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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.

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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.

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. 1.)

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.)

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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

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.

Ministers of State.

Ministers to sit in Parliament 279.

64. The Governor-General may appoint officers to administer such departments 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 State 278 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 r. 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.

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 Parliamentprovided 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.

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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

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