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On the 27 March 1825, James Stephen, legal advisor to the Colonial Office, wrote to Under Secretary Horton, concerning Commissions and Instructions issued to Governors: "it is Lord Bathurst's intention that the Governor should be assisted by the advice of an Executive Council, and that the Executive Council should be established by the Governor's Instructions" (1).On the 17 July 1825 the authority to establishment an Executive Council was included in Governor Darling's Instructions. The Executive Council was to consist of the Governor, the Lieutenant-Governor, the Chief Justice, the Archdeacon, and the Colonial Secretary, all of who were to take prescribed oaths (2).
Upon his arrival in the Colony, Governor Darling proceeded to summon members of the Executive Council, and on the 19 December 1825 the first meeting was held. The establishment of the Executive Council was formally proclaimed the following day (3). The Governor was to consult the Council in the exercise of all the powers granted to him, with the exception of urgent matters, trivial matters, and all matters which may be of "such nature that in your judgment our service would sustain material prejudice by consulting Our said Council thereupon" (4). The Governor was to call and preside over all meetings of the Council, and full and exact minutes were to be kept of all the deliberations, Acts, proceedings, votes and resolution of the Council (5).
In the period before responsible government the Executive Council considered draft estimates of revenue and expenditure prior to their submission to the Legislative Council, examined draft bills prepared according to the Governor's instructions, sanctioned proclamations framed to give expression to the wishes, considered the granting of pardons and the remission of fines, framed reports on such matters as land policy, immigration, transportation and the franchise law.
Subject to the Council's advice the Governor directed the many branches of the Public Service, and approved applications for positions and applications from government officers for increased salaries. The Council also considered the suspension and/or removal of government officers and ratified departmental arrangements. In the judicial area the Executive Council approved or commuted a sentence of death recorded against a convicted criminal (6).
During this period there were some matters on which the Council could do no more than give advice. The Government of the United Kingdom reserved for itself the control of policy in certain fields and the control of departmental administration (7).
The composition of the Executive Council went through only minor changes until responsible government in 1856. The Chief Justice was replaced by the Colonial Treasurer in 1828, and the Attorney General replaced the Bishop of Australia in 1846 (8).
After 1856, the chief executive authority was the Cabinet, consisting of all the ministers of the Crown. The Executive Council comprised the Governor, and advisors appointed by him in accordance with his instructions and with the conventions of responsible government (9).
A minute of the proposed functions and procedure of the Executive Council after responsible government was submitted to the council of the 15 September 1856. From that the following principles were adopted:
(a) each responsible Minister should have charge of one executive department
(b) and that only the Minister should refer necessary matters to the Executive council
(c) the formal approval of the Council, where required by Royal Instruction, should follow as a matter of course
(d) all matters of magnitude should be referred for the approval of the Executive Council whether required or not (10).
The Council's chief purpose was to give legal authority to the more important instruments of executive government, such as Orders in Council, Regulations and Proclamations (11).
With Federation in 1901, the Constitution Act, 1902 contained the provision that "there shall continue to be an Executive Council to advise the Governor in the government of the State" (12).
Today the Executive Council is the supreme executive authority in New South Wales, consisting of the Ministers and presided over by the Governor. It is the formal, official arm of the Government, which gives legal authority to proclamations, regulations, appointments to the public service, judiciary, and other public positions such as officers of the parliament, and commissions for officers of the police force. When these things are done by the Governor with the advice of the Executive Council, they are said to have been done by the Governor-in-Council (13).
Footnotes and References:
(1) Guide to the State Archives of NSW - Executive Council 1825-1935, p.7
(2) Historical Records of Australia (HRA), Vol 1, series 12, p.108
(3) Executive Council Guide, Loc Cit, p.8
(4) HRA, Vol 1, series 12, p.109
(5) Op Cit
(6) Executive Council Guide, Loc Cit, p.15-16
(7) Ibid, p.9
(8) Concise Guide to New South Wales State archives, p.108
(9) Op Cit
(10) Votes and Proceedings, 1859-60, Vol. 1, p.1130-1131
(11) Concise Guide, Loc Cit, p.108
(12) Constitution Act, 1902 (Act No 32), section 35B
(13) www.govenor.nsw.au
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