Opinion Number. 151

Subject

FEDERAL EXECUTIVE COUNCIL WHETHER MINUTES OF MEETINGS MAY BE SIGNED FOR GOVERNOR-GENERAL

Author
Key Legislation

CONSTITUTION, s. 126

Date
Client
The Auditor-General

The Auditor-General:

By Executive Minute dated 15 December 1902, His Excellency the Governor-General approved of authority being conferred on Senator the Hon. R. E. O'Connor, Vice-President of the Executive Council, to summon and preside at meetings of the Executive Council to be held in Sydney as occasion may arise, and of authority being given to the senior member of the Executive Council in Melbourne to summon and preside at meetings in Melbourne of the Executive Council as occasion may arise.

The Auditor-General asks to be advised whether the authority conveyed in that Executive Minute is sufficient to enable him to accept approvals 'for Governor-General' such as that signified on minute-paper of 31 July 1903.

That Minute is signed 'Edmund Barton, for Governor-General'. It also contains a certificate signed by the Secretary to the Executive Council as follows: 'The Federal Executive Council approve of the recommendation contained herein'.

In my opinion the authority mentioned is sufficient to enable the Auditor-General to accept approvals so signed.

The Executive Minute of 15 December 1902 is the appointment of a deputy of the Governor-General, within the meaning of section 126 of the Constitution, to exercise the powers and functions of summoning and presiding at meetings of the Executive Council. The power to preside includes the power to perform the functions which the Governor-General when presiding performs-such as signing the approval.

Nor do I think that it is essential to the validity of an act of the Executive Council that the Governor-General or his deputy presiding should sign the Executive Minute. The Executive Minute is merely evidence of the approval of the Governor-General in Council, and in my opinion the certificate of the Secretary of the Executive Council would of itself be sufficient evidence. In England, Orders in Council are not signed by the Sovereign, but only by the Clerk of the Privy Council.(1)

[Vol. 4, p. 16]

(1) opinion was published in Commonwealth of Australia, Pari. Papers 1904, Vol. II, p. 1339.