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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



Recall Elections Print E-mail
Written by ACM   
Friday, 21 September 2012

Anne Twomey is Professor of Constitutional Law in the Sydney University Law School. She is a leading authority on constitutional issues.  

In this interview with  Professor David Flint, she explains the constitutional and other legal issues relating to recall elections.   

Following an undertaking made during the 2011 election, the  New South Wales O'Farrell government commissioned  a report on the subject.

This is presently under consideration by the NSW government.

Recall elections were discussed here in a consideration of the reserve power of the Australian Crown vested in the Governor-General ( and indeed the Governors) to dismiss the government on constitutional grounds: "Reserve Powers, Recall Elections". 


 

 
Reserve Powers, Recall Elections Print E-mail
Written by Professor David Flint AM   
Thursday, 20 September 2012

In a publication in 2006, (Her Majesty at 80: Impeccable Service in an Indispensable Office, foreword  by Tony Abbott, MP.) I made the point that the reserve power to dismiss a prime minister or premier can be the subject of a major adverse propaganda campaign by the politicians and certain political journalists, as was the case in 1975.

 As a result the power can be seen as a wasting asset.  I made the comment that had recall elections been available, the Coalition - and the media - would have concentrated on that rather than on withholding supply.  This was of course a personal comment.  


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[ Sir David Smith reads the Proclamation dissolving the Parliament; Gough Whitlam looks on ]




The campaign against the use of the reserve power to dismiss  was mounted despite the fact that, constitutionally, the Governor-General acted within his powers in 1975.  Indeed, there is a sound argument that he was under an obligation to act.

The only realistic debate about 1975 is about his timing.  Questions about whom he was entitled to consult, whether he should have involved The Queen , or whether he should have made his intentions clearer to the Prime Minister do not affect the fundamental point that he acted within his powers.

As to the timing, this was centred on the fact that wages, pensions, and government debts under contracts would soon be unpaid, and 13 December was last realistic date on which a federal election could be held that year. The Prime Minister had sought the meeting in order to advise a half Senate election, which would most likely have been blocked by the States, and which could have not changed  the composition of the Senate until 1 July 1976.

Of course it was in the interests of the two politicians whose obstinacy and personal interest  caused the political crisis to blame the Governor-General and later the office, something which Sir John Kerr knew would happen.





...reserve powers...




 
 

Read more...
 
Maintaining their rage Print E-mail
Written by Professor David Flint AM   
Thursday, 30 August 2012

Gough Whitlam told his supporters after his dismissal in 1975 to maintain their rage. He surely intended this to be maintained from the dismissal on 11 November to the electionon 13 December.  Who would have thought that a small and ageing clique would be maintaining their rage for the best part of four decades and that The Australian's Paul Kelly would be  still outraged? 

The essence of the 1975 dismissal was succinctly explained by the commentator, Dr Gerard Henderson, in The Sydney Morning Herald ( 28/8 “Left closes ranks to consign Kerr to wrong side of history”)


Image
[Sir Anthony Mason]


Dr Henderson,  Executive Director of The Sydney Institute and a committed republican, says that the “dismissal resulted from the fact that the opposition leader, Malcolm Fraser, blocked supply and Whitlam attempted to govern without supply.”

Yet today,” he laments,” Whitlam and Fraser are left-wing heroes while Kerr is criticised for doing his duty and resolving the impasse by dismissing Whitlam and ordering Fraser to conduct an immediate double dissolution election.”


He says that the author Jenny Hocking's attacks on Sir John Kerr in her new book launched by Kevin Rudd, “ Gough Whitlam: His Time,” published under MUP's The Miegunyah Press, cannot detract from this central fact.

Let us remember that this was a political and not a constitutional crisis, as so many in the commentariat would have it. This political crisis, brought on by the ambition and the obstinacy of the two politicians Malcolm Fraser and Gough Whitlam - and Mr. Whitlam's determination to rule unconstitutionally - was resolved under the constitution by the Governor-General ensuring the people could decide the political issues democratically in an election. This took place on 13 December, 1975.





...it’s old news, Ms. Hocking...



Read more...
 
Sir Anthony Mason and the dismissal Print E-mail
Written by Professor David Flint AM   
Monday, 27 August 2012

Sir Anthony Mason confirms he was the other judge who advised Sir John Kerr on the exercise of the reserve powers when then Prime Minister Gough Whitlam tried to govern without a grant of supply from Parliament ( The Sydney Morning Herald 27 August, 2012).  

Let us remember that this was a political and not a constitutional crisis, as so many in the commentariat would have it. This political crisis, brought on by the ambition and obstinacy of two politicians Malcolm Fraser and Gough Whitlam, and Mr. Whitlam's determination to rule unconstitutionally, was resolved under the constitution by the Governor-General ensuring the people could decide the political issues democratically in  an election. This took place on 13 December, 1975.

Image

 Sir Anthony Mason, who later revealed he had long been a republican even while accepting two imperial honours, says he also advised that Mr Whitlam be warned before being dismissed. This was so that he could have the opportunity of going to the election as Prime Minister. 

On 11 November 1975, Mr. Whitlam attended on the Governor-General to advise a half Senate election. 

If the State Governors s had agreed, which seemed unlikely, the new senators would not have taken office until 1 July 1976.   

Sir John Kerr asked Mr. Whitlam whether he still refused to him to call an election for the house of Representatives. When Mr. Whitlam declined to  advise the Governor-General to do this, he withdrew Mr. Whitlam's commission.  

He then invited Mr. Fraser  to form a caretaker government on condition that he advised the Governor-General to dissolve both houses and call an election for 13 December.

 

 
Closet republican advised G-G on Whitlam dismissal Print E-mail
Written by Professor David Flint AM   
Sunday, 26 August 2012


It has long been rumoured that in addition to Chief Justice Sir Garfield Barwick, another judge advised Governor-General Sir John Kerr in the dismissal of Prime Minister Gough Whitlam on 11 November, 1975.

Image

Sir Anthony Mason, then a closet republican, is named in a new book as the ''third man'' who secretly advised Sir John in his decision to sack the Whitlam government in 1975 reports Michael Gordon in “Revealed: the third man in the dismissal” in The Sydney Morning Herald 25 August, 2012.

At the time of the 1999 referendum, Sir Anthony revealed that he had become a republican when as an eight year old boy, he watched the 1932 -33 bodyline test cricket series. As Sir David Smith says in his book, “Head of State”, he accepted two imperial honours before revealing this.

According to Jenny Hocking’s  book to be published in September, “Gough Whitlam: His Time”,  Sir John Kerr's records suggest ''Mason was not merely the third man: he was, in many ways, the man''.





...reserve powers still exist...





 From the extract in the Herald, Ms. Hocking seems to disapprove both of the reserve powers and of the Governor-General seeking advice without the approval of the Prime Minister.

Notwithstanding the curious claim by Senator Bob Carr that the reserve powers no longer exist, all respected constitutional lawyers agree that these are still exercisable at the discretion of the viceroy.

 

...G-G's right to other advice...




It is also well established that he or she may take other advice, as may The Queen, although some challenge this. I recall discussing this with a senior English judge, Lord Wilberforce, who confirmed that the Palace would seek advice from time to time.  This was sought directly and not through the prime minister.
 Ms. Hocking says that Sir Anthony, at the time a High Court judge, was the author of a statement incorporated in Sir John’s his public statement justifying his actions.

She adds that Sir John Kerr's records “make it clear that he wanted the extent of Sir Anthony's role to surface after his own death but while Sir Anthony was still alive, to deflect his responsibility for the deception and dismissal of Mr Whitlam.”




...The Queen and  Prince Charles...


Sir John Kerr knew that if Mr. Whitlam realized he was considering dismissing him, he  could move first and advise The Queen to dismiss him. The book claims that at Sir John raised this with Prince Charles in Port Moresby in September 1975.   

 

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