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TOPIC 9
THE EXECUTIVE GOVERNMENT
In this topic, the executive governments of the Commonwealth and New South Wales will be
examined. We will look at the sources of executive power; the roles of the Queen, the GovernorGeneral and the Governor; the executive councils set up to assist the Queen’s representatives in
the exercise of some of their executive powers; the Ministry and the Cabinet; and responsible
government and the reserve powers.
Materials
Cases (extracts only):
Victoria v The Commonwealth (Petroleum and Minerals Authority Case or PMA Case) (1975) 134
CLR 81
Minister for Arts, Heritage and Environment v Peko Wallsend (1987) 75 ALR 218
Ruddock v Vadarlis [2001] FCA 1329
Legislation:
Constitution, ss 53, 54, 55, 57, 61-70, 128
Further reading:
Hughes, Leane & Clarke
Aitken & Orr
Hanks
Lumb
Morison
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Description and sources of executive power
 Westminster system and responsible government
 Cabinet system
 Delegated legislation
 Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931)
46 CLR 73
 Ruddock v Vadarlis [2001] FCA 1329
 Minister for Arts, Heritage and Environment v Peko Wallsend (1987) 75 ALR 218 at 225
 Prerogative or reserve power
 Barton v The Commonwealth (1974) 131 CLR 477
 Limitations on power
 British Broadcasting Corporation v Jones [1965] Ch 32
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Commonwealth executive government
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Constitution, ss 61-70
Minister for Arts, Heritage and Environment v Peko Wallsend (1987) 75 ALR 218
Reserve powers
New South Wales executive government
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Constitution Act 1902 (NSW), ss 9A, 10, 11A, 35A, 35B, 35C, 35D, 35E, 35F, 47
Australia Act 1986 (Imp), ss 7-10
Interpretation Act 1987 (NSW), ss 14, 15
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9.4
Relationship between Senate and House of Representatives
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Constitution, ss 53, 54, 55, 57, 128
Victoria v The Commonwealth (Petroleum and Minerals Authority Case or PMA Case)
(1975) 134 CLR 81
Review questions
To test your understanding of the lecture and the materials try to answer the questions set out
below:
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(2)
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17.
Description and sources of executive power
What is the primary function of executive government?
What does the term “Crown” signify?
What are the sources of executive power?
How do the conventions of responsible government affect the exercise of executive
power?
Commonwealth executive government
In what person or institution is the executive power of the Commonwealth vested? By
whom is it exercisable?
Can the person who exercises Commonwealth executive power exercise all of the
Queen’s common law prerogatives under s 61 of the Constitution?
Who in practice controls the executive power and how do they do this?
Section 62 of the Constitution provides for the establishment of a Federal Executive
Council (“FEC”). What is its function? Who are its members and who chooses its
members?
The role of the FEC has been described as the formal or legal manifestation of the
Cabinet. Why?
What did Bowen CJ in Minister for Arts, Heritage and Environment v Peko Wallsend
say about Cabinet at p 225 of the report?
How is the doctrine of responsible government given constitutional recognition in s 64
of the Commonwealth Constitution?
Section 63 of the Commonwealth Constitution states that the provisions of the
Constitution referring to the Governor-General in Council shall be construed as
referring to the Governor-General acting with the advice of the FEC. However, there
are many provisions in the Constitution vesting powers in the Governor-General alone
(e.g. s 64: power to appoint Ministers). Does this mean that when the GovernorGeneral exercises these powers, he is not usually expected to act with advice from
anyone?
Why are some powers vested in the Governor-General in Council and others
conferred on the Governor-General alone?
What are the “reserve powers” of the Governor-General?
What is the purpose of the reserve powers?
Why is the exercise of reserve powers rare and controversial?
It has been said that the reserve powers which are generally accepted to exist
amongst most commentators are the powers to:
(a) appoint a Prime Minister
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(b) dismiss a Prime Minister
(c) refuse to dissolve Parliament
(d) in very limited circumstances, to force a dissolution of Parliament.
What circumstances has it been said justify the exercise of each of these reserve
powers?
18. Can the Governor-General dismiss a Prime Minister who is unable to secure the
passage of supply Bills through the Senate?
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New South Wales executive government
19. Who exercises the executive powers of government in New South Wales?
20. Section 35B of the New South Wales Constitution continues an Executive Council.
What is its function? What does it consist of? Who appoints its members?
21. Where the New South Wales Constitution confers powers on the Governor-General
alone (e.g. under s 47 – appointment of officers liable to retire on political grounds)
and not on the Governor acting with the advice of the Executive Council, does this
mean that the Governor will usually exercise these powers by himself?
22. What does s 14 of the Interpretation Act 1987 (NSW) provide?
23. Does the Governor have reserve powers?
24. What happened to the Lang Government in New South Wales in 1932. Was this an
exercise of reserve powers?
Exercises
1.
“One has only to examine the Commonwealth Constitution to see that, read alone, it is
a poor guide to the manner in which Australia is actually governed and can give a
misleading impression of the actual powers of both the Queen and the GovernorGeneral.” (The Report of the Republic Advisory Committee, An Australian Republic:
The Options – An Overview).
Discuss. Your discussion should include mention of the legislative, executive and
judicial roles of the Queen and the Governor-General.