|The Governor and the Constitution: A Practical Perspective|
|Written by Peter Bassett|
|Tuesday, 01 November 2005|
Each society fashions its constitutional arrangements in its own way, and there are many models to choose from. At one extreme lies anarchy and at the other, autocracy. Napoleon was of the view that constitutions should be ‘short and obscure’, and a Russian writer once described the Tsarist constitution as ‘absolutism tempered by assassination’. Constitutions which are too complicated, rigid or doctrinaire quickly become irrelevant, as did, for example, the Soviet Union’s. The challenge of course, has always been to keep the competing forces in a society in balance, so that no single person or group can capture the state.
The system we have inherited was shaped by many struggles, the most important of which occurred in the mid-seventeenth century, a hundred and fifty years before the French Revolution. The Crown as we know it is no stranger to change and has proved itself a remarkably resilient and flexible institution. The prerogative powers of the Sovereign, as well as the powers conferred by statute, are now exercised only on the advice of ministers. Nevertheless, authority remains vested in the Crown, which symbolizes the rule of law as opposed to the arbitrary exercise of power, and the continuity of our institutions as distinct from the passing parade of governments.
The Crown in Australia has undergone significant changes during the past two centuries. As both a constitutional entity and a social institution, it now differs markedly from the Crown before federation, and from the Crown in the other countries in which the Queen reigns. Like our other inherited institutions such as the Houses of Parliament, the Courts and the Common Law, it has taken on distinctly Australian characteristics.
The Governor-General of the Commonwealth and the Governors of the States now exercise virtually all of the Queen’s powers and functions in Australia, and do so exclusively on the advice of their respective Governments. The office of Governor is our oldest link with the Sovereign and with our constitutional origins. But today it is, in all respects, a State office. The ‘Governor’s progress’ from imperial administrator and British envoy to modern head of state has taken place in a peaceful and orderly way under existing constitutional procedures. This is a good example of the Crown’s capacity to adjust to changing cultural and political expectations.
I used the term ‘Head of State’ to refer to the Governor. Historically speaking, the term was coined for republican presidents and did not apply to monarchs at all, since they were deemed to personify the state (as Louis XIV famously remarked). Kings could hardly be ‘head’ of themselves. However, in modern parlance, I think it is reasonable to say that while the Queen is Australia’s Sovereign and sovereignty is vested in the Crown, the Governor-General is de facto head of state in respect of those matters for which the Commonwealth is responsible, and the Governor is de facto head of state in respect of those matters for which the State is responsible. The fact that the Sovereign is, in a sense, outside the system, being neither exclusively of the Commonwealth nor exclusively of the States, maintains the federal balance in a most ingenious way. Could the same be said of a president acting exclusively on the advice of Commonwealth ministers? I don’t think so.
State Governors in Australia (unlike their Canadian counterparts) are in no way subordinate to the Governor-General. Each represents the Queen equally in their different jurisdictions according to the distribution of powers between the States and the Commonwealth. Were it otherwise, the States would be subordinate to the Commonwealth, which they are not. Justice Evatt put it definitively in 1931, when he was on the High Court bench. “The Governors of the States” he said, “are as much representatives of His Majesty for State purposes as the Governor-General of the Commonwealth is for Commonwealth purposes…For all purposes of self-government in Australia, sovereignty is distributed between the Commonwealth and the States. The States have exclusive legislative authority over all matters affecting peace, order and good government so far as such matters have not been made the subject of specific grant to the Commonwealth.”
The architects of our federation saw clear advantages in presenting a united front to the rest of the world in matters of foreign policy, defence, immigration, customs and the like, whilst avoiding a concentration of domestic political power in any one region of the country. In this vast land, Australians who live in less densely populated parts are reluctant to see all the nation’s political and economic priorities determined within a narrow corridor on the eastern seaboard. Professor J D B Miller called this ‘natural federalism’ – an inclination to preserve separate State and Commonwealth personalities and let them adjust themselves to one another by controversy and compromise. In Miller’s view, this sort of ‘natural’ or ‘unofficial’ federalism gives strength to our federal system. This is not easily understood by people who are used to a unitary system of government, such as the United Kingdom, where federal systems tend to be seen as immature or imperfect systems of government, destined to evolve into unitary states in the fullness of time.
There are many people in Australia itself who share this view and regard the centralization of power as both desirable and inevitable. The existence of six States and the division of the Crown into its Federal and State aspects are sources of irritation to them. In my view, the future of the Crown in Australia is very much linked to the future of our federal structure. It is difficult to tinker with one without affecting the other. The centralization of power would assist those who wish to remove the Crown from our constitutional fabric, and removal of the Crown would make it easier for those who wish to centralize political power.
With the passage of the Statute of Westminster of 1931, the United Kingdom Parliament could no longer bind the Commonwealth Parliament, and the United Kingdom Government had no further responsibility for the government of the Commonwealth of Australia – or any of the other dominion governments for that matter. Consequently, a distinct international personality for Australia dates from that time or, at least, from 1939 when Commonwealth ratification of the Statute of Westminster took effect. However, the States were in a rather different position, because they were not represented at the Imperial Conferences of 1926 and 1930, and the resulting Statute of Westminster didn’t apply to them. In fact, until 1986, the United Kingdom Parliament could (theoretically) interfere in the government of the States, and the UK Parliament could legislate for the States or disallow State legislation. The assent to certain State laws could be reserved for the Queen acting on the advice of British ministers. All appointments of Governors were made on the recommendation of the Secretary of State for Foreign and Commonwealth Affairs although, in later times, this meant simply providing a conduit for the wishes of State Premiers. There also remained the possibility of appeals from State Supreme Courts to the Judicial Committee of the Privy Council, even though such appeals were, for the most part, no longer possible from the High Court of Australia.
In the early 1980s, the Commonwealth, State and United Kingdom governments agreed that there should be legislation to tidy up these anomalies. The result was The Australia Act of 1986. In fact there were two substantially similar versions of the Australia Act, one passed by the Commonwealth Parliament at the request and with the consent of all State Parliaments, and one by the United Kingdom Parliament.
The Australia Act provides that advice to the Queen on State matters - including the appointment of Governors - can only be tendered by State Premiers. It terminated the power of the United Kingdom Parliament to legislate for the States, terminated the responsibilities of the United Kingdom government for the government of the States, and removed the Privy Council from the remaining direct lines of appeal in the Australian legal system. One effect of the Australia Act was to enhance the powers of Governors because, prior to 1986, only specific powers had been conferred on them, whereas now, with two exceptions, all powers and functions of Her Majesty in respect of the State are exercisable only by the Governor of the State. The two exceptions relate to the right to appoint or terminate the appointment of a Governor, and the right of the Queen to exercise her powers personally when physically present in the State and when advised to do so by her State ministers. Even though the Queen might be physically present in a State, it is the Governor who exercises the powers of the Crown unless the Government advises to the contrary. Could there be any clearer evidence that the Governorship is now entirely a State office?
I would like to make some comments about the importance of unwritten conventions in our system of government and the extent to which these derive from our monarchical history. These conventions can best be described as constitutional or political ethics. They are neither enforced nor recognized by the courts and do not amount to a body of laws. However, they have the effective power of written constitutional provisions. Notions of responsible government, the offices and roles of Prime Minister and Premier, the functions of Cabinet, relations between the Governor-General or Governor and Ministers, the manner in which governments are chosen or replaced and the summoning and dissolution of Parliament are all subjects of constitutional conventions. The architects of our constitutions, both State and Commonwealth, took their existence for granted, and so the written texts tell only part of the story; the unwritten conventions tell the rest. Most people are not even aware of their existence.
They have their origins in the very nature of parliamentary government, with its emphasis on the executive being responsible to the parliament. In the eighteenth century, the United States took a different approach, deliberately separating the executive from the legislature and creating an elaborate system of checks on the executive government. Unless we go down the American path of a rigid separation of powers, we need to understand and value our constitutional conventions. Collectively, they provide a mechanism for regulating the highest levels of government in a flexible way, whilst safeguarding the basic principles of representative democracy. Developed largely through trial and error over many centuries, they continue to evolve in response to changing social and political expectations. If they were reduced to writing as formal provisions in a constitutional document (as has been done in some countries), they could only be amended by equally formal processes and would then be subject to judicial interpretation. As conventions, they are non-justiciable. The experience of countries that have attempted to turn conventions into written formulas suggests that, despite the best of intentions, the clarification of responsibilities and, indeed, the maintenance of prior conventional rights, cannot always be guaranteed. The desire for certainty does not always produce certainty.
A classic example of what can happen when unwritten conventions are reduced to writing is found in a Nigerian case of the 1960s. In that case, the written constitution of Western Nigeria empowered the Governor to remove a Premier from office if it appeared to the Governor that the Premier no longer commanded the support of a majority of members of the House of Assembly. A majority of members signed a letter saying that they no longer had confidence in the Premier, and so the Governor dismissed him. This was challenged in the courts on the grounds that long-standing convention required an issue of confidence to be tested on the floor of the House. In an appeal process that took twelve months, the courts ultimately decided that convention had been supplanted by a written formula and was no longer relevant. The dismissal, based on nothing more than a letter signed by the Premier’s opponents, was therefore lawful. One can only speculate whether this was really what the draftsmen had intended when they had set out to codify the Governor’s role.
The Crown is central to many of the conventions because they have evolved out of powers once exercised personally by the monarch. They involve institutions and offices associated historically with and sometimes deriving authority from the Crown, such as those of the Prime Minister and Premier. Remove the Crown from such a scheme and it would be necessary to provide substitutes for the conventions and to establish other sources of authority. Of course, this process would have to be adopted for each of the States (because each has its own Constitution) as well as for the Commonwealth. The written formulations would undoubtedly differ from State to State and between the States and the Commonwealth.
The exercise of discretionary or reserve powers is a subject that attracts heated discussion from time to time. The issues are not entirely identical in the State and Commonwealth spheres so I shall confine my comments to the situation in the States, although much of what I shall say is relevant to both.
The assumption that a Governor will act formally only on the advice of the Government and, in particular the Premier, is not spelled out in any general way in constitutional documents. In certain pieces of legislation there may be a requirement for this or that action to be taken on the advice of the Executive Council or the Premier. However, the absence of a blanket requirement to act on advice reflects the reality that, on occasions, there may be no one who can properly give such advice. And that is why the Governor retains reserve powers: to ensure the continuation of lawful and responsible government, even at a time of political confusion and hiatus.
How and when would the Governor exercise these reserve powers? One of the most important conventions is that requiring a Cabinet to command a majority in the lower house of Parliament and to be able to obtain supply, that is, the funds to carry out the business of government. As a last resort, the Governor has the power to enure this by dismissing a Premier who does not have the support of the lower House if some other member does have that support, or by dismissing a Premier who cannot obtain supply, at least if some other member can. The Governor is empowered to dismiss a government engaged in conduct that is clearly and manifestly illegal if a Premier declines to desist or to introduce legislation validating the practice. To vest such powers in a political leader simply because he or she is a political leader would make nonsense of any checks against abuse or illegality.
No system will ever be immune to controversy, but cumbersome supervisory procedures involving ’councils of state’ and drawn out court cases would hardly be an improvement on our present flexible arrangements.
It is the Governor’s responsibility to appoint a Premier when the office of Premier is vacant. Obviously, after an election, the leader of a party with an absolute majority in the lower House would be invited to form a government. But there could conceivably be no single party with a clear majority, only loose or emerging coalitions. Then the Governor’s task would be far from straightforward, especially if the haggling and horse-trading became protracted.
Why not just wait until personal and factional struggles have thrown up an undisputed political leader? Because the routine business of government must go on, and the Governor requires ministerial advice on all manner of things, even in the midst of leadership crises and during the forging of new political alliances. Of course, if the Governor appoints a Premier on a care-taker basis or in less than clear circumstances, or declines the resignation of a defeated Premier until the dust settles, he or she may attract accusations of showing favouritism, being weak, succumbing to blandishments or even participating in a plot. However, the fact is that much of the business of government – appointments, proclamations, grants, regulations, even the dissolution of Parliament and the holding of elections – cannot legally be undertaken by the Governor without advice. The Governor is not an absolute monarch or a dictator. It is crucial that ministers be in office to tender advice – ministers who, unlike the Governor, are answerable to the Parliament and whose authority will ultimately be upheld or rejected by it.
The reserve powers are not a substitute for authority obtained through the ballot box because policy is determined by the government, not by the Governor. However, they do ensure in extreme and, hopefully, rare circumstances, the electorate’s right to have the last word.
One of the more visible roles of the Governor and Governor-General is to contribute to our sense of community. This is done by encouraging, rewarding and promoting achievements, by focussing attention on particular activities, and by articulating issues free from accusations of self-interest or political bias. This often involves extensive travel, driven by no other ambition than to let people know that their efforts are valued and worthy of encouragement. These activities rarely make headlines, focussing as they usually do on good news and good will. Of course, the media are not always interested in good news. Aldous Huxley once explained why this was so. “I can sympathize with people’s pains” he said, “but not with their pleasures. There is something curiously boring about somebody else’s happiness.” Nevertheless, it would be a poor thing if our society became so preoccupied with Realpolitik that there was no room for simple acts of consideration on behalf of us all.
If these kinds of activities by Governors and Governors-General are to be encouraged, there are other activities that are best avoided. It is unwise, I think, to enter office with a political or social agenda and an interest in championing causes. This smacks of politics, and politics is for politicians. A Governor should avoid the impulse to defend or justify his words and actions publicly, beyond simple clarifications issued on his behalf…at least until he has retired from office. It is the government’s responsibility to defend the Governor in Parliament and in the public arena, and no government will do this if it has been embarrassed by the person it has to defend. Equally, a Governor in his public utterances would be well advised not to take sides – even the Government’s side - on contentious issues. The loyalty of the Opposition depends on the Governor’s impartiality and he is, after all, Governor for all citizens, whatever their views.
This does not mean that a Governor should become a mere automaton or cipher. Certainly, no Governor should feel beholden to the Premier who had chosen him, for he is not a public servant or member of the Cabinet but an independent actor on the constitutional stage. I was able, at close range, to observe Governors carrying out their independent roles conscientiously and discreetly, without straying beyond the proper boundaries of their office. Allow me to give two examples.
Governors usually preside over weekly meetings of the Executive Council to assent to regulations, proclamations, appointments and the like. Documents put before them carry a certificate from the relevant Minister, and sometimes also from the Attorney-General, recommending approval and certifying that the intended action is lawful. It would be proper to give assent on the basis of this certificate alone, but an abundance of caution is always desirable in such matters. Occasionally, mistakes are made and regulations need to be corrected. After all, the Executive Council is the last stop in an often complex interdepartmental process, and public servants are fallible. If a mistake derives from, say, the absence of statutory authority for a particular item in a regulation, it might be possible to correct this by convening a special meeting of the Executive Council, withdrawing the erroneous item, redrafting a new one and resubmitting it at a later date. All this takes time, and time might be of the essence for the matter at hand – perhaps an issue of public health or the maintenance of energy supplies. How much better it is for the Governor to satisfy him or herself in advance that the regulation to be approved does indeed conform with an existing head of power. A quick check of the statutes or a call to the Cabinet Office or the Crown Solicitor will put any doubts to rest, and if corrections are needed, they can usually be made in time for the meeting. This kind of activity is not an intrusion into policy but an entirely proper contribution to the smooth functioning of government.
My second example, based on an actual incident, relates to a Bill that was placed before the Governor for Royal Assent. The Bill in question had originated in the Lower House but had been amended slightly in the Upper House. For some reason, the Lower House was not able to vote on the amendment before the Bill was presented to the Governor. When the deficiency was recognized, the Governor declined to sign the Bill until both Houses had approved it in exactly the same form. Of course, it would have been possible to sort this out at a later date if assent had been given, but what if the error had only been discovered at a much later date as a result of, say, litigation invoking the provisions of the Act? The action of an alert Governor had avoided a messy outcome and, in all probability, had saved the Government and the Parliament some embarrassment.
These were relatively routine matters but not all such matters are routine, and they can have far-reaching consequences. The success or otherwise with which they are resolved depends, of course, on the perspicacity and skill of the Governor of the day. This is, I suggest, another good reason for Premiers to choose wisely and cautiously when considering nominations for this important office.
* Peter Bassett joined the Australian Diplomatic Service in 1972 and, over the next twenty years, served in the Department of Foreign Affairs and Trade and in Australian embassies and high commissions in London, Moscow, Rangoon, Wellington and Tarawa where he was Australian High Commissioner. From 1992 to 1999 he was Official Secretary to two Governors of South Australia
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