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The evolution of the roles of the Sovereign and the Governor-General.

The rapid evolution of the overseas dominions during the last fifty years has involved many complicated adjustments of old political machinery to
changing conditions. The tendency towards equality of status was both right and inevitable. Geographical and other conditions made this impossible of attainment by the way of federation. The only alternative was by the way of autonomy; and along this road it has been steadily sought. Every self-governing member of the Empire is now the master of its destiny. In fact, if not always in form, it is subject to no compulsion whatever.

The Balfour Declaration recognised conventions that had already developed. The Declaration was given statutory effect when the parliament at Westminster passed the Statute of Westminster, 1931, which recognised the full emancipation of the dominion parliaments. Now they could enact laws repugnant to the law of England (section 2), and give "extraterritorial" effect to any legislation (section 3). The statute limits the competence of the United Kingdom to legislate for the dominions to circumstances in which the relevant parliament requested and consented to such imperial legislation (section 4). The act stipulated that the operation of the dominion constitution was not affected in any way (section 7 and section 8). It also stipulated that unlike the Canadian provinces to which it would apply, the act would not apply to the Australian states. This was at their request (section 9). Finally, the act would not have any effect in Australia until the parliament of the Commonwealth of Australia adopted the act itself by means of an adopting act (s10). In fact the commonwealth parliament did not adopt the statute until 1942, at which time the act was given a retrospective operation "as from the commencement of the war between His Majesty the King and Germany".

The precise point at which independence was attained remains a moot point. Was it the political compact? Was it the formal offer by the mother parliament? Or was it the formal acceptance of the offer by the newly independent dominion parliament? In a fairly recent judgement, Lord Denning MR maintains independence came as a matter of evolving usage and convention rather than by means of enactment:

Hitherto I have said that in constitutional law the crown was single and indivisible. But that law was changed in the first half of this century —not
not by statute — but by constitutional usage and practice. (R vs Secretary of State for Foreign and Commonwealth Affairs ex parte Indian Association of Alberta, 1982, 2 WLF, 641, at 651)

The passage highlights the role conventions have played in the evolving relationship between governments within the British Empire and the subsequent Commonwealth of Nations. Were such relations governed by the rigidity of statute such developments could not occur so naturally as need requires. The gradual emergence of full Australian nationhood was possible precisely because of the flexibility that is offered by convention.

It has been argued that legal independence did not occur until the passage of the Statute of Westminster through both imperial and dominion parliaments was complete. In a passage dealing with the difficulty of making such a determination, Chief Justice Sir Garfield Barwick said:

The historical movement of Australia to the status of a fully independent nation has been both gradual and, to a degree, imperceptible ... though the precise day of the acquisition of national independence may not be identifiable, it certainly was not the date of the inauguration of the Commonwealth in 1901. The historical, political and legal reality is that from 1901 until some period of time subsequent to the passage and adoption of the Statute of Westminster, the Commonwealth was no more than a self-governing colony though latterly having dominion status. (China Ocean Shipping Co. v South Australia, 1979, 145, CLR 172 at 183)

The position was certainly resolved by the Australia Acts of 1986, which make certain that Australia is absolutely independent of the United Kingdom. Sir Anthony Mason, then Cheif Justice of Australia, held this to be the true date of a hand-over of sover­eignty, explaining that the Australia Acts- "marked the end of the legal sovereignty of the imperial parliament and recognised that ultimate sovereignty resided in the Australian people". (Australian Capital Television Ltd v Commonwealth, 1992, 177, CLR 106 at 138)

With the Balfour Declaration and the Statute of Westminster had come the termination of British legislative and executive responsibility, at least for the commonwealth, if not the states. Judicial responsibility remained, however, until the termination of appeals to the privy council (Her Majesty in Council), which had become part of the Australian court structure.

There are four significant points about the Australia Acts, 1986. Firstly, the bulk of the acts is concerned with severing those remaining legal ties between the states and the United Kingdom. These gave the state legislatures the full powers that the United Kingdom had previously retained—at Australia's request—to leg­islate for the state as well as the power to legislate extra-territori­ally. The Colonial Laws Validity Act, 1865, and the doctrine prohibiting repugnance to the law of England no longer applied (section 6). British executive responsibility and privy council appeals from the state disappeared (section 10 and section 11).

Secondly, the Acts clarify the role of the queen and the gover­nors in respect of the states. The state premiers would give advice on the exercise of royal powers, not through the British govern­ment, but direct to the queen. The premiers were never prepared to go through Canberra.

Thirdly, the Statute of Westminster was amended in several respects. These included the termination of the power of the United Kingdom parliament to legislate for the commonwealth, the states and territories thereof, even at the request of the Australian parliaments. (Notwithstanding this, over recent years some republicans have made the bizarre suggestion that the British parliament should be requested to impose a republic! ) Now no British Act can henceforth apply to any Australian jurisdiction (section 11 and section 12).

Fourth, the Acts stipulate that the Commonwealth ofAustralia Constitution Act and the Statute of Westminster continue to be in force, and provide an intricate method by which the Australia Acts and the Statute of Westminster may be amended.

Both Acts, enacted in substantially identical terms by the United Kingdom and Australian parliaments, were proclaimed by the queen to come into effect on 3 March 1986. On arrival in Australia to proclaim the Australian version, she observed both the rise of an Australian national identity and the circumstances under which the constitutional relationship between Australia and the United Kingdom had come to an end:

I can see a growing sense of identity and a fierce pride in being Australian. So it is right that the Australia Acts has finally severed the last of the Constitutional links between Australia and Britain, and I was glad to play a dual role in this. My last official action as Queen of the United Kingdom before leaving London last month was to give my assent to the Australia Acts from the Westminster Parliament. My first official action on arriving in Australia yesterday was to proclaim an iden­tical Act — but from the Australia Parliament — which I did as Queen of Australia. Surely no two independent countries could bring to an end their constitutional relationship in a more civilised way, and I hope you will agree with me that this has been symbolic of the depth and quality of the relationship between Australia and Britain. Anachronistic consti­tutional arrangements have disappeared— but the friendship between two nations has been strengthened and will endure. (McDonald, 67)

What we have seen since the adoption of the Australian con­stitution is the gradual emergence of Australia as an indepen­dent nation. This surely is one of the beauties of our system — that it has permitted such a peaceful evolution.
As Sir Harry Gibbs explains:

Our Constitution has been criticised because it sketches the outline of the system of government and does not set out in detail the rules and conventions that determine the working of the various arms of government. Any such criticism is totally misconceived. The strength of our Constitution, as it has been the strength of the Constitution of the United Kingdom, is that it allows the needs of a changing society to be met by a gradual development, which has been found impossible in some nations whose written Constitutions attempt to lay down all the rules in detail. (Gibbs, 1994)


Our task now is to plot the constitutional development of the office of governor-general, and that of the sovereign. Here we shall not presently be concerned with issues such as the reserve powers other than to the extent that they affect the development of these offices. The role of both governor-general and sovereign has evolved to meet changing needs as Australia emerged as an independent and self-determining nation.

How did the founders of our constitution view the role of the governor-general? In their commentary on the constitution, Quick and Garran discuss the role of a colonial governor. They quote from Merivale's "Lecture on Colonisation", 1861, where it is explained that a vice-regal representative has a dual role: "He has to reconcile, as well as he can, his double function as gov­ernor representing the crown, and as a constitutional head of an executive." (Quick and Garran 388) The reference to the crown here is of course to the imperial crown, that is the British government.

Even in 1861 the vice-regal representative was understood to be principally the constitutional umpire and auditor. This becomes significant in the contemporary disputes about who is in fact the head of state. As far back as 1873, Lord Dufferin, when governor-general of Canada, understood himself to be: "The head of a constitutional state, engaged in the administration of parliamen­tary government."

The dual role was changed in 1926 by the adoption of the Report of the Inter-Imperial Relations Committee to the Imperial Conference.

This referred to the previous practice of appointments being made solely on the advice of His Majesty's ministers in London. The Report stated:

In our opinion it is an essential consequence of the equality of status existing among the member of the British Commonwealth of Nations that the governor-general of a dominion is the representative of the crown, holding in all essential respects the same position in relation to the administration of public affairs in the dominion as is held by His Majesty the King in Great Britain, and that he is not the representative or agent of His Majesty's Government in Great Britain or of any Department of that Government.

It seemed to us to follow that the practice whereby the governor-general of a dominion is the formal official channel of communication between His Majesty's Government in Great Britain and His Governments in the dominions might be regarded as no longer wholly in accordance with the constitutional position of the governor-general. It was thought that the recognised official channel of communication should be, in future, between government and government direct ... it was recognised by the Committee, as an essential feature of any change or development in the channels of communication, that a governor-general should be supplied with copies of all documents of importance and in general should be kept as fully informed as is His Majesty the King in Great Britain of Cabinet business and public affairs.

Thus the conference affirmed the abolition of the governor-general's residual role as representative of the British govern­ment in Australia, but in doing so it did not declare him head of the executive or head of state. Why? For this he already was. The emphasis on the idea that the governor-general should stand in the same relation to the dominion government as that in which the King stood to the British government clearly indicates this. As the dominions increased their already substantial exterior roles, the governor-general became accepted internationally as a head of state, that rarefied term hiterto used only by diplomats and international lawyers.

Although the method of appointing the governor- general could no longer involve the British government, the new process was not clarified until the conference of 1930, at which the fol­lowing six principles were confirmed:

The parties interested in the appointment of a governor-general of a dominion are His Majesty the King, whose representative he is, and the dominion concerned.

The constitutional practice that His Majesty acts on the advice of respon­sible ministers applies also in this instance.

The ministers who tender advice and are responsible for such advice are His Majesty's ministers in the dominion concerned.

The ministers concerned tender their formal advice after informal con­sultation with His Majesty. (This surely puts paid to the false proposition that the Queen might instantly remove a governor-general on a phone call from the prime minister, and makes more glaring the awesome power of instant dismissal the prime minister would have under a Keating—Turnbull republic.)

The channel of communication between His Majesty and the govern­ment of any dominion is a matter solely concerning His Majesty and such government.

The manner in which the instrument containing the governor-general's appointment should reflect the principles set forth above is a matter in regard to which His Majesty is advised by his ministers in the dominion concerned.

Sir David Smith says that the conference decision was taken at the height of, and in support of, action initiated earlier that year by Australia's Prime Minister J.H. Scullin who insisted on advising the King on the appointment of an Australian as governor-general. "Scullin's insistence on the right to recommend the appointment of Sir Isaac Isaacs as Australia's first Australian-born governor-general became the genesis of the new rule for the appointment of governors-general throughout the Empire." (Smith, 1997, 5-6) The king had argued, unsuccessfully, that there was an advantage for Australia in having someone who had not played a political or other role in Australia.

The 1926 and the 1930 Imperial Conference decisions changed the status of the vice-regal office and established a new relationship between the governor-general and the Australian government. "What we did was alter our constitutional arrange­ments to meet evolving constitutional needs, but without having to alter one word of the constitution itself. These changes are perfect examples of the far-sightedness of our founders, and evi­dence of the adaptability and flexibility of our allegedly horse-and­buggy and inflexible Constitution." (Smith, 1997, 5-6)

Although Sir Isaac Isaacs was succeeded by a number of British appointments, since the appointment of Lord Casey (himself for­merly a governor of Bengal in 1965) the office has been consis­tently filled by Australian residents. It was argued by some in Australia in the 1950s that appointments should be made from other commonwealth countries. There was a vague proposal, for instance, that Mrs Pandit, sister of the Indian prime minister, should be made governor-general.

So we have in the governor-general, a head of the executive and head of a constitutional state who stands in the same relation to the Australian government as the queen does to the United Kingdom's, who is appointed on the advice of Her Majesty's Australian ministers and who is normally an Australian citizen with appropriate qualifications. There is no legal restriction on a person who has dual citizenship becoming governor-general, unlike members of the federal parliament.

What is the status of the queen according to Australian con­stitutional law? Perhaps the greatest development on this front has been the recognition of the divisibility of the crown, confirmed by the high court in Sue vs Hill, 23 June 1999. To understand this requires us to return once more to the Imperial Conference of 1926. Prior to this time, the crown had been regarded as indivis­ible, the majority in the Engineers' case in 1920, for instance, explaining:

The crown ... is one and indivisible throughout the Empire ... The first step in the examination of the Constitution is to emphasise the primary legal axiom that the crown is ubiquitous and indivisible in the king's dominions.
As we have seen, the Balfour Declaration took the crown in a new direction. It provided the beginnings of a new theory wherein there could be one common monarch who wore multiple crowns, each of which represents a logically distinct legal person. The preamble to the Statute of Westminster 1931 states:

... in as much as the crown is the symbol to the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any law touching upon the succession to the Throne or the Royal Style and Titles shall hereafter require the assent of the Parliaments of all the dominions and the Parliament of the United Kingdom.
The proposition about the succession was tested by the abdi­cation crisis of 1936 when the Australian prime minister replied to the British prime minister's telegram asking whether Australia would support a morganatic marriage between Edward VIII and Wallis Simpson, that is, one which would have no constitutional significance or effect:

There would be outspoken hostility to His Majesty's proposed wife becoming Queen, while any proposal that she should become Consort and not Queen ... would not be approved by my Government. (Ziegler, 305-306)

Subsequently, the Abdication Act (Imp.), 1936, received the assent of the commonwealth parliament by resolution of both houses. The second point in the preamble was dealt with by means of the Royal Style and Titles Acts, 1953. In this the com­monwealth parliament provided fora unique royal style and title for use in Australia. This followed the commonwealth prime ministers' conference of the previous year at which it was decided that a common style and titles was not needed throughout the commonwealth so long as a common element was retained.

The title agreed to in 1926 had been George V, by the Grace of God, of the United Kingdom of Great Britain, Ireland and of the British Dominions beyond the Seas King, Defender of the Faith, Emperor of India. This had been updated in 1947, substituting Head of the Commonwealth for Emperor of India upon Indian independence.

The new style and titles adopted by the Royal Style and Titles Act 1953 (Cth) for exclusive use in Australia was Elizabeth the Second, by the Grace of God of the United Kingdom, Australia and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith. This was altered in 1973 to the present Royal Style and Titles, which reads Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth. Queen Elizabeth II said at Parliament House, Canberra on 18 October 1973:

The reality and dynamic quality of the relationship between crown and people will be symbolised in another way tomorrow when I give my Assent in person to an Act of the Australia Parliament which amends my Style and Title. It puts Queen of Australia first and foremost. It will give me much satisfaction to do this because it is realistic, because it is some­thing which my father thought should be done as long ago as 1947 and, above all, because I hope it will strengthen that relationship which I value and cherish.

So the office of the Queen of Australia has evolved into a legally separate and distinct person, as a result of a gentle process commenced at the Imperial Conference of 1926. A majority of the high court in Nolan vs Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 held:
The transition from Empire to Commonwealth and the emergence of Australia and other dominions as independent sovereign nations ... inevitably changed the nature of the relationship between the United Kingdom and its former colonies and rendered obsolete notions of an indivisible crown ... It became accepted as a truism that, although there is only one person who is the sovereign ... in matters of law and govern­ment the Queen of the United Kingdom ... is entirely distinct from the Queen of (eg) Canada or Australia.

Having examined the development of the office of the gov­ernor-general and the emergence of the Queen of Australia as a distinct entity, I now make some final comment about the rela­tionship between the two offices.

The Constitution clearly hands the queen's power over to the governor- general (ss2 and 61). However this appears to have been largely overlooked both in Britain and Australia, with Queen Victoria issuing Letters Patent and Instructions– subsequently revised by Kind Edward VII in 1902, King George V in 1920 and Queen Elizabeth II in 1958. When the error was realised, the queen revoked Queen Victoria's Letters Patent and issued new ones on the advice of Prime Minister Hawke in 1984. (Smith, 4, 8)

The reason that the sovereign may in no way interfere in the governor-general's activities stems from section 61 of the consti­tution which, unlike the state constitutions or that of Canada, stipulates that while the executive power of the commonwealth is vested in the queen, it is exercisable by the governor-general alone. This became apparent to Lord Haldane during argument in the application for special leave to appeal the high court's decision in the Engineers' case to the privy council when he asked of section 61: "Does it not put the sovereign in the position of having parted, so far as the affairs of the commonwealth are con­cerned, with every shadow of active intervention in their affairs and handing them over, unlike the case of Canada, to the gov­ernor-general?" (Evart, 311)

This interpretation was confirmed by the passage of the Royal Powers Act, 1953 (Cth). In preparing for the Royal visit of 1954, it became apparent to Prime Minister Menzies that the constitu­tion prohibited the governor-general from delegating any of his powers, which were totally his, even to his sovereign. Thus it is apparent that the vice-regal representative is no mere representa­tive. The new act provided that the queen could exercise any of the governor-general's statutory but not constitutional powers while personally present in Australia if so advised by her Australian ministers, though this does not preclude the governor-general from continuing to exercise such powers simultaneously. The argument heard in the privy council and in cabinet was put from Buckingham Palace in 1975 when the speaker of the house of rep­resentatives was advised that the queen could not interfere in the constitutional crisis:

As we understand the situation here, the Australian Constitution firmly places the prerogative powers of the crown in the hands of the governor-general as the representative of the Queen of Australia. The only person competent to commission an Australia prime minister is the governor-general, and the Queen has no part in the decisions which the governor-general must take in accordance with the Constitution. Her Majesty, as Queen of Australia, is watching events in Canberra with close interest and attention, but it would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the gov­ernor-general by the Constitution Act. (Kerr, 330)

The true position of the governor-general was summed up by the Constitutional Commission in 1988 which concluded that: "Although the governor-general is the queen's representative in Australia, the governor-general is in no sense a delegate of the queen." (para. 5.17)

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