Introduction

The executive branch remains today the most powerful and yet least understood of the three branches of government. This lack of understanding is partly due to the absence of detailed provisions in the State Constitution Acts which deal with the executive branch. Worse, the provisions which are found there are misleading. They give the impression the Governor of the State actually governs! There is little if any reference to the Premier, to Cabinet, or to the fundamental conventions which determine how responsible government operates in practice. The reasons for this woefully inadequate coverage are history and timidity. The new colonial Constitutions only addressed those matters which required statutory recognition. Consequently, Higinbotham CJ in Toy v Musgrove described the Constitution Act 1855 (Vic) as having ‘obscure and apparently disjointed clauses … pregnant though they appear to be with deep but suppressed meaning’. Since then there has been little attempt to include in State Constitutions further provisions which spell out the institutions and conventions of the executive branch. Recommendations to fill this void are often rejected for fear of unintended damage to the constitutional system. Clearly, a more robust attitude is needed to rewrite the State Constitution Acts for this new century. Throughout this chapter an attempt is made to highlight where and how far this makeover is most needed.