Constitution Act 1902 No 32
Current version for 28 October 2014 to date (accessed 24 November 2014 at 20:14)
Part 2A

Part 2A The Governor

9   Meaning of “unavailable”

For the purposes of this Part, the Governor or any other officer is unavailable if the Governor or other officer:
(a)  has assumed the administration of the government of the Commonwealth, or
(b)  is absent from the State, or
(c)  is physically or mentally incapacitated, or
(d)  is otherwise unavailable to exercise and perform his or her powers and functions.

9A   Appointment of Governor

(1)  There shall continue to be a Governor of the State.
(2)  The appointment of a person to the office of Governor shall be during Her Majesty’s pleasure by Commission under Her Majesty’s Sign Manual and the Public Seal of the State.
(3)  Before assuming office, a person appointed to be Governor shall take the Oath or Affirmation of Allegiance and the Oath or Affirmation of Office in the presence of the Chief Justice or another Judge of the Supreme Court.

9B   Appointment of Lieutenant-Governor and Administrator

(1)  There shall continue to be:
(a)  a Lieutenant-Governor of the State, and
(b)  an Administrator of the State.
(2)  The appointment of a person to the office of Lieutenant-Governor shall be during Her Majesty’s pleasure by Commission under Her Majesty’s Sign Manual and the Public Seal of the State.
(3)  The Administrator shall be:
(a)  the Chief Justice of the Supreme Court, or
(b)  if the Chief Justice is the Lieutenant-Governor or if there is a vacancy in the office of Chief Justice or the Chief Justice is unavailable—the next most senior Judge of the Supreme Court who is for the time being available,
and shall be deemed to have been appointed as Administrator during Her Majesty’s pleasure.
(4)  A person may be appointed as Administrator during Her Majesty’s pleasure by Commission under Her Majesty’s Sign Manual and the Public Seal of the State and, where such an Administrator has been appointed and is available, subsection (3) does not apply.
(5)  The Lieutenant-Governor or Administrator shall not assume the administration of the government of the State or act as deputy to the Governor unless the Lieutenant-Governor or Administrator, as the case may be, has taken on that occasion, or has previously taken, the Oath or Affirmation of Allegiance and the Oath or Affirmation of Office in the presence of the Chief Justice or another Judge of the Supreme Court.
(6)  Any act, matter or thing done or omitted by the Chief Justice of the Supreme Court (before or after the commencement of this subsection) in the capacity of Lieutenant-Governor is taken to have been done or omitted, and always to have been done or omitted, in the capacity of Administrator if for any reason the Chief Justice was not holding office as Lieutenant-Governor at the relevant time. This subsection extends to any act, matter or thing done or omitted as the Governor’s deputy under section 9D.

9C   Administration of government by Lieutenant-Governor or Administrator

(1)  The Lieutenant-Governor or Administrator shall, subject to this section, assume the administration of the government of the State if:
(a)  there is a vacancy in the office of Governor, or
(b)  the Governor is unavailable.
(2)  The Governor shall not, for the purposes of this section, be regarded as being unavailable at any time when there is a subsisting appointment of a deputy under section 9D and the deputy is available.
(3)  The Administrator shall not assume the administration of the government of the State unless there is a vacancy in the office of Lieutenant-Governor or the Lieutenant-Governor is unavailable.
(4)  The Lieutenant-Governor or Administrator shall, upon assuming the administration of the government of the State, notify:
(a)  the Premier, or
(b)  in the event that the Premier is not able to be contacted to give the notification—the next most senior Minister of the Crown (if any) who is able to be contacted.

Notification is not required if concurrence is required under subsection (4A) for the assumption of administration.

(4A)  The Lieutenant-Governor or Administrator shall not assume the administration of the government of the State because of any unavailability referred to in section 9 (d) unless:
(a)  the Premier has concurred in the assumption of administration, or
(b)  in the event that the Premier is not able to be contacted to obtain concurrence—the next most senior Minister of the Crown (if any) who is able to be contacted has concurred in the assumption of administration, or
(c)  neither the Premier nor any other Minister of the Crown is able to be contacted to obtain concurrence, and the Lieutenant-Governor or Administrator is of the opinion that the assumption of administration is authorised by subsection (4B).

The Premier or other Minister is not to give concurrence unless of the opinion that the assumption of administration is authorised by subsection (4B).

(4B)  An assumption of administration because of any unavailability referred to in section 9 (d) is authorised if:
(a)  the powers or functions of the Governor are required to be exercised or performed during that unavailability, or
(b)  the duration of that unavailability cannot be determined,
and exceptional circumstances require the assumption of administration.
(5)  The powers and functions of the Governor vest in the Lieutenant-Governor or Administrator during the administration of the government of the State by the Lieutenant-Governor or Administrator, as the case may be.
(6)  The Lieutenant-Governor shall cease to administer the government of the State when:
(a)  a person is appointed to fill the vacancy in the office of Governor and has taken the required oaths or affirmations, or
(b)  the Governor ceases to be unavailable,
(c)  (Repealed)
as the case requires, and the Lieutenant-Governor has been notified accordingly.
(7)  The Administrator shall cease to administer the government of the State when:
(a)  a person is appointed to fill the vacancy in the office of Governor or Lieutenant-Governor and has taken the required oaths or affirmations, or
(b)  the Governor or Lieutenant-Governor ceases to be unavailable,
(c)  (Repealed)
as the case requires, and the Administrator has been notified accordingly.

9D   Deputy for Governor during short illness or absence

(1)  In the event that:
(a)  the Governor is to be absent from the State or absent from Sydney but not the State or is suffering from illness, and
(b)  the Governor has reason to believe that the duration of the absence or illness will not exceed 4 weeks,
the Governor may, by instrument in writing, appoint the Lieutenant-Governor or Administrator to be the Governor’s deputy during that absence or illness and in that capacity to exercise and perform on behalf of the Governor such of the powers and functions of the Governor as are specified or described in the instrument during the period specified or described in the instrument.
(2)  The Administrator shall not be appointed as deputy under this section unless there is a vacancy in the office of Lieutenant-Governor or the Lieutenant-Governor is unavailable.
(3)  The Governor shall not appoint a deputy under this section unless:
(a)  the Premier has concurred in the appointment of the deputy, or
(b)  in the event that the Premier is not able to be contacted to obtain concurrence—the next most senior Minister of the Crown (if any) who is able to be contacted has concurred in the appointment of the deputy, or
(c)  neither the Premier nor any other Minister of the Crown is able to be contacted to obtain concurrence.
(4)  The appointment of a person as deputy under this section may be revoked by the Governor at any time.
(5)  The powers and functions of the Governor shall not be abridged, altered or in any way affected by the appointment of a person as deputy under this section.

9E   Oaths or Affirmations of Allegiance and of Office

For the purposes of this Part:
(a)  a reference to the Oath or Affirmation of Allegiance is a reference to an Oath or Affirmation swearing or affirming to be faithful and bear true allegiance to Her Majesty and Her Majesty’s heirs and successors according to law, and
(b)  a reference to the Oath or Affirmation of Office is a reference to an Oath or Affirmation swearing or affirming well and truly to serve Her Majesty and Her Majesty’s heirs and successors in the particular office and to do right to all manner of people after the laws and usages of the State, without fear or favour, affection or ill-will.

9F   Letters Patent and Instructions cease to have effect

The Letters Patent dated 29 October 1900, as amended, relating to the office of Governor of the State and all Instructions to the Governor cease to have effect on the commencement of the Constitution (Amendment) Act 1987.

9G   Continuation of existing Commissions, appointments etc

(1)  Any existing Commission or appointment given or made pursuant to Letters Patent or pursuant to Instructions referred to in section 9F shall continue in force until revoked or terminated.
(2)  A person who holds office under any such Commission or appointment as:
(a)  the Governor,
(b)  the Lieutenant-Governor,
(c)  a Minister of the Crown,
(d)  a member of the Executive Council, or
(e)  the Vice-President of the Executive Council,
shall, on the commencement of the Constitution (Amendment) Act 1987, be deemed to have been appointed to that office under this Act.
(3)  The Constitution (Amendment) Act 1987 does not affect anything done in pursuance of any such Commission or appointment.
(4)  Any oath or affirmation taken before the commencement of the Constitution (Amendment) Act 1987 for the purposes of any such Commission or appointment shall be deemed to have been taken pursuant to this Act.
(5)  Subsection (1) does not continue in force:
(a)  a provision of any such Commission or appointment that is inconsistent with any law, or
(b)  the dormant Commission appointing an Administrator of the government of the State dated 16 October 1933.

9H   Public Seal of the State

(1)  The Governor shall provide, keep and use the Public Seal of the State.
(2)  The seal which, immediately before the commencement of the Constitution (Amendment) Act 1987, was used as the Public Seal of the State shall continue to be so used until a new seal is provided by the Governor.

9I   Governor’s salary

(1)  The Governor is entitled to be paid such remuneration as the Statutory and Other Offices Remuneration Tribunal may from time to time determine, under the Statutory and Other Offices Remuneration Act 1975, in respect of the office of Governor.
(2)  Remuneration is not payable under this section to a Governor for any period for which he or she is entitled to remuneration from the Commonwealth in respect of his or her administration of the Government of the Commonwealth.
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