The Governor-General’s surprise support for the codification of the Crown’s reserve powers has stirred up a controversy. These powers relate to the granting of elections, and the appointment and dismissal of ministers.
These may be exercised without or contrary to ministerial advice. At the present time their use is governed by convention, that is unwritten custom.
In an interview on the ABC’s 730 Report on 23 September, 2008, the Governor-General, Quentin Bryce, said:
"I like the idea of them being written down in the Constitution. I'm increasingly attracted to the need to codify as much as possible. It is another way of empowering people."
(This sentence , incidentally, does not appear in the ABC transcript)
In The Australian on 27 September, 2008, Christopher Pearson said that codifying the reserve powers is “a herculean task, virtually impossible as well as pointless.”
“First, it would involve a team of experts agreeing on the proper limits of emergency powers, which it has generally been thought prudent not to define too precisely because not all contingencies are foreseeable.
“Second, the whole process would need a large measure of bipartisan support.
“Finally, it would mean a referendum carrying by a majority of votes in a majority of states an amendment specifying in great detail every hypothetical circumstance in which a government's actions might warrant the exercise of the Crown's power to sack it.
”He said that the consensus at the 1998 Constitutional Convention was that the existing checks and balances were 'the best available guarantee that the reserve powers wouldn't be abused.'"
….Professor George Williams is for codification…
But constitutional lawyer, Professor George Williams, disagreed. He said that Christopher Pearson was wrong in saying that codification would be “virtually impossible as well as pointless”.
“Constitutional lawyers have for many years argued for exactly this reform, “ he said .
The “vague and uncertain nature” of the reserve powers was “a flaw.” He said the reserve powers had been codified in the NSW Constitution and in the ACT.
….an ACM view…
The Australian published my views on this on 2 October, 2008. These are identical with the view advanced by ACM in the referendum.
But similar views were also held by the republican establishment.
“As former chief justice Sir Gerard Brennan says, this “has been beneficial in allowing the evolution of an independent system of national government.”
“Codifying the conventions would also allow an aggrieved politician to slow down the process by going to court, rather than the political mess being resolved quickly and democratically in an election, as in 1932 (NSW) and 1975.
“Christopher Pearson is accurate in saying the task would not be easy. When he gave up his attempt at codification, Gareth Evans said it was “a labour of Hercules…frankly, I think the task is impossible.”
“So Prime Minister Paul Keating abandoned the project, deciding “the conventions should remain as they are – unwritten.
“The 1998 Convention also decided codification was too difficult. So the referendum model tried to transfer the conventions to the president, allowing them to continue to develop and keeping them out of the courts.
“Incidentally they are not codified in New South Wales, as Professor Williams suggests.
“Established constitutional conventions” are specifically preserved.
“And the ACT is a bad example. The financial excesses of the Carnell government in relation to the Bruce Stadium would not have occurred if the constitutional system forced on them had properly respected the essence of the Westminster system.
"A reasonably diligent administrator or governor would have sent that one back. And if the Carnell government had persisted it would have faced the fate of the Lang and Whitlam governments.”
….Paul Keating says codification “ impossible”…
Announcing his government would proceed to a referendum on a republican model, then Prime Minister the Hon. Paul Keating told the House of Representatives on 7 June, 1995 that codification was impossible. He said :
“The Head of State will assume the Governor-General's constitutional duties, most of which are, by convention, performed in accordance with the advice of the government of the day. These include summoning and dissolving the House of Representatives and the Parliament as a whole and issuing writs for Federal elections. The Head of State will also take over the Governor-General's role as titular Commander-in-Chief of the armed forces.
"In line with actual practice, we propose that the Constitution be amended to make clear that the Head of State will exercise these constitutional duties on the advice of the government of the day.
"Finally, the Head of State will retain those very few powers now held by the Governor-General which, in the most exceptional circumstances, may be exercised without, or possibly contrary to, Ministerial advice.
"These are the so-called reserve powers. The Republic Advisory Committee identified these powers as: the power to appoint the Prime Minister; the power to dismiss the Prime Minister and therefore the government; and the power to refuse a request by the Prime Minister to dissolve one or both Houses of the Parliament.
"The Committee made the point that there are a number of principles or conventions underpinning our Westminster style of government and the practical operation of our Constitution. These principles, which are not currently set out in the Constitution, determine whether the circumstances exist for the Governor-General to exercise a reserve power and what action would be appropriate.
"Theoretically, it would be possible to fully codify or write down these conventions, assuming one could foresee all the contingencies they might be required to meet. I have no doubt that a great many people would like to see the Head of State's discretionary, or reserve, powers tightly defined – as they are, for example, in the Irish Constitution – so as to oblige the Head of State to act in accordance with express rules in the Constitution, or Ministerial advice, in all circumstances.
"The question is, then: should the reserve powers – which are imprecise and governed by precedent and convention – be codified? Should they be delineated, cut down or specified precisely in our Constitution, or should they remain as they apply now, by unwritten convention?
"The advantage of codifying the conventions, whether in whole or in part, would be to bring a degree of clarity and certainty to the options open to a Head of State in different situations.
"However, after careful consideration, the Government has formed the view that it is probably impossible to write down or codify these powers in a way that would both find general community acceptance and cover every possible contingency.
"As the system evolves there needs to be some capacity to respond to circumstances quite unforeseen today. Tightly defined rules can themselves have unforeseen consequences.
"Were we to try, by Constitutional amendment, to set down precisely how the reserve powers should be exercised by the Head of State, those amendments, even if intended to be otherwise, could well become justiciable – that is capable of being adjudicated by the High Court of Australia and required to be adjudicated by the High Court.
"Hence, codification would be likely to result in fundamental change to our system of government and alter the status of the High Court in relation to the Executive and the Parliament. Over time, Justices of the Court could well be drawn into arbitrating purely political disputes whose resolution should ultimately be in the hands of the electorate.
" The Court would thus be exposed to public pressure and, in the inevitable event that a party to a dispute was unhappy with its resolution, the standing and impartiality of the Court could be called into question.
"For these reasons the Government believes that, on balance, whatever the immediate attraction of this course might be, it would not be desirable to attempt to codify the reserve powers; and that the design, processes and conventions at present governing their exercise by the Governor-General should be transferred to the Australian Head of State without alteration.
"We are aware that with this option, there is a risk that Australian governments may occasionally find themselves in conflict with a Head of State who exercises political judgment without regard to the conventions. We are also, of course, conscious of the possibility of a repetition of the events of 1975, when a government possessing the confidence of the House of Representatives was denied supply by the Senate.
"But the question of the Senate's powers over supply is a very different issue from that of establishing an Australian Head of State. It is an issue that deserves to be addressed, but it doesn't need to be addressed at the same time.
"If these reserve powers are to be given to a new Head of State, it is critically important that the authority and source of the Head of State's power is consistent with the national interest and the continued effective operation of our political system."