Opinion Number. 181

Subject

FEDERAL EXECUTIVE COUNCIL NATURE OF ORDERS IN COUNCIL AND OF EXECUTIVE MINUTES

Key Legislation

COMMONWEALTH PUBLIC SERVICE ACT 1902. ss. 41. 76

Date
Client
The Public Service Commissioner

The Public Service Commissioner asks to be advised on the following matter:

A question has arisen whether the approval by the Executive Council of the creation or abolition of offices (section 41) which is conveyed by Executive Minute, can be considered as an Order in Council within the meaning of section 76, and if not, what distinction is usually drawn between an Order in Council and an Executive Minute.

Section 76 of the Commonwealth Public Service Act 1902 provides as follows:

Notices of all appointments promotions transfers retirements vacations of office or removals of officers and of all Orders in Council or Proclamations under this Act shall be published in the Gazette ...

'Executive Minute' is a term which, as far as I know, is not used in any Act, and an attempt to give it a technical meaning seems unnecessary.

An Order in Council I take to be an order made, or direction given, by the Governor-General in Council. See Stroud's Judicial Dictionary, sub tit. 'Order in Council'.

According to the practice hitherto adopted by the Commonwealth, the Order of the Governor-General in Council is not embodied in any other document than the so-called 'Executive Minute', which embodies a recommendation by a Minister and is signed by the Governor-General as 'approved', and also signed by the Secretary to the Executive Council. The effect of the Order is usually notified in the Gazette. The Order is made by the Governor-General's approval of the recommendation.

In my opinion the approval of the Governor-General in Council to a recommendation that a new office be created (under section 41 of the Public Service Act) is an Order in Council within the meaning of section 76.

[Vol. 4, p. 254]