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The above debate is valuable, not merely as a guide to the intentions of the framers, but as an exposition of the meaning of the words under discussion. It remains, however, to discuss some other aspects of the matter.

The object of the words is to secure a formal recognition of the authority of the Ministers of the Commonwealth individually and collectively. But they do more than that; they formally recognize, not indeed every phase or feature of what is currently known as responsible government," but the existence of a body something like a Cabinet within the Executive Council-a committee whose members are individually Ministers of Departments, and collectively the Queen's Ministers of State for the Commonwealth." In other words, some kind of Cabinet, or Ministry, as distinct from the Executive Council, or from its English equivalent the Privy Council, has a status recognized by the express words of the Constitution. The Ministers must all be members of the Executive Council, but the members of the Executive Council need not all be Ministers; and thus the Constitution expressly makes the distinction, for which Mr. Deakin contended, between the merely titular members of the Federal Executive Council, and the responsible Ministers of the Crown.

One other point deserves mention. In some of the Australian colonies the practice has grown up of including in the Cabinet one or more "Ministers without portfolios;" that is to say, members of the Executive Council who join in the deliberations of the Ministry, and represent it in one of the Chambers, but who do not administer any department. This practice is especially resorted to in order to secure the adequate representation of a Ministry in the Upper House; but it does not appear to be contemplated by this Constitution. The heads of the chief departments are to be “ the Queen's Ministers of State "-a phrase which appears to mean not only that these officers are to be Ministers of the Queen, but that they are to be the Ministers of the Queen ; in other words, that all the Ministers of State are to administer departments of State.

$ 279. "Ministers to sit in Parliament."

The appointment of a Federal Ministry will necessarily precede the election of the first Federal Parliament. There must be a Ministry to assist and advise the GovernorGeneral in the performance of Executive Acts essential for the conduct of the first general election. The first Federal Ministry cannot at their appointment be members of the Federal Parliament, because at the time of their appointment there is no such Parliament in existence. After the first general election, however, no Federal Minister is permitted to hold office for a longer period than three months, unless he is or becomes a senator or a member of the House of Representatives.

Section 32 of the Constitution Act of South Australia (4th January, 1856) contained a similar provision, viz., that after the first general election of the South Australian Parliament, no person should hold the offices of Chief Secretary, Attorney-General, Treasurer, Commissioner of Crown Lands and Immigration, or Commissioner of Public Works, for more than three calendar months, unless he should be a member of the Legislative Council or House of Assembly. The Constitution Act of Victoria (consolidated 10th July, 1890), sec. 13, provides that there may be ten Responsible Ministers of the Crown, of whom not less than four shall be members of the Legislative Council or Legislative Assembly, and not more than eight shall be members of the Assembly. The Constitution Act of Western Australia contains somewhat similar provisions.

Number of Ministers.

65. Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs.

HISTORICAL NOTE. In the Bill of 1891, and in the Adelaide draft of 1897, this clause occurred with merely verbal variations. (Conv. Deb., Adel., . 916.)

At the Sydney session, in 1897, an amendment of the Legislative Council of Victoria, that two Ministers at least should be senators, was negatived on division by 19 votes to 13. (For a similar proposal in 1891, see Historical Note, sec. 64.) Mr. Dobson then moved that if there were five Ministers, one should be a senator, and if there were seven, two should be senators. This was negatived by 20 votes to 12. (Conv. Deb., Syd.,

1897, pp. 799-806.)

At Melbourne, drafting amendments were made before the first report, and after the fourth report.

Salaries of Ministers.

66. There shall be payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for the salaries of the Ministers of State, an annual sum which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year.

HISTORICAL NOTE.-As originally drafted in 1891, the clause ran :-"There shall be payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for salaries of such officers, a sum not less than fifteen thousand pounds per annum.” In Committee, at the suggestion of Mr. Adye Douglas, it was amended on the motion of Sir Samuel Griffith by fixing the amount at £15,000 "until other provision is made by the Parliament." (Conv. Deb., Syd., 1891, pp. 776-7.)

At Adelaide, the clause was introduced and passed in substantially the same form, with the substitution of £12,000 for £15,000.

At Sydney, the words were altered to "a sum not exceeding £12,000." A suggestion of the Legislative Council of Tasmania, to reduce the amount to £10,000, was negatived. (Conv. Deb., Syd., 1897, p. 806.)

At Melbourne, a drafting amendment was made before the first report.

Appointment of civil servants 280.

67. Until the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth shall be vested in the Governor-General in Council, unless the appointment is delegated by the Governor-General in Council or by a law of the Commonwealth to some other authority.

HISTORICAL NOTE.-Clause 7 of chap. II. in the Bill of 1891 was substantially similar. At Adelaide the clause was first framed as follows:-" Until the Parliament

otherwise provides, the appointment and removal of all other officers of the Government of the Commonwealth shall be vested in the Governor-General in Council." In Committee, Mr. Wise, with a view to preventing the introduction of the "spoils" system, moved to add-" Provided that no such officer shall be removed except for cause assigned." This was negatived by 28 votes to 8. (Conv. Deb., Adel., pp. 916-20.)

At Sydney the following words were added as a drafting amendment :---“ except officers or persons whose appointments may be delegated by the Governor-General in Council or by a law of the Commonwealth to some other officer or person." At Melbourne further drafting amendments were made before the first report.

$280. "Appointment of Civil Servants."

The appointment and removal of all Federal officers, other than the Queen's Ministers of State, is vested in the Governor-General in Council. Pending the adoption of Federal laws regulating such appointments and removals the Governor-General in Council is empowered to delegate the making of appointments to some subordinate Federal authority, such as a Board or a commission. It does not seem that the GovernorGeneral in Council can delegate to such a body the duty of deciding upon the removal of officers; though of course the Federal Parliament can do so.

This section must be read in conjunction with sec. 84, which provides that when any department of the public service of a State is transferred to the Commonwealth, all officers of the department whose services are retained become subject to the control of the Executive Government of the Commonwealth, but preserve all their existing and accruing rights.

Command of the naval and military forces.

68. The command in chief281 of the naval and military forces of the Commonwealth is vested in the GovernorGeneral as the Queen's representative.

CANADA. The Command-in-Chief of the Land and Naval Militia, and of all Naval and
Military Forces, of and in Canada, is hereby declared to continue and be vested in the
Queen.-B.N.A. Act, 1867, sec. 15.

HISTORICAL NOTE.-Clause 9 of Chap. II. of the Bill of 1891 was in almost identical words, as was also the clause adopted at Adelaide. Compare Volunteer Act, 1867 (N.S. W.), sec. 4.

At Melbourne, Dr. Cockburn (for Mr. Deakin) moved to substitute "acting under the advice of the Executive Council” for “as the Queen's Representative." A debate upon the exercise of prerogative powers followed, and the amendment was negatived. (Conv. Deb., Melb., pp. 2249-64.) Drafting amendments were made before the first report and after the fourth report.

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The command-in-chief of the naval and military forces of the Commonwealth is, in accordance with constitutional usage, vested in the Governor-General as the Queen's Representative. This is one of the oldest and most honoured prerogatives of the Crown, but it is now exercised in a constitutional manner. The Governor-General could not wield more authority in the naval and military business of the country than he could in the routine work of any other local department. Of what use would be the command without the grant of the supplies necessary for its execution? All matters, therefore, relating to the disposition and management of the federal forces will be regulated by the Governor-General with the advice of his Ministry having the confidence of Parliament. (Todd's Parl. Gov. in Col. 2nd ed. p. 377.)

The Governor of a colony, though bearing the title of Commander-in-Chief, is not invested with the command of Her Majesty's regular forces in the colony without special appointment. He is not entitled to take the immediate direction of military operations, or, except in cases of urgent necessity, to communicate officially with subordinate military officers. (Revised Regulations, Colonial Office List, 1892, p. 301.)

Transfer of certain departments.

69. On a date or dates to be proclaimed by the GovernorGeneral after the establishment of the Commonwealth, the following departments of the public service in each State shall become transferred 282 to the Commonwealth :

Posts, telegraphs, and telephones :

Naval and military defence:

Lighthouses, lightships, beacons, and buoys :
Quarantine.

But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its establishment.

HISTORICAL NOTE.-The clause as passed in 1891 was :

"The control of the following Departments of the Public Service shall be at once assigned to and assumed and taken over by the Executive Government of the Commonwealth, and the Commonwealth shall assume the obligations of any State or States with respect to such matters, that is to say-Customs and Excise, Posts and Telegraphs, Military and Naval Defence, Ocean Beacons and Buoys, and Ocean Lighthouses and Lightships, Quarantine." (Chap. II. sec. 10.)

In Committee, Mr. Wrixon asked whether sub-departments attached to the Customs department (e.g., Immigration Office, or Mercantile Marine Office) would be included. Sir Samuel Griffith was clear that they would not. Mr. Baker raised the question whether telephones would be included in "Posts and Telegraphs." Mr. Douglas thought that the Customs and Excise Department was the only one which need be taken over at He moved to omit "Posts and Telegraphs," and also "Ocean Beacons," &c.; but this was negatived. (Conv. Deb., Syd., 1891, pp. 778-9.)

once.

At the Adelaide session the clause was introduced in substantially the same words. In Committee Mr. Higgins raised the question whether “obligations" included public debts. Mr. Barton thought that only current obligations were meant. Mr. Walker moved to add "railways," but after a short debate this was negatived by 18 votes to 12. (Conv. Deb., Adel., pp. 920-34.) Verbal amendments were made on reconsideration. (Id. pp. 1201-2.)

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At Melbourne, a suggestion of the Legislative Assembly of New South Wales, to provide for the transfer as soon as possible after" the establishment of the Commonwealth, was negatived, and a suggestion of the Legislative Council of New South Wales, to provide for the transfer on "a date to be proclaimed by the Governor-General after" the establishment, was adopted. On Mr. Barton's motion, the words Executive Government of the" were omitted. Sir John Forrest suggested that the internal posts and telegraphs of each State should be retained, as the existing postal union was sufficient. On Dr. Quick's motion, "telephones" were added. (Conv. Deb., Melb., pp. 262-5.) Drafting amendments were made after the first report and before the fourth report.

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By the operation of the Constitution, and without the necessity of any other formal act, the departments of Customs and Excise in each State will become transferred to the Commonwealth simultaneously with the establishment of the Commonwealth, on 1st January, 1901, the day named in the Queen's proclamation (clause 4). The other departments of the Public Service in each State enumerated in this section will become transferred to the Commonwealth on the date or dates to be proclaimed by the GovernorGeneral.

In addition to the departments mentioned in this section, which will become transferred without the necessity of federal legislation, there are other departments which will come under the control of the Commonwealth whenever the Federal Parliament chooses to authorize their transfer; such as Astronomical and Meteorological Observations (51.-viii.); Census and Statistics (51.-xi.); Currency and Coinage (51.xii.); Bankruptcy and Insolvency (51.-xvii.); Copyrights, Patents, and Trade Marks (51.-xviii).

REVENUE AND EXPENDITURE.-One result of the transfer of a department will be that the State from which it is transferred will be relieved of the annual expenditure in respect of the department and the property used in connection therewith, and will be compensated for the value of such property. Another result will be that the State will be deprived of the revenue received in connection with the department.

The following table, based on a return presented to the Convention at the Melbourne session (Conv. Proceedings, Melb., p. 231) shows:-(1) the annual expenditure of which each State will be relieved in respect of the above mentioned services, together with interest at 3 per cent. on the value of property used in connection therewith; (2) the annual revenue of which each State will be deprived in connection with such services (apart from the taxation revenue from duties of Customs and Excise). The figures are those of 1896 or 1895-6:

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