In this Part:functions includes powers, authorities and duties.
unavailable, in relation to a Minister of the Crown, means unavailable by reason of the Minister’s absence or disability or for any other reason.
35A Preservation of certain conventions etc relating to advice to Governor
The enactment of the Constitution (Amendment) Act 1987 does not affect any law or established constitutional convention relating to the exercise or performance of the functions of the Governor otherwise than on the advice of the Executive Council.
Division 2 The Executive Council
35B Continuation of Executive Council
There shall continue to be an Executive Council to advise the Governor in the government of the State.
35C Members of the Executive Council
(1) The Executive Council shall consist of such persons as may be appointed by the Governor, from time to time, as members of the Executive Council.(2) The members of the Executive Council shall hold office during the Governor’s pleasure.(3) The Governor may appoint one of the members of the Executive Council as Vice-President of the Executive Council.
35CA Executive Councillor’s pledge of loyalty or oath of allegiance and oath of office
(1) Before assuming office, a person appointed as a member of the Executive Council is to take:(a) the pledge of loyalty or oath of allegiance, and(b) the Executive Councillor’s oath of office,before the Governor or other person authorised by the Governor for that purpose.(2) The pledge of loyalty is to be in the following form:Under God, I pledge my loyalty to Australia and to the people of New South Wales.
(3) A member of the Executive Council may omit the words “Under God” when taking the pledge of loyalty.(3A) The oath of allegiance is to be in the following form (with the name of the reigning Sovereign substituted, where appropriate):I swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Her heirs and successors according to law. So help me God.
(4) The Executive Councillor’s oath of office is to be in the following form:I, being appointed as a member of the Executive Council of New South Wales, do swear that I will perform the functions and duties of an Executive Councillor faithfully and to the best of my ability and, when required to do so, freely give my counsel and advice to the Governor or officer administering the Government of New South Wales for the time being for the good management of the public affairs of New South Wales, and that I will not directly or indirectly reveal matters debated in the Council and committed to my secrecy, but that I will in all things be a true and faithful councillor.
So help me God.
(5) A member of the Executive Council may, instead of taking an oath under this section, make an affirmation to the same effect.(6) This section applies only to members of the Executive Council appointed after the commencement of the Constitution Amendment (Pledge of Loyalty) Act 2006.
35D Meetings of the Executive Council
(1) The Governor shall preside at meetings of the Executive Council.(2) The Vice-President of the Executive Council or, in the absence of the Vice-President, the senior member present shall preside at any meeting of the Executive Council from which the Governor is absent.(3) The quorum for a meeting of the Executive Council is 2 members.(4) For the purposes of this section, the seniority of members of the Executive Council shall be determined according to the order of their respective appointments as members of the Executive Council.
Division 3 Appointment of Ministers of the Crown
(1) The Premier and other Ministers of the Crown for the State shall be appointed by the Governor from among the members of the Executive Council.(2) The Premier and other Ministers of the Crown shall hold office during the Governor’s pleasure.
Division 4 Functions of Ministers of the Crown
36 Authority for Minister of the Crown to act for and on behalf of another Minister of the Crown
(1) The Governor may, from time to time, authorise a Minister of the Crown to act for and on behalf of another Minister of the Crown for any period specified or described by the Governor.(2) Where a Minister of the Crown is authorised under this section to act for and on behalf of another Minister of the Crown, any function appertaining or annexed to the office of that other Minister may, while the authority remains in force, be exercised or performed from time to time by the Minister so authorised instead of by that other Minister.(3) An authority under this section may be revoked by the Governor.(4) A Minister of the Crown may be authorised under this section by reference to his name or by reference to the title of the office which he holds as Minister of the Crown.(5) Notice of an authority under this section, or the revocation of such an authority, may be published in the Gazette at any time, and, where such a notice is so published, judicial notice shall be taken of the notice and of the authority or revocation, as the case may be.(6) Every authority under this section shall be recorded by the officer in charge of the records of the Executive Council.
37 Unavailability of Minister of the Crown
A Minister of the Crown may exercise or perform for and on behalf of another Minister of the Crown a function appertaining or annexed to the office of that other Minister if the firstmentioned Minister is satisfied that the other Minister is unavailable and that any Minister of the Crown authorised under section 36 to exercise or perform that function is unavailable.
37A Provisions ancillary to sections 36 and 37
(1) Sections 36 and 37 apply to the functions appertaining or annexed to the office of a Minister of the Crown, whether those functions are conferred or imposed by the terms (express or implied) of an Act or instrument under an Act, or by or under any other law, or by official or other custom, but do not apply to the functions appertaining or annexed to that office by virtue of an authority under section 36.(2) Any act, matter or thing done or omitted by a Minister of the Crown while acting for or on behalf of another Minister of the Crown:(a) under an authority under section 36, or(b) under the authority of section 37,shall be as valid and effectual and shall have the same consequences as if the act, matter or thing had been done or omitted by that other Minister.(3) In all proceedings and before all persons acting judicially, it shall be presumed, in the absence of evidence to the contrary, that a Minister of the Crown who purports to act for or on behalf of another Minister of the Crown was authorised by or under section 36 or 37 so to act.
38 Limitation as to exercise of Attorney-General’s functions
(1) Nothing in section 36, 37 or 37A authorises a Minister of the Crown to exercise any function that is by an Act or any other law annexed or incident to the office of the Attorney-General.(2) Where a function is annexed or incident to the office of the Attorney-General by reason only of the fact that the Attorney-General administers an Act or part of an Act, subsection (1) does not apply in relation to that function unless the administration of that Act or part is expressly vested in the Attorney-General by any Act.
38A Powers of Ministers to speak in Legislative Council
(1) Notwithstanding anything contained in this Act, any Minister of the Crown who is a member of the Legislative Assembly may at any time, with the consent of the Legislative Council, sit in the Legislative Council for the purpose only of explaining the provisions of any Bill relating to or connected with any department administered by him, and may take part in any debate or discussion in the Legislative Council on such Bill, but he shall not vote in the Legislative Council.(2) It shall not be lawful at any one time for more than one Minister of the Crown under the authority of this section to sit in the Legislative Council.