Journal of the australian naval

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Constitutional Basis

Section 51 (vi) of the Constitution, which sets out the legislative powers of the Commonwealth Parliament, clearly accords responsibility for 'the naval and military defence of the Commonwealth and of the several States' to the federal Government. It is the constitutional basis upon which the various acts and regulations dealing with Defence matters depend for their legality. For the sake of completeness, it is also worth noting that section 64 of the Constitution empowers the Governor-General, as the monarch's representative, to appoint Ministers 'to administer such departments of State of the Commonwealth as the Governor-General in Council may establish'.

By virtue of section 68 of the Constitution, "command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen's representative'. Most constitutionalists regard this section as a legal fiction lacking any direct application. While its origins are largely 'historical and technical' (to quote the constitutional commentators Quick and Garran), this section does have one interesting consequence. While command-in-chief of the Defence Force is always exercised on the advice of the Minister for Defence, its exercise does not require the advice of the Executive Council, as does the exercise of powers conferred on the Governor-General by the Defence Act.3

In Australia, government policy is determined by the Executive, which consists of the Prime

Minister assisted by various senior Ministers who together constitute the Cabinet. But while the Cabinet takes overall responsibility for specific government policies, their day to day implementation is the responsibility of the Ministers who manage the particular policy portfolios. Consequently, for all practical purposes, the Minister for Defence is the focal point for all Defence policy, since it is Ihe Minister who is responsible for all Defence policy decisions. This fact is reflected in section 6 of the Defence Act, which provides that the 'Minister shall have the general control and administration of the Defence Forces'. The Minister is the pivot about which democratic control of the defence force turns, since it is the Minister who ultimately ensures that the defence force acts only in response to the directions of Government. Indeed, the Minister's involvement in the executive's management of the peaceful realisation of the nation's domestic and international interest means that the Minister's responsibilities extend well beyond simply controlling the defence force. In other words, the Minister has a fundamental involvement in the implementation of policies which are specifically designed not to require use of the defence force. The development, formulation and implementation of Defence policy is complex and demanding. Indeed, its complexity is such that no individual Minister, regardless of ability, is able to devise, formulate and implement it single-handedly. Rather, the Minister acts as the focal point for a community of people who. in various ways, contribute to the overall policy outcome.

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