House of Representatives simultaneously (sec. 57); the convening of a joint sitting of the members of the Senate and of the House of Representatives (sec. 57); the choice and summoning of Executive Councillors (sec. 62); the establishment of departments of State and the appointment of political officers to administer departments of State (sec. 64); the command of the naval and military forces of the Commonwealth (sec. 68); the proclamation of dates on which certain departments of the public service shall become transferred to the Commonwealth (sec. 69); the appointment of Justices of the High Court and of other Federal Courts (sec. 72); the drawing of money from the treasury of the Commonwealth in pursuance of appropriation made by law (sec. 83); the control of departments of the public service transferred to the Commonwealth (sec. 84); the appointment and control of public officers in the service of the Commonwealth (sec. 67). The foregoing are some of the powers and duties of the Federal Executive, as enumerated in the Constitution. But other powers, duties, and functions will hereafter form the subject of Federal legislation.

NATIONALISM OF THE EXECUTIVE.-The Executive Government established by this Constitution is essentially national in form, as well as in its powers and functions. It is true that the Council of the Crown, from which political officers to administer the departments of state are selected, is described as the Federal Executive Council. In that collocation the phrase "federal" is not inconsistent with "national." (Foster on the Constitution, I. p. 92.) In structure the Executive is certainly national. The framers of the Constitution refused to build it according to federal principles, by making it dependent upon or partly elected by the Senate. The Governor-General, as the official head of the Executive, does not in the smallest degree represent any federal element; if he represents anything he is the image and embodiment of national unity and the outward and visible representation of the Imperial relationship of the Commonwealth. In selecting his Prime Minister, the Governor-General will be constrained to choose the statesman who possesses the confidence of the people of the Commonwealth as a whole, and that confidence will be mainly evidenced by the majority which he can command in the national Chamber. In a speech delivered at Halifax in August, 1873, Lord Dufferin, then Governor-General of Canada, indicated the ideal position of a representative of the Crown as follows:

My only guiding star in the conduct and maintenance of my official relations with your public men is the Parliament of Canada. I believe in Parliament, no matter which way it votes; and to those men alone whom the deliberate will of the Confederate Parliament of Canada may assign to me as my responsible advisers, can I give my confidence. Whether they are heads of this party, or of that party, must be a matter of indifference to the Governor-General; so long as they are maintained he is bound to give them his unreserved confidence, to defer to their advice, and to loyally assist them with his counsels. As a reasonable being he cannot help having convictions on the merits of different policies, but these considerations are abstract and speculative and devoid of practical effect in his official relations. As the head of a constitutional State, engaged in the administration of Parliamentary government, the Governor-General has no political friends-still less can he have political enemies. The possession, or being suspected of such possession, would destroy his usefulness. (Leggo's Life of Lord Dufferin, 662.)

The powers and functions of the Executive of the Commonwealth are for the most part national. The execution and maintenance of the Constitution, the execution and maintenance of the Federal laws, and the Command-in-Chief of the naval and military forces, are the foremost attributes of a uational government. Annexed, however, to the Command-in-Chief of the naval and military forces are obligations of a federal character. One of those obligations is imposed by sec. 119, which requires the Commonwealth to protect every State against invasion, and, on the application of the Executive Government of the State, against domestic violence.

Executive power.

61. The executive power of the Commonwealth272 is vested in the Queen278, and is exerciseable by the GovernorGeneral273 as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

CANADA.-The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen. (B.N.A. Act, 1867, sec. 9.)

HISTORICAL NOTE.-In the Commonwealth Bill of 1891, the substance of this section was contained in clauses 1 and 8 of Chap. II. (Conv. Deb., Syd. (1891) pp. 777-8.)

At the Adelaide session, the clauses were introduced in the same form. In Committee, Mr. Reid and Mr. Carruthers suggested adding "in Council" after "GovernorGeneral." Mr. Reid argued that the prerogative, so far as the colonies were concerned, was limited to the right of assembling, proroguing, and dissolving Parliament, pardoning offenders, issuing proclamations, &c. Executive acts were always done on the advice of the Executive Council; the refusal to receive advice was not an Executive Act at all. Mr. Barton replied that Executive acts were either (1) exercised by prerogative, or (2) statutory. Constitutional practice would prevent the prerogative, except occasionally, being exercised without ministerial advice, and the words were unnecessary and opposed to usage. No amendment was moved. (Conv. Deb., Adel., pp. 908-15.)

At Sydney, Mr. Reid obtained the substitution of "exercisable" for "exercised "apparently to avoid a direction to the Queen, and make the words declaratory. (Conv. Deb. Syd., p. 782.)

At Melbourne, the words "and authority" (after "power") were omitted; and after the fourth report the two clauses were condensed into one. (Conv. Deb. Melb. p. 1721.)

$ 272. "The Executive Power of the Commonwealth.”

The expression, "The Executive power of the Commonwealth," must be read to mean the Federal Executive power as distinguished from the Executive power reserved to the States. As to the secondary meaning of the term "Commonwealth," in which it is equivalent in signification to Federal Government, see note, § 43, supra. The Executive power reserved to the States by the Federal Constitution is as much a part of the Executive power of the Commonwealth, as a united political community, as the Federal Executive power; both powers are but sub-divisions or fractions of the one quasi-sovereign power, as will appear in the following conspectus :—

Commonwealth quasi-Sovereignty

It may be said that the whole mass of the Executive authority of the Commonwealth is divided into two parts; that portion which belongs to the Federal Government, in relation to Federal affairs, being assigned to the Governor-General as the Queen's Representative, and that portion which relates to matters reserved to the States being vested in Governors of the States. The Executive authority reserved to the Governors

of the States, is of the same origin but of higher antiquity than that newly created authority conferred on the Governor-General. The State Executive authority is of as much importance within its sphere as the Federal Executive authority is within the Federal sphere. The Executive authority possessed by a State Governor, acting as the Queen's Representative in and for a State, is not of a subordinate nature, or of an inferior quality; it is of the same nature and quality as that possessed by the Queen's Representative acting in the name of the Commonwealth. See the arguments in the Attorney-General of Canada v. Attorney-General of Ontario (1892, 3 Ont. App. 6).

$273. "Vested in the Queen."

The Federal Executive power granted by this Constitution is vested in the Queen. This statement stereotypes the theory of the British Constitution that the Crown is the source and fountain of Executive authority, and that every administrative act must be done by and in the name of the Crown.

66

"We are at the present day so accustomed to think and to speak of the Government of Sir Robert Peel or Lord Russell, of Lord Derby or Lord Palmerston, that we almost overlook the Royal Personage whom these Statesmen serve. We forget the Queen for the Minister. The means, as so often happens, obscure the end; the object limited is lost in the limitation. Yet whatever may be our mode of speech, any such indistinctness of thought will effectually exclude all clear views of the Constitution. In our political system the Crown always has been and still is the sun." (Hearn's Gov. of Eng. p. 16.) They derive everything from the Crown, and refer everything to its honour and advantage. Nor is this less true of the modern form of our Constitution than it was of an age when the prerogative was exercised chiefly for the King's personal benefit. The lustre of the triple crown of the United Kingdom is not less brilliant than the lustre of that single crown of England which rested on the brows of our Henries and our Edwards. With us no less than with all our ancestors, ever since England was a nation, the Crown enacts laws; the Crown administers justice; the Crown makes peace and war and conducts all the affairs of State at home and abroad; the Crown rewards them that have done well, and punishes the evil doers; the Crown still enjoys the other splendid prerogatives which have at all times graced the diadem of England." (Id p. 17.)

In our analysis of sec. 1 of this Constitution we have seen that the dictum that "the Crown still enacts the law," is not strictly applicable to the legislative department of the Federal Government, seeing that by that section the legislative power is vested in a Federal Parliament, in which the Senate and the House of Representatives are co-ordinate branches with the Queen. The old theory of legislation has been encroached upon, to some extent, by that section. The dictum that the Crown conducts all the affairs of State," is still true in theory, and has been followed and maintained in form, by sec. 61, which says that the executive power of the Federal Government is vested in the Queen.

$ 274.

"Exercisable by the Governor-General.”

The Executive power vested in the Queen is exercisable by the Governor-General as the Queen's Representative. The Governor-General appointed by the Queen is authorized to execute, in the Commonwealth, during the Queen's pleasure and subject to the Constitution, such powers and functions as may be assigned to him by Her Majesty (sec. 2) and by the Constitution (sec. 61). Foremost amongst those powers and functions will necessarily be the execution and maintenance of the Constitution, and the execution and maintenance of the laws passed in pursuance of the Constitution.

Federal Executive Council.

62. There shall be a Federal Executive Council to advise the Governor-General275 in the Government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as the Executive Councillors, and shall hold office during his pleasure.

CANADA. There shall be a Council to aid and advise in the Government of Canada, to be styled the Queen's Privy Council for Canada; and the persons who are to be members of that Council shall be from time to time chosen and summoned by the Governor-General and sworn in as Privy Councillors, and Members thereof may be from time to time removed by the Governor-General.-B.N.A. Act, 1867, sec. 11.

HISTORICAL NOTE.-The clause in the Commonwealth Bill of 1891, which was adopted verbatim at Adelaide in 1897, only differed verbally from the section as it now stands. At Adelaide Mr. Glynn suggested that the Executive Council should consist only of Cabinet Ministers; but he moved no amendment. (Conv. Deb., Adel., p. 915-6.) At Sydney, Sir Richard C. Baker proposed to add "of six" after "Executive Council." This he intended as a test question between Responsible Government and Elective Ministers, and he proposed to follow it up, if it were carried, with a provision that three Ministers should be chosen by the Senate and three by the House of Representatives at the commencement of each Parliament, to hold office for three years unless a joint sitting of both Houses should otherwise determine. He thought Cabinet Government inconsistent with federation, because the one meant responsibility to one predominant House, and the essence of the other was two co-ordinate and approximately co-equal Houses. Dr. Cockburn supported the amendment; Mr. Higgins and Mr. Carruthers opposed it. It was negatived without division. (Conv. Deb., Syd., 1897, pp. 782-92.)

At Melbourne, drafting amendments were made before the first report and after the fourth report. (Conv. Deb., Melb., p. 2453.)

§ 275. "A Federal Executive Council to Advise the

Governor-General."

Whilst the Constitution, in sec. 61, recognizes the ancient principle of the Government of England that the Executive power is vested in the Crown, it adds as a graft to that principle the modern political institution, known as responsible government, which shortly expressed means that the discretionary powers of the Crown are exercised by the wearer of the Crown or by its Representative according to the advice of ministers, having the confidence of that branch of the legislature which immediately represents the people. The practical result is that the Executive power is placed in the hands of a Parliamentary Committee, called the Cabinet, and the real head of the Executive is not the Queen but the Chairman of the Cabinet, or in other words the Prime Minister. (Dicey, Law of the Const. p. 9.) There is therefore a great and fundamental difference between the traditional ideal of the British Constitution, as embodied in sec. 61, giving full expression to the picture of Royal authority painted by Blackstone (Comm. I. p. 249) and by Hearn (Gov. of Eng. p. 17), and the modern practice of the Constitution as crystallized in the polite language of sec. 62, "there shall be a Federal Executive Council to advise the Governor-General in the Government of the Commonwealth." (See Note on the Cabinet, p. 382, supra.)

"There are perhaps few political or historical subjects with respect to which so much misconception has arisen in Australia as that of Responsible Government. It is, of course, an elementary principle that the person at whose volition an act is done is the proper person to be held responsible for it. So long as acts of State are done at the

volition of the head of the State he alone is responsible for them. But, if he owns no superior who can call him to account, the only remedy against intolerable acts is revolution. The system called Responsible Government is based on the notion that the head of the State can himself do no wrong, that he does not do any act of State of his own motion, but follows the advice of his ministers, on whom the responsibility for acts done, in order to give effect to their volition, naturally falls. They are therefore called Responsible Ministers. If they do wrong, they can be punished or dismissed from office without effecting any change in the Headship of the State. Revolution is therefore no longer a necessary possibility; for a change of Ministers effects peacefully the desired result. The system is in practice so intimately connected with Parliamentary Government and Party Government that the terms are often used as convertible. The present form of development of Responsible Government is that, when the branch of the Legislature which more immediately represents the people disapproves of the actions of Ministers, or ceases to have confidence in them, the head of the State dismisses them, or accepts their resignation, and appoints new ones. The effect is that the actual government of the State is conducted by officers who enjoy the confidence of the people. In practice they are themselves members of the Legislature. The sanction' of this unwritten law is found in the power of the Parliament to withhold the necessary supplies for carrying on the business of the Government until the Ministers appointed by the Head of the State command their confidence. In practice, also, the Ministers work together as one body, and are appointed on the recommendation of one of them, called the Prime Minister. And, usually, an expression of want of confidence in one is accepted as a censure of all. This is not, however, the invariable rule; and it is evidently an accidental and not a fundamental feature of Responsible Government." (Sir Samuel Griffith, Notes on Australian Federation, 1896, pp. 17-18.)

The gradual transfer of the executive power from the sovereign to Responsible Ministers forms one of the most remarkable and interesting revolutions recorded in the history of England. Ever since the resignation of Sir Robert Walpole in 1742, it has been recognized that the Crown could not for any length of time continue to carry on the government of the country, except through Ministers having the confidence of the House of Commons. That constitutes the essence of Responsible Government. It was the great ambition of the framers of the Australian Constitutions of 1855-6 to acclimatize, in the colonies which they were then helping to found, the system thus known as Responsible Government. The Constitution Act of New South Wales, as well as those of Victoria and South Australia, contained a clause which to some extent amounted to a statutory recognition of that system. It was to the effect that "the appointment of all public offices under the Government of the colony hereafter to become vacant or to be created, whether such offices be salaried or not, shall be vested in the Governor with the advice of the Executive Council, with the exception of the appointments of the officers liable to retire from office on political grounds, as hereinafter mentioned, which appointments shall be vested in the Governor alone. Provided always that this enactment shall not extend to minor appointments which by the Act of the Legislature or by order of the Governor and Executive Council may be vested in heads of departments or other officers or persons within the colony." (Sec. 37.)

Annexed to each of those Constitutions was a civil list providing compensation for the holders of high departmental offices in each colony on their retirement from office on political grounds. The Constitution of South Australia was clear in the expression of its intention to introduce Responsible Government, for, by sec. 32, it required the holders of certain public offices to occupy seats in Parliament; whilst sec. 39 was particularly explicit in its intention that officers administering public departments would have to retire from office upon their ceasing to retain the confidence of the Colonial Parliament.

The Federal Executive Council is founded on the model of the Executive Council established in each colony. The members of the Executive Council will be chosen, summoned and sworn in by the Governor-General; they will hold office during his pleasure, in the same manner that members of the Executive Council in each State are chosen, summoned, sworn in, and hold office.

It must be remembered, however, that the Executive Council as created by statute is not the Cabinet as known in parliamentary practice. The Cabinet is an informal