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 GovernorGeneral 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

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 GovernorGeneral 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 GovernorGeneral, 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.1

The Ministers of State.-After the Federal Executive Council come the Queen's Ministers of State for the Commonwealth, who are appointed by the GovernorGeneral "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

1 For a consideration of the relative merits of the Victorian and New South Wales system, see correspondence between Sir A. Helps and Sir H. Parkes, Fifty Years in the making of Australian History, Parkes, vol. i., p. 305.

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 Parliament1 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 re

'The curiously worded § 65 may be found to have some bearing on this subject.

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.1

The Ministers of State.-After the Federal Executive Council come the Queen's Ministers of State for the Commonwealth, who are appointed by the GovernorGeneral "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

1 For a consideration of the relative merits of the Victorian and New South Wales system, see correspondence between Sir A. Helps and Sir H. Parkes, Fifty Years in the making of Australian History, Parkes, vol. i., p. 305.