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The Executive Notes

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7. The Executive Constitutional Text

* Queen: in Australia, the Queen is represented in each State by its Governor and at the Commonwealth level by the Governor-General.

* Governor-General: Constitution says nothing about how the GG is to be selected or the circumstances in which he or she can be dismissed.These matters are governed by unwritten constitutional convention.

* In appointing a GG, the King "should act on the advice of His Majesty's ministers in the Dominion concerned'.

Composition of the executive Vested in whom? s 61

* Queen

* Exercisable by the Governor-General as the Queen's representative
*> The Governor-General shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him: s 2
Even in their higher executive functions, monarchs must act on the advice of their ministers, who must be members of Parliament and ultimately responsible to it --> responsible government. Includes:

* Execution and maintenance of this Constitution, and of the laws of the Commonwealth: s 61
*> Execution
- The appointment of all other officers of the Executive Government: s 67
- The appointment of High Court and Federal Court judges: s 72
- The collection and control of duties of customs and of excise, and the control of the payment of bounties: s 86
*> Maintenance
- Protection of Constitution rather than system of government.
s 61 enables the Crown to undertake all executive action which is appropriate to the position of the Commonwealth: Barton v Commonwealth (1974)

* Prerogatives

* Nationhood powers Crown In Australia, executive government are still referred to as "the Crown", consists of:

* The Crown in right of the Commonwealth, and

* The Crown in right of each State. Each of these is a separate legal person, with attributes of legal personality such as the capacity to own property and to sue and be sued. Governor-General

The GG can exercise in the absence of, or even contrary to, such advice.

Governor-General cannot survive in office without the confidence of the Australian people: Hollingworth Affair

* Rationale:
*> Since the governor-General's tenure lies in the Prime Minister's hand, public opposition to the Governor-General's continuation in office will eventually rebound on the Prime Minister, who will ultimately be forced to urge the Governor-General to resign.
*> The Governor-General cannot fulfil the office's role of national unifier and conscience without public support. Responsibility of Governor-General

* As the commander in Chief of Australia's military forces, the G-G attends military parades as well as national events such as Anzac Day: s 68

* The Governor-General also receives visiting heads of State, opens sessions of the federal Parliament and receives the credentials of Ambassadors appointed to represent their nations in Australia.

* The power to dissolve, prorogue and summon Parliament: s 5, s 57

* Exercise the executive power of the Commonwealth: s 61

* Submit a proposed change to the Constitution to the people voting at a referendum: s 128.

* Reserve powers
*> Power to dismiss a Prime Minister
- Where the PM has been defeated in either of the two Houses on a vote which is regarded as a vote of no confidence; (occurred in Gough Whitlam's Labor Government in 1975, Commonwealth)

1 7. The Executive

Parliamentary control of appropriation and accordingly of expenditure is a fundamental feature of the Australian system of responsible government.
Here, the Upper House possesses the power to reject a money bill including an appropriation bill, and exercises the power by denying supply --> the power was given by s 53 (equal powers with the House with respect to proposed law).
*> It was denied power to originate or amend appropriation bills but was left with power to reject them or defer consideration of them. Therefore, the principle that a government

which has been denied supply by the Parliament should resign or go to an election must still apply. The Cabinet

* The position in Australia is quite different from the position in the UK. Here the confidence of both Houses on supply is necessary to sure its position, while in the UK, the confidence of the House of Commons alone is necessary.

* The convention is that the PM must either resign, thereby terminating the appointments of all other Ministers, or advise the GG to dissolve Parliament.

* If the incumbent does not take one or the other of these courses, the GG is entitled to dismiss him or her.

* The GG's dismissal should occur only if all attempts to induce the PM to do his or her duty have failed.
- Where the government is persisting in illegal or unconstitutional conduct.

* The power of dismissal may only be exercised where: (Occurred in Lang, NSW 1932) a. it is clear that the government has 'persisted in breaching a fundamental constitutional provision'; b. the government has ignored calls from the GG to desist from this conduct; and c. the contravention is not 'justiciable', that is, it cannot be brought before the courts. Federal Executive Council: s 62 Function:

* To advise the Governor-General Members

* Be chosen and summoned by the Governor-General

* Hold the office during the pleasure of GG

* Must be members of the Parliament: s 64
*> Either a member of senator, or
*> A member of House of Representative. Executive Power

Prerogatives

* Executive prerogatives

* Prerogative immunities and preferences

* Proprietary prerogatives Nationhood powers Capacities of legal person in ordinary course of administering government

* Enter into contract

* Spend & pay money

* Form corporation

* Employ & dismiss

Prerogatives According to Dicey, the prerogative consists of the 'residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown'.

The prerogatives are a bundle of special powers and privileges ascribed to the Crown by the common law.

* Subject to modification by statute:Tempa case. In two ways:
- A statutory regime may regulate the exercise of a prerogative power, stripping it (for example) of discretionary elements and imposing criteria and procedures by which the exercise of the power is to be controlled, while still leaving the conceptual source of the power in the prerogative, or
- A statutory regime may wholly supplant or extinguish the prerogative. Types of prerogatives 1

* Executive prerogatives
*> Under which the monarch had power to do various acts, e.g., execute treaties, declare war, make peace, coin money, incorporate bodies by royal character, pardon offenders and confer honours.

1 Australian

Constitutional Law & Theory, page 483

2

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