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.
Governor-General Sir John Kerr’s seeking advice from the Chief Justice in 1975 was, according to The Australian on 12 April, 2013, was a “dangerous precedent”. This is not so, as Professor Anne Twomey says, it is “actually quite hard to find an occasion when judges have not been involved in advising upon the exercise of reserve powers”.
This practice is not restricted to Australia. Lord Wilberforce told me a few years later that the Palace often sought advice from him and other senior Law Lords.
Where a viceroy is considering action against a delinquent government, it would be ridiculous if he were restricted to seeking advice from the delinquent. The exercise of the reserve power is at the Governor –General’s discretion. Clearly he may consult anyone competent.
A glance at JB Paul’s recent articles on the dismissal in the March and April 2013 issues of Quadrant and Sir David Smith’s book “Head of State” shows that while Gough Whitlam was leader of the opposition , he attempted to have the Senate refuse supply with the consequencethat the Gorton government would be then constitutionally bound to resign. He even had Senator Murphy table a paper listing the 169 earlier attempts by the Opposition to achieve this declared end.
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".
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.
[ 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.
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?
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.
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.
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.