for temporary assistance in his department, the Board, on the application of the permanent head, selects from the register suitable applicants, who may be employed for any period not exceeding three months, renewable twice, but not oftener. After the termination of an employment, the candidate cannot be employed again by the Government in a temporary capacity for a period of six months, except in special circumstances.1

1 Public Service Act 1890, § 38.

CHAPTER XXXIV

THE LEGAL POSITION OF THE EXECUTIVE IN VICTORIA

THE exact position of the executive officials, under a constitution which is more or less dependent upon tradition for its authority, is always difficult to define. In Victoria this position is made additionally complex by the fact that the constitution, besides being largely traditionary, is involved in somewhat vague relationship with another constitution, that of the British Empire.

The English principles on the subject were, however, laid down in fairly clear terms long before the founding of Victoria, and these principles, therefore, make an excellent foundation for an examination of the subject.

They may be stated in the form of five canons.

1. The Crown cannot be made personally responsible by any of the ordinary legal methods, for any act done by itself or its subordinates. A Petition of Right may be presented to Her Majesty, and relief is usually granted upon grounds similar to those which would entitle the suppliant to judgment against a fellow-subject. But no claim, even though judicially declared valid, can be enforced, if the Crown does not choose to recognise it. A successful attempt to enforce such claim would amount to a revolution. An unsuccessful one would probably be held to be treason.

2. Neither the Crown itself nor any of its officials can, as against a subject, legally justify any act for which there is not

1 Tobin v. The Queen, 16 C. B., N. S. 310.

2 The question of aliens is more doubtful.

positive legal authority,' by the plea of state necessity.2 In the very improbable case of the Crown personally offending against this rule, there would, of course, be no legal remedy. In the event of its breach by an official, the latter can be proceeded against in accordance with the next canon.

3. A Crown official, of however exalted a position, can be made personally responsible, for any illegal act committed by him against a fellow subject, by ordinary process of law.3

4. A subordinate cannot plead the illegal command of his superior as an excuse for his illegal act, except in very rare cases, specially excepted by statute.1

5. The Crown may enforce its legal claims by a special machinery not open to subjects.5

We may assume, I think, that these principles apply in Victoria. Some of them have been expressly adopted by statute, the others form part of the unwritten law. The difficulty is not in the principles, but in their application.

It must be remembered that the position of the Crown with regard to the colonies retained its prerogative character longer than the position of the Crown in English affairs. Until the close of the last century, the real government of the colonies was vested in a committee of the Privy Council. Until the introduction of the Swan River Settlement Bill of 1829, Parliament seems to have held aloof from Australian matters.

But it will readily be admitted that long before the establishment of the present form of government in Victoria, the Colonial Office had become as thoroughly parliamentary as any other department of state. It becomes therefore important to look at the present state of the question.

The chief point to bear constantly in mind is, that the legislative and executive authorities of the colony are nominally distinct in their origin, the link between them being purely

1 By this statement it is not, of course, meant to assert that for every exercise of power by the executive there must be statutory or even judicial authority. But the defendant must prove the existence of the prerogative on which he relies. 2 Wilkes v. Lord Halifax, 19 St. Tr. (Howell) 1406.

3 Mostyn v. Fabrigas, 20 St. Tr. 81, and Hill v. Bigge, 3 Moo. P. C. C., 465, followed recently in Musgrave v. Pulido, L. R. 5, App. Ca. 109.

• Entick v. Carrington, 19 St. Tr. 1030.

5 E.g. by arrest on mesne process, information, etc.

6 E.g. Crown Remedies and Liability Act 1890.

CHAP. XXXIV LEGAL POSITION OF THE EXECUTIVE

315

traditional. The legislative authorities were established by statute in 1855, and the prime and avowed object of the Constitution Act is to create a legislature, four-fifths of its provisions being occupied with that subject.

The executive, on the other hand, though it is incidentally alluded to in the Constitution Act, is mainly the creation of the Crown prerogative. Such powers with regard to the colonies as have not been engrossed by Parliament, remain with the Crown; and just as out of its authority the Imperial Parliament created the legislature of Victoria, so out of its authority the Crown from time to time creates the executive of Victoria.

This process of creation is, briefly, performed by the commissioning of a Governor, with power to appoint subordinates. The Crown does not by any means delegate the whole of its prerogatives, even as regards the colony, to the Governor; it gives him certain general and certain special powers, which have been previously discussed. One of these special powers

is, as we have said, the power to appoint the subordinate members of the executive. But this power is qualified by statutory enactment, to which the Crown has assented, which provides that, with certain exceptions previously noticed, all appointments shall be made by the Governor with the advice of the Executive Council of the colony. Moreover, as we have also seen, the advice which the members of the Executive Council may give in such cases is sharply limited by the Public Service Act, to which, as inhabitants of the colony, they are bound to conform.

It would appear then to be an undeniable conclusion for these facts

1. That the members of the executive are entitled and bound to do everything which they are authorised or ordered to do by the legislature of the colony acting within its proper

powers.

2. That the executive is which reasonably falls within Governor by his commission. is, as between him and his superiors, entitled to exercise any such power, is a question of discipline, which can

further entitled to do anything the powers conferred upon the Whether a subordinate official

1 Constitution Act, § 37.

only be settled by the disavowal or confirmation of the superior.

3. That any act done by any member of the executive, from the Governor downwards, not warranted by some rule of law, written or unwritten, is, however morally justifiable or even urgently necessary, an act for the consequences of which he is, unless indemnified by the legislature, personally liable. It is true that the executive acts in the name of the Crown, but as all its members, with the exception of the Governor himself and the Lieutenant-Governor, are appointed by the Governor, it is unreasonable to suppose that they can exercise greater powers by virtue of the prerogative than have been conferred on the Governor himself.

But there is a

These principles are generally admitted. difficulty in the application of them. And this difficulty arises from the simple fact that much of British constitutional law is evidenced solely by tradition and precedent, which evidence is hard to interpret. In the case of a statute, the matter is simple. You must take the words of the statute and nothing more. The question is always what the lawmaker did, not what he intended to do. And therefore it is not permissible to take into account any of the proceedings which led up to the passing of the statute.

Precisely the same question arises in the case of unwritten. law, but it cannot be settled in the same way. In every disputed point the question is, What has been done on similar occasions in the past? The men who made the precedent made the law, but it does not follow that their successors, may make a new law. That is the province of the legislator.

No doubt there is a great temptation, on certain occasions, to strain the power of the executive. These occasions occur especially in matters in which the wish of the executive is known to be in accord with the feelings of the majority of the community. But the community which allows such a straining of executive authority is really preparing a rod for its own back. The power which can be strained for the people may some day be strained against the people, and it will then appeal to precedent for its support. When a really overwhelming necessity for unauthorised action occurs, the illegality can be cured by a bill of indemnity. But it has been the steadfast