Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Constitution Act 1902 in relation to the
appointment of the Chief Justice of the Supreme Court as the Lieutenant-Governor.

The Constitution Act 1902 provides for the appointment of a Lieutenant-Governor
who may act when the Governor is not available and, if there is no
Lieutenant-Governor appointed or the Lieutenant-Governor is not available, for the
Chief Justice to act as Administrator.

The long-standing practice in NSW is that the Chief Justice is appointed as
Lieutenant-Governor (which is currently the case).

Under Part 2A of the Constitution Act 1902, the appointment of the Governor and the
Lieutenant-Governor is made by “Commission under Her Majesty’s Sign Manual”
(namely, by the Queen in accordance with constitutional practice for the Colony and
then the State of NSW).

The appointment of the Governor and the Lieutenant-Governor (or Administrator) of
a State is now governed by the Australia Acts of the Commonwealth and of the
United Kingdom. In some States the view has been taken that the
Lieutenant-Governor should be appointed by the Governor instead of by the Queen
(as a result of debate about the interpretation of relevant provisions of the Australia

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Explanatory note page 2

Constitution Amendment (Lieutenant-Governor) Bill 2009
Explanatory note
Act). Amendment of the Australia Acts requires the consent of all the States. In order
to avoid any doubt about the exercise of the Governor’s functions in NSW (pending
any clarifying changes made to the Australia Acts), the Bill deems the Chief Justice
to be acting as Administrator (which is clearly authorised by the Constitution Act
1902) if for any reason it is subsequently determined that the appointment as
Lieutenant-Governor was not legally effective.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on the date of assent
to the proposed Act.

Clause 3 amends section 9B of the Constitution Act 1902 to give effect to the object
outlined above.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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