. It is long since our Legislatures departed from the practice of laying down merely the broad outlines of law; the characteristic of British legislation has been extreme minuteness of enactment, the extent to which it has plunged into the details of administration. It is true that at the present day there is a tendency in the Legislature to permit much to the Crown in Council, or in the colonies to the Governor-in-Council. Even in the United States it is admitted that the authorities which are to execute an act of the Legislature, as distinguished from a power created by the Constitution, are within the discretion of the Legislature—“the authority which makes the laws has large discretion in determining the means through which they shall be executed; and the performance of many duties which they may provide for by law, they may refer either to the chief executive of the state, or at their option to any other executive or ministerial officer, or even to a person specially named for the duty.”note

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Where particular powers are granted to a particular authority it is of course not in the power of the Legislature to commit them elsewhere, unless, as in the case of the appointment of civil servants, it is expressly provided that the Legislature may confer the power on some other authority.

Powers of the Executive Government.

The exceptional reference to executive power in the Commonwealth Constitution, and the provision that it shall be exerciseable by the Governor-General, raise a question of great importance which has been considered more than once even under the colonial constitutions. The opinion was strongly held by the late Chief-Justice Higinbotham (Victoria) that under the Constitution Acts of the Colonies the executive power of self-government was no less complete than the legislative power, that “the executive government of Victoria possesses and exercises necessary functions under and by virtue of ‘the Constitution Act’ similar to and co-extensive, as regards the internal affairs of Victoria, with functions possessed and exercised by the Imperial Government with regard to the internal affairs of Great Britain,” and that “the Executive Government of Victoria in the execution of the statutory powers of the Governor express and implied and in the exercise of its own functions, has a legal right and duty, subject to the approval of Parliament, and so far as may be consistent with the Statute law and the provisions of treaties binding the Crown, the Government, and the Legislature of Victoria, to do all acts and to make all provisions that can be necessary, and that are in its opinion necessary or expedient for the reasonable and proper administration of law and the conduct of public affairs, and for the security, safety, or welfare of the people of Victoria.”note The Governor having thus a Statutory authority to exercise within the colony, every power of the Crown belonging to its internal government, such

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authority could not be enlarged, lessened, or withdrawn by the Crown, and consequently the grant of powers by prerogative instruments was idle, and the attempt to define and limit the exercise of such powers was illegal.note The Chief-Justice held accordingly in the Chinese Immigration case—Toy v. Musgrove—that the executive government of Victoria could exercise the power (which was assumed to be part of the prerogative) of excluding aliens, though no such power had been conferred on the Governor by the Letters Patent, Commission, or Instructions. The full Court held by a majority that the Constitution Act had for its primary object the establishment of a bi-cameral legislature with full legislative power, and that though undoubtedly it contained provisions which indicated an intention to introduce a system of responsible government, it was impossible to infer from these isolated expressions a grant to the Executive Government of all the powers over internal affairs exerciseable by the Crown in the colony.

The difference between the Constitution Acts of the Colonies and the Commonwealth Constitution lies, as has already been pointed out, in the explicit grant of executive power by the latter, and it must be conceded that the Governor-General has, virtute officii, and without special grant from the Crown, the “executive power of the Commonwealth.” But the question remains what that power is, and section 61 itself gives the answer: “It extends to the execution and maintenance of this Constitution and of the laws of the Commonwealth.” It is of course clear that the Executive Government of the Commonwealth cannot claim power within the sphere of action reserved to the States; and it seems not less obvious that the subjects committed to the Commonwealth Parliament—save in the matters expressly committed to the Executive as well as the Legislature (sec. 70) come within the sphere of executive action as distinguished from deliberation and

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representation to the Imperial Government, only when there has been legislation upon them and only to the extent of carrying out that legislation.note Thus, the power of the Parliament to make laws with respect to “external affairs” does not per se imply an executive power to make treaties nor “the relations of the Commonwealth with the islands of the Pacific” a power to annex Pacific islands. There are, in fact, many powers which the Commonwealth Government may desire, but which it will enjoy, if at all, not directly under the Constitution, but by grant from the Crown, or by virtue of some Act of the Parliament over which, of course, the Crown has control. This is perhaps recognized by section 2, whereby the Governor-General has, and may exercise in the Commonwealth, subject to this Constitution, “such powers and functions of the Queen as Her Majesty may be pleased to assign to him”; but the application of that section to matters other than those incident to the Parliament and “legislative power” must from its place in the Constitution be doubtful.

There is one power commonly associated with executive power of which, from the important part which it has played in the Constitutional arrangements of the self-governing colonies, a word must be said. The pardoning power—the prerogative of mercy—has, in all the colonies, been delegated to the Governor by the express terms of the Commission or Instructions. The Crown has in practice conferred upon Colonial Governors only a limited power to pardon offenders; and until lately the matter stood, to some extent, outside the scheme of responsible government in Australia, since the Governor, though bound to consult his Executive Council, was specially instructed to decide “either to extend or to withhold a pardon or reprieve, according to your own deliberate judgment, whether the members of our said Executive Council concur therein or otherwise.” It was not until 1892 that the matter was put upon a footing satisfactory to the Australian Colonies by

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the adoption of the practice obtaining in Canada, whereby the instruction as to personal consideration is confined to cases in which a pardon or reprieve “might directly affect the interests of our Empire or of any Country or place beyond the jurisdiction of the Government of the Colony.” Even now, Colonial Governors are not empowered to exercise the full prerogative of pardon—the delegation applies only to convicted offenders; and it happens from time to time that an Australian Government desiring to pardon an alleged offender, before conviction, has to seek the aid of the Imperial Government, and does not always obtain it.

The question is, whether the Commonwealth Government is in the ordinary or an exceptional position as to this prerogative. It is one which is essentially necessary to the administration of criminal law; but an unbroken constitutional practice is sufficient warrant for the opinion expressed by the Chief Justice of Canada, that “it is not incidental to the office of a Colonial Governor, and can only be exercised by such officer in the absence of legislative authority under powers expressly conferred by the Crown.”note Is section 61 a sufficient legislative authority? The matter is not free from doubt; but it is submitted that under section 61 the Governor-General has statutory authority to pardon offenders. The Imperial Government, however, appears to hold a different view, for the power is expressly given, with certain limitations, by section 8 of the Instructions. (See Appendix.)note

The executive power in every part of the Queen's dominions is part of the prerogative, and therefore section 61, so far as it vests generally the executive power of the Commonwealth in the Crown, is merely declaratory of the common law. The British North America Act, 1867, section 9, uses more appropriate terms when it says: “The

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Executive Government, and authority of and over Canada, is hereby declared to continue and be vested in the Queen.” The statutory authority to the Governor-General to exercise the executive power cannot of course be withheld or withdrawn by the Crown from the office; and, practically, this will suffice to make the Governor-General's power, in many cases, exclusive of all other exercise by the Crown. But in some cases the existence of a power in the Governor-General may still admit of its exercise by the Crown; and in such a case the ordinary presumption in favour of the prerogative would, notwithstanding the pointed designation of the Governor-General as “the Queen's representative,” seem to prevent the Crown from being limited to the exercise of the power through the Governor-General. Thus, though the Governor-General may exercise the pardoning power of the Crown, the Crown may also exercise the power through Imperial Ministers, and that whether the Governor-General has refused to pardon or not. The law on petitions of right affords an interesting illustration of the vitality of prerogative in a matter which is onerous rather than beneficial. Most of the Australian Colonies have passed Statutes establishing a procedure analogous to that upon the Petition of Right; but the Imperial Law Officers have uniformly held that the powers conferred by these Statutes upon the Colonial Executive do not supersede the common law powers of the Crown. Consequently, when the Colonial Executive has refused to co-operate in the submission of claims against the Government to a judicial tribunal, petitioners have carried their claims to the Queen, and the Secretary of State, after consultation with the Imperial Law Officers (as to Western Australia in 1897, South Australia in 1894, and New South Wales in 1863), has, as a matter of ministerial duty, advised her Majesty to grant her fiat that right be done in the Court of the colony concerned.

There are many powers in the Constitution which are in terms vested not in the Crown but in the Governor-General, or the Governor-General in Council. Some of these consist of powers which, according to the theory of the British

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Constitution, belong to the Crown as supreme executive authority, and would, if the Constitution were silent, be exerciseable in the Commonwealth by such authority as the Crown might designate. Others are the mere creation of the Constitution, and belong to the Governor-General as the Ministerial officer, under that instrument appointed. The latter are no doubt exerciseable by the Governor-General alone. As to the others, there is room for some doubt. By section 68, “the command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen's representative.” Here, though the power is a prerogative one, its nature makes it exclusive. And it is probably a safe general conclusion that the object of the express grant of powers to the Governor-General, or the Governor-General in Council, as distinguished from the general grant to the Queen, was to indicate that the power was exerciseable by the authority designated alone.

The position of the Governor of a Colony as Commander-in-Chief of the Forces is one as to which there has been naturally much misconception. In England the king gave up the personal command of the army upon the establishment of the office of General Commanding in Chief in 1793. In the colonies, however, the civil and military government have nominally remained in the hands of one person. For this there are several reasons. In the first place—and this is true of several of the Australian Colonies—the military command has often preceded the civil government, and it was but gradually that the government passed out of the military to the civil state. In the second place, even in colonies which have reached an advanced stage of self-government in civil matters, defence has been regarded as in the main an Imperial affair; and notwithstanding the general withdrawal of the Imperial forces from the self-governing colonies, the local forces which have been raised and maintained by the colonies have generally been under the immediate direction of Imperial officers, who for many causes, social as well as military, were disposed to regard themselves as outside the scope of the local government of

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the colony. Even Chief-Justice Higinbotham, above all others the champion of independence in local affairs, treated the control of Her Majesty's military and naval forces as a matter in which the Governor was bound to obey instructions given to him by the Crown directly or through the Secretary of State. In all these circumstances it was natural that there should be not a little friction. The Governor's own position is defined by the Colonial Office Regulations.note Though bearing the title of Captain-General or Commander-in-Chief, he is not, without special appointment from Her Majesty, invested with the command of Her Majesty's Regular Forces in the Colony, and in the event of the Colony being invaded, the officer in command of Her Majesty's land forces assumes entire military command over the forces. Most of the difficulties that have arisen are described by Mr. Todd in Parliamentary Government in the Colonies, chapter xii. “Imperial Dominion exerciseable over self-governing colonies: in naval and military matters.”note The most important of these questions has been as to the right of communication on military affairs between the Governor and the officers commanding the forces without the intervention of the colonial minister of defence. The principle is now generally recognized that the forces locally raised and maintained are, in the words of Sir Henry Parkes, as much subject to the responsible government of the colony as any other branch of the public service. The provision of section 68 of the Commonwealth Constitution vesting the command in chief of the Naval and Military Forces of the Commonwealth in the Governor-General as the Queen's representative is intended to carry out these principles, and in no way points to the exercise of independent powers.note The whole military and naval organization of the Commonwealth is a matter to be undertaken by the

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Ministry, which is responsible therefor to the Parliament. In this organization there must be some division of functions between military and civil officers; and if a reasonable standard of efficiency is to be maintained, appointments, promotions, dismissals, and discipline must be treated as non-political matters. But this organization is subordinate to the cardinal principle of ministerial responsibility; and the question of the limits within which Parliamentary control is legitimate in matters of administration is not peculiar to the subject of defence, or to the affairs of the colonies.note

It should be noted that the Letters Patent and the Commission of the Governor-General go somewhat beyond the Constitution. The latter deals only with the command of the naval and military forces of the Commonwealth; the former contain no such qualification, and in virtue thereof the Governor-General is the Commander-in-Chief of all forces, whether Imperial or Colonial, in the Commonwealth. The relation of Imperial forces to the Colonial Government when on active service is discussed by Mr. Todd in reference to the difference between Sir Bartle Frere and Mr. Molteno in 1877.note