7
Governor-General has certain reserve powers that may be exercised without or contrary to advice, the power to appoint Ministers (other than the Prime Minister) is not one of them.[1] Indeed, the convention that the Governor-General act upon advice except in circumstances where the reserved powers are enlivened is itself a vital component of the system of responsible government.[2] Accordingly, in circumstances where Mr Morrison clearly advised the Governor-General to appoint him to administer DISER,[3] and given that the appointment of a Minister to administer multiple departments is not unlawful (for the reasons I am about to address), it would have been a clear breach of the applicable conventions for the Governor-General to decline to accept and act upon the Prime Minister's advice. That is so whether or not the Governor-General was aware that the appointment would not be published.[4]
15. Section 64 empowers the Governor-General to appoint multiple Ministers to administer a single department of State. The High Court unequivocally resolved any doubts in that regard in Re Patterson; Ex parte Taylor.[5] The Court's holding in that case sanctioned a longstanding (albeit sometimes controversial) practice in relation to the appointment of Assistant Ministers and Parliamentary
- ↑ Constitutional Commission Report at [5.71] (listing the four reserve powers); Executive Government Report at 38.
- ↑ See, eg, Twomey, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (2018) at 17, 29; Executive Government Report at 36; FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 364 (Mason J); Comcare v Banerji (2019) 267 CLR 373 at [147] (Gordon J).
- ↑ As Mr Morrison did in his letter to the Governor-General dated 12 April 2021.
- ↑ I have not received, and I do not require, instructions as to the Governor-General's knowledge in that regard, because that is irrelevant to the validity of the appointment upon which I am asked to advise. Of course, even in contexts where the Governor-General is required to act upon advice, the Governor-General always has the right to be consulted, to encourage and to warn in respect of Ministerial advice: see, eg, Executive Government Report at 111 (reproducing the Resolution adopted at the Australian Constitutional Convention at Brisbane in 1985, Practice R). I do not know, and I do not need to know, whether the Governor-General exercised that right, as that is likewise irrelevant to the validity of the appointment.
- ↑ (2001) 207 CLR 391 (Re Patterson) at [17] (Gleeson CJ), [65] (Gaudron J), [209]-[211] (Gummow and Hayne JJ, Gleeson CJ and Kirby J relevantly agreeing).
