In connection with the case of one A.B.C., a letter carrier employed in the Postmaster-General's Department at Kooringa in the State of South Australia, who was retired under section 65 of the Commonwealth Public Service Act 1902-1913, the Crown Solicitor advises that in his opinion the 'approval of a recommendation in Executive Council at a meeting at which the Governor-General was not present would not ... be sufficient action on the part of the Governor-General (under section 65), and unless action by the Governor-General himself ratifying the Executive Minute in this case has been taken, the Executive Minute would not be effective'.

The Secretary to the Postmaster-General's Department advised as to the effect of this opinion upon approvals given by the Executive Council to matters affecting the Postmaster-General's Department in cases where the Governor-General is not present at the Council.

In a minute attached to the papers it is stated that throughout the Commonwealth Public Service Act the 'Governor-General' only is mentioned as the one who should authorise certain acts and that if his presence at the Executive Council is necessary in order to validate all approvals given at Executive Council meetings, it would appear that a large number of matters relating to that Department, which have in years past been approved at meetings at which the Governor-General was not present are out of order.

It may be pointed out in passing that unless the contrary intention appears the expression 'The Governor-General' appearing in the Commonwealth Public Service Act means the Governor-General of the Commonwealth or the person for the time being administering the government of the Commonwealth acting with the advice of the Executive Council (see Acts Interpretation Act 1901, section 17 (f)).

Under section 126 of the Constitution and paragraph VI of the Letters Patent constituting the office of Governor-General, the Governor-General has power to appoint Deputies who may exercise during his pleasure such of his powers and functions as he thinks fit to assign to them.

I understand that upon the assumption of office of successive Governors-General it is their practice to appoint the Vice-President of the Executive Council, or in his absence the senior member of the Executive Council, who is available, to be their Deputy to summon and preside over meetings of the Executive Council and to signify approval at the proceedings of those meetings during their absence from the seat of Government or in the event of their inability to be present.

So far as the Executive Councillor who is so appointed by the Governor-General is acting in accordance with the terms of his appointment any action under the Public Service Act taken by him with the advice of the Executive Council is, in my opinion, an action taken by the Governor-General within the meaning of that Act.

At the same time seeing that in the event of the action which is taken in any case being challenged in the courts, it would be necessary to prove the deputation to the Deputy, it is in my opinion highly desirable that in any case which is likely to be contested a formal Order in Council signed by the Governor-General himself should be taken out.

[Vol. 13, p. 375]

1. This opinion is unsigned in the Opinion Book, but it is attributed to Mr Garran.