1.21 The Executive Council, which is constituted by the Letters Patent, is the highest formal instrument of government. It is the institution through which the government collectively and formally advises the Governor-General.
1.22Action by the Governor-General in Council requires two elements:
- a recommendation by a Minister or Ministers (that is, a member or members of the Executive Council); and
- the advice and consent of the Executive Council that the Governor-General in Council act in accordance with the Minister's recommendation.
1.23 Orders in Council are the main method, apart from Acts of Parliament, by which the government implements decisions that require the force of law. Meetings of the Executive Council are called for the purpose of making such orders and carrying out other formal acts of state.
1.24 The submission of almost all items for consideration by the Executive Council must be authorised by Cabinet (see paragraphs 1.39 – 1.41).
Membership of Executive Council
1.25 The Governor-General presides over, but is not a member of, the Executive Council.
1.26 Following the formation of a government, the Governor-General appoints the Prime Minister-designate as a member of the Executive Council, and then signs his or her warrant of appointment as Prime Minister. For further information about government formation and the appointment of the Prime Minister, see paragraph 2.2 and paragraphs 6.42 – 6.53.
1.27 Once appointed, the Prime Minister advises the Governor-General on the appointment of the other members of the Executive Council. After the Executive Council has been appointed, a meeting of the Council is convened and the Council members take the oaths or affirmations prescribed in the Oaths and Declarations Act 1957.
1.28 Members of the Executive Council must be members of Parliament, as set out in the Constitution Act 1986 (with an exception in some transitional situations—see paragraph 1.31 and section 6 of the Constitution Act). Ministers derive their power to advise the Sovereign and the Sovereign's representative from their membership of the Executive Council. All Ministers of the Crown are therefore members of the Executive Council, whether or not they are members of the Cabinet. Parliamentary Under-Secretaries are not members of the Executive Council.
Resignations and dismissals of members of the Executive Council
1.29 Resignations and dismissals of members of the Executive Council and Ministers are effected by the Governor-General, acting on the advice of the Prime Minister. See paragraphs 2.18 – 2.20 for further information on resignation and dismissal.
1.30Following a dissolution of Parliament, Ministers continue in office (subject to the legal requirement set out in paragraph 1.31) until the result of the general election and government formation negotiations are known and the next administration is ready to be sworn in. Members of the Executive Council and Ministers act in a caretaker capacity until the negotiations are complete. The convention on caretaker government is set out in paragraphs 6.21 – 6.40.
1.31 Members of the Executive Council and Ministers must vacate office within 28 days of ceasing to be members of Parliament. If a caretaker administration continues in office beyond this 28-day period, Ministers who are no longer members of Parliament must leave office at the end of the 28-day period. Their portfolio responsibilities will be either carried out by other Ministers under section 7 of the Constitution Act (see paragraph 2.21) or formally reassigned to other Ministers in the caretaker administration.
1.32The transition between administrations, including the principles and processes concerning a change of Prime Minister, is covered further in chapter 6.