Article Index

Head of State’s Powers

Our constitution describes the Governor-General as the Queen's representative, but in practice when the Governor-General discharges his constitutional duties he does so at his own discretion exercising powers granted to him by the people through the Constitution and not as an agent or proxy of the Sovereign.

The 1993 Republic Advisory Committee Report defines the Office of Governor-General on p 34 thus:

'The Governor-General's position is significantly different from that of the Queen. While her powers and duties under the Constitution are few, the Governor-General is the central figure in the text of the Constitution. ......

The Governor-General may:

  • dissolve, prorogue and summon Parliament (section 5);
  • issue writs for a general election of the House of Representatives (section 32);
  • dissolve both Houses of Parliament simultaneously (section 57);
  • grant or withhold royal assent to bills passed by the Parliament, and, if he or she wishes, return a bill to the parliament with proposed amendments (section 58);
  • exercise the executive power of the Commonwealth (section 61);
  • appoint Ministers of State (section 64);
  • act as 'commander-in-chief' of the armed forces (section 48).'
    Regarding the reserve powers of the Governor-General the report continues:
    'Of the powers conferred on 'the Governor-General' by the Constitution, only four are thought to be exercisable at the Governor-General's own discretion, in other words, without, or contrary to, the advice of Ministers:
  • the power to appoint the Prime Minister;
  • the power to dismiss the Prime Minister and therefore the Government;
  • the power to refuse to dissolve the House of Representatives under section 5 or both Houses of Parliament under section 57, of the Constitution; 
  • the power to force a dissolution of the House of Representatives.'

The Governor-General routinely discharges constitutional duties following 'advice' formally tendered by the Prime Minister or other responsible minister. However there are occasions when the Governor-General must exercise his own judgement to seek new advisers either because there is no Prime Minister to advise him or because he feels he should reject the advice already tendered. It is on these occasions that we see the value of having an independent and non-political Governor-General who is free to act as the constitutional umpire. In a situation where the Prime Minister or the government are no longer able to govern, the Governor-General will seek advice to call a general election to resolve the crisis.

Our constitution does not spell out the 'reserve' powers. Where used, the Governor-General is said to be exercising the reserve powers of the Crown — not the British Crown but the Australian Crown —although here, as in other monarchical countries within the Commonwealth, the vice-regal powers in Australia are those granted by the Constitution or inherited from the traditions, conventions and precedents evolved over hundreds of years by the British constitutional monarchy.

The Governor-General can stand independently apart from the parliament, the government and politicians. In an unresolvable clash between the Senate and the House of Representatives the Governor-General can replace his existing advisers with others who will form a caretaker government until elections can be held (as occurred in November 1975). So, in reality, the reserve powers of the Crown, or reserve powers of the Governor-General are actually the reserve powers of the people. They are exercised in our interests and on our behalf and ensure that we, the Australian people, are sovereign in our democracy where both provisions of the Constitution and the rule of law are upheld for everyone's benefit.

Constitutional powers were used by the Governor of New South Wales, Sir Philip Game, when he dismissed Premier J.T. Lang in 1932 for potentially illegal conduct. They were similarly used in 1975 by the Governor-General Sir John Kerr, to dismiss the Labor Government of E.G. Whitlam. Supply was blocked when the Opposition in the Senate failed to pass the federal budget. In both cases elections were held forthwith and Australians voted for new governments, indicating overwhelming endorsement of the actions of both the Governor-General and the Governor.

Some republicans, e.g. Malcolm Turnbull, claim that any President should have his powers codified (i.e. written down). Other republicans (e.g. Gareth Evans and Professor George Winterton) argue that it would be impossible to codify all the unpredictable circumstances that might arise. Minimalists would entrust a president with the current powers of the Governor-General but without the historical precedents and conventions that currently guide the Governor-General. They would become the personal powers of a politician to use as he or she saw fit, without the restraint of the conventions of the Office of Governor-General.

 Whichever way you look at it, there is no doubt that under any republican model the sovereignty that we currently entrust to a non-political Governor-General could end up in the hands of an all-powerful, political president to be exercised for personal or party-political gain.

REPUBLICANS ASSERT

'Under our constitution the power of the Crown as Head of State of Australia is exercised by her representative the Governor-General. The office of President should retain the powers which the Governor-General currently uses under the conventions, or traditions, that have developed over this century. At the moment the so-called 'reserve powers' are not spelled out in the Constitution. We believe a president's powers should be clearly defined, stating that the President acts on the advice of the elected government except where the government has lost the confidence of the House of Representatives or is breaking the law'. (From platform of the Australian Republican Movement; p2)

ACM'S RESPONSE

Just as the Senate acts as a check and balance to the House of Representatives, so the Governor-General is an independent check and balance on the government, acting on behalf of all Australians and, in a political stalemate, referring the issues back to the vote of the Australian people through a general election.

The strength and independence of a Governor-General arises from the community's respect for a figure bound to be above politics, impartial and unchanging. The Governor-General is bound by the constitution and hundreds of years of Royal and Vice-Regal precedent. The incumbent has no personal mandate and is bound by a sense of duty and obligation to follow these conventions. At a time of crisis would a political president, not facing the threat of his own dismissal as part of the crisis, feel the same compulsion? World history suggests not!

QUOTES FOR THE DAY!

'The present system works well. It allows us to have stable Government in this country. The Head of State is aware of the restraints under which he must function. They are acknowledged all round and have worked since Federation quite effectively. If we move away from that and there is no restraint, then my apprehension would be that we could go through extensive periods of quite unstable Government.'
The Hon W.G. Hayden (former Governor-General) ABC "Four Corners" 1993.

'On the other hand, there are real dangers that we would be worse off if Australia became a republic. That is because the Governor-General and the Commonwealth, and the Governor in each State, has a key role to play in the working of the Constitution and provide safeguards which a President would be unlikely to provide.'
Rt. Hon Sir Harry Gibbs (Chief Justice of the High Court 1981-1987) 'The Australian Monarchy' "Tricare Newsletter" August 1994.

'Those who imagine that a politician would make a better figurehead than a hereditary monarch might perhaps make the acquaintance of more politicians'.
The Rt. Hon Baroness Thatcher (former UK Prime Minister) Sydney speech. Reported in "The Australian" 20 November 1995

'The notion of a president is quite foreign to our thinking about government. It is imported from outside. It is a stranger in our midst. It means not just an alteration of words in our Constitution but the creation of a new constitution. It is like putting a square peg in a round hole — it just does not fit.'
The Hon J.A. Lee (Chairman, ACM Legal Committee) Speech: "The uncertainties of a president – appointed or elected" Sydney 27 August 1996

'The rules should be written down'
Mr M.B. Turnbull (Chairman, Australian Republican Movement) Speech at Constitutional Centenary Foundation Conference, Canberra. Reported in the "Australian Financial Review" 9 May 1995

'Without a clear statement of the President's powers even I will vote NO in a referendum.'
Donald Horne (ARM founding member) Statement on the eve of the Keating Government's republican model announcement. Reported in "The Sydney Morning Herald" 3 June 1995

'The government does not believe this is the time to re-open a divisive debate about the Senate's power to block supply. ... ... The reserve powers would remain as they are — unwritten'.
The Hon P.J. Keating (former Prime Minister) Parliamentary speech: "An Australian republic; the way forward' 7 June 1995

'Definition [of the controversial unwritten conventions would be] 'a labour of Hercules.' Reformers would have to devote 30 years to the task to have an impact. The ghost of '75 is still with us and the strength of feeling is going to be with us for another generation or so. ... ... You're not going to get ready consensus or even hard-won consensus on those issues – frankly I think the task is impossible'.
Former Senator Gareth Evans. Speech at Constitutional Centenary Foundation Conference, Canberra. Reported in the "Australian Financial
Review" 9 May 1995

'A serious blunder for republicans would be to try to avoid codifying the application of the reserve powers ...this would put an obstacle in front of republicans which would deny our goal forever. ... ... The republic cannot resolve our constitutional conflicts.'
Paul Kelly (Former Editor, "The Australian") 'Towards a republic' "Quadrant" May 1995 p38

'First, just as good fences make good neighbours, so do clear ground rules make for stable and predictable Government. It is important in this most important area of our democratic life that all the players – the President, the Prime Minister, the two Houses of Parliament and the High Court – know precisely what their responsibilities and obligations are. The second reason is that it is quite wrong in a democracy such as ours to have fundamental elements in our democratic system left to so-called unwritten rules or conventions. As we have seen, our Constitution is a quite misleading document, giving the impression that the Governor-General is an all-powerful ruler....... Australians should be able to pick up their Constitution and find in it an accurate description of how their democracy works. Therefore, I support a full codification of the powers of the President.'
Mr M.B. Turnbull (Chairman, Australian Republican Movement) "The Reluctant Republic" 1993 p166

'If these powers are not defined, there is little hope for the republican push. In our view, that is really wimping out of the most fundamental issue in this debate. We think it is tantamount to surrendering the republic, because people are not going to vote for a position which has unlimited powers.'
Mr M. Ward (Former Executive Director, Australian Republican Movement) "The Bulletin" May 1995

'If a Prime Minister can reverse a vote of no confidence in four days but not three, too bad. If a Leader of the Opposition announces that lie or she will move a vote of no confidence when the House meets on Monday, a Prime Minister must still be granted an election on
Sunday because no confidence motion was yet formally before the House. Instead of the reserve powers giving a head of state the capacity to manage the system through crisis and difficulty, they are turned into a set of inflexible instructions. The more detailed the instructions, the less confidence they inspire.'
Dr J. Hirst (Convenor, ARM Victoria) "A Republican Manifesto"

'The real argument ... ... is not over the retention of the reserve powers. It is between those who, like Malcolm Turnbull, wish to draft a codified system of reserve powers and make their use justifiable before the High Court, and those, like George Winterton, who wish to leave the present conventions concerning the reserve powers – including even their ambiguities – essentially untouched and uncodified. For complex reasons, I believe conservative republicans should strongly support Winterton.'
Robert Manne (Editor) "Quadrant" April 1995

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