LAWS5007: Public Law Executive Power EXECUTIVE POWER Executive Federal executive Queen, GG, Ministers (PM & Cabinet) and bodies such as tribunals, public servants in government departments or independent agencies. o Role administer the law. ‘Crown’ multiple meanings and dependent on context. o Symbolic representation of the executive government and its powers. o Crown in right of the Commonwealth and in right of each State, with each being a separate legal person. ‘Head of state’ person who holds the highest-ranking constitutional office in a country and in whom the executive power is vested. o Technically, the Queen is the head of state. o However, it is the GG that actually exercises such power. Powers of the Executive Statutory powers. o Express powers in the Constitution. o Powers given by Parliamet. o Powers incidental to that given by the Constitution and Parliament. o Powers incidental to the administration of a Department of a state. Non-statutory powers. o Prerogative power. o Powers derived from the character and status of the Commonwealth as a national government. o Powers arising out of the Commonwealth’s status as a legal person Nature of the Executive Institutions Monarchy (Queen); GG/Governors; Cabinet and Ministers (sets overall direction of government); government departments; independent agencies and tribunals. Cabinet PM controls shape, structure and operation. o Cabinet made up of Senior Ministers. o Cabinet confidentiality and consultative in nature. o Decisions are binding on the Ministry. o Collective ministerial responsibility for decisions of the Cabinet. o Key aspect of the political system responsible for day-to-day operations, not the Queen or GG. Convention PM is leader of the party with a majority in the lower house. o S 64 GG appoints ministers. o Appointment and removal of ministers by GG on advice of PM. o Collective ministerial responsibility may undermine ability to enforce individual ministerial responsibility for departments. Functions making policy. o Administering laws. o Dealing with other governments. Independent agencies and tribunals while they are courts, they form part of the Executive. o E.g. Administrative Appeals Tribunal. Constitution: Responsible Government, Ministers and the Executive Council S 61 executive power of the Commonwealth is vested in the Queen and is exercisable by the GG as the Queen’s representative. Ss 62-63 there shall be a Federal Executive Council to advise the GG in the government of the Commonwealth. o Membership. o Formal body does not debate or make policy. LAWS5007: Public Law Executive Power S 64 GG is to appoint ministers and they shall hold office during the pleasure of the GG. Prerogative Power Scope of executive power is effectively left to inference legislative powers are clearly enumerated but Constitutional terms are opaque. Prerogative power power to enter into treaties, declare war or print money etc. o Dicey residual or discretionary authority which at any time is legally left to the Crown. o Derives from common law. Effect of proroguing ends current session of parliament and ends all business (terminates all bills). o Everything must be re-submitted according to the usual process after parliament is re-summoned. The Governor-General GG represents Queen at Commonwealth level. Governor represents Queen at state level. Procedures stipulated in the Constitution. o S 2 appointed by the Queen and letters patent; no criteria for appointment or dismissal. o Appointment based on advice of ministers, usually for 5 years. Removal of GG retirement/recommendation of Ministers. o Retirement. o Recommendation of ministers. GG’s Exercise of Executive Power 1. Ceremonial. o Entertaining visiting heads of state. o Opening new sessions of parliament. o Receiving ambassadors and high commissioners appointed to represent their countries in Australia. o Giving awards. o Meeting community representatives. 2. Constitutional. o S 2 receive visiting heads of state and opening of parliament. o S 5 dissolve, prorogue and summon parliament. o S 32 issuing writs for elections. o S 58 assent to legislation. o S 61 exercise of the executive power of the Commonwealth. o S 64 appoint and dismiss Ministers. o S 68 Commander in Chief of Military forces – attend military parades and events. o S 72 appoints judges. o S 128 submits proposed changes to the Constitution to the people for a referendum. 3. Legislative. o Powers included in legislation. o E.g. where legislation provides for making of regulations (subordinate legislation). 1. Reserve. o Theoretically exercisable without need for advice but usually subject to certain conventions. Government has ignored GG’s calls to stop. Government has clearly persisted in breaching a fundamental constitutional provision. Conduct is not justiciable and cannot be brought before the courts. o Appointment of PM. o Dismissal of PM and Government. PM loses the Lower House but refuses to resign. LAWS5007: Public Law Executive Power . Government persists in continuing illegal or unconstitutional conduct e.g. Lang dismissal. o Dissolution of Parliament. Absence of Constitutional Details – Convention Formation of government party with majority in the Lower House. PM should resign if the government loses an election. GG is not required to follow the advice of PM if they choose to resign. o E.g. where there is a close election and both parties still have an opportunity to form government, the GG may elect to wait until a majority is formed. Hung parliament incumbent PM has the right to test support in the lower house. o PM should resign and call an election if the government loses confidence of the Lower House. o If PM refuses to resign, GG can still act on advice of other ministers and dissolve parliament. Prorogue end current session of parliament and quashes all unfinished business. o 2016 PM Turnbull prorogued parliament as government was unable to pass legislation. o 2019 prorogue of parliament in UK. UKHC matter not justiciable but a political issue. Scottish courts matter justiciable and clear breach of rule of law. o Summoning of parliament all proposed bills must be tabled through the usual process from the very beginning. o Power to prorogue is a reserve power. o GG/Queen would only decline if it undermined responsible government, breached the rule of law or prevented Houses from exercising their legislative power. Recent Cases Resignation of GG, Dr Peter Hollingworth GG resignation of GG, Dr Peter Hollingworth. o Hollingworth had knowledge of a priest who had engaged in sexual misconduct but failed to act. o Lost confidence of PM/public and potentially brought position of GG into disrepute and was effectively forced to resign. Lang Dismissal Dismissal for loss of confidence in the Lower House. o Dismissal of PM and whole government is rare and controversial. o Convention subject to vote of no confidence and refuses to resign or call an election. Appears to have lost confidence but refuses to recall Parliament in reasonable time or seeks to govern without its support. Consistent with principle of responsible government (advice of responsible ministers). Dismissal for breach of the rule of law. o Occurs where government has engaged in persistent and serious illegality. o 1932 dismissal of Lang Government defaulted on payment of interest on loans from British creditors and repeatedly refused to comply with Commonwealth laws during the depression. NSW government withdrew all moneys from banks and held it under armed guard to prevent the Commonwealth from obtaining the money. o NSW unsuccessfully challenged the validity of the Commonwealth laws and continued to thwart Commonwealth laws. o NSW public servants were given conflicting instructions by NSW and the Commonwealth. o Lang refused to give advice to the Governor if the government’s actions were legal and refused to withdraw the Circular even though a bill had been passed to raise the money needed. o Lang refused to resign Governor dismissed him on ground of illegality and appointed Opposition Leader as Premier on the basis that an election would be held immediately. LAWS5007: Public Law Executive Power . Lang was comprehensively defeated at the election. Criticism of the dismissal. o Criticism the Governor decided the issue himself and usurped judicial power. o Circular was clearly in conflict with Commonwealth law that was recently upheld by HCA and illegality was manifest. o Lang did not deny his conduct was illegal and refused to advise the Governor. o If the issue of legality had been disputed and was a justiciable matter, it should have been left to the courts to decide. o Governors should be way of dismissal on grounds of illegality unless courts have declared such action to be illegal and Government has persisted in such conduct. However, there may still be exceptional circumstances where the exercise of this reserve power is warranted without court judgment. Whitlam Dismissal Supply Supply appropriations bill. o All money (e.g. taxes) contribute to a Consolidated Revenue Fund. o Government cannot freely withdraw money must pass an appropriation bill which allows for government activities to be funded. o Government cannot lawfully govern if it cannot guarantee supply and is unable to pass the appropriation bill. Traditionally accepted that GG can exercise reserve power to dismiss a PM if the Lower House failed to pass a bill of supply. o Refusal to pass bill indicates government has lost confidence of the Lower House. Whitlam dismissal was so controversial as the supply bill passed the Lower House but the Upper House blocked it (contravened convention – generally only the Lower House should block it). Circumstances of the Whitlam Dismissal December 1972 Whitlam elected. May 1974 Whitlam wins double dissolution election. o Coalition effectively had majority in Senate prohibited Whitlam from passing many bills. Late 1974 Loans affair. 8 October 1975 appropriation bills passed Lower House. 29 October 1975 despite Lower House amendments, Senate voted no.