Page:In the Matter of the Validity of the Appointment of Mr Morrison to Administer the Department of Industry, Science, Energy and Resources – Opinion.pdf/6

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12. The closing words of the first paragraph of s 64 implicitly empower the Governor-General in Council to “establish” "departments of State of the Commonwealth". On 1 January 1901, that power was exercised to establish the original seven departments of State.[1] Since then, the Governor-General in Council has established, abolished and renamed departments on many occasions.[2] With respect to each department of State, the matters dealt with by that department, and the legislation administered by the Minister or Ministers who administer that department, are set out in an Administrative Arrangements Order (AAO) that is periodically issued by the Governor-General in Council. I return to the significance of the AAO in the discussion below.

13. In addition to the power to "establish" departments of State, the first paragraph of s 64 also vests in the Governor-General the power to appoint officers to "administer" those departments. The second paragraph of s 64 provides that those officers become, by reason of such an appointment, "Ministers of State for the Commonwealth".

14. The power to appoint Ministers to administer departments of State is vested by s 64 in the Governor-General alone.[3] However, there is no doubt that the Governor-General is bound to follow the Prime Minister's advice in the exercise of that power. That is a very clear constitutional convention.[4] While the

  1. ↑ Commonwealth, Gazette, No 1, 1 January 1901 at 4.
  2. ↑ See, eg, Commonwealth, Gazette, No 28, 15 March 1971 at 1873 (abolishing the Prime Minister's Department and the Department of the Cabinet Office and establishing the Department of the Prime Minister and Cabinet), Commonwealth, Gazette, No C2017G01401, 22 December 2017 (renaming certain departments of State with effect from 20 December 2017).
  3. ↑ The power to appoint Ministers is not vested in the Governor-General in Council, and therefore is not required to be exercised on the advice of the Federal Executive Council. As to the explanation for that distinction, see Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 707.
  4. ↑ See Constitutional Commission, Final Report of the Constitutional Commission (1988), vol 1 (Constitutional Commission Report) at [2.178]; The Parliament of the Commonwealth of Australia, Executive Government: Report of the Advisory Committee to the Constitutional Commission (Parliamentary Paper No 303/1987) (Executive Government Report) at 37 and 110 (reproducing the Resolution adopted at the Australian Constitutional Convention at Brisbane in 1985, Practice G). See also Twomey, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (2018) at 29 (pt 3); Winterton, Monarchy to Republic: Australian Republican Government (1986) at 34. As to the general constitutional convention that the Governor-General must act on advice, see, eg, FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 365 (Mason J), 400-401 (Wilson J), 414 (Brennan J); Steiner v Attorney-General (Cth) (1983) 74 FLR 89 at 92-93 (Beaumont J).
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