Constitution Amendment (Governor) Bill 2006
Reverend the Hon. Dr GORDON MOYES: On behalf of the Christian Democratic Party I wish to make some comments on the Constitution Amendment (Governor) Bill, the object of which is to enable the Lieutenant-Governor or Administrator to assume administration of the State in the event that the Governor is “unavailable”. It is trite to mention that the social and legal landscape has dramatically changed in this nation since the occurrence of 9/11. The reason that we are considering this bill today stems from a concern in relation to what would happen to the administration of the Executive Government under the New South Wales Constitution Act if the Governor were “unavailable” as a result of a man-made or natural disaster. In effect, this bill legitimises a contingency plan if that were to occur. Currently, under sections 9B, 9C and 9D of the Constitution Act, only the Lieutenant-Governor, who is currently the Chief Justice of the Supreme Court, the Hon. James Jacob Spigelman AC, or the Administrator, who is currently the President of the Court of Appeal, Justice Keith Mason AC, are able to assume administration of the Executive Government if the Governor is “incapacitated”.
Of course, whether this state of affairs could come into play directly depends on the term “incapacitated”. Legal advice was sought by the Cabinet Office to determine whether this term extended beyond situations in which the Governor was not physically or mentally incapacitated. Commonly, “capacity” within a legal context, refers to having sound mental faculties. The Crown Solicitor advised that “incapacity” might not extend to situations beyond physical or mental incapacity. This means that, in the event of the Governor being detained in a location as a result of a natural or man-made disaster—or, could I suggest, even a straight out kidnapping—the Lieutenant-Governor or Administrator would not be able to step in, on a solid legal footing, to exercise administration of the executive arm of the Government.
The bill seeks to remedy this situation by prescribing that the Lieutenant-Governor or Administrator may assume administration in situations where the Governor is “incapacitated” beyond physical or mental incapacity. However, it is of the utmost importance to note that certain qualifications will apply to this assumption of responsibility. The first qualification provided by the bill is that the Lieutenant-Governor or Administrator may only assume administration with the concurrence of the Premier or other Minister, provided one of them is available. If the Premier is not available to provide concurrence, then it will be incumbent on the next senior Minister to consider concurrence in place of the Premier. The second qualification provided by the bill is that the governance arrangements may not come about simply for administrative convenience.
In order for the Premier or other Minister to determine the question of whether the Lieutenant-Governor or Administrator should assume responsibility for the administration of the Executive Government, certain criteria will need to be met. First, in the given circumstances, it must be not possible to determine whether or when the Governor will become available again; second, it must be necessary for the administration of the State that certain functions of the Governor be exercised prior to the Governor’s return. What is important is that the Lieutenant-Governor or Administrator may not assume administration in circumstances where the Premier or another Minister is not available to grant concurrence unless he or she is satisfied that the criteria for the concurrence of the Premier or Minister is met.
We had a good example of this when 9/11 occurred in the United States of America. The President was immediately flown of Washington DC and sent to a secret location. He was therefore “incapacitated” because of the possible personal threat against him. The American system had a good legal balanced approach whereby the Speaker of the House, the Chief Justice and other senior personnel were involved. Honourable members might recall that in that instance the Mayor of New York, Mr Giuliani, was delegated certain responsibilities and powers.
The Hon. Duncan Gay: Wasn’t he in a schoolroom in the southern part of American?
Reverend the Hon. Dr GORDON MOYES: On September 11, yes.
The Hon. Duncan Gay: He was not flown out.
Reverend the Hon. Dr GORDON MOYES: No, he did stay, but the plan was for him to be flown to Oregon. If he had been in Washington, the plan was that he should be flown to Oregon to a safe place. However, I am simply making the point that the Americans had contingency plans for the incapacity of a President in just such an emergency. An intrinsic role of legislators is to cater for the vicissitudes of life. Though we would not dare hope that this legislation will ever become applicable, I must say that such legislation is needed to pre-empt any circumstances that could render the Governor “incapacitated”. It is important that legislation be prescriptive. I am certain that other members will join me in commending this bill to the House.