The Constitutional Framework Of The Australian Monarchy
Written by The Rt. Hon. Sir Harry Gibbs, AC, GCMG, QC   
Sunday, 20 August 2000
One hundred years ago, the people of Australia were in the midst of a great constitutional debate; they had to decide whether the six colonies should unite as one nation. The debate had arisen because it was perceived that Federation was necessary for practical purposes: for example, to eliminate the inconvenience of the inter-colonial customs barriers, to ensure free trade between the colonies, and to enable them to unite for purposes of defence. The present debate, on the question whether Australia should become a republic, is different. It was not prompted by the perception of any practical need. There is no weakness in our Constitution that would be cured by making Australia a republic. Australia would not derive any material benefit from abolishing the monarchy. It now seems to be accepted, by those who are urging that Australia should become a republic, that the only possible advantage of the change would be purely symbolic. The proposal is to change our Constitution, which in this respect works perfectly well, although the change will not result in any practical improvement.

Many of those who have been most vocal in their advocacy of a republic seem to be unaware that the proposal raises serious constitutional questions. Their lack of understanding is shared by some sections of the media. The current catchphrase is that the change should be 'minimalist,' by which I suppose is meant that the least possible change should be made. For example, it has been said that the effect of a republic on the State Constitutions could be dealt with after Australia had become a republic. It has been suggested that some States might retain their relationship to the Queen even if Australia became a republic. It is difficult to take seriously the suggestion that Australia should become a republic only in part. The position of the States is a question that will inevitably need to be addressed before any proposal to create a republic is submitted to a referendum.

There is a strong argument that a referendum supported in a majority of States, but not in all States, would not be enough to affect the position of State Governors as representatives of Her Majesty. The position of the State Governors is entrenched by the Australia Act, and that Act can be amended only by an Act passed at the request or with the concurrence of the Parliaments of all the States, or by an Act passed pursuant to powers conferred on the Commonwealth Parliament by an alteration of the Constitution made in future through a referendum. However, it is doubtful whether an alteration to the Constitution which affected the Governors of all of the States could be made unless a majority of electors in all States voted in favour of the alteration. There is a further argument that the monarchical character of the Constitution is established by the Constitution Act (not merely by the Constitution itself), and that no amendments to the Constitution could validly give the Commonwealth Parliament power to amend that Act.

Another question that so far has only been superficially discussed is which of the powers presently vested in the Governor-General should be conferred on a President. That question is central to the debate, and I shall refer in a moment to the problems which it involves.

It is not my function to discuss the various arguments that have from time to time been advanced in support of the republican cause, although I need hardly say that I find quite unconvincing the claims that we would think better of ourselves and become more loyal and united, and more beloved and respected by our Asian neighbours, if Australia became a republic. There is another matter which I shall not discuss. Many of those who are now advocating that we should renounce our allegiance to the Queen have taken an oath of affirmation of allegiance to her. Many who took those oaths were obliged to do so by the Constitution itself. The fact that they now act in apparent violation of their solemn pledges raises serious questions that can be left for others to answer.

For centuries political thinkers have recognized that ideally a constitution should achieve two aims which, however, tend to be in conflict. On the one hand the government must have sufficient power to enable it to maintain a stable and ordered society; on the other hand, the Constitution must impose limits on the power of the government, so that it does not degenerate into despotism. Of all the member States of the United Nations there are comparatively few which approach even remotely this ideal of successfully balancing liberty and order, and most of those States which have been consistently successful in this regard are constitutional monarchies. Today, most constitutional monarchies are free and democratic, and most republics are not. While Australia has been a free and stable society continuously since 1901, there are only two republics, Switzerland and the United States, of which the same can be said.

One reason constitutional monarchies appear to be exceptional in the degree of unity and stability which they enjoy may be that the monarch is the centre of national loyalty above politics. A distinguished English lawyer expressed it this way: "One can be a loyal subject of the Crown while regarding the Prime Minister and his Party as a national disaster.' Whatever the reason, the fact remains that constitutional monarchies have proved in practice to be a more consistently successful form of government than republicanism.

Even a cursory glance at the Constitution reveals that the Governor-General, as the representative of the Queen, is invested with very wide powers. No law can be passed unless the Governor-General assents to it. He or she can decide when the Parliament shall sit, and may prorogue the Parliament and dissolve the House of Representatives. In cases of disagreement between the House of Representatives and the Senate, the Governor-General may in certain circumstances dissolve both Houses. The executive power of the Commonwealth is vested in the Governor-General, and he or she chooses the members of the Executive Council and appoints all Ministers of State. He or she is the Commander-in-Chief of the armed forces. These powers are given by the Constitution in plain words. There are other powers which the Governor-General almost certainly has in addition - for example, the power to declare war or to make peace. The Constitution gives the Governor-General a vital place in the exercise of legislative and executive power. The Governors of the States occupy a similar position in relation to the laws, the Parliaments and the executive government of the States.

Usually the Governor-General's powers are exercised on the advice of his or her Ministers. The Constitution does not require the Governor-General to act in accordance with such advice. He or she does so in conformity with constitutional conventions, rules of practice which are the product of a long development that commenced in England in the seventeenth century and has continued in Australia. The same is true in general of State Governors, although in a minority of States there are constitutional provisions which deal with the matter. However, occasions arise, with surprising frequency, which make it necessary for the Governor-General or the Governor to exercise these powers on his or her own account and not on the advice of the Prime Minister or Premier. The powers which may be exercised by the Governor-General or Governor in accordance with his or her own discretionary judgement are known as reserve powers; and, as I shall endeavour to show, their existence is necessary to the proper working of our system of government.

A critical question that would arise if Australia were to become a republic is what should be done about the powers which the Governor-General and the State Governors at present possess. It is important to remember that the constitutional conventions governing the manner in which these powers are exercised are not laws, and according to the legal authorities which have so far considered the matter they are not enforceable by the courts. The conventions are observed because they are regarded as binding, in the United Kingdom by the Queen, and in Australia by her representatives.

The reason why they are regarded as binding is that a tradition of political impartiality has developed round the Monarchy; indeed, in a democracy the very existence of a monarchy depends on it being above the storm of political passion. The Queen's representatives observe the same tradition, and if they did not observe it they could be instantly removed by the Queen, acting on the advice of her Australian ministers.

There was a recent case, close to home, of a Governor-General who refused to do his duty, and who would have been removed had not his timely resignation rendered that course unnecessary. In 1991 the Leadership Tribunal of Papua Niugini had found a Minister to be guilty of corruption, and had recommended his dismissal. Under the law the Governor-General was bound to give effect to that recommendation. He refused to do so, because the Minister was his friend and former political colleague. The Prime Minister despatched a message to the Queen, recommending the dismissal of the Governor-General; but the messenger had got no further than Singapore when the Governor-General, recognising the inevitability of his fate, resigned before he could be dismissed. Had he been a President, impeachment or some other protracted procedure would have been necessary to remove him. Constitutional monarchy provides a subtle and flexible system of checks and balances, without in any way detracting from national independence.

None of the conventions which govern the conduct of the representatives of the Queen has developed in relation to a President; and the reason for their existence - political impartiality - would not apply in the case of a President who was politically selected. However, some of those who argue in favour of a republic are reported as saying that the President, however chosen, would be above politics. Since I cannot believe these assertions to be disingenuous, I must conclude that they are surprising naïve. In Australia, politics has been allowed to intrude into institutions which the Westminster system put above politics. In Great Britain the Speaker is always imaprtial; that is far from true in Australia. The impartiality of the Public Service is threatened by political appointments. Even Governors-General have been chosen for political reasons, although those appointed have always scrupulously observed the conventions that govern their office. In the United States the framers of the Constitution devised a method of election of the President which they hoped would result in the most worthy citizen being selected, namely by means of an Electoral College. Of course nowadays the numbers of the Electoral College are elected because of their support for a particular political party, and the President is always chosen because he is the candidate representing a political party. Perhaps, if Australia became a republic, the first President might possibly be chosen for other than political reasons, since political institutions do not deteriorate at once, but if one thing is certain it is that eventually the office, if created, would become entirely a political one. That is so, whether the President is directly elected by the people, or chosen by an Electoral College, or chosen by the members of the Commonwealth Parliament or by representatives of the Commonwealth and State Parliaments.

If the powers now possessed by the Governor-General were conferred on a President, and no further change was made to the Constitution, the President would not be bound by the conventions which the Monarch's representatives observe. Whatever the Constitution provided, a political President could not be trusted to exercise his or her own powers impartially, and free from political influence.

It would obviously be a most dangerous course to confer on a President the powers which are at present vested in the Governor-General. Since (in the absence of some restrictive provisions in the Constitution) the President would be legally free to exercise those powers independently, and would in any case be likely to do so in a political way, the result would be to give immense strength to the Executive Government. Already during this century there has been a marked increase in the power of the Executive vis-à-vis that of the Parliament. That situation is not perculiar to Australia. In addition, within the Executive itself, there has been a considerable increase in the power of the Prime Minister vis-à-vis the other members of the Ministry. Were a President to be given the present powers of the Governor-General, the strength of the President and the Prime Minister in conjunction could well enable them, if they had a mind to do so, to proceed on the road to dictatorship.

We find a warning in the political history of India, whose Presidency is sometimes suggested as a possible model for ours. In June 1975 Mrs Indira Gandhi was found by a court to have committed electoral irregularities. Her position as Prime Minister was under threat. Without delay, and without first informing the Cabinet, she approached the President, who at her request made a proclamation of internal emergency and, in so doing, enabled Mrs Gandhi to exercise dictatorial powers. By the next morning many of the Opposition party had been imprisoned; hundreds more were imprisoned later - Habeas Corpus was suspended. That is by no means the only example of the way in which a democracy can slide into a dictatorship if the Constitution does not sufficiently curb the power of the Executive. Witness Nazi Germany.

The framers of the United States Constitution recognized that if the President was to have full executive power, it would be necessary to limit that power by an intricate arrangement of checks and balances. Since it appears, at least at present, that the advocates of a republic do not want the powers presently exercised by the President of the United States to be conferred upon a President of Australia, it is unnecessary to discuss the merits and demerits of the United States system. It should, however, be kept clearly in mind that the most potentially disastrous of all possible courses would be to give a President the executive power of the United States Presidency without at the same time providing the checks and balances of the United States Constitution, which would include greatly increasing the status and power of the Senate. What is more important for the purposes of the present discussion is that if the present powers of the Governor-General were to be conferred upon a President, it would be necessary to devise new and effective limits on the President's power; if they were not to be conferred on a President, the re-allocation of those powers would mean that there would have to be a major constitutional change. In any event, no mere minimal change will be involved.

What then are the possibilities if Australia is to become a republic and the powers of the Governor-General are to be re-allocated? Who is to exercise the powers now vested in the Governor-General? It may be asked, by those who are not versed in constitutional matters, why the powers could not simply be conferred on the Prime Minister or the Executive Council, since for the most part the Governor-General now exercises those powers on the advice of the Prime Minister or other Ministers. One answer is that some at least of those powers may, as I have already mentioned, be exercised by the Governor-General (or, in the case of a State, the Governor), according to his or her own discretion, and contrary to the advice of the Prime Minister (or Premier). These are the so-called reserve powers. The occasion for their exercise is usually some serious breach, or apprehended breach, of the law, or a political situtation which makes it necessary for the representative of the Crown to act to ensure that the principles of the representative government, or of responsible government, or of federalism - notions basic to our Constitution - are observed.

Clearly, if the Government is proceeding on a course which is flagrantly illegal (and if the situtation is not one which can effectively be resolved by legal proceedings), the reserve power of the Governor-General (or Governor) to dismiss the Ministry is one which must be exercised in accordance with a decision made by the representative of Her Majesty, himself or herself, for it would be a futility to have to act in compliance with the wishes of a Ministry which was determined to flout the law. It would have been absurd for Sir Philip Game in 1932 to have been compelled to ask Mr Jack Lang for advice as to what should be done, given Mr Lang's clear intention to refuse to meet New South Wales' legal obligations. Similarly, if a Prime Minister or Premier attempts to defy the constitutional conventions which uphold the principles of representative and responsible government, the Governor-General or Governor must act without the advice, or even contrary to the advice, of the Prime Minister or Premier. Suppose that, after an election, a Prime Minister who lacks a majority in the House of Representatives refuses to resign, or that a Prime Minister who has been defeated on a vital vote of no confidence or has been denied supply advises the Governor-General that the Ministry should be allowed to cling to office. The reserve powers would become meaningless if they could be exercised only in accordance with the advice of a Prime Minister or Premier who was acting in breach of a basic constitutional convention.

Of all the suggestions that have been made as to the manner in which the reserve powers presently exercised by the representatives of the Constitutional Monarch should be exercised under a republic, that which is least likely to prove effective, and most likely to lead to grotesque results in practice, is the exercise of the reserve powers by the House of Representatives (or Legislative Assembly in the case of a State). Obviously the exercise of the powers in that way would be a futility when the majority of the Chamber was supporting the Government in pursuing an illegal course. Further, the suggested procedure would not work satisfactorily where no party had a majority in the Chamber. Let me give a few examples. Consider the simple case of the appointment of a Minister. Suppose that the numerous faction of the ruling party, in deciding on the choice of a proposed Minister, had overlooked the strong claims of another faction. On a vote to appoint the Minister the disgruntled faction might vote with the Opposition, or abstain from voting, so that the party's nominee would be defeated. Or take the situation that exists in New South Wales today, where a number of Independents hold the balance of power in the Legislative Assembly. If the matter were to be left to the decision of the Chamber, the Independents and the Opposition together could dictate the Government's choice of a Minister; government would be impossible.

Two quite recent events in Australia illustrate how a wise and fair Governor can guide Parliament through a crisis which Parliament itself could not resolve so satisfactorily. Before the election held in Tasmania in May 1989, the Liberal Party had an absolute majority in the House of Assembly; its leader, Mr Robin Gray, was Premier. After the election the House of Assembly was composed of 17 members of the Liberal Party, 13 members of the Labor Party and 5 Green Independents. Mr Gray was again sworn in as Premier, until Parliament met. The Governor, Sir Phillip Bennett, was pressed with the opinion that if Mr Gray was defeated in the House he could advise the Governor to dissolve the House and call a new election, and that the Governor would be obliged by convention to act on the Premier's advice. The Governor did not act on that view. Eventually, after a document had been signed the Greens which enabled the Governor to be satisfied that Mr Michael Field, the Leader of the Opposition (i.e. of the Labor Party), could form a government which would be likely to enjoy the confidence of the House for a reasonable period, the Governor commissioned the Leader of the Labor Party as Premier. If the matter had been decided by the House, the Leader of the Labor Party might still have become Premier, but there would have been no certainty of obtaining from the Greens an assurance of stability of government. Another political crisis arose in Queensland in 1987. The Premier, Sir Joh Bjelke-Petersen, whose leadership was being challenged, advised the Governor, Sir Walter Campbell, that he proposed to resign, his object being in this way to get rid of some of his Ministers who were no longer in favour with him; he then proposed to obtain a fresh commission to form a new Ministry. Sir Joh had to abandon this plan when Sir Walter pointed out to him that if he resigned Sir Walter would not necessarily re-commission him as Premier. Soon afterwards Sir Joh was deposed as leader of his party, and his successor as party leader (Mr Michael Ahern) was commissioned as Premier, but only after Parliament had demonstrated its support for him. In that case Parliament ultimately resolved the issue, but one can only speculate what the result would have been if the power to dismiss and appoint Ministers had lain with the Legislative Assembly. No-one can predict the sort of questions that the vagaries of political life may raise, and to confer on a Parliamentary Chamber powers to appoint and dismiss Ministers would be a radical change with unforseeable consequences.

Yet another suggestion is that the Constitution might be amended to provide that the powers of the President should be exercised in accordance with the conventions formerly observable by the representatives of The Queen. That would mean that the High Court would have power to decide what those conventions require - some conventions are as yet uncertain - and to enforce their observance. The boundaries between the three functions of government - legislative, executive and judicial - have already become blurred in Australia, but such a proposal would break down the separation of powers even more. The suggestion that in certain circumstances it would be the High Court that should decide such questions as whether a Prime Minister should be appointed or dismissed is probably the most extreme of all the possible solutions that may be suggested. In an emergency the delay and uncertainty that would result from the litigation could paralyse government. That would be so even if an attempt were made to codify the conventions.

Of course, if Australia did become a republic some answer would have to be provided to the question of how the powers (including the reserve powers) presently vested in the Governor-General and the Governors should be exercised. What I have endeavoured to show is how difficult these problems are to solve, how unsatisfactory any possible solution is likely to be, and how false and simplistic it is to say that conversion to a republic can be effected by a mere minimal change.

There is a further situation in which the use of the reserve powers could become necessary, and which brings the problems of conversion to a republic clearly into focus. While the Constitution remains as it is at present the situation can arise that the Senate has refused supply and the Government, with a majority in the House of Representatives, has attempted to govern without supply. To uphold the Constitution, such a government must be dismissed, and only a Governor-General could be relied upon do to this without political bias. Some of those who favour a republic have said that they wish to make it impossible for any President to do what Sir John Kerr did in 1975. I do not wish to distract attention from the issues relevant to this debate by rehearsing the arguments about the propriety of the dismissal, but I am bound to say, in fairness to the memory of Sir John Kerr, that whether he was right or wrong in what he did, he acted in the honest and conscientious belief that he was doing his duty in accordance with established constitutional conventions and that he has been unfairly vilified for his actions. When it comes to be recognized that the establishment of a republic would not remove the possibility of a repetition of the events of 1975, the pressure will grow for more extensive changes to the Constitution. Already it has been widely suggested that the establishment of a republic should be accompanied by proposals for further reform, and among the reforms that have been suggested are the abolition of the States, or at least the reduction of their powers, the restriction of the powers of the Senate and the recognition of Aboriginal rights. Of course, Prime Minister Keating and some members of the Committee that he has appointed, have said that they do not favour changes as extensive as that. There are, however, others who hope and expect that the coming of a republic will be accompanied by other significant changes to the Constitution and who will endeavour to force the making of those changes. Even if no other alterations to the Constitution were expressly made, the very fact of replacing the Monarch (whose representatives act in accordance with conventions requiring strict impartiality) with a President (who might well be a centralist by political allegiance as well as personal inclination) would further tilt the balance of power in favour of the Commonwealth and against the States. That would undoubtedly occur if the States were so misguided as to agree that the President should perform the role of the State Governors.

When any reform is mooted the sensible course is to consider its advantages and the disadvantages and then to decide whether, on balance, the reform is desirable. Those who are pressing upon us the idea of a republic have not invited the public to consider the proposal in that way. What they say in effect is: we must have a republic, help us to decide the best way to bring one about, but do not trouble yourselves with any thought of the wisdom or consequences of the change. For some people, the idea of a republic had an initial emotional appeal. I hope that if this debate is to continue some reason will now be injected into it, and that the public will hear more about the pros and cons of a republic than about the sort of republic that might be best for Australia, on the unsubstantiated assumption that a change will be made.

I have endeavoured to show, first, that there is no defect in our Constitution that would be cured by establishing a republic, and that no material benefit would result from the establishment of a republic. Secondly, it is misleading (as well as an abuse of language) to speak of a 'minimalist' change to a republic; extensive amendments to the Constitution would be necessary to make the change. Thirdly, there are grave possible disadvantages in changing our Constitution to a republican one.

It may be too much to say, as one distinguished legal commentator has claimed, that the removal of the Monarchy would cause the collapse of the federal system. It is, however, true to say that although some of the consequences of such a change are unpredictable, they would be likely to include a strengthening of the power of the Executive and a diminution of the power of the States and the Senate. At present the Governor-General (and in a State the Governor) holds the key to the exercise of legislative and executive power, and when the need arises can use the reserve powers to ensure that constitutional principles are upheld; on the other hand, a President could not be expected to exercise the reserve powers, or any powers of the office, with the impartiality that is confidently expected of representatives of the Crown. A scholarly work, published in 1991, lists the incidents which, in various places which have adopted the Westminster system, have called for the exercise of reserve powers; the extraordinary number and range of such incidents shows that any notion that vice-regal office is purely ceremonial is quite mistaken. The work makes it clear that unexpected crises arise which demand high statesmanship on the part of the holder of the vice-regal office, and that it is essential that such an office be filled by a fair-minded person whose decisions will command respect. That is particularly true in the case of a federation. It is too much to expect that a political President would rise above partisan considerations; experience elsewhere suggests the contrary.

Thomas Jefferson, himself a revolutionary, wrote: "Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes." Here, not only is there no cause for abandoning our Constitutional Monarchy, but good cause for retaining it.

I have said that if this debate is to continue I hope that it will be a rational one. But must Australia be obliged to continue the debate? As I have pointed out, a change to a republic cannot easily be made - success at a referendum, itself difficult to achieve, would probably not be enough. If the change to a republic were made, that would not help in the slightest to solve the very grave problems which now confront Australia. Surely it would be better for the nation to devote its energies to the real matters of concern to our society, and put aside this distracting, divisive and probably futile, controversy.