The Constitutional Validity of State Chief Justices Acting as Governor

On 1 September 2014, His Excellency Hieu Van Le AO was sworn in as the 35th Governor of South Australia.

The new Governor had previously served as Lieutenant-Governor of South Australia since 2007. In anticipation of his Excellency’s swearing in, Professor Brenda Wilson was sworn in as Lieutenant-Governor of South Australia on 15 August 2014.

This is a uniquely South Australian story – we are the only State where the Chief Justice of the Supreme Court is not appointed as Lieutenant-Governor as a matter of course.

Having the Chief Justice also serve as Lieutenant-Governor leads to periods when the head of the judicial branch (the Chief Justice) is simultaneously head of the executive branch (as acting Governor).

In a Public Law Review article just published, PLPRU member Dr Matthew Stubbs demonstrates how frequently vice-regal work is performed by Chief Justices in the rest of Australia. Dr Stubbs examines whether appointments of the Chief Justice as Lieutenant-Governor are valid under the separation of judicial power in the Australian Constitution, concluding that they are invalid and recommending that other States follow the lead of South Australia in appointing a Lieutenant-Governor.

The abstract of Dr Stubbs’ paper is:

In the Australian States, a long tradition continues of the Chief Justice of the Supreme Court serving as acting Governor, either through formal appointment as Lieutenant-Governor or by statutory mandate as Administrator. This article examines the validity of the Chief Justice undertaking vice-regal functions as acting Governor in light of the Kable incompatibility principle. The history of, and objections to, this practice are outlined, before two potential justifications are examined: conferral under the persona designata doctrine, and a novel and untested argument arising from the history of the practice and s 106 of the Australian Constitution. It is argued that such appointments can be justified only in limited circumstances under the persona designata doctrine, and that the more extensive appointments which exist in the majority of Australian States at present are invalid.

Dr Stubbs’ article appears in volume 25(3) of the Public Law Review, published in September 2014.

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