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65A Management of executive power |
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Proposed Constitution |
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The Prime Minister may:
(i) Convene a Cabinet of Ministers to make collective decisions on behalf of the Government, and appoint some or all Ministers of State to Cabinet and remove Ministers from Cabinet;
(ii) Determine the order of seniority of Ministers of State, commencing with the Deputy Prime Minister as the most senior Minister after the Prime Minister;
(iii) Subject to any law, delegate the exercise of some or all executive power to the Ministers of State and may withdraw such delegation of power; and
(iv) Subject to any law, appoint or remove all other officers of the Government.
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All Changes Displayed |
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The Prime Minister may:
(i) Convene a Cabinet of Ministers to make collective decisions on behalf of the Government, and appoint some or all Ministers of State to Cabinet and remove Ministers from Cabinet;
(ii) Determine the order of seniority of Ministers of State, commencing with the Deputy Prime Minister as the most senior Minister after the Prime Minister;
(iii) Subject to any law, delegate the exercise of some or all executive power to the Ministers of State and may withdraw such delegation of power; and
(iv) Subject to any law, appoint or remove all other officers of the Government. |
Drafting Notes |
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65A.1 Section 65A contributes to the transformation of Chapter II from a mere outline to a comprehensive and comprehensible code explaining how Government operates. Except in relation to the Acting Prime Minister provisions, the Chapter will recognise, rather than change, the way our Governments operate.
65A.2 The section opens with the words “The Prime Minister may”. It would be quite possible for the Prime Minister to exercise the power in s.62A(iii) to administer the Government in other ways, though the alternatives are limited. For example, it would be possible to run a more presidential style of Government, where the Prime Minister consults with individual Ministers to make decisions; or to form several, separate committees of Ministers to make decisions over distinct sections of policy. (This might be an option for a coalition comprised of several parties, if or perhaps when the two-party system fragments). If a Cabinet is formed however, it would be difficult for those in Government to avoid the requirement to make collective decisions, given the combined influence of history and s.65A(i), though the provisions of that section would not be enforceable in the Courts.
65A.3 Subsection (i) recognises Cabinet in the Constitution for the first time, while allowing the Prime Minister flexibility in its composition. If political parties wish to impose their own rules on their leaders concerning Cabinet composition, that would not infringe the section. The section will not change existing practice. It will however allow readers of the Constitution to understand Cabinet’s role.
65A.4 While recognition is given to Cabinet, the Advancing Democracy model does not make the mistake of including an analogue for s.63 of the present Constitution, which refers to the ‘Governor-General in Council’ being the Governor-General acting on the advice of the Federal Executive Council. The reasons why there is no provision establishing a ‘Prime Minister in Cabinet’ are as follows:
65A.4.1 The distinction the Constitution draws between powers exercised by the Governor-General and the Governor-General in Council has caused a great deal of confusion. The distinction was an attempt by those who drafted the Constitution to pedantically follow English constitutional practice - royal powers which had their origin in the Crown prerogative were vested in the Governor-General alone and those which had their origin in legislation were vested in the Governor-General in Council: Quick and Garran (1901) at p.707. It was never intended to indicate that those powers vested in the Governor-General alone gave him or her a power to act without the advice of Ministers responsible to Parliament, yet this argument has repeatedly emerged. See Parliament, The Executive and the Governor-General (George Winterton, 1983, Federation Press) pp.14-17. If the distinction was replicated in references to Prime Ministerial powers, people would in time look for a reason for the distinction, and assert that some powers were supposed to be exercised without reference to Cabinet. That is not the intention of the Advancing Democracy proposal.
65A.4.2 Secondly, the device of purporting to limit the use of a power by requiring it to be exercised with the advice of some other person or group does not really work. Acting with advice does not mean that advice has to be followed.
65A.4.3 It would be possible to require the Prime Minister to act in accordance with a Cabinet decision, but since the Prime Minister appoints the Cabinet, he or she can find a way around the restriction whenever the need arises, unless the Constitution attempts to prescribe who should be in Cabinet, which would be extremely difficult if not impossible. And with a great number of decisions to require a formal Cabinet decision would be unnecessary.
65A.4.4 Fourthly, whereas there is considerable danger in the present arrangement, there is no similar danger in the proposal. The current ‘in Council / not in Council’ distinction appears to give significant executive powers to an unelected Governor-General without any check or balance on its exercise. The Prime Minister however is subject to multiple checks and balances. The first two are legal restrictions, namely:
▸ Reliance on the support of a majority of the House of Representatives; and
▸ The possibility of legal action.
The remainder are practical in nature:
▸ Modern Government is a team sport, which by its nature is inclined to collective decisions; and
▸ There is constant media scrutiny of a Prime Minister whereas our present Governors-General are comparatively immune from scrutiny.
65A.4.5 In theory, the present arrangement is that the Governor-General is our chief executive officer. In practice, the real chief executive is our Prime Minister. The Advancing Democracy model recognises that reality.
65A.6 Subsection (ii) authorises a practice which Prime Ministers have sometimes adopted of issuing lists of Ministers in some sort of order of importance. The change is that the list will now have legal significance - see s.66A.
65A.7 The final two subsections are prefaced by the words “Subject to any law”. The phrase has been omitted from the first two subsections. This contrast between the subsections should make it clear that Parliament cannot make laws governing how Cabinet shall be constituted, how it operates and who is eligible to be Acting Prime Minister. These matters have always been the exclusive preserve of the Executive. The opening words of s.51 indicate that legislative power is granted “subject to this Constitution”, so the contrast within s.65A should be sufficient to indicate that s.51(xxxix) does not extend to the powers in s.65A(i) and 65A(ii).
65A.8 Subsections (iii) and (iv) transfer powers formerly held by the Governor-General to the Prime Minister. Subsection (iii) permits the Prime Minister to delegate “some or all executive power”. This is what will occur when a Prime Minister is overseas or on holidays. We are accustomed to an acting Prime Minister being appointed by the Governor-General. In future, the Prime Minister will appoint that person, though the person need not be given the title of acting Prime Minister. The Prime Minister will also determine the administrative arrangements within the Government under s.65A(iii). Currently these are made by an Administrative Arrangements Order issued by the Governor-General on the advice of the Federal Executive Council.
65A.9 Subsection (iv) in part replaces s.67. |
Proposed Constitution |
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The Prime Minister may:
(i) Convene a Cabinet of Ministers to make collective decisions on behalf of the Government, and appoint some or all Ministers of State to Cabinet and remove Ministers from Cabinet;
(ii) Determine the order of seniority of Ministers of State, commencing with the Deputy Prime Minister as the most senior Minister after the Prime Minister;
(iii) Subject to any law, delegate the exercise of some or all executive power to the Ministers of State and may withdraw such delegation of power; and
(iv) Subject to any law, appoint or remove all other officers of the Government.
< Previous section Next section > |
All Changes Displayed |
|
The Prime Minister may:
(i) Convene a Cabinet of Ministers to make collective decisions on behalf of the Government, and appoint some or all Ministers of State to Cabinet and remove Ministers from Cabinet;
(ii) Determine the order of seniority of Ministers of State, commencing with the Deputy Prime Minister as the most senior Minister after the Prime Minister;
(iii) Subject to any law, delegate the exercise of some or all executive power to the Ministers of State and may withdraw such delegation of power; and
(iv) Subject to any law, appoint or remove all other officers of the Government. |
Drafting Notes |
|
65A.1 Section 65A contributes to the transformation of Chapter II from a mere outline to a comprehensive and comprehensible code explaining how Government operates. Except in relation to the Acting Prime Minister provisions, the Chapter will recognise, rather than change, the way our Governments operate.
65A.2 The section opens with the words “The Prime Minister may”. It would be quite possible for the Prime Minister to exercise the power in s.62A(iii) to administer the Government in other ways, though the alternatives are limited. For example, it would be possible to run a more presidential style of Government, where the Prime Minister consults with individual Ministers to make decisions; or to form several, separate committees of Ministers to make decisions over distinct sections of policy. (This might be an option for a coalition comprised of several parties, if or perhaps when the two-party system fragments). If a Cabinet is formed however, it would be difficult for those in Government to avoid the requirement to make collective decisions, given the combined influence of history and s.65A(i), though the provisions of that section would not be enforceable in the Courts.
65A.3 Subsection (i) recognises Cabinet in the Constitution for the first time, while allowing the Prime Minister flexibility in its composition. If political parties wish to impose their own rules on their leaders concerning Cabinet composition, that would not infringe the section. The section will not change existing practice. It will however allow readers of the Constitution to understand Cabinet’s role.
65A.4 While recognition is given to Cabinet, the Advancing Democracy model does not make the mistake of including an analogue for s.63 of the present Constitution, which refers to the ‘Governor-General in Council’ being the Governor-General acting on the advice of the Federal Executive Council. The reasons why there is no provision establishing a ‘Prime Minister in Cabinet’ are as follows:
65A.4.1 The distinction the Constitution draws between powers exercised by the Governor-General and the Governor-General in Council has caused a great deal of confusion. The distinction was an attempt by those who drafted the Constitution to pedantically follow English constitutional practice - royal powers which had their origin in the Crown prerogative were vested in the Governor-General alone and those which had their origin in legislation were vested in the Governor-General in Council: Quick and Garran (1901) at p.707. It was never intended to indicate that those powers vested in the Governor-General alone gave him or her a power to act without the advice of Ministers responsible to Parliament, yet this argument has repeatedly emerged. See Parliament, The Executive and the Governor-General (George Winterton, 1983, Federation Press) pp.14-17. If the distinction was replicated in references to Prime Ministerial powers, people would in time look for a reason for the distinction, and assert that some powers were supposed to be exercised without reference to Cabinet. That is not the intention of the Advancing Democracy proposal.
65A.4.2 Secondly, the device of purporting to limit the use of a power by requiring it to be exercised with the advice of some other person or group does not really work. Acting with advice does not mean that advice has to be followed.
65A.4.3 It would be possible to require the Prime Minister to act in accordance with a Cabinet decision, but since the Prime Minister appoints the Cabinet, he or she can find a way around the restriction whenever the need arises, unless the Constitution attempts to prescribe who should be in Cabinet, which would be extremely difficult if not impossible. And with a great number of decisions to require a formal Cabinet decision would be unnecessary.
65A.4.4 Fourthly, whereas there is considerable danger in the present arrangement, there is no similar danger in the proposal. The current ‘in Council / not in Council’ distinction appears to give significant executive powers to an unelected Governor-General without any check or balance on its exercise. The Prime Minister however is subject to multiple checks and balances. The first two are legal restrictions, namely:
▸ Reliance on the support of a majority of the House of Representatives; and
▸ The possibility of legal action.
The remainder are practical in nature:
▸ Modern Government is a team sport, which by its nature is inclined to collective decisions; and
▸ There is constant media scrutiny of a Prime Minister whereas our present Governors-General are comparatively immune from scrutiny.
65A.4.5 In theory, the present arrangement is that the Governor-General is our chief executive officer. In practice, the real chief executive is our Prime Minister. The Advancing Democracy model recognises that reality.
65A.6 Subsection (ii) authorises a practice which Prime Ministers have sometimes adopted of issuing lists of Ministers in some sort of order of importance. The change is that the list will now have legal significance - see s.66A.
65A.7 The final two subsections are prefaced by the words “Subject to any law”. The phrase has been omitted from the first two subsections. This contrast between the subsections should make it clear that Parliament cannot make laws governing how Cabinet shall be constituted, how it operates and who is eligible to be Acting Prime Minister. These matters have always been the exclusive preserve of the Executive. The opening words of s.51 indicate that legislative power is granted “subject to this Constitution”, so the contrast within s.65A should be sufficient to indicate that s.51(xxxix) does not extend to the powers in s.65A(i) and 65A(ii).
65A.8 Subsections (iii) and (iv) transfer powers formerly held by the Governor-General to the Prime Minister. Subsection (iii) permits the Prime Minister to delegate “some or all executive power”. This is what will occur when a Prime Minister is overseas or on holidays. We are accustomed to an acting Prime Minister being appointed by the Governor-General. In future, the Prime Minister will appoint that person, though the person need not be given the title of acting Prime Minister. The Prime Minister will also determine the administrative arrangements within the Government under s.65A(iii). Currently these are made by an Administrative Arrangements Order issued by the Governor-General on the advice of the Federal Executive Council.
65A.9 Subsection (iv) in part replaces s.67. |
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