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13. Chapter XIII. The Federal Executive Council and the Queen's Ministers of State.

The Cabinet System.

IN the vesting and exercise of powers, the Constitution distinguishes between the “Governor-General” and the “Governor-General in Council.” Section 63 declares that “the provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council,” whence it might be inferred that all the powers conferred upon the Governor-General were intended to be exercised by him upon his own discretion. But though the terms are not wholly unconnected with the distinction between personal action and action on the advice of Ministers, this is not the main character of the distinction. Statutory powers conferred or duties imposed upon the colonial executive have generally been exerciseable or performable only by the Governor in Council; powers emanating from the Crown have been exerciseable by the Governor in some other form of law than an Act or Order in Council. While in both cases powers have been exerciseable, if not always on the advice of Ministers, yet always in accordance with the doctrine of ministerial responsibility, the co-operation of the Executive Council in a colony no more ensures action in conformity with modern constitutional practice than does the co-operation of the Privy Council in acts of the Crown in England, for, as we shall

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see, the Executive Council is in some cases formally distinct from the Ministry. In one matter, however, the use of the terms “Governor-General” and “Governor-General in Council” adverts, as do the Constitution Acts of the colonies, to the constitutional practice of the cabinet system. The appointment of “officers to administer the Departments of State,” is a power conferred upon the Governor-General (sec. 64), while the appointment of civil servants (sec. 67) and of the justices of the Commonwealth Courts (sec. 72) is to be made by the Governor-General in Council. The terms used in this connexion serve to point a contrast between the choice of Ministers, which is an act of personal discretion without the advice of Ministers, and the ordinary patronage of Government which is under ministerial control.

The Federal Executive Council.—After the Governor-General, the principal executive organ is the Federal Executive Council. Though it is established “to advise the Governor-General in the government of the Commonwealth” (sec. 62), its characteristic function is action rather than advice. There are no legal qualifications for membership, but every Minister of State must be a member of the Council (sec. 64). On the other hand, an Executive Councillor is not necessarily a Minister of State. An Executive Councillor is not, as such, the holder of an office of profit, and is therefore not disqualified for a seat in the Parliament. Members of the Council “shall be chosen and summoned by the Governor-General and sworn as Executive Councillors,” and hold office during pleasure (sec. 62). This must be subject to existing constitutional custom; there can be no duty in the Governor-General to summon particular members to the Council. There is great scope for choice in the constitution of the Council. It might become, like the Privy Council, a body composed of present and past Ministers, great officials, and other persons who have attained eminence in any sphere, and upon whom the membership is conferred as an act of honour. Or, like the Executive Council in Victoria, it might consist of present and past Cabinet

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Ministers. Or, again, like the Executive Council of New South Wales and the Privy Council in Canada, it might be limited to the Ministry of the day, including in that term, of course, the “honorary members” of the Cabinet.note

The Ministers of State.—After the Federal Executive Council come the Queen's Ministers of State for the Commonwealth, who are appointed by the Governor-General “to administer such Departments of State of the Commonwealth as the Governor-General in Council may establish” (sec. 64). They hold office during the pleasure of the Governor-General; their offices are such as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs (sec. 65). The annual sum of £12,000 per annum is appropriated to the payment of the salaries of the Ministers of State, but Parliament may alter the amount.

It is in the sections relating to the Ministers of State that the Commonwealth Constitution goes further than any existing Colonial Constitution in establishing an organic relation between the Ministers and Parliament. For not merely does the Constitution, following the British and Colonial Constitutions absolve Ministers from the general disqualification of holders of offices of profit for a seat in Parliament (sec. 44), but by sec. 64 it provides that “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.” The other provisions regarding the Ministers of State, though they are made with a view to the Cabinet System, do not preclude very extensive modifications of that System. There is no recognition of the Cabinet, for as pointed out the Federal Executive Council is not necessarily identical in constitution or functions with a Cabinet. There is no recognition of the collective responsibility of the

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Ministers of State; section 64 treats them as separate administrative officials and there is no hint of a Prime Minister. There is nothing to prevent the virtual establishment of Ministries elected by Parliamentnote which at one time found some favour in Australia, though they cannot be given the fixity of tenure which the instability of political parties has recommended to many persons. All that has been done is to establish a Parliamentary Executive; the rest is left as in England and the colonies generally to custom and convention.

It has been already stated that the development of the Executive Council is a matter of uncertainty—it may or may not be identical in constitution with the Cabinet. There is another point connected with the Ministry upon which a comparison may be made with English practice. In England, the Cabinet and the Ministry are not identical bodies, the latter includes a large number of officers “liable to retire upon political grounds” (to use an expression common in the colonies) who are able to sit in Parliament. In Australia there are no Ministers outside the Cabinet; and the habitual inclusion of law officers in the Cabinet has had the result of making those appointments dependent much more on political than professional position. The Constitution Acts designate a limited number of offices tenable with a seat in Parliament; and the Commonwealth Constitution by enacting that, until the Parliament otherwise provides the Ministers of State shall not exceed seven in number, practically makes it certain that all the Ministers will be in the Cabinet. The other point of difference between English and Australian practice is the existence of what are sometimes called “honorary Ministers” or “Ministers without a portfolio” in the colonies. No Constitutional rule seems to be more firmly established in England than that which, treating the Ministry as a body of departmental chiefs, confines it, to adopt Addington's description of the Cabinet, to the persons “whose responsible

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situations in office require their being members of it.” It is true that the rule has been broken; that the Duke of Wellington and Lord John Russell were both members of the Cabinet without holding any office, but in each case strong objections were made to the practice, not by a political opponent, but in the one case by the Prime Minister, Sir Robert Peel, and in the other by the Queen herself. In Australia on the other hand every cabinet includes from one to three members who hold no office and receive no salary. They are not to be compared with the light administrative offices—such as the Privy Seal, the Chancellorship of the Duchy of Lancaster, or the First Lordship of the Treasury, held by important members of the Cabinet with heavy parliamentary or party duties. They are generally held by gentlemen of whom it may be said without intending any disparagement that they are politically deemed of less account for the moment than their colleagues.note The “honorary Ministers” or “Ministers without a portfolio” are generally members of the Upper House, and sometimes the only members of the Government in that House, for it is not unknown that the Prime Minister finds himself compelled to distribute all his salaried offices in the House upon whose support the Ministry mainly depends. The honorary or non-official member of the Cabinet may be expected to form a regular feature in Commonwealth Cabinets.note

There are two considerations which may mark off a Federal Cabinet from the Cabinets of the Colonies. The Senate is bound to be stronger than any existing Legislative Council, and the Ministry must accordingly be strongly represented there. In the second place, in the construction of Cabinets some regard must be had to the

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State principle. In accordance with this necessity, the first Australian Cabinet included representatives of every State,note and there was great discontent in Tasmania that no office was given to any one from that State. Doubtless the claim of State representation in the Cabinet will become less powerful, but it must retain some force. These considerations probably tend to produce an increase in the size of Cabinets, since the Prime Minister will be as little able as in an unitary government to afford to leave out men who are individually able or influential.

It was part of the theory of responsible government held by the late Chief Justice of Victoria and enunciated by him in Toy v. Musgrove,note that not merely had the Governor virtute officii all executive power exerciseable in relation to the internal affairs of the Colony, but that as matter of law those powers were exerciseable only on the advice of the colonial ministry, and that any instructions by the Crown through the Imperial Ministry as to the exercise of those powers were void and illegal. On this point as on the other, the majority of the Supreme Court were against the Chief Justice. As to the Commonwealth Constitution there is no hint save in section 63 as to the advice by which the Governor-General shall act. Advice and instructions naturally fall in the main outside effective legal arrangements. The Ministry cannot perform executive acts without the co-operation of the Governor-General, and the Governor-General, as a servant of the Crown, responsible politically not to any authority in the Commonwealth but to the Crown alone, will doubtless be guided by such instructions as he may receive from the Secretary of State, and there would be nothing illegal though there might be something unconstitutional in the

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popular sense in instructions being given as to any or all of the powers of the Governor-General. But neither the Instructions nor any other prerogative instrument can limit the powers conferred by Statute, and if the Governor-General should in the exercise of powers conferred on him by the Constitution, designedly or inadvertently act contrary to his Instructions this will not affect the validity of his act; the sole sanction lies in the responsibility of the Governor-General to the Crown.

The successive steps taken upon the inauguration of the Commonwealth are interesting as illustrating the relation of the various authorities. By virtue of the Royal Proclamation of September 17, 1900, the federating colonies were united in a Federal Commonwealth on January 1st, 1901; and under section 3 of the Act of Queen had on October 29, 1900, constituted the office of Governor-General and Commander-in-Chief and had appointed the Earl of Hopetoun thereto. On January 1st, 1901, the Royal Proclamation was read at Sydney, and the Governor-General took the prescribed oaths, and thereupon made proclamation that he had assumed the office. The next step was the constitution of the Federal Executive Council, which consisted of nine gentlemen who were to form the first Cabinet. Then the Governor-General proceeded, “with the advice of the Federal Executive Council,” to establish the following departments of State, viz.:

The Department of External Affairs.

The Attorney General's Department.

The Department of Home Affairs.

The Department of the Treasury.

The Department of Trade and Customs.

The Department of Defence.

The Postmaster-General's Department.

Finally the Governor-General appointed seven members of the Federal Executive Council to administer the Departments respectively allotted to them.note In accordance with the doctrine of ministerial responsibility, all the notifications

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of these executive acts were signed by Mr. Edmund Barton, the gentleman who had successfully undertaken the task of forming a Ministry.

On the establishment of the Commonwealth the departments of Customs and Excise in each State became transferred to the Commonwealth Government (sec. 69). Under Proclamations of the Governor-General, of Feb. 14th and Feb. 20th respectively, the departments of each State for “Posts, telegraphs, and telephones,” and “Naval and military defence,” were transferred on March 1st, 1901. Under sec. 70 the Commonwealth Government became invested in the transfer, with all the powers and functions of the States Governments in respect to the departments in question. The other departments referred to in sec. 69 have not yet (May, 1901) been transferred.

Note.—The Departments of State are in general sufficiently explained by their titles. The Premier has however explained some of the duties which belong to his own department—the Department of External Affairs—and to the Department of Home Affairs. The Minister for External Affairs will have to deal with immigration and emigration, the influx of criminals and the relations with England, communications with the Governor-General and the Home Government, also communications with the various States of the Union, the Executive Council and the officers of the Parliaments; also the railways of the Commonwealth. Some of these duties hardly fit in with the description “External Affairs”; but they mark out the office as one likely to be assumed, as in the first Ministry it has been assumed, by the Premier. The Department for Home Affairs includes public works, the question of the federal capital, the Inter-State Commission, the Federal elections, public service regulation, old-age pensions, and the acquisition and construction of railways where the States concerned have given their consent.note