Opinion Number. 45

Subject

EXECUTIVE GOVERNMENT OF COMMONWEALTH WHETHER MINISTER HAS POWER OF TEMPORARY APPOINTMENT : POSITION OF CHIEF ELECTORAL OFFICER

Author
Key Legislation

CONSTITUTION, ss. 67, 70

Date
Client
The Minister for Home Affairs

In connection with the appointment of Mr George Lewis as Chief Electoral Officer of the Commonwealth the Auditor-General has raised the question whether such appointment ought not, under section 67 of the Constitution, to be made by the Governor-General in Council, unless the authority to appoint is delegated.

It seems that Mr Lewis has only been temporarily appointed, under Ministerial authority. The Minister for Home Affairs forwards the papers for my advice, with a minute in which it is suggested that section 67 only applies to permanent officers, and that the Minister has power to make temporary appointments, provided that arrangements are made as to payment. It is also suggested that section 70 may cover the exercise of such power.

Section 67 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, unless the appointment is delegated by the Governor-General in Council or by a law of the Commonwealth to some other authority.

I am of opinion that this section applies to all 'officers of the Executive Government of the Commonwealth', whether permanently or temporarily employed. In the absence of statutory provision or special conditions, all public officers as a rule hold office during pleasure; and a temporary appointment is nothing but an appointment during pleasure.

The position of Chief Electoral Officer of the Commonwealth is in my opinion an 'office' within the meaning of section 67, the appointment to which should be made by the Governor-General in Council unless the authority to appoint is delegated.

I am of opinion that section 70 cannot be relied upon in respect of the new Departments of the Commonwealth.

I do not think that any difficulty of administration need arise from this interpretation of the Constitution. If a general authority to make temporary appointments, pending the passing of a Public Service Act, is required, it can be obtained by an Order in Council under section 67.

[Vol. 1, p. 323]