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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


  ― 214 ―
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.

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