The Governor General / Letters Patent

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(1) The Queen needs to personally assent legislation

“It has been declared by a number of High Court judges that the Governor-General, as the Queen’s representative, possesses the prerogatives of the Crown relevant to the Federal Government’s sphere of responsibility, which includes, for example, all matters relating to external affairs.” – Volume 1 of the Final Report of the Constitutional Commission 1988

The precedents were set in Barton v Commonwealth (1974) 131 CLR 477, (Mason J); 2 Victoria v Commonwealth and Hayden (1975) 134 CLR 338, (Jacobs J); 3 New South Wales v Commonwealth (1975) 135 CLR 337. (Barwick C J). 

Section 58 of the Constitution – Royal assent to Bills: 5  

“When a proposed law passed by both Houses of the Parliament is presented to the Governor General for the Queen’s assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen’s name, or that he withholds assent, or that he reserves the law for the Queen’s pleasure.

Recommendations by Governor-General

The Governor-General may return to the house in which it originated any proposed law so presented to him, and may transmit therewith any amendments which he may recommend, and the Houses may deal with the recommendation.”

Section 61 of the Constitution – Executive power: 6

“The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”

Volume 1 of the Final Report of the Constitutional Commission 19887

“The Queen is empowered by section 2 8 of the Constitution to appoint a Governor-General who ‘shall be Her Majesty’s representative’. Section 61 of the Constitution vests the executive power of the Commonwealth in the Queen and declares that it is exercisable by the Governor-General as the Queen’s representative. These powers are, of course, consistent with British constitutional practice, exercised on the advice of Australian Ministers (except in those very rare cases which are said to come within the ‘reserve powers’ of the Crown). On those occasions when the Queen acts in her own capacity, such as in appointing the Governor General, she also acts on the advice of Australian Ministers, rather than British ones, in accordance with the principle established at the Imperial Conference of 1926.”

At the Imperial Conference of 1926, agreement was reached between all dominions of the then British Empire, which resulted in the Balfour Declaration 1926. 9 The Balfour Declaration declared the United Kingdom and the Dominions to be:

“…autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.”

It was decided that the Governors-General, the representatives of the King in each dominion, should no longer also serve automatically as the representative of the British government in diplomatic relations between the countries.

The Governor-General then possessed all the prerogatives of the Crown relating to assent of bills of parliament. It is in his discretion under s 58, whether he assents in the Queen’s name, or that he withholds assent, or that he reserves the law for the Queen’s pleasure. Here is a complete list of bills that were reserved for her majesty’s pleasure.10 

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The Queen herself, has stated that she has no powers to intervene in matters clearly placed within the responsibilities of the Governor General. There is also a recognition of her position as “Queen of Australia “ (as opposed to the “Queen of England”) and the differences for her role that this alternate title represents.

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(2) The Governor General has not been sworn in under Letters Patent

Extract from Pham v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1310:

“It was suggested that the Governor General was not validity appointed, and thus my appointment was not valid. The Applicant contended that there is no record from the Privy Council to indicate that the Queen made a valid appointment of the Governor-General. Putting aside the question of whether the Constitution requires such appointments of the Queen to made ‘in Council’ or with the advice of the Privy Council, I must presume that the appointment of the Governor-General is valid without at least some evidence or basis to the contrary.

I observe that a similar argument was put before Justice Goldberg in the ACCC v Purple Harmony Plates Pty Ltd [2001] FCA 1062. At [27] his Honour stated:

“I reject the respondents’ submission that the Governors General have not been properly appointed and that legislation assented to by the Governors General has not been validly assented to. On 29 October 1900, Queen Victoria issued Letters Patent constituting the office of Governor General of the Commonwealth of Australia. Those Letters Patent were passed under the seal of the United Kingdom and issued by Warrant under the Queen’s Sign Manual: Commonwealth Gazette (No 1), 1 January 1901. The first Governor General, Lord Hopetoun, was appointed to his office in accordance with those Letters Patent. The current Letters Patent were issued by Queen Elizabeth II on 21 August 1984 and gazetted in the Commonwealth Special Gazette (No S334), 24 August 1984. The Governor General at the time the application was filed, Sir William Deane, was appointed to his office in accordance with the current Letters Patent by Commission dated 29 December 1995 passed under the Royal Sign Manual  and the Great Seal of Australia and took the oath of allegiance and prescribed oath of office on 16 February 1996: Commonwealth Special Gazette (No S66), 19 February 1996. As each of the Governors General have been validly appointed, there is no merit in the respondents’ contentions that all members of parliament, ministers of State and justices were invalidly appointed or that the Act is invalid.”

In relation to my own appointment, the Governor-General was appointed to his office in accordance with the current Letters Patent (as amended on 11 May 2003) by Commission dated 29 July 2003 passed under the Royal Sign Manual and the Great Seal of Australia, and he took oath of allegiance and prescribed oath of office on 11 August 2003 (see Commonwealth Special Gazette (No S309), 11 August 2003).” 14

The Letters Patent “as amended” at the time of His Honours appointment was the “Office of Governor-General of the Commonwealth of Australia (Amendment) – 11/05/200315 

Click to access office-of-governor-general-of-the-commonwealth-of-australia-amendment-11052003.pdf

See Special Gazette No. S309 dated 11 August 2003. 16

Click to access special-gazzette-no.-s309-11-august-2003.pdf

This amended Letters Patent Relating to the Office of Governor-General of the Commonwealth of Australia 21 August 198417

Click to access letters-patent-relating-to-the-office-of-governor-general-of-the-commonwealth-of-australia-21-august-1984.pdf

See Special Gazette No. S334 dated 24 August 1984. 18

Click to access special-gazzette-no.-s334-24-august-1984.pdf

This was repealed by the new “Letters Patent Relating to the Office of Governor-General of the Commonwealth of Australia 21 August 2008“. 19

Click to access letters-patent-relating-to-the-office-of-governor-general-of-the-commonwealth-of-australia-21-august-2008.pdf

See Special Gazette No. S179 dated 9 September 2008. 20

Click to access special-gazzette-no.-s179-9-september-2008.pdf

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(3) The Royal Sign Manual is placed wrong

There is a theory that implies that the Queen placing the royal sign manual at the top of the document (instead of at the end, the bottom, underneath the body of words) invalidates the document and her “permission”, or oversight. Here are a group of links to do with the proper placing of the royal sign manual throughout recent history…

The English Cyclopedia, Part 4, Volume 7: 21 “The royal sign-manual is usually placed at the TOP left hand corner of the instrument, together with the privy seal; and it is requisite in all cases where the privy seal and afterwards the great seal are used.”

Webster’s Revised Unabridged Dictionary: 22 “The royal signature superscribed at the TOP of bills of grants and letter patent, which are then sealed with the privy signet or great seal, as the case may be, to complete their validity.”

Merriam-Webster Unabridged Dictionary23 the king’s signature on a royal grant or charter placed at the TOP of the document.”

American Heritage Dictionary of the English Language24 “A signature, especially that of a monarch at the TOP of a royal decree.”

Hansard’s Parliamentary Debates By Great Britain. Parliament: 25 “Her majesty signs her name at the TOP of the submission paper.”

Wikipedia: Sign Manual. 26 “The Royal signature, normally written at the TOP of a document.”

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(4) Demanding the court provide proof of Assent and Proclamation

Section 143 of the Evidence Act 1995 (Cth):

Part 4.2Judicial notice – 143  Matters of law 27

(1)  Proof is not required about the provisions and coming into operation (in whole or in part) of:

  • (a)  an Act, a State Act, an Act or Ordinance of a Territory or an Imperial Act in force in Australia; or
  • (b)  a regulation, rule or by‑law made, or purporting to be made, under such an Act or Ordinance; or
  • (c)  a Proclamation or order of the Governor‑General, the Governor of a State or the Administrator or Executive of a Territory made, or purporting to be made, under such an Act or Ordinance; or
  • (d)  an instrument of a legislative character (for example, a rule of court) made, or purporting to be made, under such an Act or Ordinance, being an instrument that is required by or under a law to be published, or the making of which is required by or under a law to be notified, in any government or official gazette (by whatever name called).

 (2)  A judge may inform himself or herself about those matters in any way that the judge thinks fit.

 (3)  A reference in this section to an Act, being an Act of an Australian Parliament, includes a reference to a private Act passed by that Parliament.

Note:  Section 5 extends the operation of this provision to proceedings in all Australian courts.

150 Seals and signatures: 28

(1)  If the imprint of a seal appears on a document and purports to be the imprint of:

  • (a)  a Royal Great Seal; or
  • (b)  the Great Seal of Australia; or
  • (c)  another seal of the Commonwealth; or
  • (d)  a seal of a State, a Territory or a foreign country; or
  • (e)  the seal of a body (including a court or a tribunal), or a body corporate, established by a law of the Commonwealth, a Territory or a foreign country; or
  • (f)  the seal of a court or tribunal established by a law of a State;

it is presumed, unless the contrary is proved, that the imprint is the imprint of that seal, and the document was duly sealed as it purports to have been sealed.

(2)  If the imprint of a seal appears on a document and purports to be the imprint of the seal of an office holder, it is presumed, unless the contrary is proved, that:

  • (a)  the imprint is the imprint of that seal; and
  • (b)  the document was duly sealed by the office holder acting in his or her official capacity; and
  • (c)  the office holder held the relevant office when the document was sealed.

(3)  If a document purports to have been signed by an office holder in his or her official capacity, it is presumed, unless the contrary is proved, that:

  • (a)  the document was signed by the office holder acting in that capacity; and
  • (b)  the office holder held the relevant office when the document was signed.

(4)  In this section: “office holder” means:

  • (a)  the Sovereign; or
  • (b)  the Governor-General; or
  • (c)  the Governor of a State; or
  • (d)  the Administrator of a Territory; or
  • (e)  a person holding any other office under an Australian law or a law of a foreign country.

(5)  This section extends to documents sealed, and documents signed, before the commencement of this section.

Note:  Section 5 extends the operation of this provision to proceedings in all Australian courts.

153 Gazettes and other official documents: 29

(1)  It is presumed, unless the contrary is proved, that a document purporting:

  • (a) to be any government or official gazette (by whatever name called) of the Commonwealth, a State, a Territory or a foreign country; or
  • (b)  to have been printed by the Government Printer or by the government or official printer of a State or Territory; or
  • (c)  to have been printed by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country;

is what it purports to be and was published on the day on which it purports to have been published.

(2)  If:

(a)  there is produced to a court:

  • (i)  a copy of any government or official gazette (by whatever name called) of the Commonwealth, a State, a Territory or a foreign country; or
  • (ii)  a document that purports to have been printed by the Government Printer or by the government or official printer of a State or Territory; or
  • (iii)  a document that purports to have been printed by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country; and

(b)  the doing of an act:

  • (i)  by the Governor-General or by the Governor of a State or the Administrator of a Territory; or
  • (ii)  by a person authorised or empowered to do the act by an Australian law or a law of a foreign country;

is notified or published in the copy or document; it is presumed, unless the contrary is proved, that the act was duly done and, if the day on which the act was done appears in the copy or document, it was done on that day.

Note: Section 5 extends the operation of this provision to proceedings in all Australian courts.

Section 5 of the Evidence Act 1995 (Cth): 30

Extended application of certain provisions

The provisions of this Act referred to in the Table apply to all proceedings in an Australian court, including proceedings that:

  • (a)  relate to bail; or
  • (b)  are interlocutory proceedings or proceedings of a similar kind; or
  • (c)  are heard in chambers; or
  • (d)  relate to sentencing.
TABLE
Provisions of this Act Subject matter
Subsection 70(2) Evidence of tags and labels in Customs prosecutions and Excise prosecutions
Section 143 Matters of law
Section 150 Seals and signatures
Section 153 Gazettes and other official documents
Section 154 Documents published by authority of Parliaments etc.
Section 155 Official records
Section 155A Commonwealth documents
Section 157 Public documents relating to court processes
Section 158 Evidence of certain public documents
Section 159 Official statistics
Section 163 Proof of letters having been sent by Commonwealth agencies
Section 182 Commonwealth records, postal articles sent by Commonwealth agencies and certain Commonwealth documents

Note: Australian court is defined in the Dictionary to cover all courts in Australia. The definition extends to persons and bodies that take evidence or that are required to apply the laws of evidence.

The States

Section 143 of the Evidence Act 2008 (Vic):

Part 4.2—Judicial notice – 143 Matters of law

(1)Proof is not required about the provisions and coming into operation (in whole or in part) of—

  • (a) an Act, an Imperial Act in force in Australia, a Commonwealth Act, an Act of another State or an Act or Ordinance of a Territory; or
  • (b) a regulation, rule or by-law made, or purporting to be made, under such an Act or Ordinance; or
  • (c) a proclamation or order of the Governor-General, the Governor of a State or the Administrator or Executive of a Territory made, or purporting to be made, under such an Act or Ordinance; or
  • (d) an instrument of a legislative character (for example, a rule of court) made, or purporting to be made, under such an Act or Ordinance, being an instrument that is required by or under a law to be published, or the making of which is required by or under a law to be notified, in any government or official gazette (by whatever name called).

(2) A judge may inform himself or herself about those matters in any way that the judge thinks fit.

(3) A reference in this section to an Act, being an Act of an Australian Parliament, includes a reference to a private Act passed by that Parliament.

Note: Section 5 of the Commonwealth Act extends the operation of the equivalent Commonwealth section to proceedings in all Australian courts.

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