Section
61. Executive power
62. Federal Executive Council
63. Provisions referring to Governor-General
64. Ministers of State; Ministers to sit in
Parliament
65. Number of Ministers
66. Salaries of Ministers
67. Appointment of civil servants
68. Command of naval and military forces
69. [Transfer of certain departments]
70. [Certain powers of Governors to vest in
Governor-General]
Executive power
61. The executive power of the Commonwealth is vested in the Queen
and is exercisable by the Governor-General as the Queen's representative,
and extends to the execution and maintenance of this Constitution, and of
the laws of the Commonwealth.
[Unaltered - but see General Comment on sections
61-63]
Federal Executive Council
62. There shall be a Federal Executive Council to advise the
Governor-General in the government of the Commonwealth, and the members of
the Council shall be chosen and summoned by the Governor-General and sworn
as Executive Councillors, and shall hold office during his pleasure.
[Unaltered]
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.
[Unaltered]
Ministers of State
64. The Governor-General may appoint officers to administer such
departments of State of the Commonwealth as the Governor-General in Council
may establish.
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.
Ministers to sit in Parliament
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.
[Third paragraph edited; see Comment]
Number of Ministers
65. The Parliament [may make laws prescribing a maximum number of]
Ministers of State. The Ministers shall hold such offices as the
Parliament prescribes, or, in the absence of provision, as the
Governor-General directs.
[Edited; see Comment]
Salaries of Ministers
66. There shall be payable out of the Consolidated Revenue Fund of
the Commonwealth, for the salaries of the Ministers of State, an annual sum
[to be determined by] the Parliament.
[Edited; see Comment]
Appointment of civil servants
67. The Parliament may make laws with respect to the appointment
and removal of all other officers of the Executive Government of the
Commonwealth.
[Edited; see Comment]
Command of naval and military forces
68. The command in chief of the naval and military forces of the
Commonwealth is vested in the Governor-General as the Queen's
representative.
[Unaltered, but see Comment]
[Sections 69,70 deleted; see Comment]
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These sections sit rather oddly in a "Contemporary" Constitution, as they do not describe the real working of our executive government at all. They are written in the language of earlier centuries, and describe a system of government - in which the monarch makes the real day-to-day decisions in execution of government power, and the Ministers merely "advise" - that may have been real in England until about the time of Queen Anne, but has since become a fiction. The real wielders of executive power - the Ministers and `civil servants' (now called public servants) are introduced in sections 64 and 67.
My purpose in editing the text, however, has been to omit or redraft the sections that have become inoperative, since the time of federation. Sections 61-64 do not fit that category - they were already expressing a myth (the "Monarchical Myth") in 1901 and they are still expressing the same myth. If they were to be redrafted so as to describe reality they would have to say something along the following lines:
61. The executive power of the Commonwealth is vested in the Ministers of State for the Commonwealth and is exercisable under their direction by the Public Service of the Commonwealth. The executive power extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.62. The Ministers are appointed, and may be dismissed, by the Governor-General, in accordance with the principle that the Ministry shall be capable of obtaining the support of the majority of the members of the House of Representatives, and with the other conventions and practices of responsible government as understood at the relevant time.
[See section 83 for the rule which indirectly enforces the conventions of responsible government.]No Minister of State shall hold office for a longer period than three months unless he or she is or becomes a senator or a member of the House of Representatives.
63. The Ministers make their collective decisions in meetings of the Cabinet.
64. The Ministers shall be members of the Federal Executive Council, meetings of which shall be chaired by the Governor- General. Where required by this Constitution, or by law, decisions of a Minister or of Cabinet may be formalised by adoption at a meeting of the Executive Council. 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 Executive Council.
The third paragraph begins with "After the first general election..." That qualification has been quite unnecessary since 1901.
The full section provides:
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.
This has been combined with para 51(xxxvi) as shown in the Example. Though the Parliament holds the "privilege" to prescribe "offices" for the Ministers, it has not done so - so on the advice of the Prime Minister the Governor-General commissions each Minister to a particular office. (Lane's Commentary on the Australian Constitution, 1986, p 325.)
The full section reads:
66. There shall be payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for the salaries of the Ministers of State, an annual sum which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year.
This has been combined with para 51(xxxvi) as shown in the Example.
This has been combined with para 51(xxxvi) as shown in the Example.
Like sections 61-64, this hardly expresses contemporary reality. The Governor-General is a figurehead Commander-in-Chief only. Cabinet makes policy and, in war-time, gives commands on matters of major importance, and the Chiefs of Staff put that policy and those major commands into operation.
Section 69 says:
69. On a date or dates to be proclaimed by the Governor-General after the establishment of the Commonwealth the following departments of the public service in each State shall become transferred to the Commonwealth:--
Posts, telegraphs, and telephones:
Naval and military defence:
Lighthouses, lightships, beacons, and buoys:
Quarantine.But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its establishment.
[Wouldn't the sequence of events have been clearer if the paragraph order was reversed, and the "but" was deleted??]
The Customs and Excise departments were automatically transferred on 1 January 1901; then the first two named departments were transferred on 1 March 1901. The second pair were never transferred because the colonies/States did not have "departments" exclusively devoted to lighthouses, etc, or to quarantine. The Commonwealth simply used its powers under section 51 to set up the departments which included these matters. The section has now done its job and has nothing more to say.
70. In respect of matters which, under this Constitution, pass to the executive Government of the Commonwealth, all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a Colony, or in the Governor of a Colony with the advice of his Executive Council, or in any authority of a Colony, shall vest in the Governor-General, or in the Governor-General in Council, or in the authority exercising similar powers under the Commonwealth, as the case requires.
The matters which "under this Constitution, pass to the executive government of the Commonwealth" are of course those listed in section 69 (immediately above). Section 70 was concerned to pass any relevant powers of the State Governors or authorities to the Governor-General or corresponding Commonwealth authority, without waiting for the Commonwealth Parliament to assemble and pass any necessary legislation. A pedant might suggest that there could still be some obscure power in colonial law, relating to customs, posts and telegraphs, or defence, and not yet specifically given to the Commonwealth authorities by legislation, but I think the chance is infinitesimal. Commonwealth executive power in these areas is now sufficiently specified by the Constitution and Commonwealth law, and section 70's work has expired.
[Return to space left by Sections 69 and 70]