Opinion Number. 1757



Key Legislation

CONSTITUTION ss 64, 68: DEFENCE ACT 1903 s 8: PUBLIC SERVICE ACT 1902 s 12(2): PUBLIC SERVICE ACT 1922 s 25(2)

Minister for the Army

I have considered the correspondence in relation to this matter of which you have forwarded a copy to me for my views.

Actually, two matters are discussed in the correspondence:

1.  The relative administrative responsibilities of the Commander-in-Chief and the Permanent Head;

2.  The system of store accounting and audit in the Army Ordnance Services.

My views have not been asked for in relation to the second matter, nor do they seem to be required at this stage, as the questions involved appear to be essentially administrative and primarily the concern of yourself and the Treasurer.

It appears that questions as to the first matter derive from the definition in the draft Army Organization Handbook of the Permanent Head’s functions as including:

Advice to Minister on all departmental matters affecting higher administration.

Collaboration with Lieutenant-Colonel i/c Administration on departmental matters of general policy and co-ordination of internal administration.

The Commander-in-Chief contends in a minute dated 9th August, 1943, that this definition does not conform either with the practicalities of the case or with the legal position, and is not an accurate definition of the allocation of functions as between the Secretariat and the Army itself. He supports his contention with a legal opinion.

The legal opinion centres on Section 25(2) of the Commonwealth Public Service Act, which is as follows:

25(1.)  …

(2.)  The Permanent Head of a Department shall be responsible for its general working, and for all business thereof, and shall advise the Minister in all matters relating to the Department.

The conclusions in the opinion are that the Department of the Army, as used in the Public Service Act, refers to the group of Public Service personnel carrying out the secretarial and executive work necessary to be done for the independent body known as the Australian Military Forces so far as such work is, by administrative arrangements or necessary consequence, not performed by these Forces themselves, and that the Military Forces themselves are excluded from the responsibilities conferred on the Permanent Head.

My views are asked on the points referred to by the Commander-in-Chief particularly in regard to his contention that the Australian Military Forces do not form part of the Department of the Army. My views are also asked as to the desirability of an amendment of Section 25(2) of the Commonwealth Public Service act with a view to a more clearly defined policy in regard to the responsibilities and powers of the Permanent Head of a Service Department, and particularly the Permanent Head of the Department of the Army when the Commander-in-Chief of the Australian Military Forces possesses wide administrative powers such as those at present held by General Sir Thomas Blamey.

I propose to consider first the extent of the authority of the Commander-in-Chief.

His appointment is ‘to command the Military Forces’ (Commonwealth Gazette, 16.4.42). In the draft Army Organization Handbook his administrative powers are defined as follows:

Directly responsible to the Government for advice on Australian Defence policy and the administration of the forces under his control.

Finance powers—refer to Brochure on ‘Finance and Moneys—“War Organisation and Procedure”’.

The brochure referred to is not before me.

This appointment is authorised by Section 8 of the Defence Act 1903–1939, which provides that the Governor General may (inter alia) appoint an officer of the Defence Force to command the whole or any portion of the Defence Force, but no general definition of the powers that are conferred by such an appointment is contained in the Act or other legislation.

As Quick & Garran note in their comments on Section 68 of the Commonwealth Constitution, the Commander-in-Chief of the naval and military forces is one of the oldest and most honoured prerogatives of the Crown (Annotated Constitution p. 713; see also Chitty on the Prerogatives of the Crown, pp. 43 to 46). It invests the Crown with wide powers as to the disposition and use of the Army and the administration of its affairs, and it is still largely uncontrolled by Statute (China Navigation Co. v. Attorney-General (1932) 2 K.B. 197), but the manner in which these powers are exercised is constitutionally subject, like the exercise of other prerogatives, to the advice of the Ministers of the Crown (ibid. per Lawrence L.J. at p. 228). So far as the Commonwealth is concerned, the prerogative as to war is exercisable by the Governor-General and the Ministers of the Commonwealth (Joseph v. Colonial Treasurer (N.S.W.) 25 C.L.R. 32; see also Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. 28 C.L.R. 129 at p. 147 and Federal Commissioner of Taxation v. Official Liquidator of E.O. Farley Ltd. 63 C.L.R. (278 at p. 320).

It is clear, therefore, that the powers of the Commander-in-Chief as to the administration of the affairs of the Army may legally be determined by the Governor-General with the advice of the Ministers of the Commonwealth, subject, of course to any relevant provisions of the Defence Act or other legislation, in which other legislation must, of course, be included the Audit Act and the Treasury Regulations. Since the question of the regulation of Army expenditure has been the subject of discussion in the correspondence, it is not impertinent to remark that ever since Parliament has been sanctioned the raising and keeping of a standing Army in 1689, it has insisted upon a thoroughly open and independent examination of the annual estimates and audit of the Army receipts and expenditure. (See China Navigation Co. v. Attorney-General (Supra) per Lawrence L.J. at p. 234).

The conferment on the Commander-in-Chief of direct responsibility to the Government in the terms proposed in the draft Army Organisation Handbook is not opposed to any statutory provision and, therefore, in my opinion, that conferment is legally valid. The financial powers conferred have not been mentioned particularly in the Commander-in-Chief’s minute of 9th August, 1943, and no information regarding them having been supplied to me, I infer that no comment as to them is required from me.

Proceeding now to consideration of the powers of the Permanent Head, I think it is true that the general purpose of the Commonwealth Public Service Act is the regulation of the Public Service as distinct from (inter alios) persons employed in the Naval, Military, or Air Forces only. In general, the Act deals with the appointment, pay, promotion, discipline, leave of absence and retirement of officers of the Public Service, but Section 25 is one of a group of sections which prescribe the composition of the four divisions of the Commonwealth Service and the duties of officers in these respective divisions, and Sec. 25(2) is in the wide terms already stated.

It is, however, important to observe that Section 25(2) must be read subject to the fundamental and over-riding principle that the constitutional head of a department of the executive government of the Commonwealth is the Minister of State administering that department (Commonwealth Constitution, Section 64), and it is the Minister at the head of the department who is responsible, subject to the Cabinet and to Parliament, for that department (Cabinet Government by Dr. W. Ivor Jennings pp. 88 and 89). Consistently with this principle, the Governor-General in the current order as to administrative arrangements (Commonwealth Gazette, 30.11.39 pp. 2633 to 2639) has ordered that the Department of the Army shall deal with military defence and that the Minister (the underlining is mine) administering that Department shall, unless the contrary intention appears in the Act, administer all Acts relating to military defence, including the Defence Act 1903–1939 (in relation to the organisation and control of the Military Forces).

In my opinion, while Section 25(2) of the Commonwealth Public Service Act must be read within its context and consequently its language must be read down to some extent in the case of a Service Department, its language cannot be read down to the extent to which the Commander-in-Chief has been advised. The Department of the Army must mean the same for the purpose of the Commonwealth Public Service Act as it does for any other purpose. There is a Department of the Army. It is the Department of the Army established by the Governor-General pursuant to Section 64 of the Constitution (Commonwealth Gazette, 14/11/39 at p. 2391), and I am unable to find in the Commonwealth Public Service Act any intention that ‘Department’ there shall mean the civil section only or anything less than the Department as a whole. The true position is that Section 25(2) is intended as a general definition of the responsibility of a Permanent Head, but it must be read with the qualification that the responsibility is subject to the higher responsibility of the Minister and must be exercised subject to the Minister’s direction and control. So construed, Section 25(2) conforms to the undoubted constitutional position, but subject to that qualification it stands as part of the Statute law of the Commonwealth.

Certainly, as is stated in the legal opinion forwarded by the Commander-in-Chief, there must be some division of functions between military and civil officers, and it may be conceded that, as officers, they are members of distinct services and are governed by different Statutes and regulations, also that military command is distinct from civil service control. But to argue from the fact of this distinction of function that there can be no relationship between the Permanent Head and the Army is to ignore two fundamental considerations. The first of these is that there is an organic relation between the military forces and the civil service in that they are all servants of the Crown—two branches of the Public Service in the larger sense. ‘The Principle is now generally recognised that the forces locally raised and maintained are, in the words of Sir Henry Parkes, as much subject to the responsible government of the Colony as any other branch of the public service’ (the underlining is mine). (Moore, Commonwealth of Australia (2nd edn. p. 176).)

The second consideration is that, in regard to military affairs, the scope of administration is not necessarily delimited by the functional distinctions that exist between the activities of soldiers and the activities of civilians. One of the purposes of the administrative process is, surely, to co-ordinate the activities of soldiers and civilians so as to produce a total result (cf Tomlin Commission Report on the Civil Service 1929–1931 Cmd. 3909 paragraph 102, and appendices to Minutes of Evidence, Appendix VIII; H.J. Laski, Parliamentary Government in England pp. 322, 323), and it does not appear that there is any administrative norm in military affairs which requires separation of the military forces from all civilian control. The history of the control of the British Army is itself proof of this, for, as recorded in Anson’s Law and Custom of the Constitution Part II (4th edn.) Vol. II p. 223, prior to 1855 ‘the soldier was fed by the Treasury, and armed by the Ordnance Board, while the Board of General Officers was responsible for the pattern of his clothing: the Home Secretary was responsible for his movements in his native country: the Colonial Secretary supervised his movements abroad: the Secretary of War took care that he was paid and that the flogging which was provided for him by the Commander-in-Chief was administered in accordance with military law.’ And, as you are doubtless aware, the system of dual control which was exercised from 1855 by the Secretary of State for War and the Commander-in-Chief gave place in 1904 to the present distribution of administrative duties between the Secretary of State for War and other members of the Army Council (Anson, op. cit. pp. 222 to 243; Halsbury (2nd edn.) Vol. 6 pp. 691 et seq. and Vol. 28, p. 585, note (k)). There, it is to be observed, the distribution of business is regulated merely by rules which may be altered, and under these rules the Permanent Under Secretary of State, who is also Secretary of the Army Council, is charged with the interior economy of the War Office, but may be charged with such other duties as the Secretary of State may assign to him.

In the Commonwealth, the Permanent Head’s responsibility is, I repeat, defined by Statute, and, although the Commonwealth Public Service Act is mainly concerned with the organisation of the public service in the specialised sense, section 25 is, according to its terms, concerned with the administration of Departments, and I know of no reason why it should not have effect according to its terms. So far, therefore, as the question is one of law, the Permanent Head is, in my opinion, possessed of the authority that the Statute confers. The wide terms of Section 25(2) are not, however, inflexible. In so far as the work of any Department is of a professional and expert nature, the language of that Section must, in its application, inevitably yield something to departmental realities. Hence the relevance of the passage cited in the legal opinion from Moore, Commonwealth of Australia (2nd edn.) at pp. 177 and 178:

The Commonwealth Public Service Act 1902 provides that each of the Departments of State shall have a permanent head, who is called the Secretary to the Department, except in the case of the Customs, where he is called the Comptroller General. The permanent head is ‘responsible for its general working and for all the business thereof’, and advises the Minister of the Department in all matters relating thereto. Various powers of supervision and control are committed to him by Statute and Regulations in respect to the officers of his Department and their work …

In spite of the general description of permanent heads their actual functions must vary considerably with the Department and the character of its work …

… In Defence, the primary distinction is, of course, between the civil staff and the military and naval. Here, as wherever the work of a Department is mainly professional and expert, the non-professional permanent head can hardly be very active in determining policy, while the execution of plans must in the main lie in professional hands …

I have quoted the passage more fully than in the legal opinion so as to give the context, and I am unable to see that the passage affords support for the conclusions reached in the legal opinion. The obvious meaning of the author is that the military forces form part of the Department of Defence and that the Permanent Head of that Department, like the Permanent Heads of other Departments, has the powers specified in Section 25(2) of the Commonwealth Public Service Act. All that the author does is, accepting the validity of the Section, to claim, and, as I think, rightly, that it has a modified sense where the work of a Department is mainly professional and expert.

I do not think there is any validity in the view rather faintly suggested in the legal opinion that the real Permanent Head of the Army is the Governor-General. In accordance with constitutional usage the power vested in the Governor-General under Section 68 of the Constitution is only exercisable on ministerial advice and confers no actual military authority upon him personally (see The King and His Dominion Governors pp. 238–240; for a recent historical account, see an article ‘The Governor as Commander in Chief’ in Historical Studies; Australia and New Zealand, Vol. 2 No. 8 November 1943).

My conclusion, therefore, is that definition of the Permanent Head’s powers in the terms proposed in the draft Army Organisation Handbook would consist with Section 25(2) of the Commonwealth Public Service Act and would not be opposed to any other Statute. I therefore see no legal objection to the definition of the Permanent Head’s powers in those terms, nor do I think that there would, from a legal point of view, be any disconformity between such a definition of the Permanent Head’s powers and the responsibility that the Commander-in-Chief has.

As to the contention of the Commander-in-Chief that the Australian Military Forces do not form part of the Department of the Army, on which my views are particularly asked, I am of the opinion that the contention is unsound. The executive government of the Commonwealth is organized in Departments. These Departments are established by the Governor-General in Council and respectively deal with such matters, and administer such statutes, as the Governor-General in Council orders.