Chapter II. The Executive Government.
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61. Executive power
The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
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This section is both terrifying in its scope and horrifying in its lack of definition.
The unspoken terror in the Constitution is that the executive power of the Commonwealth is vested in the King and is exercisable by the Governor-General. It is not parliament who actually holds the power of the executive; it is not the cabinet which actually holds the power of the executive; it is the King, being represented by the Governor-General.
This terror and horror is what lies at the heart of the whole argument of republicans. Their argument is not that Australia should "grow up" (which is a stupid turn of phrase in the light that the Commonwealth has existed for 121 years) but rather that the executive power of the Commonwealth ultimately lies with someone 10,000 miles away.
I would argue that it is precisely this terror and horror which is why Australia has the six oldest continuously operating parliaments in the world. Even the mother of all parliaments at Westminster when faced with the Blitz, closed parliament and appointed a War Cabinet which meant shutting the doors. Australia which is on the other side of the world and far away from everything, by historical accident, kept its parliaments operating right through the war.
Under most circumstances, the Governor-General is basically an office with a rubber stamp. Contained within that rubber stamp is vested the executive power of the Commonwealth. I would rather that the person in the office is terrified and horrified of the power they hold, to the point where they won't use it, as opposed to not being terrified and horrified of the power they hold which emboldens them to want to use it. I would rather be ruled by incompetence that will not act, than competence that does.
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62. Federal Executive Council
There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.
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Section 62 basically says that there will be a cabinet. My guess as to the reason of why this is in here at all is that this is to remind the parliament that the power to select the Cabinet ultimately rests with the Governor-General and not the Prime Minister of the day.
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63. Provisions referring to Governor-General
The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.
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I am yet to determine what exactly Section 63 is supposed to mean. My guess that is that in theory it supposed to mean that the Governor-General isn't supposed to act without the express advice of the Federal Executive Council but given that the several powers of the ministries are usually given to the relevant cabinet minister, there is not much which the Governor-General could in fact do unilaterally.
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64. Ministers of State
The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.
Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth.
Ministers to sit in Parliament
After the first general election no Minister of State 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.
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Section 64 of the Constitution was brought into sharp focus this year after it came to light that the former Prime Minister Scott Morrison convinced the Governor-General David Hurley to appoint him to five extra cabinet positions. It should be pointed out that under Section 64, the Governor-General had complete power to do this; so the idea that there was a Constitutional Crisis is bunk. The Constitution is not in crisis. It was working perfectly. Politics on the other, was doing what politics likes to do and was organising a scandal.
The first clause says that the Governor-General can establish any number of departments of State that they wish; without any kind of reference to rhyme, reason, logic, or reality. The Governor-General could appoint a Minister for Bananas and Bacon, a Minister for Truth, a Minister for Women, a Minister for Sound, and a a Minister for the 1920s if they wanted to. The Federal Executive Council has literally no limits or directions on its makeup or oversight whatsoever.
The Governor-General was perfectly within his power to appoint Mr Morrison to five cabinet posts, or even all of them. It is actually possible under Section 64 for one person to hold every single cabinet post. The closest that we ever got to such a situation was in 1972 when for a period of two weeks, Gough Whitlam held 13 cabinet posts and Lance Barnard held the remaining 15.
The first two clauses make absolutely no mention of who can be a Minister of State whatsoever. Not only is there zero mention of whether or not they can or need to be in either the House of Representatives or Senate but there is also zero mention of whether if they need to be in either the House of Representatives.
When Harold Holt disappeared in 1966, presumably drowned and presumably dead, the Governor-General Paul Hasluck appointed John Gorton as the next Prime Minister. At the time, Gorton was a Senator for Victoria; there was nothing wrong with this. Gorton could have continued the premiership from the Senate and this would have been fine. There have been plenty and still are Ministers in the Senate and nobody even so much as bats an eyelid at this fact. Gorton resigned his Senate seat and for 21 days wasn't even a Member of Parliament. The reason that he resigned his Senate seat was to contest the House of Representatives seat of Kooyong but even that has less to do with convention and more to do with him wanting to be in the House of Representatives because that is where Appropriation Bills (ie the Budget) originates. Convention lasts exactly as long as convention lasts and is only as relevant as it is relevant.
If the Governor-General wanted to appoint a temporary Minister of State during a time of war, who was say a foreign military General, then that would be fine. If the Governor-General wanted to appoint a Minister of State which related to some kind of crisis, then that would be fine. Even if we assume that the Governor-General was a madman and a knave and wanted to appoint a hostile eejit to the position of Minister of State, then that would be fine.
Section 64 is so open that the Governor-General could appoint Vladimir Putin, Jacinda Ardern, Justin Bieber, Fat Cat, the planet Mars, Rupert Murdoch, Rupert Grinch, Johnathon Thurston, a block of cheese, quite literally anyone and anything to any Minister of State, including the Prime Ministership, during the pleasure of the Governor-General.
The only stipulation with regards who can be a Minister of State is that they can not hold office for a longer period than three months unless they become a Senator or a Member of the House of Representatives. Other provisions to do with citizenship such as Section 44 with come into play under such circumstances. Taken to the absolute extreme of insanity, the Governor-General could appoint an open enemy of the Commonwealth for 89 days (because this is less than three months), then withdraw their pleasure; then reappoint that open enemy of the Commonwealth for another 89 days, ad nausuem. The actual chance of this is ridiculously close to but not zero.
This is why the appointment of Scott Morrison to five cabinet posts is so scandalous. It isn't that the Governor-General couldn't appoint him to multiple cabinet posts. It isn't that the Governor-General didn't have the power appoint him to cabinet posts. Section 64 gives the Governor-General the power to make Ministers and unmake Minister pretty much on a whim and without reference to reality. The scandal is that unlike Gough Whitham being Minister for Everything and Lance Barnard being Minister for Everything Else, or John Gorton being Prime Minister from the Senate and then Prime Minister with no seat in parliament at all, this was done in secret. Australians are pretty accepting of corruption, racism, knavery, pork-barrelling, crudeness, rudeness, drunkenness, adultery and seemingly sexual harassment and rape within the walls of parliament but when it comes to not telling us, we chuck a nana (especially the Senators from Queensland).
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65. Number of Ministers
Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs.
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Even before the first Parliament sat, the Barton Ministry had 11 Minister. This then makes me wonder what the point of Section 65 was. I have read through the debates in the Constitutional Conventions and apart from George Reid mentioning the number in passing, I do not know why this ever existed.
Perhaps this was for ceremonial purposes, where the initial photographs would be used in the official propaganda. Australia is a relatively new country and was created after the invention of photography. Perhaps the intent was to show that from the outset, Australia was a real country. Perhaps this was to prove to ourselves that Australia was a real country and not just a confederation of six unfriendly powers. Perhaps, perhaps, perhaps.
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