STATE GOVERNOR ACTING AS ADMINISTRATOR UNDER DORMANT COMMISSIONWHETHER, IN CASE OF GOVERNOR-GENERAL LEAVING AUSTRALIA BEFORE SUCCESSOR IS READY TO TAKE OFFICE, STATE GOVERNOR ACTING AS ADMINISTRATOR FOR THE SECOND TIME UNDER DORMANT COMMISSION IS REQUIRED TO TAKE AGAIN THE OATH OF ALLEGIANCE AND THE OATH OF OFFICE: REQUIREMENT THAT ADMINISTRATOR CAUSE HIS COMMISSION TO BE READ AND PUBLISHED IN THE PRESENCE OF THE CHIEF JUSTICE OR A JUDGE OF THE HIGH COURT OR A STATE SUPREME COURT: ADMINISTRATION OF VICTORIAN GOVERNMENT
LETTERS PATENT CONSTITUTING THE OFFICE OF GOVERNOR-GENERAL dated 29 October 1900 cl VII: ROYAL INSTRUCTIONS TO THE GOVERNOR-GENERAL dated 29 October 1900 cll III and IV:
I refer to your request for my advice on the question whether, if His Royal Highness leaves Australia before a successor in the office of Governor-General is ready to take office, and the Governor of Victoria is called on under his dormant commission to act as Administrator until the new Governor-General takes office, it will be necessary for Sir Winston Dugan to take again the Oath of Allegiance and the Oath of Office which he has already taken on a previous occasion when he acted under his dormant commission.
Clause VII of the Letters Patent constituting the office of Governor-General provides (inter alia) that no powers or authorities shall vest in an Administrator until he has taken the oaths appointed to be taken by the Governor-General, and in the manner provided by the instructions accompanying the Letters Patent.
Clause IV of the Royal Instructions requires an Administrator to take the Oath of Allegiance and Oath of Office prescribed for Governors-General.
Clause III of the dormant commission issued to Sir Winston Dugan on 31st July, 1939, provides as follows:
III. And We do hereby further direct and appoint that so soon as you, the said Sir Winston Joseph Dugan, shall have taken the prescribed oaths and have entered upon the duties of your Office of administering the Government of Our said Commonwealth, the Lieutenant-Governor of Our State of Victoria, or any other person appointed by Commission under the Royal Sign Manual and Signet to administer the Government thereof, shall thereupon administer the Government of Our said State in like manner as if you were absent from Our said State.
In my opinion, it cannot safely be said that Sir Winston Dugan could validly commence the second period of office under his dormant commission, or that, upon Sir Winston Dugan’s commencing such a period of office, the Lieutenant-Governor of Victoria could validly assume the administration of the Government of Victoria, unless, before so assuming office, Sir Winston Dugan again takes the Oath of Allegiance and the Oath of Office.
No doubt you are familiar with Clause III of the Royal Instructions to the Governor-General, which requires an Administrator, with all due solemnity, to cause his commission to be read and published in the presence of the Chief Justice of the High Court, or some other Judge of the said Court, or in the presence of the Chief Justice or some other Judge of the Supreme Court of any of the States. I am of opinion that, if Sir Winston Dugan again assumes office, he should, on the day of assuming office, cause his commission to be read and published again in the manner provided in this Clause.