63.1 This section will be deleted for the same reasons as s.62:
▸ The section is premised on executive power being exercised by the Governor-General which is inconsistent with the new role for the position under the Advancing Democracy model;
▸ The concept of executive power being exercised by a person acting on the advice of another person has never made sense and will be abolished; and
▸ The Executive Council is to be abolished.
63.2 An additional reason for its removal is:
▸ The section is apt to mislead ordinary voters. It purports to draw a distinction between sections referring to the “Governor-General” from those which refer to the “Governor-General in Council”. This allows some to argue that powers given to the Governor-General which don’t refer to the Executive Council may be exercised without the Governor-General considering Ministers’ advice. Of course, the distinction is illusory, because to act “with the advice” of Ministers does not mean that the advice will be followed. Quick and Garran at p.707 describe the distinction as “historical and technical, rather than practical or substantial”. Crown powers which originated from common law were vested in the Governor-General if they were not controlled by statute at the time the Constitution was drafted. Other powers which originated from, or were controlled by, statute were vested in the Governor-General in Council. (See also Note 65A.4). |
