100312-Governor D de Kretser

8/14/2019 100312-Governor D de Kretser

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MAY JUSTICE ALWAYS PREVAILPLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website

Http://www.schorel-hlavka.com will be the alternative website for contact details. [email protected]

Prof David de Kretser, Governor of Victoria 12-3-2010

C/o [email protected]

Tel: 03 9655 42115Fax: 03 9650 9050

.

Cc: Mr John Brumby, Premier, [email protected]

Mr Ted Baillieu Leader of Her Majesty Opposition [email protected]

Mr Justin Madden [email protected] Rob Hulls [email protected]

.

Re: Responsible Minister failing to vacate his office having lost the confidence of theLegislative Assembly.

AND TO WHOM IT MAY CONCERN15.

Sir,

As a CONSTITUTIONALIST and Author of books in the INSPECTOR-RIKATI series

on certain constitutional and other legal issues my issue is foremost what is constitutionally

appropriate and for this direct myself to you.20It is my understanding from a Page 5 THE AGE Thursday 11 March 2010 article headed

Madden censured second time that Mr madden already previously was censured.

.

QUOTE SARAH-JANE COLLINS STATE POLITICAL REPORTERPlanning Minister Justin Madden yesterday became the first minister in a century to25

be censured twice by Parliament, after a no-confidence motion against him wascarried, 19 votes to 18.

END QUOTE

.

I have set out below some quotations that will show also Victorians historical matters regarding30responsible Minister, etc.

Where the Minister acts on behalf of the Crown via the Governor of the State then I view it is

untenable that the Governor would permit a Minister who lost the confidence of the House

(Legislative Assembly) to continue as Minister of State. As I view it the Legislative Assembly

has by its majority given the Governor notice that this Minister is not worthy to be a35responsible Minister and should forthwith be removed from this office. If the Governor were

to fail to act, where the Minister, allegedly already previously failed to vacate his office then to

the general public this may appear to be seen as political bias by the Governor, irrespective if this

were to be so, because the Legislative Assembly is the peoples House and clearly cannot be

ignored as such.40.

THE AUSTRALIAN CONSTITUTION: A FIRST READING

QUOTE John Kilcullen Macquarie University

Read Section 6. In a session of Parliament a government may be questioned or censured or

voted out of office (under the conventions of "responsible government" a ministry that45 loses the confidence of the lower house must resign or call a general election).


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END QUOTE

.

While this statement was provided in regard of the Commonwealth Parliament, the Victorian

Constitution Act 1975 now also include the wording responsible Minister (of which someexamples are quoted below) and as such I view the same ought to be applicable.5

.

The Commonwealth of Australia Constitution Act 1900 (UK)

QUOTE

Chapter VThe States106 Saving of Constitutions10The Constitution of each State of the Commonwealth shall, subject

to this Constitution, continue as at the establishment of theCommonwealth, or as at the admission or establishment of the

State, as the case may be, until altered in accordance with the

Constitution of the State.15END QUOTE

.

As this constitution has embedded the legal principle of subject to this Constitution where a

Minister having lost the confidence of the House must tender his resignation, I view that a failureof Mr Justin Madden upon a vote of NO CONFIENCE against him a failure to resign must be20

followed up by the Governor having to immediately terminate the commission of being a

Minister, and a Governor may also have to consider if the failure of the Premier to ensure the

Minister resigned on a previous occasion of as I understand it to be a NO CONFIDENT vote of

the Legislative Assembly, and if for this the Premier should be held accountable, as after all thePremier is specifically in his position to ensure that Ministers conform to constitutional25

requirements and will conduct themselves in a manner that they will continue to have the

confidence of the House (Legislative Assembly), and failing to do so a Minister having lost the

confidence of the House will immediately tender his (this includes her also) resignation.

.

If the Governor were not to act immediately then the people of the State of Victoria may30rightfully question the Governors inaction in view that as I understand it the parliamentarian

system is that a Minister must be held responsible and ac countable!

.

I trust that you will undertake immediate and appropriate action, for so far this may berequired, and to assist you as much as possible in your decision making process I have provided35

below some details which you may find relevant to the issue of responsible Minister were Mr

Justin Madden fail to tender his resignation immediately.

.

Hansard 10-3-1891 Constitution convention Debates (Official Record of the Debates of theNational Australasian Convention)40

QUOTE Mr. BARTON.-

The constitutional doctrine that the prerogative is exercised in trust for the people,

and therefore by a responsible Minister, is now child's knowledge to all of us, and it

regulates the whole case.

END QUOTE45

.

Version No. 174

Constitution Act 1975

Act No. 8750/1975


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Version incorporating amendments as at 28 July 2005

Preamble

QUOTE

And whereas by the said Bill as so amended the Colony of Victoria was established as aself-governing colony with responsible government5

END QUOTE

QUOTE 18. Power for Parliament to alter this Act (2)

(h)responsibility for ensuring the delivery of a water service (within the meaning of Part VII)may be transferred to a person or body that is not a public authority (within10

the meaning of that Part) or the accountability to a responsible Minister of

the Crown of such an authority for ensuring the delivery of such a service

may be removed

END QUOTE 18. Power for Parliament to alter this Act (6)15

(b) alter the structure, composition or membership of a public authority (within the meaning

of Part VII) that has responsibility for ensuring the delivery of a water service (within the

meaning of that Part) if the alteration does not affect its status or the status of a successor body assuch a public authority accountable to a responsible Minister of the Crown for ensuring the

delivery of that service.20

QUOTE

END QUOTEQUOTE 50. Salaried officers in Parliament

(2) Such officers shall be responsible Ministers of the Crown and members of the Executive25

Council, and ten at least of such officers shall be members of the Council or the Assembly.

END QUOTE

QUOTE

52.Power of Ministers to speak in either House

(1) Notwithstanding anything contained in any Act any responsible Minister of the30

Crown who is a member of the Council or of the Assembly may at any time with

the consent of the House of the Parliament of which he is not a member sit in such

House for the purpose only of explaining the provisions of any Bill relating to orconnected with any department administered by him, and may take part in any

debate or discussion therein on such Bill, but he shall not vote except in the House35

of which he is an elected member.

(2) It shall not be lawful at any one time for more than one responsible Minister

under the authority of this section to sit in the House of which he is not a member.

53. Responsible Minister not required to vacate seat on appointment to office

(1) Notwithstanding anything in this Act where a person is appointed by the Governor40

to be a responsible Minister of the Crown the acceptance by him of the

appointment shall not prevent him from becoming a member of the Council or the

Assembly or from sitting and voting as a member or if he is a member shall notvacate his seat.

END QUOTE45

.

Hansard 10-3-1891 Constitution convention Debates (Official Record of the Debates of the

National Australasian Convention)QUOTE Mr. BARTON (New South Wales).-

No.6224ss19, 20.


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There are certain prerogative rights-this was all gone into at Adelaide, and decided by the

Convention according to the contention I am advocating-which are not described in [start

page 2254] a statute as rights of the Governor in Council, simply because no statute has

ever dealt with them, and because they belong to that part of the prerogative which hasnever been nominally given up by the Crown. Of such is the power to summon and dissolve5

Parliament, to which no one who understood these matters would dream of adding the

words "in Council." But yet these rights can never be exercised without the advice of a

responsible Minister, and if that advice is wrongly given it is the Minister who suffers.

END QUOTE.10


National Australasian Convention)

QUOTE Mr. ISAACS.-

Let me, once for all, distinguish between those two matters. Representative government ispossible without responsible government. In America they have representative15

government, but they have no responsible government. Therefore, we must distinguish very

clearly between these two things. If we want to preserve representative government, as I

think we must, we shall have to ask ourselves, first of all, what it is. Responsible

government means, as I understand it, the responsibility of the leaders of political life,the Ministers of the Crown, to one House of Parliament. Representative government20

means that the people, in providing their legislation and supervising their

administration, do so through their representatives. It is of the utmost importance

that we should not confuse these two matters.END QUOTE

.25



QUOTE Mr. MCMILLAN:

Ministers cannot hold power a day after they have lost the confidence of the people;

and by our machinery, having our Executive in the two houses of Parliament-and I30trust that the senate will have some members of the executive among them-we feel the

breath of the people as we feel the wind of heaven. Twenty-four hours need only elapse

before the feeling of the people is known, and in spite of those gentlemen who wish tobring about the political millennium, I hope that there will always be an opposition,

sturdy, critical, and independent, so that the ministry may always feel the breath of35

the people, and be turned out as soon as they cease to represent the people.

END QUOTE

.Hansard 12-3-1891 Constitution convention Debates (Official Record of the Debates of the

National Australasian Convention)40

QUOTE Mr. MCMILLAN:We have a system of responsible government, and we have at the head of it a

representative of her Majesty. Long may we have her representative among us. I do

not agree with what my hon. friend, Sir George Grey, said on this point. It seems tome that this makes the whole difference of the system-it goes to the very root of the45

system. We have now a governor, whether he be able or not, who is above party

feeling. He never ceases to exist. Ministers come and go, but there remains an absolute

link of communication from the people right up to the head of the Government.END QUOTE

.50




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QUOTE

The governor-general, as representative of the Queen in these federated colonies, should be

clothed by statute with all the powers which should belong to the representative of her

Majesty; he should be above all risk of attack, because he should act only on the advice ofresponsible ministers, who should be prepared either to obtain the sanction of5

Parliament for their acts or vacate office. Parliament, in its turn, should be brought into

intimate relation with the electorates. This is true, popular government.

END QUOTE

.Hansard 4-3-1891 Constitution convention Debates (Official Record of the Debates of the10


QUOTE Sir SAMUEL GRIFFITH:

We are accustomed to think that the essence of responsible government is this: that

the ministers of state have seats, most of them, in the lower house of the legislature,and that when they are defeated on an important measure they go out of office. That I15

venture, with the greatest submission, to say is only an accident of responsible government,

and not its principle or its essence. In form-legal form, I mean, statutory form-so far as our

written Constitution goes, and so far as the unwritten and partly written Constitution of the

United Kingdom goes, the system depends on these propositions-that the ministers areappointed by the head of the state, the Sovereign, or her representative, and that they may20

hold seats in Parliament. That is all that will be found in the Constitution of the United

Kingdom. They are appointed by the head of the state, and some of them may hold seats in

Parliament-a limited number. That is part of the written Constitution. In the Australiancolonies, with few exceptions, the same propositions are the only ones that are to be found

laid down by positive law. The ministers are appointed by the head of the state-the25

Sovereign's representative-and they hold office during his pleasure, and they may, or a

certain number may, hold seats in Parliament. In two of the colonies, I believe, is to be

found an innovation, an addition to this proposition, stereotyping in formal language thepractice that has grown up in Great Britain and in the other colonies since the system of

responsible government has been invented; that is, that some of the ministers shall hold30seats in Parliament. Victoria and South Australia, I believe, have provisions of that kind.

END QUOTE



QUOTE Mr. ISAACS.-

Responsible government means, as I understand it, the responsibility of the leaders of

political life, the Ministers of the Crown, to one House of Parliament. Representative

government means that the people, in providing their legislation and supervising their

administration, do so through their representatives. It is of the utmost importance40that we should not confuse these two matters.

END QUOTE



QUOTE Mr. BARTON (New South Wales).-

It is perfectly competent for any Minister under responsible government, such as we have

it, to secure for the people through their Executive Council every control that my learnedfriend wishes to obtain, that is to say, every control of the entire management and

administration of the department for which the Minister is responsible. In the Imperial50

Constitution, much of which is unwritten, there is no necessity for a provision of this kind


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in order to insure that the prerogative shall be administered in trust for the people, and it is

laid down by every constitutional writer whose word is worth having that every prerogative

of the Crown is now administered in trust for the people, [start page 2253] which means,

and is stated to mean, that it is administered by the advice of a responsible Minister.END QUOTE5

.



QUOTE Mr. BARTON.-

But the Minister is responsible for the administration of the department as the person10under whose control it is, within the Executive arrangement, and he is responsible for all

expenditure upon it. Having this responsibility, he is entitled to tender the advice which will

enable him to exercise his responsibility fearlessly.

END QUOTE.15



QUOTE

Mr. SYMON: How about the appointment of Ministers?

Mr. REID: Some Ministers' appointments would have to be countersigned by a20

Minister.

Mr. SYMON: That is, the publication only.

Mr. REID: Yes; my honorable friend is quite right. Of course this comes afterwards. Bysection 2 of chapter I., Her Majesty would assign that prerogative to the Governor, amongst

other prerogatives, which she would assign to him. That prerogative would remain in the25

Governor under section 2, chapter I. This executive power and authority of the

Commonwealth is something different altogether from the prerogative of the Crown.

The executive power and authority of the Commonwealth is a thing which must beexercised by Ministers. The other is a prerogative matter which is safeguarded by the

section I have referred to.30

An HON. MEMBER: What about the dismissal of Ministers?

Mr. REID: Even if Ministers are dismissed, they have to hold office until their

successors are appointed.

Mr. KINGSTON: Not dismissed; they resign.

Mr. REID: Yes; they hand in their resignations. But even if His Excellency exercised35 the extreme prerogative, and dismissed them-a thing never heard of in these colonies-

supposing the Proclamation had to go out before the new Minister was sent for, could

the Governor dismiss them without a Minister?

Mr. SYMON: No; that would be done before the Minister left office.

Mr. REID: Exactly; that was what I was endeavoring to point out. But I do not want to40

press this matter too strongly, because I quite admit that this Bill, as at [start page 910]

present, will ensure that the practice will be carried out. What necessity was there to put in

clause 2 that Her Majesty's representative could exercise Her Majesty's prerogative. Whatreason was there for it?


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Mr. SYMON: No reason at all.

END QUOTE.

Hansard 19-4-1897 Constitution convention Debates (Official Record of the Debates of the5


QUOTE

Mr. BARTON: The hon. member has not moved in the matter, and as he admits thatwhat he desires is secured in section 61, which is an adaptation of what is in the South

Australian Constitution Act, and is somewhat similar to the Victorian Act, it is just as well10

not to take up much time in debating it. Executive Acts of the Crown are primarily

divided into two classes: those exercised by the prerogative-and some of those are not

even Executive Acts-and those which are ordinary Executive Acts, where it isprescribed that the Executive shall act in Council. These are the offsprings of Statutes.

The others are Acts so far as they are not affected by Statutes. Now there is no necessity to15

make any alteration in this clause. The clause has been drafted in precisely the ordinary

way-it was similarly drafted in 1891-which is simply to express in a document of this

character the depository of the Executive power in the kingdom or the Commonwealth.Moreover there is no necessity to add the words:

With the advice of the Governor in Council,20

because in a constitution of this kind it is no more possible than it is under the English

Constitution for the prerogative to be exercised as a personal act of the Crown. The

prerogative is never in these days execised as a personal act of the Crown as we understandit, but there are certain acts which have become, either by the gradual march of statute law

or in any other way, nothing but ordinary executive acts and these are expressed to be25

exerciseable only with the advice of the Executive Council. There are others again which

have not been expressly affected by legislation, and while these remain nominally in the

exercise of the Crown they are really held in trust for the people, although they areexercises of the prerogative. This is explained by Dicey in "The Law of the Constitution,"

and the extract I will read will be followed with interest by lay as well as by legal30

members.

Mr. REID: He was writing of an unwritten Constitution.

Dr. COCKBURN: Hear, hear.

Mr. BARTON: The Constitution of England is not wholly unwritten. A vast body ofit is in statute law, a vast body is unwritten. But let us understand that the Imperial35

Parliament has in all its drafting of the Colonial Constitutions drawn the distinction. Yet it

is understood that the Crown exercises the prerogative only upon ministerial advice, and it

is exercised not personally by the Crown, but only with the advice of the Ministry or aMinister. Every Constitution is explicit on that point. You do not find it anywhere in the

Australian Constitutions nor in the Canadian Constitution, which is written like this, that40

there there is a prerogative act expressed to be exercised with the consent of the Executive

Council.

END QUOTE.



QUOTE Mr. MCMILLAN:


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If I were a Responsible Minister of the Crown, and found my policy was not accepted,

I would retire at once from the position.

END QUOTE

.Hansard 8-4-1891 Constitution convention Debates (Official Record of the Debates of the5


QUOTE Mr. FITZGERALD:

Here, however, we absolutely give an invitation to the various states to alter their method of

the appointment of governors, and to proceed at once to election. Election by what? Bypopular vote! Election at certain recurring periods, to throw the whole country into10

confusion, for the appointment of whom? For the appointment of a governor-general,

who ought to be above party politics, whose best efforts ought to be devoted to

reconciling party divisions, who ought not to be, as in the case to which the hon. member,

Mr. Munro, referred, a man who came down from his lofty position, and, enamoured of theapplause of the people, became, during a wave of cyclonic fury which swept over the15

country at the time, instead of a governor, a partisan. The home Government recognised in

a just manner the grave fault which that governor committed, and [start page 876] removed

him from his high position. The effects of that man's mistake have not yet been wiped away

from that colony. It is one of those unhappy remembrances which I am sorry have beenreferred to; but it points a moral in this case. It shows us that if the states were to appoint a20

governor the same feelings would probably actuate him. Probably he would forget, in the

old fire of party feeling, his position of independence, his position of impartiality, and

take sides with one party or the other, and continue the existing unhappiness instead

of doing his best to get rid of it.END QUOTE25

.


National Australasian Convention)QUOTE Mr. WRIXON:

The greatness of these powers, and how vast is the authority which any responsible minister30of the Crown exercises in binding the Crown and the Sovereign, is well known, of course,

to all my legal friends, and was well illustrated in the old case which I mentioned to the

Convention before, namely, the case of Buron and Denman. The Supreme Court of Victoriahas held that similar words in our Constitution Act do not carry with them any such implied

authority to the minister who holds any such office, on the ground that the statute that35

created the office and defined his duties is not held to carry with it the larger powers to

which I have adverted.

END QUOTE.

Hansard 6-4-1891 Constitution convention Debates (Official Record of the Debates of the40National Australasian Convention)

QUOTE

Mr. CLARK: I think that both the hon. members, Sir John Bray and Mr. Wrixon, havebeen officers of state in their respective colonies, and have been in the position of

responsible officers of the Crown. I would ask them to consider, when they held office,45

what made them responsible ministers? Was it the fact that in one case the hon. member

was administering the treasury department, and in the other case the Attorney-General's

Department; or was it not the fact that in addition to being officers of state they were alsomembers of the executive council? That is what made them responsible ministers. If the

officers under the commonwealth are both officers appointed to administer departments of50

state and also members of the executive council they will be in the exact position that both


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hon. members have been in in their respective colonies when they have been called

responsible ministers, and nothing else which can be put in the bill can make them more

so.

Mr. DEAKIN: I wish to point out to the hon. member, Mr. Clark, that he has not, in my

opinion, exhausted the situation by the definition he has given. He has brought to his aid5

all that part of the clause which would render these ministers the heads of

departments, and the other part which makes them also members of the executive

council. But there are two points to be considered in that connection. First of all, inVictoria a man remains an executive councillor after he has ceased to be a minister, after he

has ceased to be the head of a department of state.10

Mr. CLARK: And in Tasmania, too!

Mr. DEAKIN: There is no distinction here between those who are executive councillors

and not ministers, and those who are executive councillors and ministers. And [start page

769] then, in the second place, it might be contended that the authority here given to thefederal executive councillors is an authority which is vested in them as a whole, sitting in15

council. It is a body which advises the governor, and on whose advice the governor acts;

but it does not clothe the ministers individually with that power and authority whichministers in Great Britain possess as responsible ministers of the Crown.

Sir' SAMUEL GRIFFITH: They act as the Queen's ministers, and in the Queen's

name!20

Mr. DEAKIN: But there are numerous acts in the administration of departments every

day, and occasionally important acts, which are undertaken on the authority of a single

minister, which do not necessarily come before the executive council as a whole.

Mr. CLARK: What words in the Victorian Constitution give that power?

Mr. DEAKIN: We have not the words in our Constitution.25

Mr. CLARK: Nor in any other constitution!

Mr. DEAKIN: Nor in any other constitution. As my hon. colleague, Mr. Wrixon,

interjects, it was held that we were acting illegally because we exercised, and claimed toexercise, such a power.

Mr. CLARK: We are all alike!30

END QUOTE

.

Hansard 6-4-1891 Constitution convention Debates (Official Record of the Debates of theNational Australasian Convention)

QUOTE Mr. DEAKIN:35

In the first instance, the power of the Crown itself is nowhere defined, and cannot be

defined under this constitution.

END QUOTE.



QUOTE

Sir SAMUEL GRIFFITH: I am trying to get at the ideas which are underlying theargument of hon. gentlemen. I confess I have not got at them yet. The hon. member, Mr.


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Deakin, talks about the powers exercised by the ministers of the Crown in Great

Britain. They do not differ in any respect from the powers exercised by ministers of the

Crown in any other country.

Dr. COCKBURN: They are much superior to the powers of ministers here!

Sir SAMUEL GRIFFITH': Not in the east.5

Mr. DEAKIN: The powers of our ministers are limited, and theirs are unlimited!

Sir SAMUEL GRIFFITH: What is the power to be exercised? The sovereign power of

the state. The head of the state, being one person, cannot do everything himself. He,therefore, has ministers, servants nominally of himself, but really of the people, to do that

work for him. They are called ministers, but it is the power of the head of the state which is10

being exercised all the time. What more words can you use for the purpose of saying that?

He shall appoint proper officers to do it.

Mr. DEAKIN: Hear, hear!

Sir SAMUEL GRIFFITH: That is what we have said. The power is vested in the

Queen. For the administration of that power, officers shall be appointed.15

END QUOTE

.


QUOTE20

Mr. DEAKIN: I would say briefly, in answer to the hon. gentleman, that in the very case

to which he has referred, the Supreme Court of Victoria held that the words "responsible

minister of the Crown" appeared in certain statutes passed by the Victorian Parliamentsince the passing of the Constitution; but that they did not appear in the Constitution Act,

and a majority of the bench declared that if they had been inserted there they would have25made a very great difference in the way in which they would have regarded ministerial

authority in the colony.

Sir SAMUEL GRIFFITH: But the Privy Council said that was wrong!

Mr. DEAKIN: As far as I am acquainted with their judgment, the Privy Council did notenter upon that particular issue at all. They have not even considered the point, to say30

nothing of giving an opinion upon it. The judgment, therefore, remains for what it is worth

as a judgment of the Supreme Court. If the words my hon. colleague desires to introduce

had been inserted in the Victorian Constitution Act, the ministers of Victoria would have

had greater power than they now possess. The words the hon. gentleman has just suggested,conveying sovereign power to ministers, would be amply sufficient. Those words should be35

embodied in this constitution.

Sir SAMUEL GRIFFITH: That is to say, that all the royal prerogatives should be

exercised by the governor-in-council!

END QUOTE

.40



QUOTE


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Mr. WRIXON: I am convinced that the Convention is making a serious mistake. We are

asked to pass this clause in exactly the same terms that would suit a Crown colony. Every

word in this clause would apply equally to ministers and officers in a Crown colony which

was about to be founded. I would be happy if any better phrase could be obtained than Ihave suggested. I think these amendments should be drawn up by the gentleman in charge5

of the bill. The words "responsible ministers of the Crown" were used in Victoria, not

as the hon. member, Sir Samuel [start page 775] Griffith, thinks, by mistake, but are used

repeatedly, and I think most justly, because no principle is better understood than that the

courts take judicial notice of all things-mercantile, political, and so on. And the politicalmeaning, under the Constitution of England, of "responsible minister of the Crown," is10

perfectly well known. What is desired is this: that a minister in Australia shall have the

same position with regard to the Crown in all matters Australian, as a minister in England

has with regard to all matters English. We desire to have that object carried out. I am sorry

the Convention does not attend to it, because I am sure we are making a mistake.

Mr. KINGSTON: We are very much indebted to the hon. member, Mr. Wrixon, for15

calling attention to this matter. There is no hon. member who has had more practical

experience, in view of recent events, of the necessity for making some provision of this

kind. His attention has been drawn to the matter by the litigation which has lately taken

place on a very nice constitutional question. A decision was pronounced by some, at least,of the Victorian judges which forms the position for which the hon. member contends,20

namely, that it is necessary to make an amendment in the bill in order to give ministers of

the Crown in Australia certain prerogative rights which are exercised by ministers in

England for the benefit of the community. When we are legislating for the creation of aconstitution for the commonwealth which we hope to establish here, we should at least

profit by the experience of past years in order to clothe the officers of the commonwealth25

with all the powers which may happen to be necessary for the preservation of the rights of

the community. There is no more important power than the one which was in issue in

the litigation to which I have referred; that is, the right of the representatives of the

executive ministers to act without recourse to parliamentary authority in order to

prevent aliens from effecting a landing on our shores. We should render ourselves30liable to be accused of negligence if we did not make every effort to see that this

question was perfectly clear, so that in future we should have the power which was

questioned in connection with the late litigation, and which at present there is some

doubt whether the colonial governments possess. We have the decision of some at leastof the Victorian judges that the power is not possessed by Victorian ministers; but35

that if certain phraseology had been employed, they would possess the power. We do

not know to what extent that decision may have been qualified by the judgment of the

Privy Council; but it seems from the telegrams that it is doubtful as to whether or not

that decision has in any respect been qualified.END QUOTE40

.


National Australasian Convention)QUOTE Mr. WRIXON:

Now, the point I wish to draw attention to is that I do not think the provision will convey45

to those officers thus appointed by the governor the great power and authority which, under

the English system of government, belongs to a responsible minister of the Crown. That is

something distinct from the position of an officer appointed to administer a department. My

learned friends present will remember the remarkable case of Buron versus Denman,in which the captain of a ship of war had illegally destroyed certain property of a50

trader. After that had been done Lord Palmerston wrote a letter saying that he thoroughly


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approved of what the captain had done. An action was brought by the owner of the property

which had been illegally destroyed, and it was held by all the judges at home that the mere

fact of a minister of the Crown writing a letter expressing approval embodied the

approbation of the Sovereign herself to that act, although it was admitted, of course, thatshe knew nothing whatever about it. That is a very great power, but it is a very essential5

power if you are to have every day government satisfactorily carried on. It is a vast power;

but it is necessary that it should be given to a minister of the Crown under the system, and I

am convinced that if the question were raised hereafter as to whether one of these officers

appointed to administer a department really stood in the shoes, to use a commonexpression, of one of her Majesty's responsible ministers, the courts would hold that be did10

not. They would say, "Here is a statutory provision as to what the position is; nothing is

said about responsible minister; nothing is said about minister of the Crown either. The

officer is appointed to administer a department."

Mr. CLARK: Read the last line. The clause provides that the officers shall be members

of the federal executive council!15

Mr. WRIXON: It does not connect them with the Sovereign.

Mr. CLARK: It makes them ministers; it is done in Canada!

Mr. WRIXON: In Canada the act says ministers shall be members of the Queen's PrivyCouncil.

Mr. CLARK: It is the same thing here!20

Mr. WRIXON: I apprehend it is not the same. At any rate, the question has never been

raised in Canada; but I think the question certainly would be raised here; and, according to

my view, I think there can be little doubt but that the courts would hold that ministers

so appointed did not inherit all the great powers of the Queen's ministers, and which

powers are yet necessary for the carrying on of the government.25

END QUOTE.


QUOTE Mr. DEAKIN:30

The solution which I wish to suggest to the hon. member who has now moved his

amendment is that it would be better to embody in the bill itself anything that we have to

say on this subject; and for my own part, I cannot conceive that it will be necessary to doanything more-if I may repeat what I was urging a few minutes ago in connection with

another subject-than to insert in this bill, and to state on the very face of the constitution,35

that the governor shall invariably act on the advice of his responsible ministers, that every

act of his shall be countersigned by a responsible minister who shall make himselfresponsible by his signature for that particular act.

END QUOTE

.40



QUOTE

Mr. DEAKIN: I should be sorry to think that it ever rested upon such a perilousfoundation. It is not a little thing to create a new Upper House on a new pattern as is45

proposed. The Constitution which we now enjoy, it appears, is to be set aside with less

ceremony than one would have expected from gentlemen who have lived under it, and haveexercised its highest powers for many years. We seem to be ready to depart from


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institutions which have the sanction of long experience, almost entirely on theoretical

grounds. It is true that hon. members have looked to the experience of other countries;

but in doing this they have ignored some of the most pertinent lessons of our own,

which is that if we establish two chambers of equal authority, we prepare the way for

dissension, and encourage deadlocks. The constitutional history of Victoria gives5ample evidence of this. What we have been so long striving for, and what we are still

striving for in that colony, is some means of arbitrament for the settlement of disputes

between the two chambers.

An HON. MEMBER: Simply mechanical!

Mr. DEAKIN: I care not whether it is mechanical or not, as long as it is there, and10as long as it proves effective. If we allow the present state of things to exist, it must

lead to dispute and contention. The final point to which I think it necessary to direct the

attention of the Convention most seriously, in order that in drawing the constitutionproposed to be adopted by federated Australasia we may not shape it without regard to

recent interpretations of colonial constitutional rights, is to be found in the judgment in the15

case of Ah Toy versus Musgrove, delivered by the Supreme Court of Victoria. In that case

the powers of the Executive and those conferred upon the colony under the Constitution

were challenged in the courts and before the Privy Council. The [start page 85] finding isone that will demand the most careful consideration when the federal constitution is being

framed, because it has been the common belief in Victoria that we had all the powers and20

privileges attaching to responsible government, sufficient to enable us to perform all the

duties and to exercise all the rights devolving upon us as a people. The gravest doubt is

now thrown upon this belief. The people of Victoria are under many obligations to theirdistinguished Chief Justice and especially for his judgment in this suit, in which he has

displayed the acumen of the lawyer, the eloquence of the orator, and the grasp of the25

statesman. Chief Justice Higinbotham said:

It was the intention of the Legislative Council to provide a complete system of responsible

government in and for Victoria, and that intention was carried into full legislative effectwith the knowledge and approval and at the instance of the Imperial Government by the

"Constitution Statute," passed by the Imperial Parliament.30

He was supported in his opinion by Mr. Justice Kerferd, who for some time was Attorney-

General of Victoria. Mr. Justice Kerferd said:

All the prerogatives necessary for the safety and protection of the people, theadministration of the law, and the conduct of public affairs in and for Victoria, under our

system of responsible government, have passed as an incident to the grant of self-35

government (without which the grant itself would be of no effect) and may be exercised by

the representative of the Crown in the advice of responsible ministers.

These two quotations embody the belief which was held until lately in Victoria; themajority of our own Supreme Court overruled this reading. Mr. Justice Williams said:

I have been for years in common with, I believe, very many others, under the delusion (as40

I must term it) that we enjoyed in this colony responsible government in the proper sense of

the term. I awake to find, as far as my opinion goes, that we have merely an instalment of

responsible government.

Mr. Justice Holroyd considers that we have only a measure of self-government, and two

other judges concur. My colleague, Mr. Wrixon, who argued the case with great force and45

ability before the Privy Council, says:


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If the reading put by the Supreme Court in Victoria upon our Constitution Act be

correct, then not only in the colony of Victoria, but in all the groups of Australasian

colonies, the governments which we now enjoy are without warrant of law.

That is a strong statement, and the judgment of the majority of our Supreme Court

justifies me in asserting that this Convention cannot too soon face the issue involved in it. I5

take it that the people of Australasia will not be satisfied with any "instalment" or any

"measure" of responsible government, or any limitations, except such as are necessary to

the unity of the empire. We claim, without shadow of doubt or vestige of qualification, allthe powers and privileges possessed by Englishmen. The governor-general, as

representative of the Queen in these federated colonies, should be clothed by statute with10

all the powers which should belong to the representative of her Majesty; he should be

above all risk of attack, because he should act only on the advice of responsible ministers,

who should be prepared either to obtain the sanction of Parliament for their acts orvacate office. Parliament, in its turn, should be brought into intimate relation with the

electorates. This is true, popular government.15

END QUOTE

.

Awaiting your response, G. H. Schorel-Hlavka

Documents

100312-Governor D de Kretser