The Governor-General is appointed by the Queen on the advice of her Australian Prime Minister, and has the same constitutional relationship with the Australian Government and its ministers as the Queen has with the British Government and its ministers. Although the Governor-General is the Queen’s representative in Australia, he also has independent constitutional and statutory powers, and when carrying out these responsibilities he is not acting as a delegate of the Queen but is carrying out constitutional duties which the Constitution imposes on him in his own right, and on him alone. The only action the Queen performs under the Constitution is to appoint the Governor-General. The day-to-day duties as Australia’s Head of State are performed by the Governor-General.
The Constitution provides for the Governor-General to appoint a Federal Executive Council to advise him in the government of the Commonwealth; to establish departments of state and to appoint ministers of state to administer them; to summon, prorogue and dissolve Parliament; to give the Royal assent to a Bill which has been passed by both Houses of the Parliament; to exercise the command-in-chief of the defence force of the Commonwealth; to appoint ambassadors and high commissioners to represent Australia overseas; to appoint other senior government officials; to authorise the making of treaties with foreign governments; to appoint Defence Force chiefs and to commission officers in the Defence Force; to appoint the Justices of the High Court of Australia and of the other federal courts, and to exercise the royal prerogative of mercy.
But the majority of the Governor-General’s powers and duties are imposed upon him by statute. Virtually every Act passed by the Australian parliament empowers the Governor-General to perform some executive function, such as to make regulations which amplify the legislative provisions set out in the Act; to issue proclamations; or to make and terminate appointments to public office. These powers and functions are exercised by the Governor-General acting with the advice of the Federal Executive Council.
It would be very easy to conclude that a governor-general who is required to act on the advice of his ministers has no power at all, or that ministers whose advice has to be taken have no restraints placed on their use of executive power, but to do that would be to misunderstand the basic principle which underlies our system of constitutional government. The real question is not how much power does the Governor-General himself have or exercise, but rather how much absolute power does his presence in our system of government deny to those who are in government and who must first seek to advise and persuade him.
The powers and functions which are assigned to the Governor-General by the Constitution and by Acts of Parliament are the reason for having such a person in our system of government. On the other hand, for the vast majority of his fellow Australians, their contact with, or knowledge of, the Governor-General is through his public duties – both ceremonial and non-ceremonial.
His ceremonial duties include giving the opening speech at the opening of a new Parliament; swearing-in prime ministers, ministers, parliamentary secretaries and executive councillors; receiving the credentials of foreign diplomats; holding investitures; reviewing military parades; receiving and entertaining foreign heads of state and heads of government in accordance with the accepted standards of international diplomacy and protocol; and representing Australia on state and official visits to foreign countries.
His non-ceremonial duties include speaking at, and opening, national and international conferences; presenting awards at major public gatherings ranging from exhibitions and sports meetings to university graduations or meetings of learned societies and professional institutes; making official visits to the states and territories or to regions or localities; and attending functions held by all kinds of community organisations, and particularly those of which he is the senior office-holder or patron. In addition, the Governor-General, and the Governor-General’s spouse, receive what are known as “courtesy calls” by office bearers and other representatives of national, regional and, occasionally, international organisations; and give dinners, lunches and receptions to which they invite guests from all sections of the Australian community, as well as important visitors from overseas.
In carrying out his constitutional, statutory and ceremonial duties, whether at home or abroad, the Governor-General is performing the duties of a head of state. In the case of his non-ceremonial duties out in the community, he is also using the status and prestige which the community attaches to his position to acknowledge the vast number of organisations, institutions and individuals who contribute to the well-being of our society, and, by his presence and his interest, encouraging the continuation of these activities.
Overseas travel to represent Australia is also an important part of the Governor-General’s duties, and whenever our governors-general travel abroad on state and official visits they are received by foreign host governments as the head of their country, and with all the proper marks of respect due to a visiting head of state. Such visits are made at the invitation of the host head of state and government, and with the approval of the Australian prime minister.
Every proposed law, or bill as it is known, that is passed by both houses of the Parliament must be presented to the Governor-General for the royal assent before it becomes law. Under the Constitution the Governor-General may deal with each bill in one of four ways. He may give the royal assent and sign the bill into law as an Act of Parliament; he may withhold assent; he may reserve it for the Queen to deal with; or he may return it to parliament with recommended amendments. In deciding which of these options to exercise, the Governor-General acts on the advice of the Attorney-General.
Bills are very rarely reserved for the Queen’s assent. This procedure is used as a courtesy to the Queen for bills which may be said to be of special interest to her, or because she happens to be in Australia, and in the opinion of the Attorney-General it would be appropriate for her to give the assent.
The Constitution provides for the Governor-General to summon the parliament to meet after the holding of an election, and for the Governor-General to prorogue or dissolve the parliament. When a parliament has been terminated by the Governor-General by a dissolution proclamation, or has come to the end of its maximum term of three years as specified in the Constitution, the Governor-General sets in train the procedure required to hold a national general election. This is done by the issue of writs by the Governor-General-in-Council for the election of members of the House of Representatives. (Because of the origins and nature of Australia’s federation, writs for the election of Senators are issued by State Governors, who are the representatives of the Crown under their respective State Constitutions.)
The Constitution provides that, after the holding of a general election, the new parliament must meet not later than thirty days after the day appointed for the return of the writs. It is the Governor-General, acting on the advice of the Prime Minister, who fixes the date of this first meeting, and so the parliamentary cycle starts all over again.
Although the Constitution confers very wide powers on the Governor-General, our system of government has developed, over the centuries, binding conventions or rules of practice. These conventions have given us the office of Prime Minister and the system of cabinet government, neither of which is mentioned in the Constitution. These conventions also require the Governor-General to exercise his very wide constitutional powers, not according to his own discretion, but in accordance with the advice of his ministers.
In similar fashion, the conventions have also given to the Governor-General what are known as reserve powers, or, more fully, the reserve powers of the Crown. While ministerial advice of the appropriate kind is necessary to enable the Governor-General to exercise constitutional and statutory powers, there may be times, very rarely, one hopes, when a governor-general believes that it would be necessary and appropriate for him to act without, or even contrary to, ministerial advice and to exercise his own discretion. It is on such occasions that the Governor-General is said to be exercising the reserve powers. Such an occasion would inevitably result in either the dismissal, or the resignation, of the Governor-General’s current ministerial advisers. However, it would also require the Governor-General to be able to appoint new ministerial advisers who would be prepared to accept political responsibility for his exercise of the reserve powers.
Thus, in December 1967, when Prime Minister Harold Holt disappeared at sea and his body could not be found, there was no-one with constitutional authority to advise the Governor-General, Lord Casey, what he should do next. The Governor-General exercised his reserve powers, terminated Holt’s commission as Prime Minister, and commissioned John (later Sir John) McEwen, leader of the Country Party, as Prime Minister. In accepting the commission, McEwen accepted political responsibility for the Governor-General’s decision to terminate Holt’s commission. Three weeks later, when the Liberal Party had met and had chosen John (later Sir John) Gorton as its new leader, McEwen resigned as Prime Minister and advised the Governor-General to send for Gorton.
In similar fashion, Governor-General Sir John Kerr exercised his reserve powers in November 1975 when he dismissed Gough Whitlam as Prime Minister and commissioned Malcolm Fraser as Prime Minister. In accepting the commission, Fraser accepted political responsibility for the Governor-General’s decision to terminate Whitlam’s commission.
The Constitutional Commission appointed by the Hawke Government in 1985 identified the reserve powers as the power to dismiss the Prime Minister, pursuant to section 64 of the Constitution; dissolve the House of Representatives, pursuant to section 5 of the Constitution; and dissolve both Houses of the Parliament, pursuant to section 57 of the Constitution.
Republican delegates to the 1998 Constitutional Convention similarly identified the essential reserve powers and concluded that the reserve powers and their basic conventions could not be codified, and that they should continue to apply in a republic; that the reserve powers should have the flexibility to adapt to unpredictable crises that would arise; that the constitutional conventions associated with the exercise of the reserve powers should continue to apply; and that the head of state should continue to act as the constitutional guardian.
The Governor-General is often referred to as the constitutional umpire, and the term encapsulates a description of the reserve powers given by former Chief Justice of the High Court, Sir Gerard Brennan:
“Reserve powers exist to protect the people and the Constitution against the possibility that a government may pursue an unlawful course of conduct or that the elements of the Australian parliamentary democracy are unwilling or unable to discharge their intended functions. The chief occasions for their exercise arise when it is necessary to act without, or refuse to accept, ministerial advice in order to give effect to the authority of a majority in the lower House of Parliament or, if the Parliament is unworkable and appropriate ministerial advice cannot otherwise be obtained, to give the electorate an opportunity to exercise its democratic authority.”
Thus, the reserve powers exist, not to give a governor-general delusions of grandeur, but to enable him to remit to the House of Representatives the conduct of a government acting unlawfully, or to remit to the people – the ultimate custodians of our democracy – an issue which the parliamentary process is unable to resolve. That is why, in 1975, the Governor-General dismissed the Prime Minister, not for the purpose of installing someone else as Prime Minister, but in order to get a Prime Minister who was willing to put to the people an issue which Parliament was unable to resolve.
Even the most ardent republicans have acknowledged the importance of the reserve powers of the Crown, as they have been, or may be, exercised by the Governor-General. At the heart of any of the various republican proposals, and especially the one put to the Australian people in the 1999 referendum on the Constitution, is the notion that a president should inherit, without alteration, all of the powers, including the reserve powers, of the Governor-General, and that the conventions relating to the exercise of the Governor-General’s reserve powers – the centuries of British monarchical traditions, precedents and conventions governing their exercise – should continue to exist. How strange to want to do away with the ancient tradition of constitutional monarchy, replace it with new-fangled republicanism, but say that when your republic strikes a constitutional snag it will turn to the discarded monarchical system to get it out of trouble.
Section 68 of the Constitution vests the command in chief of the naval and military forces of the Commonwealth in the Governor-General. For the men and women of the Australian Defence Force – the Army, the Royal Australia Navy and the Royal Australian Air Force – the Governor-General is their Commander-in-Chief. He approves officers’ commissions and the appointments of the service chiefs; he presents commissions and prizes at defence academy graduation parades; he presents colours, banners and guidons; he approves and awards battle honours; and he is the reviewing officer at ceremonial parades. But while the command in chief of the defence force is one of the oldest and most honoured of the crown’s prerogatives, it is today exercised constitutionally on the advice of responsible ministers.
Sir Zelma Cowen, a former Governor-General, has reminded us that:
“The debates in the Australian constitutional conventions of the 1890s in which the Commonwealth Constitution was debated and drafted show, pretty clearly, that the title of the Governor-General as Commander-in-Chief was intended to confer titular and not substantive command-in-chief. At the same time the role was seen as giving expression to a special and distinctive relationship between the Governor-General and the armed forces of the Commonwealth.”
Sir Ninian Stephen, another former Governor-general, in a graduation address at the Joint Services Staff College, Canberra, described his role as Commander-in-Chief in the following terms:
“Purely titular my title of Commander-in-Chief may be, but it does reflect the quite special relationship that I believe exists between the Governor-General and the armed forces of the Commonwealth. It is a close relationship of sentiment, based neither upon control nor command but which in our democratic society expresses on the one hand the nation’s pride in and respect for its armed forces and, on the other, the willing subordination of the members of those forces to the civil power.”
The Australian honours system provides the Governor-General with yet another set of responsibilities. The Constitution of the Order of Australia provides that the Governor-General shall be the Chancellor of the Order and the Principal Companion in the General Division. It also provides that the Chancellor is charged with the administration of the Order, and that the Governor-General shall appoint a Secretary of the Order. Successive Governors-General have appointed their Official Secretary as the Secretary of the Order, and the Australian Honours Secretariat is located at Government House and is responsible to the Official Secretary as part of the Governor-General’s staff. By virtue of these arrangements, the Governor-General is responsible for the administration of all elements of the Australian honours system, though, of course, responsibility for honours policy remains with the Australian Government through the Prime Minister.
The eight awards that comprised the Australian honours system at its establishment on 14 February 1975 have grown to more than fifty awards, and the number keeps growing. In approving and making awards in the Australian honours system, the Governor-General acts on the advice of the relevant advisory committee, federal or state minister, or defence or civil service chief, as appropriate.
Under our constitutional monarchy, the Crown symbolises our system of government. The powers, duties and functions of the head of state are carried out by an Australian who holds the appointed office of Governor-General. Unlike an elected president, a Governor-General comes to that high office without having to seek it, and without having to defeat others to attain it or to retain it. As a result, an appointed Governor-General is able to represent national unity in a way that no elected president would be able to do, for an appointed Governor-General has no political constituency to represent and no supporters to reward, has no mandate to discharge, and provides no alternative power base to that of the elected prime minister.
Behind the two roles which the Australian Constitution assigns to the Governor-General – the Queen’s representative under section 2 and the holder of the executive power of the Commonwealth under section 61 – lies a myriad of ceremonial and non-ceremonial duties and responsibilities as well. The Governor-General represents the Crown in Australia; he appoints our prime ministers and our governments; he presides over the Federal Executive Council; he acts on the advice of his ministers yet he also has the reserve powers of the Crown that enable him to act without or contrary to ministerial advice in time of parliamentary or constitutional crisis; he has a special and continuous relationship with the Commonwealth Parliament; he is the Commander-in-Chief of the Defence Force; he administers the Australian honours system; and by his patronage he seeks to recognise and encourage all that is good and altruistic and compassionate in the Australian community.
The Governor-General is the Head of State, the constitutional umpire, the holder of an office which stands at the apex of our society and is above politics, the symbol of the nation as a whole. As Sir Ninian Stephen put it, in addition to his many constitutional, statutory, ceremonial and other public duties, the Governor-General has the important civic role “to represent … the Australian nation to the people of Australia.”