The Executive Government Under the Australian Constitution

Introduction

Chapter II of the Constitution (ss 61–70) establishes the Executive Government of the Commonwealth. Section 61 vests the executive power of the Commonwealth in the Queen, declaring it to be “exercisable by the Governor-General as the Queen’s representative.” This provision reflects the constitutional status of Australia as a constitutional monarchy under the Crown, while simultaneously recognising that the Governor-General exercises the executive power as a matter of Australian constitutional law. The executive branch encompasses the Governor-General, the Prime Minister, the Cabinet, and the Ministers of State, together with the departments and agencies of the Commonwealth public service. The Constitution provides only a skeletal framework for the executive, leaving much of its operation to constitutional conventions derived from the Westminster system.

The Governor-General

The Governor-General is appointed by the Queen on the advice of the Prime Minister, typically for a term of five years. Section 2 of the Constitution provides that the Governor-General shall exercise “such powers and functions of the Queen as Her Majesty may be pleased to assign to him.” In practice, the Governor-General exercises virtually all of the Queen’s constitutional powers, including assenting to bills, appointing and dismissing Ministers, summoning and dissolving Parliament, and exercising the command-in-chief of the naval and military forces (s 68). The Governor-General also exercises prerogative powers, including the prerogative of mercy (s 72(ii)) and the power to appoint judges and senior officials.

Most of the Governor-General’s powers are exercised on the advice of the Prime Minister and other Ministers, in accordance with the convention of responsible government. However, the Governor-General retains certain reserve powers that may be exercised without, or contrary to, ministerial advice. These include the power to appoint and dismiss a Prime Minister, to refuse a dissolution of Parliament, and to refuse to act on advice that is unlawful or unconstitutional. The exercise of the reserve powers is governed by convention and has been the subject of significant controversy, most notably during the 1975 constitutional crisis when the Governor-General, Sir John Kerr, dismissed Prime Minister Gough Whitlam after the Senate refused to pass supply bills.

The Executive Power

The scope of the executive power under s 61 has been the subject of extensive judicial elaboration. In Pape v Commissioner of Taxation (2009) 238 CLR 1, the High Court upheld the validity of the Tax Bonus for Working Australians Act (No 2) 2008 (Cth) — a fiscal stimulus measure enacted in response to the Global Financial Crisis. The Court held that s 61 confers on the Commonwealth executive a “nationhood” power to act in matters of national concern, at least where the Commonwealth Parliament has a sufficient connection to a head of legislative power. French CJ observed that the executive power extends to “engaging in activities and programs that are peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation.”

In Williams v Commonwealth (2012) 248 CLR 156 (the School Chaplains Case), the High Court held that the Commonwealth executive does not possess an unlimited power to enter into contracts and spend public money. The case concerned the National School Chaplaincy Program, under which the Commonwealth funded chaplains in schools. The Court held that the executive spending power is limited: it requires either statutory authorisation or a sufficient connection to a head of Commonwealth legislative power. Following this decision, the Commonwealth enacted the Financial Framework (Supplementary Powers) Act 1997 (Cth) to provide statutory authority for a wide range of spending programs. In Williams v Commonwealth (2014) 252 CLR 416 (Williams No 2), the Court upheld the validity of this legislative scheme, confirming that Parliament can authorise spending that the executive could not undertake alone.

The Federal Executive Council

Section 62 establishes the Federal Executive Council, comprising such persons as the Governor-General appoints to “advise the Governor-General in the government of the Commonwealth.” The Federal Executive Council is the formal constitutional mechanism through which the Governor-General acts on ministerial advice. Its members are Ministers of State (including the Prime Minister and other Cabinet ministers) and Parliamentary Secretaries, who are appointed for life but only active while holding ministerial office. Meetings of the Executive Council are formal and brief, typically lasting only a few minutes, and are held to give legal effect to decisions of the Cabinet through the making of regulations, appointments, and Orders in Council.

The Cabinet

The Cabinet is not mentioned in the Constitution; it is a creature of convention. The Cabinet comprises the Prime Minister and senior Ministers and is the central decision-making body of the Australian government. Cabinet decisions are collective and are generally binding on all Ministers, reflecting the convention of collective ministerial responsibility. The Cabinet meets in private and its deliberations are confidential, protected by Cabinet solidarity and the doctrine of collective responsibility. The Prime Minister chooses the members of the Cabinet and allocates ministerial portfolios. In recent decades, the Cabinet has been supplemented by a system of Cabinet committees and outer ministry arrangements, but its central role in Australian government remains unchanged.

Responsible Government

The Constitution gives effect to the principle of responsible government through several provisions. Section 64 requires that Ministers of State be members of Parliament (or become members within three months), ensuring that the executive is drawn from and accountable to the legislature. The Ministry must command the confidence of the House of Representatives; if the House passes a vote of no confidence in the government, the Prime Minister must either resign or advise a dissolution of the House. Section 49 and the Parliamentary Privileges Act 1987 (Cth) provide for parliamentary scrutiny of the executive through question time, committee inquiries, and the tabling of documents.

The Command-in-Chief

Section 68 provides that the command-in-chief of the naval and military forces of the Commonwealth is vested in the Governor-General “as the Queen’s representative.” This provision does not confer personal command on the Governor-General but rather reflects the constitutional principle of civilian control of the defence forces. In practice, the defence forces are under the operational control of the government, with the Governor-General exercising the formal power to declare war, deploy forces, and make defence appointments on the advice of Ministers. The power of declaring war is not expressly conferred by the Constitution but has been held to fall within the prerogative power of the executive under s 61.

The Prerogative of Mercy

Section 72(ii) confers on the Governor-General the power to grant pardons, reprieves, and commutations of sentence in relation to offences against Commonwealth laws. This prerogative of mercy is a traditional Crown prerogative that allows the executive to intervene in individual criminal cases where the interests of justice require relief from the ordinary operation of the criminal law. The power is exercised on the advice of the Attorney-General and is not subject to judicial review, although its exercise may be informed by considerations of procedural fairness.