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authority could not be enlarged, lessened, or withdrawn by the Crown, and consequently the grant of powers by prerogative instruments was idle, and the attempt to define and limit the exercise of such powers was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