A Commission describing the powers of office and territorial jurisdiction is issued on behalf of the Crown to each Governor appointed. Instructions elaborate the powers mentioned in the Commission. The Governor represents the Crown, and acted on orders transmitted by the British Secretary of State until the Australia Act 1986 ended the right of the British Government to legislate for Australia. Legislative and political developments have limited the extent of the Governor's powers over time, but the role of executive head of government, and representative of the Crown, has remained constant.
On 12 October 1786 a Commission was issued to Captain Arthur Phillip of the British Royal Navy, appointing him Governor of the colony to be established in New South Wales (1), with a second Commission issued on 2 April 1787 appointing him Captain General and Governor-in-Chief. (2) His Commission gave territorial jurisdiction over the whole of eastern Australia, from latitude 10 degrees 37 minutes south to 43 degrees 39 minutes south, and inland westward to longitude 135 degrees, with full authority over all persons in the colony. (3) In 1789 Additional Instructions authorised the Governor to issue land grants (4), and in 1790 a further Commission gave the power to remit sentences and grant pardons to convicted felons. (5)
The early Governors' command was considered sufficient authority for any executive act. Daily Orders, issued by the Governor, were the only legislation in the Colony. (6) In 1804 Governor King described the duties of the Governor as being "chief magistrate of the colony and Commander-in-Chief, he has the direction and the superintending control of every act and person - civil, military, settlers, and convicts", all of which "occasions the most arduous exertions of the mind." (7)
In 1823 the British Government passed the New South Wales Act, which instituted Courts of Criminal and Civil Jurisdiction in New South Wales and Van Diemen's Land. (8) As well, this Act constituted a Legislative Council, with between five and seven residents of the colony to be nominated as members. Laws and ordinances proposed by the Governor were required to be presented to the Council for advice, but the Governor had the power to overrule a majority decision of the Council, provided he had the support of at least one of its members. (9) In cases where the Governor considered laws or ordinances necessary to suppress or prevent rebellion or insurrection he had the power to overrule the entire Council. (10)
In 1825 the Instructions to Governor Darling changed his territorial jurisdiction to include Melville Island, and exclude Van Diemen's Land, and included provision for the establishment of an Executive Council. The Council was to consist of the Lieutenant Governor, the Chief Justice, the Archdeacon, and the Colonial Secretary. (11) Only the Governor could initiate business, but members could submit a written request for subjects to be discussed. The Governor was directed to consult the Executive Council in all things, but if he dissented from the opinion expressed by the Council, the authority and power vested in the Governor was sufficient for him to reject advice and act in opposition. In any such case he was required to send a full explanation of the circumstances to the Secretary of State. (12)
In 1828 the Australian Courts Act included provision for an increase in the size of the Legislative Council to a membership of between ten and fifteen. (13) The Governor was to preside at Council meetings, and was entitled to vote on all questions, with an additional casting vote if the Council was equally divided. (14) The Governor was directed to present all proposed laws and ordinances to the Council, and without assent from a majority of the Council these would not pass into law. (15) In this the Act placed the Legislative Council above the Governor in legislative matters (16), although the powers provided in the Governor's Commissions and Instructions remained essentially unchanged. In 1837 the Governor's territorial jurisdiction decreased to exclude the province of South Australia, and in 1842 a supplementary Commission was issued to extend the Governor's exercise of the Royal prerogative of mercy to included cases of treason and wilful murder. (17)
A limited form of representative government, with the Legislative Council enlarged to 36 members, 24 of these elected and 12 to be nominees, was provided for in 1842 with the Australian Constitutions Act. (18) With the appointment of a Speaker, the Governor retired from attending meetings of the Council and was represented by the Colonial Secretary, but the time and place of meetings were determined by the Governor, who had the power to prorogue or dissolve the Council, present Bills, and suggest amendments to Bills adopted by the Council. Bills were presented to the Governor for assent. (19)
The NSW Constitution Act, 1855 provided for the creation of a bicameral legislature, consisting of a nominated Council and an elected Assembly, with full powers of constitutional amendment, and the right to control land revenues. Appointments to the upper house, and all government offices were to be made by the Governor with the advice of the Executive Council, except those of officers liable to retire from office on political grounds, these were to be made by the Governor alone. (20) The Act maintained the right of the Governor to reserve bills for Royal consideration, and renewed the Governor's power of disallowance. (21)
Consequent to the Act, on 19 December 1855, a new Commission and a new set of Instructions were issued to the Governor but these imposed no new limitations. A Select Committee appointed by the Legislative Council in October 1855 had suggested that the Governor should no longer regard himself as the agent of the Colonial Office, but should act according to advice provided by those selected by the colonists (22), and although the Governor remained answerable to the British Secretary of State, following the establishment of responsible government in New South Wales on 22 May 1856 the Governor rarely exercised the full powers of his office independently of ministerial advice.
By 1879 the instrument of appointment of the Governor had been altered from the preparation of individual Letters Patent under the Great Seal, due to delays involved with this practice. Instead the British Government decided to issue Letters Patent for each colony, constituting permanently the office of Governor, and providing that future Commissions were to be issued under the Monarch's Sign Manual and Signet. (23)
These Letters Patent, issued on 29 April 1879, were revoked because of the establishment of the Commonwealth, and on 29 October 1900 new permanent Letters Patent, passed under the Great Seal of the United Kingdom, constituting the Office of Governor of the State of New South Wales were issued, and proclaimed in the NSW Government Gazette on 1 January 1901. These re-constituted permanently the Office of Governor, as representative of the Crown, and constitutional head of the New South Wales State government. The Letters Patent provided for the appointment of the Governor to be made by Commission, issued under the Royal Sign Manual and Signet, and directed the Governor to act according to orders and Instructions issued by the British Secretary of State on behalf of the Crown. (24)
The Letters Patent of 29 October 1900 authorised the Governor to keep and use the Public Seal of the State, make appointments to the Executive Council, appoint Judges and other officers and Ministers of the State, grant pardons and remit fines and penalties, summon, prorogue, or dissolve any legislative body, and remove or suspend from office any person exercising any office or place under the State. (25) Instructions directed the Governor to attend and preside over meetings of the Executive Council, and to be guided by the advice of the Council, but allowed the Governor the power to act in opposition to this advice. The Governor was also directed to appoint the members of the Legislative Council with the advice of the Executive Council, and to deny assent to certain Bills reserved for Royal consideration. Pardons in capital cases were only to be made with the advice of the Executive Council, and in other cases with the advice of a Minister of the government. (26)
In 1902 the Constitution Act reaffirmed the role of the Governor in fixing the time and place of meetings of the Legislative Council and Assembly, power to prorogue meetings, and to dissolve the Legislative Assembly. (27) Standing Rules and Orders for both Houses required the approval of the Governor (28), and the Legislative Assembly could not pass money Bills that had not first been recommended by the Governor. (29)
In practice the Governor acts with the advice of Ministers of the government, and the powers with which the Governor is vested by the Commission, Instructions, and by provisions contained in Acts of Parliament, are held to be "Reserve powers", discretionary powers that are to be kept in reserve and used only on exceptional and rare occasions. (30) Constitutional lawyers are not in agreement on the exact nature and extent of these powers. (31) As the representative of the Crown, the office of the Governor also entails a ceremonial and social role, to act as a politically neutral unifying symbol. (32)
From 1934 the Legislative Council was no longer composed of members nominated by the Governor, but was composed of members elected by the Legislative Assembly and non-retiring members of the Council voting together, following the Constitution Amendment (Legislative Council) Act, 1932 (Act No.2,1933), as carried into effect by the Constitution Further Amendment (Legislative Council Elections) Act, 1932 (Act No.5,1933).
In 1946 the nominee of the New South Wales State Government, and the first Australian, was appointed State Governor. Prior to this all appointments had been to British citizens, upon the recommendation of the British Government. (33)
Pursuant to the Australia (Request and Consent) Act 1985 (Act No.109, 1985), the Australia Act 1986 was enacted by the British and Australian Commonwealth Parliaments. The Australia Act 1986 terminated the power of the Parliament of the United Kingdom to legislate for Australia. (34) The Act stated that the Crown would continue to be represented in each State by a Governor, but allowed for the Premier of each State to appoint and dismiss the State Governor (35), and removed the power of the State Governor to reserve Bills for Royal consideration. (36)
The New South Wals Parliament subsequently amended the Constitution Act 1902, with the Constitution (Amendment) Act 1987, assented to 3 June 1987. (37) The Letters Patent dated 29 October 1900, as amended, and all Instructions relating to the office of Governor of New South Wales ceased to have effect on the commencement of this Act. (38) The holder of the office of Governor was deemed to have been appointed under the provisions of the Constitution (Amendment) Act 1987 (39), which reaffirmed that there shall continue to be a Governor of New South Wales (40), appointed by Commission under the Royal Sign Manual, and the Public Seal of the State. (41) The Act did not affect any law or established constitutional convention relating to the exercise or performance of the functions of the Governor other than on the advice of the Executive Council. (42)
In 1996 the Governor ceased to reside at Government House, and established an office in the Chief Secretary's Building in Macquarie Street. The Historic Houses Trust took over management of Government House which was opened to the public, but remained the Governor's official reception space for Vice-Regal purposes. (43)
1. Historical Records of Australia (HRA), Series 1, Vol. 1, p.1-2
2. Ibid., p.8.
3. Ibid., p.2.
4. Ibid., p.124.
5. Ibid., p.208.
6. The Governor 1787-1935 (Guide to the State Archives of New South Wales; 11). Sydney, Archives Authority of New South Wales, 1969, p.11.
7. HRA, Series 1, Vol.4, p.538.
8. New South Wales Act, 1823 (4 Geo. IV c.96), s.I.
9. Ibid., s.XXIV.
10. Ibid., s.XXV.
11. HRA, Series 1, Vol.12, p.108.
12. Ibid., p.110.
13. Australian Courts Act, 1828 (9 Geo. IV c.83), s.XX.
14. Ibid, s.XXIII.
15. Ibid., s.XXI.
16. Melbourne, A.C.V., Early Constitutional Development in Australia, St Lucia, Qld, University of Queensland Press, 1963, p.155.
17. Ibid., pp.163-164.
18. Australian Constitutions Act, 1842, (Act 5&6 Vic. c.76), s.1.
19. Melbourne, op cit, p.270.
20. NSW Constitution Act, 1855, (18 & 19 Vict. c.54), s.37.
21. Ibid., s.3.
22. Melbourne, op. cit., pp.429-31.
23. The Governor, Despatches from the Secretary of State, Secretary of State to Sir Hercules Robinson, 20 October 1875, Circular(1)-Secret, SRNSW: NRS 4512, [4/1365].
24. NSW Government Gazette 1901, 1 January 1901, p.2.
25. Ibid., p.3.
26. Rose, L.J., The Framework of Government in New South Wales, Sydney, Government Printer, 1972, pp.128-129.
27. Constitution Act, 1902 (Act No 32, 1902) s.10
28. Ibid, s.15(2).
29. Ibid., s.46.
30. Rose, op. cit., p.43.
31. Parliament of New South Wales website http://www.parliament.nsw.gov.au/prod/web/common.nsf/key/ResourcesSystemTheGovernorofNewSouthWales, q.v. The Governor of NSW (cited 17 June 2009).
32. Rose, op. cit., p.65.
33. Ibid., p.34.
34. Australia Act, 1986 (Act No.142, 1985), s.1.
35. Ibid., s.7.
36. ibid, s.9
37. Constitution (Amendment) Act, 1987 (Act No 64, 1987)
38. ibid, s.9F
39. ibid, s.9G(2)
40. ibid, s.9A(1)
41. ibid, s.9A(2)
42. ibid, s.35A
43. Loc. cit. note 31.