The Executive Government
• According to the Australian Constitution (section 61) the "executive power of the Commonwealth is vested in the Queen and exercisable by the Governor-General as the Queen's representative".
• However, under the Westminster conventions of responsible government, the Prime Minister and his or her ministers and parliamentary secretaries effectively exercise the executive powers of the Commonwealth. These ministers are in control of government departments and run the business of government. For all practical purposes, the ministry is the executive branch of government.
• The ministry is assisted in its executive role and functions by the public service. Hence, some commentators say that the executive branch of government has two arms:
- a policy-making and political arm, consisting of those elected politicians who are also ministers of state and members of the Federal Executive Council, the most senior of whom sit in Cabinet; and
- a policy implementation and administration arm, permanently staffed by expert, loyal and politically neutral public servants, whose job it is to support the ministers of state.
- The executive is the administrative arm of government, and is made up of government employees (the public service) working in a number of departments and agencies. The executive is empowered by the laws of Australia to put those laws into operation and uphold those laws once they have begun to operate
7.1 Description and sources of Executive Power
- The Governor-General as the representative of the Queen is a part of the legislature, but does not normally attend or participate in the proceedings of either House, with two exceptions: to deliver opening speech at opening of each session of parliament and to swear in new Senators when the president is not in office.
- Constitutional roles include:
- the appointment of times for the holding of sessions of Parliament and the proroguing of Parliament (s. 5),
- the dissolution of both Houses simultaneously and the convening of a joint sitting (s. 57),
- may administer the oath or affirmation to senators or may commission deputies to do so (s. 42)
- Assenting to legislation passed by both Houses, and can recommend amendments where the Houses cannot agree on a proposed law to alter the Constitution the Governor-General may submit the proposal to the electors (s.128)
Cabinet
• Refer to the Minister for Arts Heritage and Environment v Peko-Wallsend (1987)
- Cabinet meets in camera. Apart from announcements of decisions by the Prime Minister or other authorised Ministers, there is no public record of its proceedings.
- Cabinet is serviced by a secretariat within the Department of the Prime Minister and Cabinet.
- Responsible for the overall command of the armed forces (s.68 of constitution)
- The Cabinet is not mentioned in the constitution
- The highest decisions of policy affecting Australia Are brought to cabinet
- Issues include conflict of interest or of opinion in the community.
Ministers
- a member of the legislature who has been chosen to also work as part of the executive, usually with responsibility for matters on a specific topic--role not mentioned anywere in the Constitution
- Ministers are appointed by the Governor-General on the advice of the Prime Minister.
- Ministers are given specific powers and functions under legislation, as well as the broad power to oversee the running of government Departments and agencies.
- The Constitution requires that no minister “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” (s. 64).
Prime-Ministers
- The Prime Minister also serves as Australia's Head of Government-role not mentioned anywere in the Constitution
- The Prime Minister decides on the division of responsibilities between Ministers and allocates portfolios
- The Prime Minister’s broad responsibilities extend over the full range of Government activities and involve setting strategic directions for the Government.
- The Prime Minister chairs the Cabinet, which is a forum for collective decision-making by senior Ministers and the key policy-making agency of the Federal Government.
Executive Council
- a formal body presided over by the Governor-General and usually attended by two or three Ministers of State, although all Ministers and Parliamentary Secretaries are members.
- This is the formal, official arm of the Government, which gives legal authority to proclamations, regulations, appointments to the public service, judiciary, and other public positions such as officers of the Parliament, and commissions for officers of the police force.
- The supreme executive authority in New South Wales is the Executive Council, consisting of the Ministers, presided over by the Governor.
Responsible government
- This is the basis of the relationship between the legislative and executive arms of government. . It requires the executive to be accountable to the Parliament and the Parliament to the people.
- a system of executive government accountability, first to the parliament and ultimately to the people. This system of accountability is meant to ensure that the government acts in ways that are approved by the people.
- the Queen only acts with the advice of the Prime Minister and his or her government ministers, all of whom are members of and accountable to the parliament.
- The parliament is, in turn, representative of and accountable to the people.
- It is an important part of the device whereby the monarch's royal prerogative powers and authority have been usurped to create a system of representative, parliamentary democracy.
7.2 Relationship between the Senate and the House of Representatives
• Refer to Victoria v The commonwealth (Petroleum and Minerals Authority Case) (1975): discussion on powers of Senate and house of Reps. Refers to s.57 of Constitution which can be interpreted to mean that the House prevails when in dispute with the Senate as in Cormack v Cope. This view was rejected, and it was said that the only thing to prevail is the will of the electorate, as reflected in the result of elections for both chambers.
House of Representatives
- The House of Representatives is one of the two houses of the Australian Federal Parliament, the other being the Senate. It is sometimes called the 'people's house' or the 'house of government'.
- The House has 150 Members. Each Member represents an electoral division.
- Members are elected by a system known as preferential voting, under which voters rank candidates in order of preference.
- Each House of Representatives may continue for up to three years, after which general elections for a new House must be held
- The main political parties represented in the House are the Australian Labour Party, the Liberal Party of Australia and the National Party of Australia.
- The functions of the House of Representatives include:
Makes laws—The House's central function and the one which takes up most of its time is the consideration and passing of new laws and amendments or changes to existing laws. Any Member can introduce a proposed law (bill) but most are introduced by the Government. To become law, bills must be passed by both the House of Representatives and the Senate. They may start in either house but the majority of bills are introduced in the House of Representatives.
Determines the Government—After an election the political party (or coalition of parties) which has the most Members in the House of Representatives becomes the governing party. Its leader becomes Prime Minister and other Ministers are appointed from among the party's Members and Senators. To remain in office a Government must keep the support of a majority of Members of the House.
Publicises and scrutinises government administration—Debate of legislation and ministerial policy statements, discussion of matters of public importance, committee investigations, asking questions of Ministers (during question time—at 2 pm—Members may ask Ministers questions without notice on matters relating to their work and responsibilities; questions can also be asked on notice for written answer).
Represents the people—Members may present petitions from citizens and raise citizens' concerns and grievances in debate. Members also raise issues of concern with Ministers and government departments.
Controls government expenditure—The Government cannot collect taxes or spend money unless allowed by law through the passage of taxation and appropriation bills. Expenditure is also examined by parliamentary committees.
Senate
- The Senate's law-making powers are equal to those of the House of Representatives except that it cannot introduce or amend proposed laws that authorise expenditure for the ordinary annual services of the government or that impose taxation.
- The Senate can, however, request that the House of Representatives make amendments to financial legislation and it can refuse to pass any bill.
- The Senate is one of the two houses of the Australian Federal Parliament. It consists of 76 Senators, twelve from each of the six states and two from each of the mainland territories.
- It has virtually equal power to make laws with the other House of Parliament, the House of Representatives. It is elected by proportional representation, so that its composition closely reflects the voting pattern of the electors.
- The President of the Senate, Senator the Hon. Paul Calvert, is the presiding officer of the Senate whose chief function is to guide and regulate the proceedings in the Senate. The President is also responsible for the administration of the Department of the Senate
Senate v House of Representatives
- Members of Senate are elected concurrently with members of the House of Representatives and the duration of their terms of office coincides with those for that House (a maximum of three years).
- The Constitution provides a method for resolving deadlocks which might arise in the event of a disagreement between the houses.
- If the Senate twice fails to pass a bill from the House of Representatives, under certain specified conditions, the Governor-General may simultaneously dissolve both houses, in which case elections are held for all seats in both houses.
7.3 Commonwealth Executive Government
• Refer to the Minister for Arts Heritage and Environment v Peko-Wallsend (1987)
• In the Commonwealth, the legal instrument of the executive arm of government is the Federal Executive Council, established under the Australian Constitution (section 62)
• Its function is to "advise the Governor-General in the government of the Commonwealth"
• Under section 63 of the Constitution, the Federal Executive Council is involved whenever the Constitution vests power in the "Governor-General in Council"
• Functionally, the Federal Executive Council and the executive councils in the states are modelled on the Privy Council in the United Kingdom.
• All Commonwealth ministers and parliamentary secretaries are members of the Federal Executive Council.
• Appointments to the Federal Executive Council are for life; but only those Councillors who are in the current ministry are summonsed to meetings of the Council.
• Executive Councillors are given the title, "the Honourable", which is abbreviated in correspondence to "the Hon".
• Meetings of the Federal Executive Council (typically weekly) are usually presided at by the Governor-General and attended by two or three ministers or parliamentary secretaries
• Under section 126 of the Constitution, the Governor-General appoints (on advice) one of the Federal Executive Councillors as a Vice-President (there is no President of the Federal Executive Council) who acts as a deputy for the Governor-General in summoning and presiding at Council meetings at which the Governor-General is unable to be present.
• The typical business of the Federal Executive Council includes: making proclamations and regulations; making appointments to certain commissions, councils, tribunals, etc.; authorising entry into international treaties; commissioning officers in the Defence Force; and the creation and abolition of government departments.
7.4 New South Wales Executive Government
• The supreme executive authority in New South Wales is the Executive Council, consisting of the Ministers, presided over by the Governor.
• Its role and function is the same as that of the Federal Executive Council.
Governor of NSW
• Professor Bashir, the first woman to be appointed Governor of New South Wales, took up her office on 1 March 2001.
• The Governor of New South Wales derives powers from:
- the commission
- specific provisions contained in Acts of Parliament
- he Royal Prerogative by dint of the Australia Act 1986
• The Governor:
- determines the dates of sessions of the Parliament
- dissolves the Lower House for General Elections
- calls the election
- assents to bills passed by both Houses of parliament
- appoints the Ministers
- presides over the Executive Council
- Proclaims the regulations necessary to make Acts of Parliament functional.
• The Governor’s power is exercised on the advice of and through the Ministers responsible to the Parliament. The Cabinet in New South Wales consists of all of the Ministers and is headed by the Premier, who is the chief adviser to the Governor on the exercise of the matters listed.