Page:In the Matter of the Validity of the Appointment of Mr Morrison to Administer the Department of Industry, Science, Energy and Resources – Opinion.pdf/11

 23. Nor is it relevant to the validity of that appointment that Mr Morrison did not subscribe an oath upon his appointment to administer DISER. Mr Morrison had already sworn an oath as a Member of Parliament as required by s 42 of the Constitution, and he had subscribed an oath upon becoming a member of the Federal Executive Council on 18 September 2013. As discussed in paragraph 17 above, no further oath was required either upon an initial appointment as a Minister of State under s 64, or upon any subsequent appointment.


 * (c) Notification of an appointment is not a condition of its validity

24. As noted above, I am instructed that, after the Instrument of Appointment was executed, no action was taken by the Department of the Prime Minister and Cabinet to announce that appointment, the Instrument of Appointment was not published, no change was made to the Ministry list which is tabled in Parliament, and no gazettal was pursued. Further, I understand from media reporting that the other Ministers administering DISER (and presumably DISER itself) remained unaware of the appointment for at least some months after it occurred.

25. The above facts do not cast any doubt on the validity of Mr Morrison's appointment to administer DISER. Section 64 does not prescribe any procedures or mechanisms for giving effect to appointments. As a result, the appointment could be invalid only if there is an implicit condition that the valid exercise of the power to appoint an officer to administer a department of State depends on subsequent publication of the appointment. In my opinion, there is no such implicit condition.

26. There is nothing in the text or context of Ch II of the Constitution to support the implication of such a condition. The text of s 64 is expressed broadly in order