9 July 2010

A question for the Legal Eagles

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I was asked by an interested foreign friend where the authority to create Federal Government Departments lies.

I can find a reference in Sect 64 of the Constitution to the G-G’s authority to “appoint officers to administer such departments of Satae of the Commonwealth as the Governor-General in Council may establish.” – but is that it? That’s a sort of backhanded authority..

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CanberraCreative5:20 pm 11 Jul 10

Many of the main departments (defence, quarantine, fisheries, finance, transport and communication) existed in some form at the time of federation and under s69 were transferred from the states to the commonwealth government. They have since undergone countless renames and reformations. s69 also specifically calls for the commonwealth to create a department responsible for customs.

s64 of the Constitution of Australia Act 1901 provides that the governor general may with the council of his ministers create departments of state and appoint ministers to be in charge of those departments. In practice, the decisions are made by PM and cabinet and are rubber stamped by the GG.

s67 provides for the appointment of civil servants, a task given to the GG, any authorty to whom the GG delegates that authority or to anyone authorised by Commonwealth law to appoint civil servants.

Aye, this is just another way of saying that it’s a power of the Executive branch (which are all formally exercised by “the Governor-General in Council”, but the GG is expected by convention to act at the direction of Cabinet).

Section 64 allows the G-G to appoint Ministers, and the Commonwealth Departments are created by the Administrative Arrangements Orders, signed off by the Governor-General in Council. e.g., following the 2007 election:

And yes theoretically they can be created and abolished at the stroke of Quent Bryce’s pen…

It’s not really backhanded, it’s just part of the prerogative powers of the Sovereign

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