Opinion Number. 1485


TERMINATION OF APPOINTMENT OF MINISTERS OF CROWN: whether GOVERNOR-GENERAL should be advised by Executive Council or recommendation of Prime Minister is sufficient authority: ‘GOVERNOR-GENERAL’: ‘GOVERNER-GENERAL IN COUNCIL’

Key Legislation

Constitution ss 63, 64, 67

The Governor-General

The Prime Minister recommended to the Governor-General that the appointments of two Ministers of the Crown should be terminated. His Excellency asks to be advised whether this is a matter in which he should be advised by the Executive Council or whether the recommendation of the Prime Minister is sufficient authority.

In my opinion this is a matter in which, under the Constitution of the Commonwealth, it is not necessary or proper to invoke the advice of the Federal Executive Council.

Section 63 of the Constitution provides ‘that the provisions in this Constitution referring to the Governor-General in-Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council’. There are, however, certain provisions in the Constitution which refer to the Governor-General as distinct from the Governor-General in-Council.

Section 64 provides that the Governor-General may appoint officers to administer such Departments of State of the Commonwealth as the Governor-General in-Council may establish. Under this section it has always been the practice to create the Departments on the advice of the Governor-General in-Council but to appoint Ministers of the Crown on the recommendation of the Prime Minister.

Section 64 goes on to provide that Ministers of the Crown ‘shall hold office during the pleasure of the Governor-General’.

Contrasted with these provisions is section 67 which provides that ‘until the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth shall be vested in the Governor-General in-Council’.

I think the intention of the Constitution is clear that the appointment and also the removal of Ministers of the Crown is vested in the Governor-General and though in accordance with constitutional principles the Governor-General in such cases acts upon the advice of the Prime Minister it is not a matter in which he requires the advice of the Federal Executive Council.

This is in accordance with British practice. When Lord John Russell advised the Queen to dismiss Lord Palmerston, his Foreign Secretary, he did so entirely on his own authority without even consulting his colleagues beforehand.

[Vol. 24, p. 955]