The working of our political institutions is governed not only by the words of the Constitution but also by conventions, which are rules of practice regarded as binding by those to whom they apply, although not rules of law created by legislation or decisions of the courts. These rules have developed over the centuries within the framework of the written law in England and later in Australia, and have created the office of Prime Minister and the system of cabinet government, neither of which is mentioned in the Constitution.
The conventions have a critical part to play in relation to the powers of the Governor-General. The express words of the Constitution confer on the Governor-General very wide powers. No proposed law which has been passed by the Parliament becomes law unless the Governor-General assents to it. The Governor-General may decide when the Parliament shall sit and may prorogue the Parliament and dissolve the House of Representatives and may in certain circumstances dissolve both Houses simultaneously. A general election of the members of the House of Representatives will be held only if the Governor-General issues the necessary writs. The executive power of the Commonwealth, which extends to the execution and maintenance of the Constitution and the laws of the Commonwealth, is exercisable by the Governor-General. The members of the Federal Executive Council and the Ministers of State are appointed by the Governor-General and hold office during the Governor-General’s pleasure. The Governor-General is Commander in Chief of the naval and military forces of the Commonwealth. If these powers were not controlled by conventions, they would allow the Governor-General, if he wished, to dismiss one government and appoint another, to close down the parliament and to refuse assent to the laws which Parliament sought to pass and decline to enforce laws that had been enacted. He could make his will effective if the need arose by calling out the troops. If these powers could be exercised by the Governor-General at his discretion, as the words of the Constitution suggest, he would have the powers of a dictator.
However, the exercise of these powers is controlled by the conventions, which require that generally the powers should be exercised by the Governor-General only on ministerial advice. According to the conventions, however, there are some powers which the Governor-General may exercise according to his own discretion, and without the advice, or even contrary to the advice, of the Ministry. These powers, which are rather misleadingly called ‘reserve powers’, are designed to ensure that the powers of the Parliament and the Executive are operated in accordance with the principles of responsible government and representative democracy, or in other words, to ensure that the Ministry is responsible to Parliament and that the ultimate supremacy of the electorate will prevail. The reserve powers provide an essential check against abuse of power by the Executive or by Parliament. In Australia, because of the provisions of the Constitution which protect representative democracy and limit the power of Parliament to amend the Constitution, and the entrenched position of the High Court, it is unlikely that the reserve powers will need to be invoked against the Commonwealth Parliament, but they fill a real need in relation to the Executive.
Some of the reserve powers are beyond dispute, but the existence or scope of others remains controversial. Unexpected political crises which appear to call for the exercise of the reserve powers sometimes raise problems never previously encountered and, as has been said, Governors-General ‘have to act as umpires in a game where unexpected situations may arise which are not fully covered by any generally accepted book of rules’.
State Governors similarly have reserve powers, although in some States the position is affected by constitutional amendment.
The following reserve powers are clearly available to a Governor-General:
to appoint as Prime Minister, after an election or on the death or resignation of a Prime Minister, a person who might be expected to command the support of a majority in the House of Representatives; to dismiss a Prime Minister who has lost the confidence of the House of Representatives, or who is attempting to govern without supply, and who refuses to resign or advise a dissolution of the House; to dissolve the House of Representatives (or in some circumstances both Houses) following the dismissal of a Prime Minister, and in such a case, to appoint a caretaker Prime Minister; to refuse to accept the advice of the Prime Minister to dissolve the House of Representatives; to dismiss a Prime Minister who is acting illegally; some writers claim that this power may only be exercised if the law that has been broken is a constitutional one, or alternatively, if the breach cannot be remedied in the courts; to dismiss, in certain circumstances, a Prime Minister who threatens to govern without supply.
In addition the Governor-General may have the following reserve powers:
to refuse to accept the advice of the Prime Minister to dissolve both Houses of Parliament simultaneously; to refuse to assent to a proposed law; exceptional circumstances would be necessary to justify the exercise of this power.
An occasion for the exercise of the reserve powers does not arise every day, although a study has shown that their exercise has been surprisingly frequent in the various jurisdictions in which the so-called Westminster system of government applies. Some examples of their exercise in Australia are as follows.
The power of the Governor-General to appoint a Prime Minister after the death or resignation of the former holder of the office has been exercised on at least four occasions.
The power to appoint a Prime Minister after an election is qualified by the convention that the Governor-General should appoint the acknowledged leader of the party (or coalition) that has secured a majority of seats. When no party leader is in that position the Governor-General has a discretion. This situation occurred in a State Parliament in Tasmania in 1989. As the result of an election the Liberal Party, to which the Premier belonged, won 17 seats, Labor 13 and the Greens 5. The Governor declined to grant the Premier a dissolution and instead commissioned the leader of the Labor Party, on being satisfied that, with the support of the Greens, he could form a government which would enjoy the confidence of the House for a reasonable period.
Three of the reserve powers were exercised together in 1909 when, after a motion of no-confidence moved against the Prime Minister, Mr Andrew Fisher, had been carried, the Governor-General refused to accept the advice of the Prime Minister to dissolve the House of Representatives, dismissed Mr Fisher and commissioned Mr Alfred Deakin as Prime Minister. The Governor-General has refused a dissolution on a number of other occasions.
Many exercises of the reserve powers have been quite uncontroversial; indeed they have seemed so appropriate that they have occasioned little remark. Two, however, have given rise to controversy. In 1932 the Governor of New South Wales dismissed the Premier, Mr Jack Lang, for acting in contravention of the laws of the Commonwealth. It has been argued that the conditions of the exercise of the power of dismissal in such a case were not satisfied, although Mr Lang appears to have accepted his dismissal with grace, perhaps even with relief. In 1975, the Governor-General dismissed the Prime Minister, Mr Whitlam, who was threatening to govern without supply. Some have argued that the action was premature, because supply had not yet been formally denied although there is no doubt that the Governor-General could have exercised the power once supply had been refused. The contrary argument is that in the circumstances the dismissal was necessary to avoid economic chaos and possibly social unrest, since the failure of the Senate to pass the necessary Supply bills and the fact that no election could be held before the existing supply would have run out, meant that the Government would soon be unable to pay its public servants (including the armed forces) and contractors and was preparing nevertheless to continue to govern. The outcome was that a caretaker Prime Minister was appointed and obtained supply, and an election was held which returned the caretaker Prime Minister (Mr Malcolm Fraser) to office. Surely the result was a democratic one. However, if an attempt were made to reduce the conventions to a code, it is unlikely that agreement could be reached on the question whether the Governor-General could dismiss a Prime Minister who had the confidence of the House of Representatives but had not been granted supply by the Senate.
An unusual exercise (or perhaps threatened exercise) of the reserve powers was made by the Governor of Queensland in 1987. The Premier, Sir Joh Bjelke-Petersen, who appeared to be losing the confidence of his own party, and who wished to get rid of some of his Ministers, told the Governor he proposed to resign, with the intention of forming a new Ministry, but the Governor informed him that if he resigned he would not necessarily be re-appointed. The Premier did not then resign, but after these events he lost the confidence of the Parliament and his position as Premier.
The constitutional conventions, including those covering the reserve powers, are not fixed in their present form and free from change; they may evolve in response to changing circumstances, particularly where the circumstances had not been foreseen.
The strength of the Australian Constitution, which is exceptional in the length of time for which it has endured and the stability of the community which it governs, is due, in no small part, to the checks and balances for which it provides. The existence of the reserve powers is one such check, and as has been mentioned, an essential one. It makes it possible to find an acceptable democratic solution of a question upon which it is impossible to reach political agreement, particularly when political tempers may run high. If Australia were to become a republic, it would be necessary that the reserve powers should be available to the President. However, the conventions which relate to the reserve powers would not necessarily apply under a republic, because they have developed under a constitutional monarchy, and are exercised by the Monarch and Her representatives. It is not easy to decide how they could be made applicable under a republic. It would be difficult to codify them, because some are controversial, and all are subject to change as the constitutional situation evolves. In any case it would probably be politically impossible to reach agreement as to the content of a code. The course taken by the Bill to establish the Commonwealth of Australia as a republic (Constitution Alteration (Establishment of Republic 1999) has been to provide as follows (by clause 59):
‘The President on the advice of the Federal Executive Council, the Prime Minister or another Minister of State; but the President may exercise a power that was a reserve power of the Governor-General in accordance with the constitutional conventions relating to the exercise of that power.
This provision would bring about a substantial change – it would have the result that the questions of what were the constitutional conventions relating to the exercise by the Governor-General of a reserve power, and whether the President had exercised his powers in accordance with those conventions, could be decided in the courts. The discretion of the President would thus be rendered subject to judicial review. The prevailing legal opinion is that the reserve powers are not justiciable, that is to say, questions as to the existence or scope of a power and whether it has been properly exercised cannot be decided by the courts. Some legal writers have expressed a different view, but the balance of authority is against them. It has been held, in the Privy Council and by the Supreme Court of Canada in a most important case, that the powers are not justiciable. There is no decision to the contrary. The change that would result if the Bill becomes law would mean that a swift and flexible method of resolving some constitutional difficulties or checking violations by the Executive of constitutional principle would be removed, and instead the matter would become one to be resolved by litigation. The delay that could result could disrupt government in a time of crisis.
The difficulty that the courts would face if the Bill were passed would be increased by another provision of the Bill. That is Schedule 3, Clause 8, which provides:
The enactment of the Constitution Alteration (Establishment of Republic 1999) does not prevent the evolution of the constitutional conventions relating to the exercise of the reserve powers referred to in Section 59 of this Constitution.
It is far from clear what will be the effect of this section and Section 59 together, particularly when the reserve power in question is claimed to result from an evolution, after the office of Governor-General had ceased to exist, of a power which existed when there was a Governor-General.
It is obvious that it is essential that the person exercising the reserve powers should be completely independent, impartial and free from political influence. Governors-General have, in Australia, without exception, acted independently in the exercise of their reserve powers. The Constitution does not provide for the dismissal of a Governor-General. The Queen could of course revoke his commission but it is inconceivable that she would do so without strong reason. The Governor-General is in fact in a position of secure independence. That will not be true of a President. Under the proposed constitution, the Prime Minister may, by instrument signed by the Prime Minister, remove the President with effect immediately (Clause 62). Clause 62 provides further:
A Prime Minister who removes a President must seek the approval of the House of Representatives for the removal of the President within thirty days after the removal, unless:
within that period, the House expires or is dissolved; or before the removal, the House had expired or been dissolved but a general election of Members of the House had not taken place.
The failure of the House of Representatives to approve the removal of the President does not operate to reinstate the President who was removed.
Supporters of a republic argue that the power of the Prime Minister to effect an immediate removal without cause is the same in substance as the present position. It is said the Queen would act always on the advice of the Prime Minister to remove a Governor-General. There are serious flaws in this argument. In the first place, it is not beyond controversy that the Queen would act on such advice if it appeared that there was no valid cause for removing the Governor-General. More important is the fact that the Queen would not be obliged to act on such advice on the instant but could take time to consider the matter. In any case the Queen might require advice be submitted to Her in writing. Events that occurred in 1991 in Papua-New Guinea suggest that written advice is necessary. The Prime Minister recommended for good cause the removal of the Governor-General. It was deemed necessary to send a courier from Papua-New Guinea with a message to Her Majesty containing the advice, but in fact the Governor-General resigned before the courier had got as far as London. If there was delay in obtaining a decision from the Queen, the Governor-General would have time to dismiss the Prime Minister. Under the proposed Constitution, the Prime Minister could at any time remove the President without cause and without warning, and the removal would take effect immediately. In a political crisis, if the President had warned the Prime Minister that if he persisted in his course of conduct he would be liable to be dismissed (and of course in some circumstances it would be desirable to give such a warning) or even if the Prime Minister imagined that he might be dismissed, the Prime Minister (who if prudent might carry a signed instrument of removal with him) could effect the immediate removal of the President. The fact that the Prime Minister would be required to obtain the approval of the House of Representatives would not help the President, for the failure to obtain such approval would not result in his reinstatement. The power of the Prime Minister without cause or notice to remove a President with immediate effect would completely undermine the independence which should attach to the office of President. Nowhere else in the world is a President liable to such peremptory removal. The result might well be that a President would be unlikely to exercise the reserve powers in a manner contrary to the wishes of the Prime Minister, or if he attempted to do so, would be removed. The reserve powers at present provide the Governor-General with the power to ensure that the Executive acts in accordance with constitutional principle. It would be only theoretically true to say that the President would have the same power. The reserve powers would in effect be rendered null.
For the reasons given above, the provisions of the Bill relating to the reserve powers and the removal of the President would, if enacted, result in Australia having a constitution different from the present in significant respects. The President would perform his duties under the shadow of removal by the Prime Minister. One of the valuable checks on the Executive provided by the present Constitution would be removed. The Constitution would be seriously flawed.