Clark pp 209-256

Chapter 8 - The Executive.

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The chapter considers the powers and responsibilities of the Executive.

“Executive” embraces a range of forms: The Crown, the ministers and the public service.

8.2 “The Crown”

Many meanings of the term “The Crown” exist. Some of these are:

  • A piece of royal regalia
  • The body politic
  • The Crown as a corporation sole in law (has ‘perpetual continuance’)
  • Used as a synonym for the monarch
  • Used to stand for the executive
  • The Crown in Australia as opposed to the Crown in the UK1
  • The Crown in Right of the various States
  • The Crown in Right of the Commonwealth (representing political units that emerged at federation).

8.3

  • Australia has a system of constitutional monarchy, which means that the head of state is the Queen of the United Kingdom. This is determined by birth, hereditary principle and British statute law:
  • The throne goes to the eldest male heir of a reigning monarch
  • If there are no sons, the throne goes to the eldest daughter
  • The new monarch must be a Protestant (the King/Queen of the UK is also head of the Anglican/Protestant church. Kinda like a British Pope for non-Catholics)
  • Even when a monarch dies in law, the monarch never dies.
  • If the monarch “died”, all appointments by the monarch (e.g. Judges) would terminated and could only be renewed by the new King or Queen.

8.4

  • The Queen has little to no involvement in the actual running of Australia.
  • The only routine functions she performs is to appoint the Governor, Governor-General and judges (on advice of Australian ministers).
  • There is an exception when she visits Australia: in 1953 when Queen Elizabeth visited Australia, it was necessary to pass legislation allowing her to exercise the statutory powers of a Governor-General.
  • She may assent to any legislation passed during her visit.

8.5 The Governor as the Crown representative

  • The Queen is represented in Australia by a Governor-General for Australia as a whole, and a Governor for the states.
  • In Northern Territory and Norfolk Island, the Crown is represented by an Administrator, the constitutional equivalent of a State Governor.
  • In ACT, the Governor-General performs many of the duties of a Crown Representative as there is no Governor or Administrator.
  • The Queen formally appoints the Governor or Governor-General, but usually always on the advice of the Prime Minister or Premier, and the appointee is always an Australian citizen.
  • They may be dismissed on the advice of the Prime Minister or Premier.

8.6-8.10 The Deputy Governor

  • In States and Territories with Crown representative, provision has been made for a deputy to the Governor (The ‘Lieutenant-Governor”).
  • The L-G stands in for the Governor when they are outside the State or Territory
  • Before air travel, there were often long gaps between the leaving of one Governor and the arrival of their successor.
  • The Chief Justice of the state was routinely made the Deputy
  • They exercised the powers of the Governor simultaneously with those of their judicial office.
  • Had strengths and weaknesses
  • The L-G would be aware of the constitutional and legal aspects of the office
  • The holding of the two offices simultaneously could create incompatibility with each other.
  • As of 1919, an L-G who was also Chief Justice could not hear criminal cases as they may be required to exercise the royal prerogative of mercy in cases where they had presided at the trial.
  • This avoided the most obvious conflicts as the death penalty was still carried out and the royal prerogative of mercy would often be sought.
  • Many L-Gs these days are not also CJs.
  • There is provision in s126 of the Commonwealth Constitution for the appt of a Deputy Governor-General; however until 2006 no such appointment had been made.
  • Should the G-G resign or be dismissed, they would be replaced by the senior State Governor who would take up the role of Administrator.
  • In the event that the Governor dies and there is no Deputy, provision is made for the appointment of an Administrator
  • Normally the Chief Justice.

8.11-8.14 The Executive Council.

  • The official body in Australia by which much formal legal and constitutional business is transacted.
  • Numerous powers are conferred upon the Governor in Council.
  • The Executive Council advises the Governor
  • The membership of the Council consists of the leading ministers of the Government of the day.
  • The Governor presides at meetings of the Council, though the no. of members present may be small. The legal quorum in NSW is only 2.
  • It is not a deliberative body and the Gov. does not reject formal advice given by it.
  • The Gov. May ask questions of the ministers or seek further information.

8.15-8.18 The Cabinet and the Premier

  • The Constitutions (except in QLD)do not refer to the Cabinet, the Premier or Prime Minister and organised political parties.
  • Some argue that they should be changed to bring them into line with contemporary realities.
  • The statute law and some cases DO mention these institutions.
  • All FOI (freedom of information) statutes refer to Cabinet and Cabinet documents
  • Numerous Acts refer to the Prime Minister, the Chief Minister and the Premier as the case may be.
  • In the case of State Premiers, there are numerous state powers
  • These are mainly for ministerial disputes and interstate relations.
  • In NSW the Premier is empowered to declare a state of emergency.
  • The term Premier emerged in law and constitutional practice slowly.
  • Head of admin in parliament was “colonial secretary” before responsible govt.
  • Commentators have referred to Cabinet as of major importance in the running of govt.
  • It lacks formal legal status.
  • The Cabinet came into existence as a committee of the Privy Council in the 17th C.
  • Developed in the 18th century as a private meeting of ministers in the absence of the monarch.
  • The Cabinet was intended to be separate from the formal const. machinery
  • However it wields real power in the parliamentary system.
  • The Premier or Chief Minister holds additional ministerial portfolios and will exercise statutory powers as the Cabinet is not subject to judicial review.

8.19 The Ministers

  • Not all ministers in the Commonwealth are members of the federal Cabinet.
  • The number of ministers is set by statute.
  • The administration of an Act is usually assigned to a specific minister
  • They will be responsible for the powers and duties of that Act
  • “Minister” in law includes deputy, assistant, or acting minister should the normal minister be absent.

8.20 The Public Service

  • Not part of the political Executive
  • Consists of a career service
  • Function is to formulate and execute govt. policy.
  • Each service is subject to its own legislation

8.21-8.26 Powers of the Executive at Common Law

  • A Governor is not a Viceroy
  • Only has powers as delegated by their commission.
  • A Governor can be held accountable in the courts for acts in office.
  • Governors have been sued for assault and false imprisonment.
  • Governors cannot be compelled to give evidence in a matter in respect of issues that arose before theu assume office.
  • There has been a major shift in the role of the Governor
  • Used to exercise real executive power
  • Now generally only acts on advice of ministers.
  • The Governor has a right to be consulted, a right to encourage and a right to their advisors.
  • Normally, the Governor must comply with the advice given.
  • The Governor has all the powers and functions of Her Majesty in respect of a state
  • Except for the power to appoint and remove a state Governor.

MAJOR POWERS:

  • To assent to bills passed by the parliament
    • Largely ceremonial
  • To summon, prorogue and dissolve parliament
    • Statutory power
    • Prorogue: temporary abeyance, bills pending before the parliament lapse
    • Only resumes if the Governor summons it again.
    • Dissolution can only be resolved by an election.
  • To remove or suspend persons appointed by the Crown
    • Now controlled by legislation
    • Not susceptible to judicial review.
  • To exercise the prerogative of mercy
    • Still exists in Federal and State jurisdictions
    • They exercise the power on the advice of advisors.

8.27. The Royal Prerogative

  • Originally all power reposed in the sovereign.
  • Was main form of executive power, and almost limitless.
  • 17th Century, Judges decided:
  • Whether or not a prerogative exists is decided by the courts, not the King.
  • King cannot judge cases personally
  • King cannot legislate on his own motion
  • Cannot arrest or detain persons purely on his say-so.
  • Prerogative has been eroded or displaced.
  • Is now a residue of royal power not based in statute.
  • Now part of the common law (technically)
  • Pr. powers still exist in Australia
  • Governors and Gov-Generals are appointed under Royal Prerogative.
  • The offices are created by prerogative legislation, issued in the UK by the Queen.
  • Pr. is apparently conferred on Aus. heads of state by reception from the UK
  • It is arguable whether they have all the pr. of the UK Crown.
  • A Gov. or Gov-Gen. Is not a Viceroy (does not have all the powers of the Crown)
  • Pr. power cannot be enlarged by the executive by indirect means
  • It can be enlarged by statute.

8.29 Scope

  • Royal pr. assigned by federal systems to Governors and Gov-Generals.
  • Relate to national affairs i.e. foreign relations and war .
  • Also responsible for award of Honours under Order of Australia.

8.30

  • For State Govs, the main pr. is the prerogative of mercy
  • This is the power to pardon or remiss a sentence.
  • Very wide power
  • Can be pre-or post-trial.
  • May be general or conditional.
  • Not the equivalent of an acquittal as the person has been convicted.
  • May be set up as a special plea in later criminal trials of the same offense
  • Does not cover other offenses
  • Must be evidenced by high degree of formality.
  • Usually the Gov. or Gov-Gen act on the advice of ministers (usually Attorney-General).

The courts can review three questions: whether the prerogative exists, its extent and whether or not it has been displaced by legislation. SOME prerogatives are regarded as beyond Jud. review like prerogative of mercy.

8.33-8.43 Displacement or ouster

  • There is an argument as to whether a pr. may be abolished by statute
  • Additionally, if the statute is repealed, does the pr. revive?
  • Can they cease to exist by either non-use or convention?
  • Abolition
    • Bill of Rights 1688 (Eng) is said to have abolished the dispensing power.
  • Displacement
    • Prerogative as part of common law may be altered by parliament through legislation
    • May be done explicitly or implicitly.
  • Lost by desuetude
    • It is unclear whether or not prerogatives can cease to operate through non-use.
  • Retention of the prerogative
    • In some cases, legislation lovers the same area covered by prerogative, but the legislature wishes to retain the prerogative.
    • This is done by expressly saying so in relevant legislation.
  • Appointing ministers and members of Exec. Council
    • Formally appoints ministers
    • Done on advice of Premier
    • Gives formal legal authority to ministers.
  • Issuing writs for elections.
    • The Governor or Governor-General can formally issue writs to call elections for the Senate.
  • issuing writs for the election of senators
    • an important role.
    • Senate vacancies are to be notified to the Governor.
    • Elections of senators are initiated by the Governor.
  • Exercising statutory powers conferred upon the Gov or Gov in Council
    • Numerous powers.
    • Largely ceremonial, i.e. Gov-Gen does not command the armed forces but acts on advice of the ministry.
  • Making regulations and issuing proclamations
    • Governor can make regulations
    • Can also proclaim legislation.
  • The conduct of ceremonial functions
    • Include the opening of parliament
    • reading speech at opening of each parliament session
    • awarding of honours
    • general involvement in significant occasions.

8.44-8.46 Review by the courts

  • Governor of a State is subject to judicial review for the exercise of their statutory powers.
  • The Governor-General’s decisions are beyond the reach of review by the Administrative Decision Act 1977.

POWERS OF THE EXECUTIVE: CONVENTIONS

8.47-8.49 Conventions of the constitution.

  • Public law includes informal aspects of the constitutional system.
  • Referred to as constitutional conventions
  • Rules, but not of a legal nature, therefore cannot be enforced.
  • The courts can declare whether a convention exists or not
  • Conventions include the following:
    • If the opposition obtains a majority at the polls the govt. must resign forthwith;
    • The Prime Minister should have the support of the legislature, esp. the Lower House
    • Ministers must have the confidence of the house
    • The Gov-Gen could refuse consent to a bill but by convention they cannot because (i.e.) they do not agree with its policy.
  • There are conventions associated with elections
  • The govt. of the day becomes caretaker once election is called
  • it cannot make any major appointments or decisions without first consulting the Leader of the Opposition
  • Based upon custom and precedent
  • Political practice rather than any established law
  • They are not enforced by law nor are they common law.
  • Attempts have been made to codify the conventions of the constitution.

8.50 The Conventions: The Governor acts on the advice of the ministry

  • This requirement is rarely stated in such terms in statutes although it has been done in various Letters Patent
  • Where this is not stated, there is a convention that the Gov. will so act.
  • This is implied from the fact that when the Gov. acts in Council they are acting on the advice of their advisors.
  • Also gathered from constitutional practice
  • Evidenced by various Cabinet handbooks
  • Has been acknowledge by various holders of the Governor’s office

8.51-8.60 The Exception: Reserve powers and constitutional crises

  • There are powers held in reserve
  • The governor may act in absence of advice or contrary to advice
  • Where the advice was contrary to constitution or other laws
  • Reserve powers are intended to deal with abnormal constitutional situations
  • Largely guided by constitutional practice and the judgment of the Gov or Gov-Gen.
  • Can dismiss a Premier
  • Can dissolve the parliament
    • Towards the end of the parliamentary term in order to hold a State election
    • Where a sitting Premier with a secure majority in the Lower House advises a dissolution
    • Where a sitting govt. has been defeated on the floor of the Lower House in a vote of no confidence, or on a matter such as the budget or other essential legislation
    • The House is deadlocked because of the balance of parliamentary forces and the only way out is to dissolve the parliament and hold an election
    • Despite having a secure majority in the Lower House, the Upper House has defeated key government measures on several occasions, though a single defeat may be sufficient
    • An election has been held and the parties are so evenly balanced that it is unclear before the new parliament meets whether the government can command a majority in the Lower House.
    • Where a Premier anticipates defeat on the floor of the House and seeks a dissolution to head of the defeat
    • Where a premier has been dismissed and the incoming Premier requests a dissolution so that an election could be held
    • Given that the power to dissolve parliament is not normally conditioned by any of these considerations, since these are a guide to constitutional prudence and not legal rules, the Governor could dissolve Parliament at any time and for any reason.
      • this is unheard of in Australia.

8.61 No power to tax without legislative assent

  • The executive cannot raise money without the approval, in the form of legislation, of the parliament.
  • Unless statute has spoken very distinctly, there is no power to levy money
  • No part of the public revenue can legally be appropriated to or used for any purpose to which it has not been appropriated by Parliament.