Constitution Building For A Possible Republic - The Problems
Written by The Honourable Mr Justice Ken Handley, AO   
Sunday, 20 August 2000
A reasonable understanding of our Constitution and the way it works will demonstrate to a fair minded person that responsible change to a republic requires much more than removal of all references to the Queen, a change of name for the Governor-General, and provision for the election, term of office, and removal, of a President. Earlier minimalist proposals for an Australian republic were either uninformed or irresponsible. This paper attempts to describe the role of the Crown and the Governor-General in the Constitution.

The Crown and its powers exercisable by the Governor-General provide the framework for the machinery of government. A Governor-General's powers are exercised practically daily. The Sovereign or the Governor-General are referred to in 42 out of the 128 sections of the Constitution. However, as you know these powers are exercised on the advice of the elected Government. This system has worked well. Under the present Constitution of 1901 the so-called reserve powers have only been exercised once. At all other times the Governor-General has accepted and acted on the lawful advice of his Ministers, and no Prime Minister has governed unconstitutionally.

This has happened for several reasons. First there are established conventions which govern the exercise of the powers of the Crown in Britain and Australia, and the political realities which created and sustain those conventions. Secondly under s 2 of the Constitution the Governor-General holds office at the pleasure of the Crown and is liable to removal at any time on the advice of the Prime Minister.

The conventions governing the exercise of the powers of the Governor-General provide a system with checks and balances which has served Australia well. Well known and well regarded republican constitutions have not worked as well. The United States had the Watergate crisis when the executive branch of government, headed by President Nixon, for a considerable time was in open conflict with Congress and the federal judiciary. It also had a prolonged budget crisis last year arising out of conflict between President Clinton and Congress. And in India for some years Mrs Ghandi governed as a dictator with the collaboration of the President.

The powers of the Crown exercised by the Governor-General are normally of no political importance, although they are of fundamental legal importance. They are exercised on the advice of the elected government which accepts political responsibility for the actions of the Governor-General carried out on its advice.

The powers of the Governor-General only become politically important when they are exercised without, or contrary to, the advice of the government, and on the Governor-General's own responsibility. These are the so called reserve powers.

The only power now exercised by the Queen personally is the power of appointing our Governors-General, something she does every five years or so. She also has the power to dismiss a Governor-General at will, but this power has never been exercised. We therefore have what can fairly be described as a Crowned republic with the Australian people legally and politically sovereign, and the Prime Minister and Parliament responsible to the people.

A review of the more important powers of the Governor-General demonstrates why more than minimal changes are necessary. These powers fall into three groups, those relating to Parliament, those relating to the Executive, and those relating to the courts. First the Parliament. Section 1 of the Constitution provides:

The legislative power of the Commonwealth shall be vested in a Federal Parliament which will consist of the Queen, a Senate, and a House of Representatives.

This is explained by s 58 which provides:

When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen's Assent lie shall declare, according to his discretion, but subject to this Constitution that he assents in the Queen's name or that he withholds assent...

The first power of the Governor-General therefore is a power of veto over the Federal Parliament. This power has never been exercised and any Governor-General who attempted to exercise it, except on the advice of the Prime Minister, would be dismissed by the Queen. A minimalist republic would transfer that power to a President, but the checks and balances currently provided by the Queen's power to dismiss the Governor-General at will would no longer be there. It would be quite irresponsible for us to have a Republican Constitution which gave such power to a President, and the Australian people are not likely to support a referendum which proposed such a power.

Then there are powers relating to the meetings of Parliament. Section 5 provides:

The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives...

Prorogue means adjourn. The Constitution contains only three relevant restrictions on these powers. The second paragraph of s 5 requires Parliament to be summoned no later than 30 days after a general election, s 6 requires it to meet at least once every twelve months, but does not say for how long, and s 28 provides that every House of Representatives shall continue for not more than three years from its first meeting.

We cannot pass these powers to the President of an Australian republic. A President elected for a fixed term who inherited these powers could exercise them to frustrate the work of Parliament particularly during the last year in the life of a House of Representatives when there is no constitutional requirement for Parliament to meet. See s 28. A determined President with these powers could frustrate, or delay indefinitely, the exercise of any power which the Parliament may be given to remove the President.

A Governor-General has important powers in relation to general elections. Section 32 provides that the Governor-General may cause writs to be issued for general elections in the House of Representatives, and that writs shall be issued within 10 days after a House expires or is dissolved.

A Governor-General who refused to act on proper advice on these matters would be dismissed by the Queen. A Prime Minister who persisted in tendering unconstitutional advice on those matters would be dismissed by the Governor-General. What would happen if a President did not issue writs for a general election at the end of a 3-year term for the House of Representatives? There will be no one who can dismiss and replace the President at will. It may be possible for the High Court to enforce the 3-year maximum term in s 28 by declaring void legislation passed after that term has expired. However in the face of s 32 the Court, on current principles, could neither issue the writs for a general election itself, nor order the President to do so. This was decided by the High Court very early in the life of our Constitution in The King v The Governor of South Australia.' Under the minimalist proposal, the High Court would be in the same position, and could not order a President to issue the writs for a general election.

These are not insoluble problems. There are republican constitutions in other countries which have provisions to deal with them. You will note in s 33 that the Speaker has the primary responsibility for the issue of writs for by-elections. However the problems require careful attention. Any Australian republic which is to function within the general framework of the present Constitution will need to have inserted into it new provisions which address these problems.

You may be thinking that these things could never happen in Australia and you may be right. However a Constitution should not be framed or amended on the basis that "she'll be right". The minimalist proposal is definitely in the "she'll be right" category. The Constitution should be framed not only to work in a crisis, but also, as far as possible, to prevent a crisis ever arising. The High Court has said that a Constitution is to be interpreted as an enduring organic instrument of Government. A constitution should be framed on the same basis. After all we design buildings for 100 year cyclones and plan for 100 year floods.

The second important group of the Governor-General's powers in Chapter 11 of the Constitution relate to the Executive Government. Section 61 provides that the executive power of the Commonwealth though vested in the Queen is exercisable by the Governor-General. This power extends to the execution and maintenance of the Constitution and the laws of the Commonwealth. Section 62 provides for a Federal Executive Council to "advise" the Governor-General. It is chosen and summoned by him and its members hold office "during his pleasure". Section 64 provides for the Governor-General to appoint "the Queen's Ministers of State for the Commonwealth" as the members of the Federal Executive Council. These were the powers that Sir John Kerr exercised on 11 November 1975 when he dismissed Prime Minister Whitlam and his Cabinet and appointed Mr Fraser caretaker Prime Minister.

Under s 68 the Governor-General has the command of the Armed Forces of the Commonwealth. This means that he can give them orders and appoint and remove their senior officers. These are an awesome group of powers for a Head of State who could not be removed from office at will.

The Governor-General also has important powers in relation to the High Court and the Federal judiciary. Section 72 provides that Judges of the High Court, and of other Federal Courts, are to be appointed by the Governor-General in Council, that is the Governor-General acting with the advice of the Executive Council under s 63. However as we have seen under ss 62 and 64, the members of the Executive Council hold office at the pleasure of the Governor-General. They could be members of the opposition as was the position after the dismissal of Mr Whitlam. Moreover under the last paragraph of s 64 they need not even be Members of Parliament when appointed, although they can hold office for no longer than 3 months unless elected to Parliament in the meantime. A President with these powers could appoint Judges of the High Court, contrary to the wishes of the elected Government, and those judges unless dismissed by Parliament and the President would hold office until the age of 70.

The conventions which require a Governor-General to exercise his legal powers on the advice of Ministers who have the support of a majority in the House of Representatives are not in the Constitution. The Constitution does not even mention the office of Prime Minister. The conventions are commonly acknowledged to be non-j us tici able, that is not enforceable in the courts. Lane' defines a justiciable issue as one that is determinable by recognised legal principles or positive law. At present there is no need for the courts to become involved, because a political crisis will be resolved either by the exercise of the reserve powers by the Governor-General, or by the removal of the Govern or-General by the Sovereign.

The minimalist proposal would leave these powers in the hands of a President holding office for a fixed term and removable only after delay and with difficulty. It has been suggested that the existing conventions would automatically continue. They probably would at least for a time. But the sanction which currently secures their observance-dismissal at the pleasure of the Sovereign-will have gone. If the power of removing a President is vested in the Parliament under the existing arrangements for holding meetings of the Parliament, a President could easily make that power unworkable.

It has been suggested that the High Court could fashion a remedy but I don't believe this is possible, and it is certainly not desirable for that Court to become embroiled in political issues. The central difficulty is that if the conventions were legally enforceable they would be inconsistent with the constitutional text. The High Court in recent years has recognised some implications in the Constitution which had not been recognised before, but the sections which confer powers on a Governor-General are intractable. They are his powers and he alone can exercise them. The manner in which he does so cannot be controlled by the courts. The High Court has said that the justice and wisdom of legislation passed by the Parliament in the exercise of its powers under the Constitution "are entirely for the Legislature and not for the Judiciary. This is only another way of saying that the political conventions and considerations which influence and restrain the exercise by the Parliament of its legislative powers are not questions for the courts, that is they are not justiciable. Equally the justice and wisdom of the decisions of a Governor-General, or future President, in the exercise of his or her powers under the Constitution must also be matters for his or her judgment. The existing powers of the Governor-General and of a future President under the present Constitution will therefore remain non-justiciable.

A mechanism, which could be uncontroversial, but may not be, would be required to deal with situations in which a President through death, accident, or illness was incapable of discharging the duties of the office. This problem does not arise at the moment because the Sovereign can always remove the incapable Governor-General and appoint a successor. It will be necessary to have either a separate Vice President, or else a Vice President ex officio, who might be the senior State Governor who would be able to act during the absence or incapacity of the President, or while the office was vacant.

This review demonstrates that the Crown is central and fundamental to the working of our Constitution. This is hardly surprising. It was structured as a Constitutional Monarchy and that is how it works and has always worked. This review demonstrates that the Crown is not a mere symbolic appendage of the Constitution. It is irrelevant politically except in a constitutional crisis, but it is not irrelevant legally. Many of you will probably have been surprised by the wide, and indeed sweeping, powers vested by the Constitution in a Governor-General. In theory they are capable of being exercised in a most undemocratic way. In practice this has not happened, and is not likely to happen, while the Governor-General holds office at the pleasure of the Crown.

By a paradox the hereditary Sovereign can be guaranteed to exercise her power to dismiss a Governor-General where this is necessary to ensure that a Governor-General's powers are exercised in accordance with democratic and constitutional principles.

It would be irresponsible to simply graft a Republican Head of State onto a constitution like ours that has been structured for a Constitutional Monarchy. Such a hybrid cannot work satisfactorily. It could actually promote constitutional crises, and it would not guarantee a quick, lawful and democratic solution if such a crisis should arise. A constitution like that will not serve Australia in the next century as well as our existing Constitution has this century.

These are some of the problems associated with converting our present Constitution to a Republican model.