|Description of this GroupDescription of this Group|
Scope of Group
Formal Structure of Government in Victoria from 1855
Status of Women
Delegated Legislative Powers, Subordinate Legislation, Enacted Law and Unenacted Law
Responsible Government, Separation of Powers and Constitutional Conventions
Debate on Responsible Government and the Separation of Powers
Constitutional Conventions and Cabinet Government
Reserve Power of Governor
Formation of Government
Head of Government
Ministers of the Crown
Historical Development of Government in Victoria
Early Structure of Government
Introduction of More Representative Government 1842
Separation from New South Wales and Government in the Crown Colony of Victoria 1851-1855
The Victorian Constitution Act 1855
The Impact of Federation
Federation in 1901
Initial Division of Powers
Expansion of the Federal Government's Powers
(i) Constitutional Change
(ii) Decisions of the High Court
(iii) Economic Powers
Links with Britain
Early Links with Britain
Location of Records
Scope of Group
The Executive Group includes the records of the Governor (VA 466), the Executive Council (VA 2903) and Cabinet (VA 2989).
Formal Structure of Government in Victoria from 1855
The formal structure of Government is set down in the Victorian Constitution Act 1975 (No.8750), which re-enacted with additions and amendments the provisions of the 1855 Victorian Constitution Act (passed as a Schedule to the Imperial Act, the Victorian Constitution Statute, 18 and 19 Victoria c.55, proclaimed on 23 November 1855), and the consolidated Constitution Act Amendment Act 1958 (No.6224). Under the Constitution Acts the Victorian Parliament has the power to repeal alter or vary the Act itself, provided that the second and third readings of amending bills are passed by an absolute majority of the members of each House.
The Governor (VA 466) represents the Crown in Victoria (1975 Act, section 6). On all official state occasions, the Governor performs ceremonial functions as the representative of the Crown. The Governor is appointed by the British monarch under Letters Patent accompanied by Royal Instructions which refer to the powers conferred on the Governor by the Constitution Act. Until 1986 they defined classes of bills to be reserved for royal assent. They also provide for the Governor to grant pardons, make grants of Crown land, and to act on the advice of the Executive Council (VA 2903), unless exceptional circumstances arise (clause VI, Royal Instructions). The State Government advises the monarch on the appointment of the Governor, this advice being routed through the British Commonwealth and Foreign Office until 1986, when the Australia Acts enabled the Premier to tender advice to the Queen.
Legislative or law making Power is vested in Parliament comprising the Crown and two elected Houses, the Legislative Assembly (VA 2585) and the Legislative Council (VA 471; 1975 Act, sections 15 and 16; 1855 Act, section I). The Governor does not sit in Parliament, but exercises the royal prerogative of assenting to bills as the Crown's representative, with the exception, until 1986, of those bills reserved for royal assent which included bills which altered the Constitution, affected the Governor's salary or pension entitlements, or were required to be reserved by a post-1907 Act of the State Parliament (as provided in the Imperial Australian State Constitution Act 1907). The Governor summons and prorogues Parliament and has the power to dissolve the Legislative Assembly and, in cases of deadlock between the two Houses, the Legislative Council (1975 Act, sections 8 and 66 (2); 1855 Act, section XXVIII). The Governor can also recommend amendments to bills presented for royal assent (1975 Act, section 14; 1855 Act, section XXXVI).
Apart from money bills, legislation can be initiated by any member of either House, although in practice almost all bills are introduced by Ministers as a result of policy decisions taken in Cabinet.
The Constitution establishes Parliament's financial control over the imposition of taxes, consolidated revenue and its appropriation for public purposes. Money bills - those imposing taxes and appropriating revenue - must originate in the Legislative Assembly and may be rejected, but not amended, by the Legislative Council (1975 Act, sections 89-93, and 1855 Act, sections LV, XLIV-V, XLVII re controls over consolidated revenue; 1975 Act, sections 62-65, and 1855 Act, sections LVI-LVII re taxation and appropriation bills). The Governor must recommend taxation and appropriation bills to the Assembly (1975 Act, section 63) and issues warrants to the Treasurer for expenditure of consolidated revenue (1975 Act, section 93; 1855 Act, section LVIII).
Parliament is considered to hold supreme power in the system, but there are limitations on its legislative powers. Until 1986, under the provisions of the (Imperial) Colonial Laws Validity Act 1865, the legislative powers of the State Parliaments were subject to limitations relating to repugnancy to British Law (Lumb p.114-115). These limitations were removed with the passing of the Australia Acts 1986. The Commonwealth of Australia Constitution Act 1900 distributes legislative powers between the Commonwealth and States and prohibits the States from making certain kinds of laws. A State law may be constitutionally invalid because it is inconsistent with a valid Commonwealth law. The constitutional validity of any given Act is determined by the Courts (Judiciary) and hence, in this sense, Parliament in Victoria does not have sovereign power (Sawer, 1972, p.17).
Ultimate executive power, the power to execute or apply the laws made by Parliament, is vested in the Crown and is formally exercised by the Governor, as the Crown's representative, generally with the advice of the Executive Council. The Constitution provides for the appointment by the Governor of a specified number of officers from the Legislative Assembly and Legislative Council as Ministers of the Crown. These Ministers are also appointed as members of the Executive Council (1975 Act, sections 50-51; section XVIII of the 1855 Act, which provided that four of the seven responsible officers of Government or Ministers of the Crown be members of Parliament, was replaced by the Officials in Parliament Act 1859, the original basis for the current provisions regarding the appointment of Ministers and members of the Executive Council). The Governor acting on the advice of the Executive Council is given numerous powers under Acts of the Parliament, for example, to make Orders-in-Council and regulations, to appoint and dismiss public officials.
Judicial power - the power to make judgments about the constitutional validity of laws, their application and interpretation in particular cases, and the application of laws in settling disputes between private persons, society and individuals, government agencies, and public officials and private persons -is vested in the Courts (VRG 4). The Constitution ensures the independence of the judiciary by providing for the permanent appointment of judges by the Governor with the advice of the Executive Council, and for their salaries and pension entitlements. The only lawful means of removing a judge is by the Governor acting upon an address of both Houses of Parliament (1975 Act, sections 75 (5) and 77; 1855 Act, section XXXVIII).
Status of Women
A key feature of the system is its essentially patriarchal nature.
Although adult male suffrage for the Legislative Assembly was achieved in 1857, the legal status of women precluded them from being represented in the colonial government at all - and in many parts of the legislative, executive and judicial system for years after the establishment of the State of Victoria.
Commentators such as Anne Summers have noted that the formal structures which evolved in Victoria were rooted in a male hegemony that reflected the legal and social system in place in Britain, the status of women being derived from the English common law principle enunciated by Blackstone that "husband and wife are one, and that one is the husband". This effectively denied to women personal, social or political rights. The process of altering the legal status of women began in England with the passage of laws relating to the property rights of married women, the guardianship of infants and divorce. Similar laws were subsequently passed in the colonies - for example in Victoria a series of Married Women's Property Acts, dating from 1870. Propertied women had the right to vote in municipal elections from 1863 (Victorian Electoral Act 1863), but female adult suffrage for the Legislative Assembly was not achieved until 1908 after a prolonged struggle, and women were not eligible to take seats in the Victorian Parliament until 1923. For information about others excluded from the electoral process see the section below entitled The Victorian Constitution Act 1855.
Similarly there were legal restrictions well into the 20th century on the entry of women into executive or judicial positions. For example entry of women into the administrative ranks of the Victorian Public Service was only allowed from September 1972, while women in the clerical and keyboard ranks to which they were confined, and in professions such as teaching, were forced to resign on marriage - in the Victorian Public Service until May 1973. The principle of equal pay for equal work was not established in the Victorian Public Service until the introduction of Equal Employment Opportunity in June 1975.
A second sphere of government within Victoria is that of local government. Victoria is divided into a number of municipalities which are variously constituted as shires, towns and cities under the provisions of the Local Government Act 1958 (No.6299). Local government authorities receive part of their revenue from State government grants and from a small reserved percentage of the annual revenue grants made to the State by the Federal Government. Their main source of income arises from their power to levy rates on the owners and occupiers of property.
Local government authorities are subject to the control of State Parliament and the Victorian State Government has the power to remove local councils and replace them with administrators. The franchise for election of local authorities was once based on land ownership and tenancy but has now been extended to all residents including some who are not eligible to vote in State and Federal elections.
The powers and responsibilities of local authorities are established in the Local Government Act 1958 (No.6299) and in related legislation concerning such matters as building control, land ownership, health, town and country planning, land valuation and transport regulation. Local councils are empowered to make and enforce bylaws on a wide range of matters including road and traffic regulation, building construction, health, drainage, sanitation, environmental protection and planning. However these powers are shared with the State Government and there is currently disagreement between the State and some local authorities as to their respective powers in matters such as planning.
Local authorities have traditionally been responsible for road construction and maintenance, public health matters such as the inspection of premises, food and drug sampling and immunisation, and the provision of a wide range of social services including child day care, infant welfare, social welfare and the provision of home help and meals to the elderly and others requiring assistance. For further information about the functions and records of municipalities, see VRG 12 Municipalities.
Delegated Legislative Powers, Subordinate Legislation, Enacted Law, and Unenacted Law
Parliamentary legislation or enacted law is not the only source of law. Geoffrey Sawer (in The Australian and the Law, Penguin Books 1972 pp. 18-21) describes the sources of law in the following terms.
Anglo-Australian law is divided into two main parts, first enacted law and secondly unenacted law. Enacted law is law made by parliaments, and by legislative authorities acting under the authority of parliaments. The laws made directly by parliaments are technically called Acts of Parliament, and are commonly called statutes. It is a general principle of the constitutional system that only parliaments have general authority to make laws; any other body claiming authority to make laws needs to point to a statute giving such authority, but we shall shortly see that the Courts are in a sense exempt from this principle. The laws made by subordinate legislative authorities under parliamentary grant of power are known as Orders-in-Council, regulations, rules, bylaws and various other names. [Regulations and bylaws being the commonest titles for laws made by central executive and local government authorities respectively]. As the Australian colonies were founded, they became subject to existing English law reasonably applicable to their circumstances, whether that law was enacted or unenacted. Owing to doubts about the exact date at which the question of 'applicability' should be decided that date was itself fixed at 1828 for New South Wales, Victoria, Queensland and Tasmania, 1829 for Western Australia and 1836 for South Australia. Thereafter United Kingdom Acts of Parliament applied in Australia only if expressed to do so, and in fact there have been very few such Acts save those dealing with the development of self-government, especially the various State Constitution Acts and the federating Commonwealth of Australia Constitution Act of 1900.
Unenacted law is made by the Courts without direct Parliamentary authority.
The unenacted law is often called 'Common Law'. Strictly speaking, the Common Law is but a part of the unenacted law - the part developed mainly in three particular English Royal Courts, called Queen's (or King's) Bench, Common Pleas and Exchequer. There were other Royal Courts which attended to other types of cases, and built up other rule systems, such as the Court of Admiralty, which created a good deal of law concerning shipping; the most important of these other courts was the Court of Chancery, which created the system called 'Equity'. Equity to some extent supplemented and to some extent competed with the Common Law, and its rules could produce different results in a particular case from those which would have been produced by Common Law rules. In the nineteenth century, the Parliament at Westminster legislated to abolish the many historical superior Courts, merging them in a single set of Courts - the High Court of Justice. In the final stage of this process (1873-5), the Judicature Act also 'merged' or 'fused' all the various kinds of unenacted law; in particular Common Law and Equity with express provision in the latter case that where the inherited rules of the two systems conflicted, those of Equity should prevail. Victoria, Queensland, South Australia, Western Australia and Tasmania soon adopted this reform in full.
Enacted law is applied and interpreted by the Courts on a case-by-case basis.
It is a general principle of the constitutional system that enacted law prevails over unenacted law. In this sense, parliament has the last say. However, it is unreal to differentiate too sharply between enacted and unenacted law, because a great deal of enacted law necessarily comes to the courts for case by case application and interpretation, and during this process the judges often apply the concepts of the unenacted system, or read into the legislation meanings which did not occur to its makers, or extend the legislation to cases which the legislators did not anticipate, or narrow the legislation so as to exclude cases which the legislators wanted to cover.
RESPONSIBLE GOVERNMENT, SEPARATION OF POWERS AND CONSTITUTIONAL CONVENTIONS
Debate on Responsible Government and the Separation of Powers
The development of Victoria's system of government, the structures and practices of which are in part defined by statute and in part derived from convention, has been evolutionary. There are many features of Victoria's government in the late twentieth century which were not evident in the system of government established in 1856 following the achievement of self government, and yet each has been described as characteristic of responsible government.
There is much debate as to the essential features of a system of government variously described as Westminster, Cabinet and Responsible Government. Although these terms are sometimes used interchangeably, debate centres on what constitute the characteristics of each of these forms of government, the extent to which they are separate forms and the degree to which these features are evident in the Victorian and Australian systems of government.
Other writers have questioned whether the presumed characteristics of responsible government are the most significant features of the Victorian and Australian systems of government and there is debate as to the capacity of the Westminster model to provide an adequate explanation of the realities of government. It is argued by some commentators that these theories may represent instead legitimizing myths which foster an idealised representation of those realities. (See for example E. Thompson and J.R. Archer.)
It may be argued that such debate is the province of constitutional lawyers and political scientists and not the business of archivists and what follows is not an attempt to enter the debate nor an attempt to describe comprehensively the arguments that have been pursued by others. It is instead an attempt to indicate some of the issues that have been raised by them in discussion of the realities of the Victorian and Australian systems of government, their structures, forms, processes and practices, for it is these realities that determine what records are created and by whom and where such records may be located. For example, if as E. Sweetman claims, Lieutenant Governor La Trobe worked closely with the Executive Council while Governor Hotham who succeeded him in 1854 did not, then one would expect this difference to be apparent in the records of the Executive Council and indeed Sweetman in part rests his argument on the existence of just such a difference.
Similarly researchers seeking information about the important policy decisions of Government in the 1980's may be assisted by knowing whether in reality these decisions were being discussed, made and recorded by Cabinet, the standing committees of Cabinet, the Premier and a small group of senior Ministers or by Ministers and the senior public officials in their departments.
Most commentators agree that the Victorian and Australian systems of Government represent an amalgam of features, such as cabinet government in which the executive is part of and not separate from the legislature, which are derived from the British tradition, and features such as the sharing of the power to govern within a federation, which are derived from the American tradition.
While it is generally agreed that the doctrine of the separation of powers, that is, the separation of the exercise of power by the legislative, executive and judicial arms of government, informs our system of government, there is debate as to its precise definition, and there is disagreement about the extent to which such a separation is evident. For example it is widely acknowledged that a separation of power is far less evident between the legislative and the executive arms of government, while the judiciary, by virtue of the constitutional provisions regarding the appointment and tenure of its members, is seen to be more effectively separated from the other two arms of government. However with the establishment of industrial and administrative tribunals, the members of which are appointed under statutory provisions different from those applying to judges, it has been argued that the exercise of judicial power, broadly defined, may now be less separate from the exercise of executive power despite the fact that many of these tribunals were established as a means of reviewing the actions of the executive including the bureaucracy, and as an avenue by which citizens may seek redress in a less litigious forum.
It is widely agreed that the separation of powers evident in the Westminster system varies greatly from that evident in the American system of government, the hallmark of which is an elaborate system of checks and balances designed to ensure that no one arm of government may exercise a disproportionate degree of power. For example, the American Constitution provides that no person may be elected to the office of President more than twice; that the President may make no commitments involving expenditure without obtaining the necessary appropriations from both houses of Congress; that the President may make Treaties but only with the consent of two thirds of the Senate, and that while the President may appoint ambassadors, judges and officers of the national government, a majority of Senators must consent to their appointment. The President may veto any Act he/she considers beyond the constitutional power of the Congress, and the Supreme Court, in exercising its power of judicial review, may declare null and void any Act of the national or state governments which it deems contrary to the Constitution.
There is another sense in which a separation of powers is characteristic of the Australian and Victorian systems of government. The Constitution of the Commonwealth provides for a sharing of powers between the State and Federal governments and between the Senate and the House of Representatives. In Victoria power is shared between the Legislative Assembly and the Legislative Council and between the State and municipal governments.
Further aspects of the debate concerning the nature of responsible government and the separation of powers are indicated in the ensuing description of constitutional conventions and cabinet government.
Constitutional Conventions and Cabinet Government
As indicated above there is debate as to the essential characteristics of Victoria's system of government which has been variously termed Westminster, Cabinet and Responsible Government. The structure and practices of Victorian government are in part defined by statute and in part derived from constitutional conventions, customs and understandings which have evolved in Britain, America and Australia.
Key features of the system include institutions such as Cabinet, political party structures, lines of accountability and power relationships which, though part of the system of government, are not governed by statute.
In Victoria the Governor, as the representative of the Crown, generally exercises his/her legislative and executive powers on the advice of and through the Ministers of the Crown (who form the Cabinet) in their capacity as members of the Executive Council; thus in reality the exercise of formal powers by the Governor with the advice of the Executive Council gives effect to Cabinet and Ministerial decisions - Lumb p.73-4.
Reserve Power of Governor
Although the Governor generally exercises formal power only, in certain circumstances he/she may exercise discretionary power, e.g. in cases of political or constitutional crises if there is doubt about whether the Ministry has Parliamentary support, the Governor may not take the advice of the Executive Council in relation to the dissolution of Parliament. This "reserve power" is supported by clause VI of the Royal Instructions, but the exact nature of the "reserve power" is not defined and there are no rules regulating the exercise of this power. Some writers such as Dr. H.V. Evatt have argued for a formal statutory statement of the conventions governing the relationship between the Crown, Ministers and Parliament and for rules to be made to regulate and safeguard the use of the "reserve power" (Rose p.44).
Formation of Government
Following an election the Governor invites the Parliamentary leader of the political party or coalition of political parties commanding a majority in the lower house, in Victoria the Legislative Assembly, to form the Government. By convention a Government holds office only while it retains the majority support of the legislature. On losing that support the Chief Minister or Premier is expected either to hand in the resignations of his/her Ministry or to recommend a dissolution and general election, a request which the Governor may refuse, particularly if an alternative leader can demonstrate that she/he can command a legislative majority. The Premier may recommend a general election at any time within the maximum term of the legislature and if she/he commands a majority in the Legislative Assembly, it is likely that this advice will be accepted by the Governor.
Head of Government
The Premier is elected by a ballot of the Parliamentary members of his/her party. Although by convention it is the Chief Minister who nominates for appointment all other Ministers and who can recommend their dismissal, in practice in Victoria, it is now caucus which elects the members of the Ministry, though the Liberal Party reserves two positions for the nominees of the Premier. The allocation of portfolios however is the prerogative of the Premier.
As Head of Government, the Premier is responsible for liaison with the Governor on behalf of the Ministry and for liaison with other governments. It is the Premier who represents Victoria at the Premiers Conference and at meetings of the Loan Council and it is the Premier who advises the Queen on the appointment and dismissal of Governors and on the exercise of her powers and functions within Victoria.
As chief spokesperson for both the party and the Government, the Premier is expected to have a comprehensive knowledge and understanding of the Government's policies and activities and, through the Cabinet and the Department of the Premier and Cabinet, to exercise responsibility for the co-ordination and implementation of government policies and programmes.
For more information about the Premier's role, see VRG 50.
Ministers of the Crown
The Ministers of the Crown form the Government and receive their commission from the Governor. They are appointed from the Members of Parliament belonging to the political party or coalition commanding a majority in the Legislative Assembly. They are considered to be collectively and individually responsible to Parliament and through the Parliament to the electorate. The Executive is thus part of and not separate from the legislature and there is a "nexus of responsibility" rather than a separation of legislative and executive powers. (Parker p.14). It should be noted that whereas traditional commentators emphasise that the Executive thus derives its power from Parliament, is subject to Parliamentary control and holds office by Parliamentary sanction (e.g. Lumb p.64), others see the Executive, supported by political party discipline and structures, and in the absence of a separation of legislative and executive powers or adequate checks and balances, as dominating the Parliament and that the key characteristic of the system is not cabinet responsibility, but party responsibility (e.g. Thompson p.36).
In Victoria all Ministers are members of Cabinet (VA 2989) and by virtue of the authority accorded to it, Cabinet is the vehicle through which the actions of the Executive are determined. Cabinet considers policy and legislative proposals that are brought before it by sponsoring Ministers who are held to be responsible for these proposals. All Ministers receive copies of all Cabinet documents including submissions, agenda and decisions.
Collective responsibility is a convention of cabinet government and decisions are binding on all Ministers who are expected to first resign if they wish to criticize any of those decisions publicly. Decisions of Cabinet have no legal status and no force until they have been put into effect by individual Ministers providing the necessary administrative direction or until they have been endorsed by the Governor-in-Council or embodied in an Act of Parliament.
The strict confidentiality of Cabinet discussions is a second convention of cabinet government. In Victoria, officials do not attend Cabinet meetings and the Parliamentary Secretary of the Cabinet acts as minute taker and prepares a draft record of Cabinet decisions which is approved and signed by the Premier. However officials from the Cabinet Office do attend meetings of Cabinet Committees and record the decisions of those Committees.
Matters likely to be considered by Cabinet include:
* all major and/or politically sensitive or significant policy issues, including new policy items and variations to existing policies
;* matters which have a significant impact on the employment situation - both public and private sector
;* proposals which cross the boundaries of ministerial responsibilities but cannot be handled outside of Cabinet - there may be a need for joint submissions
;* proposals requiring legislation - both new Bills and amendments to existing Acts
;* action regarding reports of Parliamentary Committees, or Cabinet Committees, including Cabinet Task Forces
;* matters likely to have a considerable impact on relations with Commonwealth, local and other State governments, the labour movement, employer groups, significant lobby groups, etc. and on community relations
;* expenditure and revenue proposals (normally considered in the Budget context); and
* senior appointments.
(Michael Consolo in Freedom of Information Bulletin, December 1988).
Public Service (Bureaucracy)
One of the conventions of the Westminster system is that the bureaucracy should be distinct in status from the political appointees i.e. that appointments and promotions should be made by an independent agency on grounds of merit and suitability and not by political patronage; that Ministers should have final authority over the bureaucracy i.e. that bureaucrats are subject to the lawful commands of the appropriate Minister, and further that Ministers should be accountable for what is done or proposed by those under their authority (Parker p.12). Thus, it is argued, is established the accountability of the whole administration through the Ministers to Parliament and the people (Parker p.14), though some commentators argue that in practice the independence of the bureaucracy and these lines of accountability cannot be sustained (Thompson p.35-6).
Other commentators have argued that "the notion of the 'political neutrality' of the public service is a myth because public servants are inevitably engaged in making 'political' decisions, in the sense of decisions that affect the relative rights and interests of different groups of people and may change the distribution of wealth and welfare between them" and that "in making such decisions no-one can be 'value free' and hence that the work of public servants is inevitably political". (Wilenski quoted in Parker p.20-21.) Others have argued that the size and complexity of the modern bureaucracy, and the fact that the tenure of its officers is independent of the life of any particular government, make it difficult for Ministers to exercise effective control and that it is therefore difficult for Ministers to an