CHAPTER II.-THE EXECUTIVE GOVERNMENT. Executive Power. 61. The executive power of the Commonwealth is vested in the Queen and is exerciseable by the GovernorGeneral as the Queen's representative, and extends to the execution 108 and maintenance of this Constitution, and of the laws of the Commonwealth. § 108. "EXECUTION AND MAINTENANCE.” Executive Power. In the case of Huddart Parker & Co. Proprietary Ltd. v. Moorehead, (1909) 8 C.L.R., 330, attention was drawn to the fact that, by section 101 of the Constitution, the Inter-State Commission is endowed with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder." The question was raised to what extent, if any, this grant of power to the Commission involved a withdrawal of power from the Executive Government. The validity of section 15B of the Australian Industries Preservation Act was questioned on the ground that it vested in the Comptroller-General of Customs authority which under section 101 of the Constitution could only be vested in the Inter-State Commission. The High Court held that the power of inquiry vested in the Comptroller-General was not one of the matters entrusted to the Inter-State Commission, and that the execution and maintenance cf the trade and commerce laws was not in abeyance till the Commission was established. Mr. Justice ISAACS said (at p. 387):-"It is hard to perceive the limit of the operation of such a contention. Ministerial control and to a great extent judicial action, would be entirely superseded, ' in the ordinary operation of government by a body entirely independent of the Executive, and not responsible to Parliament, and not necessarily trained in the law. Its duties could not be fulfilled without an immense staff all over Australia operating side by side with, but altogether separate from, the regular members of the public service. I am quite unable to accept this view of the section. If for any reason Parliament thought it desirable to invest the Inter-State Commission when created with the duties of inquiry under the Australian Industries Preservation Act, it could certainly do So, but I cannot agree that the only alternative to this is executive paralysis in regard to all the trade and commerce provisions established by the Constitution or enacted by the Legislature. And yet that extraordinary position is essential to this branch of the appellants' argument." It was also contended in the same case that this power of inquiry, being in the nature of compulsory discovery in aid of criminal proceedings, was essentially judicial, and could not be vested in an executive officer (see section 71 of the Constitution); being analogous to the examination of witnesses before a justice with a view to the commitment of an accused person for trial on indictment. The Chief Justice, Sir SAMUEL GRIFFITH, accepted the analogy, but held, on the authority of Cox v. Coleridge, 1 B. & C., 37, that the functions of an examining justice in such a case were not judicial, but executive; and held accordingly that section 15в of the Australian Industries Preservation Act was not an invasion of the judicial power and was valid (at pp. 355-357). State Interference. An attempt by a State, by legislative or executive act, to interfere in any way with the free exercise of the executive power of the Commonwealth is invalid and inoperative unless expressly authorized by the Constitution: D'Emden v. Pedder, 1 C.L.R., 91. See p, 85, supra. Federal Executive Council. 62. There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members109 of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure. § 109. "MEMBERS OF THE COUNCIL." Honorary Ministers. It has been the practice in the Commonwealth, on the formation of a Ministry, to appoint one or more Executive Councillors without portfolios, in addition to the "Ministers of State" provided for by section 64. These "Ministers without portfolio," or "honorary or assistant Ministers," as they are called, often assist in the administration of one or other of the departments. But, though members of the Cabinet and of the Executive Council, they are not "Ministers of State" within the meaning of the Constitution. They cannot therefore exercise functions which by statute are required to be performed by a Minister of State; but as Executive Councillor they can sign executive minutes, and countersign documents for signature by the Governor-General. In England, Cabinet Ministers on resigning their portfolios retain the title of Privy Councillor, though they cease to be sum-, moned to meetings of the Council. The same practice holds in the Canadian Privy Council, and in the Executive Councils of some of the Australian States (e.g. Victoria). Provisions Referring to Governor-General. 63. 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. Ministers of State. 64. The Governor-General may appoint officers to administer such departments110 of State of the Commonwealth as the Governor-General in Council may establish. Ministers to sit in Parliament. 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 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. § 110. "DEPARTMENTS OF STATE . MAY ESTABLISH.” Upon the inauguration of the Commonwealth the following departments of State were established by the Governor-General under the authority of this section. The Commonwealth Treasury, 1st January 1901. The Attorney-General's Department, 1st January 1901. The following new departments were subsequently established under the same section. On the 14th November 1916, the Department of External Affairs was abolished and its functions were taken over by an amalgamated department now known as the Home Affairs and Territories. 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. § 111. "MINISTERS OF STATE.” LEGISLATION. MINISTERS OF STATE ACT 1915. The number of Ministers of State was by this Act increased from seven to eight and the appropriation of £12,000 a year for the salaries of such Ministers was increased to a sum not exceeding £13,650 per year This was to provide for the appointment of a Minister for the Navy. MINISTERS OF STATE ACT 1917. The number of Ministers of State was increased to nine and the salaries of the Ministers of State was increased to a sum not exceeding £15,300 per year. This was to provide for the appointment of a Minister for Repatriation. Salaries of Ministers. 66. There shall be payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for the salaries112 of the Ministers of State, an annual sum which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year. § 112. “SALARIES OF THE MINISTERS." LEGISLATION. MINISTERS OF STATE ACT 1915-1917 The lump sum of £12,000 payable per year among Ministers of State has been increased to £15,300 per year. In Deakin v. Webb, 1 C.L.R., 585, the High Court held that the salaries of Ministers were not liable to assessment under the Income Tax Acts of a State. The Commonwealth Salaries Act 1907, however, authorizes the taxation by a State of the salary, earned in the State, of a Minister being a member of Parliament elected in the State; if the taxation is not at a higher rate or to a greater extent than is imposed on other salaries of the same amount earned in the State; and this Act has been held to be valid. Appointment of civil servants. 67. Until the Parliament otherwise provides, the appointment112A 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. |