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ACM Home arrow Reserve Powers of the Crown

Reserve Powers of the Crown

The Dismissal 

According to Sir Zelman Cowan, the reserve powers of the Crown include the power to dismiss a ministry, to grant or refuse dissolution, and to designate a prime minister.    Few legal observers would deny the existence of the reserve powers, although in controversial cases there is a debate as to the manner and time of their use.  

In Australia, these powers are exercisable at the federal level by the governor-general. They are not reviewable by the courts, not being justiciable, nor is it for The Queen to review their exercise.  .It is therefore inappropriate for a viceroy to discuss their exercise in advance with the Sovereign.

In addition, it is relevant at this point to recall that The Queen of Australia can alone exercise certain important powers of the Crown. These relate to the appointment and dismissal of the viceroys. This is normally done on advice tendered in writing in an original document, but there is argument that this too is in the nature of a reserve power. 

Certainly there are indications that it would be an error to regard The Queen as an automaton, assenting without question to advice, particularly that relating to a dismissal.
   

The existence of these powers is an important constitutional check and balance on the exercise of power.

 

...Interesting Links...

 

Reserve Powers of the Governor-General and The Provisions for Dismissal by Sir Harry Gibbs, former Chief Justice 

An Historical Perspective On The Reserve Powers, by  JB Paul  21 August 1999 

Examples Of The Use Of Vice-Regal Power In Australia Since Federation



Sir John Kerr - partisan? Print E-mail
Written by John Paul   
Thursday, 08 December 2011
Image   [In this ninth instalment of his essay on the 1975 dismissal of the Whitlam government, John Paul asks what Gough Whitlam should have done when the Senate deferred supply. Then in the tenth instalment he answers the question whether Sir John Kerr was partisan.] 




When the Senate on 16th October 1975 first deferred consideration of the Appropriation Bills Gough Whitlam should have advised the Governor-General, Sir John Kerr, in exactly the same terms as he had advised Sir Paul Hasluck in 1974 and as Mr Asquith had advised King Edward VII in 1909. 

In so advising the Governor-General Whitlam would have been acting consistently with every Parliamentary utterance he had made on this very subject when in Opposition and when in Government until he somersaulted in a speech at Goulburn on 12th September 1975.  And such advice would have been consistent with the intentions of the Founding Fathers. 

Image
[ EG Whitlam, Sir John Kerr, and Senator Wriedt ]


By 16th October 1975, consistently with his Goulburn declaration, Whitlam had changed his tune entirely by repudiating every undertaking he had given to Parliament and privately to the Governor-General as recently as 25th August. 

Whitlams declared course was indeed one about which Asquith had speculated — only to reject it as revolutionary.  In embarking on this course Whitlam could find no precedent to justify it, for all his bluster and bombast then and later.


 ...Sir John Kerr . . . Partisan?...


Writing of the Founding Fathers in the context of Kerr’s dismissal of Whitlam a critic on ACM Facebook  claimed, “They also never envisaged a situation where the Crown would intervene in such a partisan manner”. 

Any action on Kerr’s part contrary to Whitlam’s advice would have outraged him and his Government and — if Whitlam had got in first — with the immediate consequence of his recall.  And any inaction on Kerr’s part despite the running down of lawfully appropriated moneys would have displeased the Opposition. 

As Kerr put it nearly ten years later:  I knew that I was in for a tough time whatever happened.  If I were as concerned for myself as some people have said, I would simply have done whatever Mr Whitlam demanded — I would have been Mr Whitlam’s puppet.  But that would have been a betrayal of my duty to maintain constitutional government — a spineless abdication of my responsibility.[1] 
Read more...
 
Electoral law considerations and the dismissal Print E-mail
Written by John Paul   
Thursday, 01 December 2011
Image [In this eighth instalment of his essay on the 1975 dismissal of the Whitlam government, John Paul examines the way in which proposed changes to the electoral law affected the political debate. They were well aware of the way the law was changed to ensure that a coalition Government newly elected in 1949 would have to confront a Labor-dominated Senate.] 



In 1974 the Whitlam Government presented as one of four referendum proposals a scheme for ensuring that the electoral boundaries of the House of Representatives would be based not on the number of electors in each division, as had been the case since Federation, but on the population in each electorate. 

The deliberate intention behind this proposal was that, if carried, it would entrench within the Constitution itself a malapportionment strongly favouring the Labor Party.  This referendum proposal was defeated as were the other three. 

The coalition parties were satisfied, however, that the redistribution still before Parliament in 1975 had been deliberately designed by the Whitlam Government to achieve a malapportionment in their favour by other means.  Hence their rejection of that redistribution twice so far! 

Image
[ William Hogarth's depiction of an election victory ]

Read more...
 
Extraordinary And Reprehensible Print E-mail
Written by John Paul   
Thursday, 17 November 2011
Image[In this seventh instalment of his essay on the 1975 dismissal of the Whitlam government, John Paul examines the filling of the  Senate seats made vacant by the appointment of NSW Senator Murphy to the high Court and the death of Queensland Senator Bert Millner] 

The Opposition parties under Fraser’s leadership were not at first as single-minded in their determination to drive the Whitlam Government from office as some assert. 

When Mr Bill Hayden as Treasurer presented his Budget to the House of Representatives Fraser as Opposition leader declared that the parties he led were prepared to allow it to pass through the Senate. 

He acknowledged that in normal circumstances a Government should have a reasonable expectation of an unbroken term of three years the maximum the Constitution permitted. 

This he was prepared to concede unless the Government itself were beset with “extraordinary and reprehensible” circumstances. 

An event which concentrated the Opposition parties on the need to block Supply was the High Court’s controversial and narrow decision (4-3) in the Territories Senators Case to uphold legislation providing for two Senators to represent each of the Commonwealth Territories.[1] 

This decision was handed down on 10th October
six days before the Appropriation Bills were due to be introduced into the Senate. 

In any election for half the Senate called in late 1975 or early 1976, the newly elected Territories Senators would take their places immediately and not in July 1976 as would the Senators elected from the States. 

The Opposition parties were fearful that this would provide the Whitlam Government with a temporary Senate majority which would facilitate the passage of a redistribution already twice rejected by the Senate. 


[1]               Western Australia v. The Commonwealth, (1975) 134 CLR 201.

 

 
Casual Senate Vacancies Print E-mail
Written by John Paul   
Friday, 14 October 2011
Image[In this sixth instalment of his essay on the 1975 dismissal of the Whitlam government, John Paul examines the filling of the  Senate seats made vacant by the appointment of NSW Senator Murphy to the high Court and the death of Queensland Senator Bert Millner] 


The ACM Facebook critic of Sir John Kerr demonstrated his unfamiliarity with Australian political history when he singled out the appointment in 1975 of replacement Senators by the NSW Premier, Mr Tom Lewis, and the Queensland Premier, Mr Joh Bjelke-Petersen, as being in clear contravention of well-established Westminster convention in Australia.  What he terms a Westminster convention was a purely local understanding dating from as recently as 1951.

Image
[ Sir Joh Bjelke-Petersen ]
 

In 1948 the Chifley Labor Government legislated to increase the House of Representatives membership with a requisite corresponding increase in the Senates membership — a nexus the Constitution still enshrines — and to change the Senates electoral system from full preferential voting to proportional representation according to the method known as Single Transferable Vote (S.T.V.).   

One of the blatant political purposes behind this legislation was to ensure that the newly created Senate places and those places filled by election in 1943 but subject to election in 1949 would be bound by an electoral system which would minimize Labor losses and Liberal and Country Party gains. 

 The newly elected Labor Senators when combined with those elected in 1946 would still give the Labor Party a working Senate majority even if the election for the House of Representatives resulted in Labors loss of office.  This barely concealed manipulation had the intended result.



...results of changed electoral law ...


 

 The incoming Menzies-Fadden Government, elected on 10th December 1949 with a very comfortable majority, faced a hostile Senate.  And that Labor-dominated Senate exploited its majority as ruthlessly as it dared! 

Only with the double dissolution of 1951 was that Government able to gain a Senate majority, but the operation of proportional representation would ensure that the Senate would be more narrowly divided in party terms than had been the case before 1949. 

As events proved, the Labor Party since 1951 has been unable to gain a Senate majority in its own right because the short term advantage it secured in 1949 has emerged as its long term nemesis — a case of poetic justice if ever there were one!Reflecting in 1977 on the performance of political parties in the Senate, a Labor sympathizing academic lawyer, Professor Geoffrey Sawer, remarked:



. . . when the Senate majority has been of a different party from that of the majority in the House of Representatives and consequent Ministry, the Senate has, irrespective of the party controlling it, been as obstructive as it dared, having regard to electoral prospects and the dangers of provoking a double dissolution.  All parties have used the Senate when it suited them.[1]  

Read more...
 
Would our constitution have been different? Print E-mail
Written by John Paul   
Monday, 10 October 2011

[In this fifth instalment of his essay on the 1975 dismissal of the Whitlam government, John Paul examines, with the benefit of Australian precedents, whether our constitution would have been different had it been drafted after 1911 when the power sof the House of Lords were curtailed.]


Image

 ...if The Constitution Had Been Drafted In 1911 Or Later?


It is a great shame that the Australian constitution was not written in 1911 and not prior to this,” argues a contributor to the ACM Facebook page

His presumption is that the Founding Fathers would have treated Westminster
s Parliament Act of that year as their lodestar and consequently the Senates powers respecting Money Bills would have been drafted to replicate those of the House of Lords from 1911. 

I would not be so confident. 

I would contend that the fears entertained by the smaller colonies at being overwhelmed by the larger colonies in any federal compact would still have been a potent force driving them in their insistence on a Senate as powerful as the one enshrined in the Australian Constitution proclaimed in 1901. 

And in any case if the federation of the Australian colonies had been deferred for more than ten years,  there might not have been any kind of agreement to federate. 

Alfred Deakin contended that the federation of the Australian colonies as he had witnessed it had been secured by
a series of miracles and these might not have come into play in 1911 and thereafter. 

A noted historian of the Conventions in the 1890s, Professor John La Nauze, once claimed in my hearing that if the Australian Labour Party had been able to exert a more powerful influence than proved to be the case in the 1890s but was very much the case in 1911 there might well not have been any kind of agreement to federate.





....some compelling Australian precedents....

Read more...
 
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