Revelations about the conduct of the Prime Minister and Governor General about Cabinet Ministries naturally prompt discussion about how ‘government’ does or should operate in Australia.

Although the issue is said to be ‘constitutional’, the Commonwealth Constitution has little to say about it.  It says:

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. 

The Constitution refers to Ministers of State and a Federal Executive Council.  That body – which the public now knows nothing of – was to take the place of the Privy Council – as it then stood in England.  There is no mention of the two offices we regard as the heart of government – the Prime Minister and Cabinet.

What then was or is the ‘government’?  To answer that, we can go back to lectures delivered by the great legal historian F W Maitland at Cambridge in 1888 and published in 1908.  That may seem silly, but those two dates surrounded the time of the enactment of our constitution, and to answer the question, Maitland went back to the reign of William III. 

The English Constitution was settled by laws passed after the revolution of 1689 – principally the Bill of Rights and the Act of Settlement.  After that came the development of the office of Prime Minister and the role of the Cabinet – and the development through convention of what we know as the Westminster System.

What then is this government?  The answer to this question, if it be true, must be both long and difficult.  The reason is this.  During the last two centuries [after 1689] there has grown up an organisation which is not a legal organisation.  Of course, I do not mean that it is an illegal organisation; rather I should prefer to say that it is an extra-legal organisation; the law does not condemn it, but it does not recognise it – knows nothing about it.  I mean the organisation to which we point when we use such terms as ‘the Cabinet’, ‘the Ministry’, ‘the Government’, ‘the Prime Minister’….

These functions are found in conventions that derive from history.  The ‘cabinet’ and ‘prime minister’ are said to be terms that are not known to the law.  ‘No official document constitutes the cabinet…the legal powers of a cabinet meeting are only the sum of the legal powers of its members.  The cabinet has no corporate powers.’

When speaking of the ‘executive’ we – and the Constitution – are talking of the powers of the Queen.  Except that later, Maitland goes on to say, with expressed diffidence, ‘that we can no longer say that the executive power is vested in the king: the king has powers, this minister has powers, and that minister has powers.  The requisite harmony is secured by the extra-legal organisation of cabinet and ministry.’

Those propositions may bear some analysis when looking at a case where it is said that one minister had the same powers as another minister.  What happens if one purports to override another- as the press says happened here on a contentious mining issue?

Australians who were about in 1975 will not be surprised that Maitland said that ‘there is often great uncertainty as to the exact limits of the royal prerogative.’  The very question can send shivers up the spine – just as it led to the beheading of Charles I.

Elsewhere I sought to explain the Westminster System.

Government is seen to come in three parts.  The Parliament makes the laws.  The executive branch carries them into effect.  And the judges rule on any disputes about the working of the laws. 

The Queen is in theory the head of the executive, but there are four parts of the Westminster System dealing with the working of the executive that are fundamental to our notion of ‘responsible government’.

First, the Queen only acts on the advice of her Ministers.

Secondly, those Ministers – some of whom comprise the Cabinet – must have the confidence of the Parliament – and they must resign if they do not.

Thirdly, there is a permanent non-political civil service chosen and trained to give effect to the wishes of government, the members of which are under the supervision of a Minister – the Ministers of course being the members of parliament and who have the confidence of parliament.

Fourthly, the Ministers are responsible to the Parliament for the working of the civil service under them.  If the civil service makes a mistake that cannot be dismissed as trifling, the Minister must account to Parliament for the error – and depending on its gravity either apologise or resign.

We need not be surprised that so much turns on ‘convention’.  Ultimately, the English constitution, and therefore ours, rests on the common law – which derives from custom and precedent – and the distinction between those two and ‘convention’ is a point we can reserve for the medieval Schoolmen – who asked how many angels dance on the point of a needle.

Finally, if as Maitland says, the relevant offices are not known to the law, how does a court of law get to rule on them?  We may be about to find out if a mining licence was given by one minister contrary to the view of the minister primarily appointed to that office, and the disappointed party goes to court.

Constitution – Cabinet, Ministers, and Prime Minister – justiciable issues – dual appointments to ministries.