Opinion Number. 1028

Subject

ROYAL COMMISSIONS RATES OF PAYMENT OF ROYAL COMMISSIONERS: WHETHER GOVERNOR-GENERAL HAS POWER TO FIX RATES: POWER OF MINISTER TO AUTHORISE PAYMENT

Key Legislation

CONSTITUTION, s. 61: ROYAL COMMISSIONS ACT 1902, s. 1A

Date
Client
The Secretary, Prime Minister's Department

The Secretary to the Prime Minister's Department has requested advice as to whether the rate of payment of a member of a Royal Commission appointed under the Royal Commissions Act 1902-1912 should be fixed by the Governor-General, or whether it is sufficient for the rate of payment to be approved by a Minister of State.

Section 1A of the Royal Commissions Act 1902-1912 gives power to the Governor-General, by Letters Patent in the name of the King, to issue commissions, directed to such persons as he thinks fit, requiring or authorising them to make inquiry into and report upon any matter specified in the Letters Patent, which relates to the peace, order and good government of the Commonwealth, or any public purpose or any power of the Commonwealth. There appears, however, to be no provision in the Act for payment or fixing the rates of payment of persons to whom commissions are so issued.

Although there is no express power in the Act for the Governor-General to fix the rates of payment, there is, in my opinion, an incidental power arising out of his power to issue commissions. That view is, I think, supported by the provisions of section 61 of the Constitution, which provides as follows:

The executive power of the Commonwealth is vested in the Queen and is exerciseable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

I am, therefore, of opinion that the Governor-General may fix the rate of payment of a person to whom a commission is issued under section 1A of the Royal Commissions Act 1902-1912.

In the absence of any direction by the Governor-General, however, I think that it is lawful for the Minister to authorise the payment of remuneration to a Commissioner at such rates as he approves. The question whether a Minister should take this course appears to be one of policy.(1)

[vol.17,p.139]

(1)This opinion was published in Commanwealth of Australia , parl. pappers 1920-21, Vol.IIIp.1116