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2. EXECUTIVE

CHAPTER XXX

THE EXECUTIVE COUNCIL

THE head of the executive is, of course, the Governor. It is in this capacity that he makes all appointments to the public service. It is in this capacity that he is commander-in-chief of the forces in Victoria. In this capacity he exercises the prerogative of pardon.

But as we have considered the legal position of the Governor in detail in a previous chapter, we need not repeat the facts there stated. More especially as, in the greater part of his executive functions, the Governor acts with the advice of a body whose nature we are now about to consider, the Executive Council.

Ever since Victoria became a separate colony, it has had an Executive Council. For a few years after Separation, the executive officials of the colony were, in fact, appointees of the Colonial Office in London, and it was, therefore, only natural that such important posts as those of Executive Councillors should be filled directly by the Secretary of State. As we have seen, the Lieutenant-Governor was directed in his commission to appoint an Executive Council for the colony, to assist him in the performance of his duties. But his own appointments were only temporary, being subject to confirmation by the Colonial Office.1

Owing to the studied ambiguity of the official documents, it is difficult to say what were intended to be the precise relations between the Governor and the Executive Council under 1 Ante, p. 157.

the old system. The Governor was directed to take the advice of his Council in all cases, before acting in important matters. But, on the other hand, he was entitled to act in defiance of that advice, if he chose to take the responsibility of doing so.1 Owing to the fact that members of the Executive Council were generally also members of the legislature, this authority must have been a valuable weapon in the last resort, for it was clearly intended under the old system that the powers of the executive and the legislature should not reside in the same hands. But to what extent the personal views of the Governor habitually predominated over the views of his advisers, it would be impossible for any one not personally familiar with the period to say. In the Appendix will be found an extract from the Minute Book of the Victorian Executive Council for the year 1855,2 which may be usefully compared with the corresponding extract from the Minute Book of the Executive Council of Sir Richard Bourke.

But there was one very important characteristic which always marked the Executive Council in Victoria. Its members were not merely executive councillors, they were also the holders of important offices in the administration. There was no necessary reason why this should have been so. The Crown might very well have chosen to call to the Executive Council those non-official members of the community on whom it could rely, such men, for example, as it used to appoint to the non-official nominee seats in the Legislative Council. Some of them might have been abler men, who refused to sacrifice their other prospects for official place. But, as a matter of fact, not only were officials always appointed to the Executive Council, but the appointments generally used the official title; so that if the individual afterwards resigned his office, he vacated, ipso facto, his seat in the Executive Council.

Thus one of the distinctive features of the Cabinet system, the union of the chief officials in the community in one body, was early introduced into Victoria. And its importance in the history of Victorian government cannot easily be overrated. A non-official Executive Council may be very disinterested 1 Ante, p. 158. 2 Cf. Appendix B.

3 In the Minutes of the Executive Council prior to 1856 the names of the individual members are not recorded, only the titles of their offices. The change begins in February 1856 (Minute Book of Executive Council, passim).

CHAP. XXX OFFICIAL CHARACTER OF THE COUNCIL

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and very ambitious of the public good, but it will not have that practicality and sense of responsibility which an official body will have. If a proposal is made in an official Council, the official whose department will be affected by it knows, almost by instinct, how it will work. He will be able to bring vividly before his colleagues the difficulties in carrying it out, or, on the other hand, he may be able to assure them confidently of its feasibility. Moreover, the power of an official Council will be infinitely greater than that of a mere senatorial body, for it is almost impossible for it to be in conflict with the rank and file of the official staff.

But, though it has these advantages, an official Council has its dangers. It may easily get out of touch with the community, it may quarrel with the legislature, it may foster corruption and incapacity. A permanent executive is always liable to these dangers, and their result is both unpopularity and inefficiency of government. The remedy which England, after much agitation and many failures, succeeded in applying to these dangers, is that feature which gives her system of government its peculiar character, and which has been applied so often in the English-speaking dependencies of the Crown. The remedy is, in fact, the responsibility of the executive to the legislature, and, through the legislature, to the community.

The difficulties which occurred in England were mainly owing to the traditional theory of the constitution, which placed the control of the executive in the hands of the Crown, unfettered by the direct action of Parliament. So long as the Crown held to this prerogative, it was impossible for Parliament to acquire any direct control over the executive, except in periods of revolution. A restoration of peace always brought a restoration of the executive to the hands of the Crown.

But at length, owing to a combination of circumstances, of which the most important was a succession of monarchs who cared little for English politics, Parliament obtained indirectly what it had failed to secure directly. The Crown put itself more and more into the hands of a few Ministers united by party ties, who held the seals of office so long as their party retained a majority in Parliament. The great offices of state were broken up, and the fragments distributed amongst supporters of the Ministry of the day, on the understanding (in

some cases) that they should be given up when the heads of the Ministry deemed it expedient to resign. Even then, Parliament could not directly unseat a Ministry. But, by withholding supplies and refusing to follow the wishes of the government, they could practically render it helpless and ridiculous. When Walpole resigned over the Chippenham election in 1742, it became clear that a Prime Minister could no longer hold office against a hostile majority in the House of Commons. For no one clung to power more desperately than Walpole.

It was

This developement of English policy so far affected colonial administration, that in Australia, even under the old system, the chief Ministers used to sit in the legislature. But their position was anomalous. They occupied nominee seats, therefore the constituencies could not refuse to elect them. known that nothing short of personal delinquency could cause their removal from office. Their policy could be thwarted, as the legislature became more and more powerful, but other policy could not be substituted for it.

To change this state of affairs was the great object of the framers of the Constitution of 1855. As we have seen, they did not quite know how to set about it. In spite of the warning of the Auditor-General, who saw the real difficulty of the question, the committee which drafted the resolutions upon which the constitution was framed, insisted on vesting all the patronage of the colony in the Governor alone.1 As the bill was framed, however, the section placed the whole patronage in the Executive Council,2 a provision equally fatal with the other. It was not until the matter was fairly thrashed out in the House that the true way out of the difficulty was discovered; which was, to vest in the Executive Council all the patronage except the appointments to the responsible offices, and to vest these in the Governor alone. This is the course actually adopted by the Constitution Act, and sanctioned by the Governor's Commission.* Its results are obvious. It places the whole of the government patronage at the disposal of the cabinet of the day, and places the appointing of the Cabinet in the hands of the Governor. 1 V. and P. 1853-4, iii. p. 606. 2 Ibid. p. 632. 3 § 37.

4 By virtue of the Constitution Act the patents of office run in the name of the Governor; by virtue of the Commission, the patents for the Executive Council are in the Queen's name, attested by the Governor.

CHAP. XXX THEORY OF THE CABINET SYSTEM

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These results are so important that we must consider them for a moment. And we will take the latter first.

It will readily be objected that this result leaves it legally possible for the Governor to make and unmake Cabinets at his pleasure. Technically, no doubt, this is the case. But, practically, there are serious difficulties in the way of such a course, and a statement of them will show, perhaps as clearly as can be shown, the peculiar character of the Cabinet system.

In the first place, it may be assumed that an Executive Council which did not contain members of Parliament would be practically useless. It could expend no money, carry out no policy, and it would, in effect, be a mere nullity. The amount of the Civil List guaranteed by the Constitution Act forms such a small proportion of the expenditure of the community that the public business could not go on for a year without a parliamentary vote. And it may safely be assumed also, that Parliament would not follow the lead of any but its own members.

The Governor would then be compelled to choose at least some of the members of his Cabinet from amongst the members of Parliament. Unless they undertook to serve without salary, his nominees would vacate their seats in Parliament and would require re-election.1 Hereupon, one of the checks of Responsible Government would probably appear. If the appointment were not in accordance with the feeling of the country, the persons appointed would not succeed in securing re-election.

But even should they succeed in being re-elected, there would still be another check. If the views of the Ministers were not in accordance with those of the majority in Parliament, the Houses would take especial care to reject every one of their proposals, financial or legislative. Their acts would be subjected to continual and hostile criticism, and the Government would be no better off than if it had no representatives in Parliament at all. And this process would be repeated until a Cabinet of which Parliament approved was appointed.

Of course it is possible that an existing Parliament does not really represent the views of the constituencies. In such a case the Governor, at the request of his Ministers, is perfectly justified in dissolving the Assembly and awaiting the test of a

1 Constitution Act Amendment Act 1890, § 19.

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