Oz Politics

Introduction

Although the Australian Constitution gives the exercise of a wide range of powers to the Governor-General, the central convention of responsible government is that the Governor-General only exercises these powers in accordance with the advice tendered to him or her by the Prime Minister and the other ministers of State. The only exception to this convention is what is known as the “reserve powers”.

The reserve powers allow the Governor-General to act with some small degree of personal discretion, without or contrary to Ministerial advice. They are the right of the Governor-General to restrict, refuse or override the authority of an elected government. The use of the reserve powers is restricted to those very few situations when others fail to adhere to the central conventions of responsible government, or when the agreed conventions fail to supply an answer to a situation.

In practice, the reserve powers are only an instrument of last resort. If a matter can be resolved by the parliament or by the courts, then the Governor-General should leave that matter to them without any intervention. The reserve powers are not a broad mandate for the Governor-General to ensure good government, or to protect the nation should the executive arm of government make decisions that the Governor-General does not believe to be in the nation’s interests.

Before considering the reserve powers, it is worthwhile reviewing how the conventions of responsible government work (including the conventions about the reserve powers). These conventions are not written down. There is no authoritative source. Their precise scope is unclear, and they are sometimes contested. They are not rules of law. They cannot be deduced from or defined by past use. They are not enforceable in the courts. Sanctions for breaches of convention are generally political, for example: sustained public criticism, or the refusal of the other participants in the system of government to cooperate with one or both the Prime Minister and Governor-General.

Another thing to note is that the formal constitutional powers given to the Governor-General are far greater than he or she ever exercises personally under the conventions of responsible government. Some argue that under the Australian Constitution the Governor-General could legally sack the government; appoint his family members as members of the Federal Executive Council and Ministers of State (for a period of up to three months); and then declare war on New Zealand.

However, should this most unlikely breach of the conventions of responsible government ever occur, some believe the Queen could exercise her own “reserve powers” and sack the Governor-General.

The four reserve powers

It is generally accepted that there are four reserve powers. They are the powers to:

• appoint a Prime Minister (section 64 of the Constitution);
• dismiss a Prime Minister and thus a government (section 64 of the Constitution);
• refuse to dissolve the House of Representatives for an election (sections 5 and 28 of the Constitution); and
• force a dissolution of the House of Representatives for an election (sections 5 and 28 of the Constitution).

Some contend that almost every power given to the Governor-General is discretionary and, therefore, could be used as a reserve power. Others contend that the Governor-General has full discretion in respect of those powers that are conferred on him alone, rather than the Governor-General in Council, (that is to say the Governor-General acting with the advice of the Federal Executive Council).

Such views, however, undermine the central principle of responsible government. For this reason these views are rejected by almost all political commentators. Almost all political commentators agree, for example, that the Governor-General does not have the reserve power to refuse assent to a proposed law that has passed both Houses of Parliament (under section 58 of the Constitution). While the Governor-General retains the right to “advise, counsel and warn” about a proposed law, if advised by the Prime Minister to sign a proposed law, he must either sign the law or resign. The Governor-General cannot continue in office and refuse to give royal assent to a proposed law, if he has been advised by the Prime Minister to give it.

Appoint a Prime Minister

The need to appoint a Prime Minister can arise following:

• a House of Representatives election;
• the resignation of a Prime Minister;
• the Prime Minister being deposed as the parliamentary leader of his/her party;
• the death of a Prime Minister; and
• the dismissal of a Prime Minister.

By convention, the person appointed as Prime Minister is leader of the party (or coalition of parties) in the House of Representatives with an absolute majority (50% plus 1) of members. Sometimes, no party or coalition has an absolute majority, but there is someone whose party or coalition has the confidence of the House to pass legislation (especially money Bills). In these situations, that person would be appointed Prime Minister. The Prime Minister in this case would head a minority government. A number of State Premiers over the last decade have headed minority governments.

Also by convention, a Prime Minister must resign if, following a general election, his/her party or coalition does not have the confidence of the House of Representatives, or if the House of Representatives pass a motion of no confidence in the Prime Minister or the Government. Prime Ministers are also expected to resign if someone else as party leader replaces them. A Prime Minister should either resign or advise an election if the Parliament rejects or refuses to pass a money Bill (that is to say a Bill which authorises the expenditure of money from consolidated revenue - for example the Federal Budget Bills).

The usual practice is that an outgoing Prime Minister recommends to the Governor-General the person who (according to the above conventions) should be appointed as the next Prime Minister. Appointments in these situations are not an example of the Governor-General’s reserve power. However, there are times when the Governor-General might have reason to exercise the reserve powers and select a Prime Minister at his discretion, including when:

• the situation is very fluid (for example, following an election) and neither the current Prime Minister nor the Leader of the Opposition is able to form a government with the confidence of the House;
• the outgoing Prime Minister recommends to the Governor-General someone who would not (or does not) have the confidence of the House of Representatives as the next Prime Minister.
• the Prime Minister dies in office and it is unclear whom the governing party might choose as their new leader; and
• the Governor-General has dismissed a Prime Minister who continues to have the confidence of the House, then the Governor-General may well choose to appoint another member of Parliament as a “caretaker” Prime Minister pending a general election.

This reserve power has been exercised following the deaths of Prime Ministers Lyons in 1939, Curtin in 1945 and Holt in 1967. The Governor-General selected the then Leader of the Opposition, Malcolm Fraser, as a caretaker Prime Minister following the dismissal of Prime Minister Gough Whitlam in 1975.

Dismiss a Prime Minister

By convention, the only times a Governor-General would dismiss a Prime Minister are:

• when the Prime Minister refuses to resign in situations where the convention calls for resignation (for example, after losing a motion of no confidence in the House; after losing the leadership of the majority party or coalition; or after failing to get a money Bill passed by the Parliament); and
• when a government acts illegally or persists in breaching a fundamental constitutional provision and those breaches cannot be brought before the courts.

Only one Australian Prime Minister has been dismissed, in 1975, when the government of the day was unable to obtain supply (that is to say. get a money Bill passed by both Houses of Parliament).

The then Premier of New South Wales (Jack Lang) was dismissed in 1932 by the then Governor for acting illegally. However, many commentators believe the then Governor of New South Wales, Sir Philip Game, acted improperly because in that case the courts could have dealt with the question of the alleged illegality.

It needs to be noted that just as a Governor-General can dismiss the Prime Minister, the Prime Minister can request the Queen to dismiss the Governor-General and appoint another. By convention, the Queen is obliged to follow this advice. While some suggest it may take some days for all the paper work to be completed, allowing the Governor-General to act first; others argue that with modern communications the Queen could act almost immediately.

Refuse an election

A Governor-General might refuse a dissolution of the House of Representatives and therefore refuse to grant an election when so advised by the Prime Minister, if that Prime Minister has lost the confidence of the House and there is another member of Parliament who now has the confidence of the House. That is to say, there is no need for an election because an alternative government can be formed. A Governor-General is also likely to refuse to dissolve the House of Representatives following an election which the Prime Minister has just lost, and where that Prime Minister advises a new election rather than resigning his commission.

Some believe that a Governor-General might refuse a double dissolution if he thought the issue not significant enough. However, this has never happened in Australia’s history.

Governors-General have refused three dissolutions of the House of Representatives between 1904 and 1909. None have been refused since.

Force an election

A Governor-General may want to force the dissolution of the House of Representatives and call an election following the dismissal of a Prime Minister and his government.

If the Governor-General wants to call a double dissolution election following the dismissal of a Prime Minister, it is generally accepted that he must first appoint a (usually caretaker) Prime Minister who would then advise a double dissolution. Of course this requires the necessary Constitutional triggers be in place for a double dissolution: a Bill that has been twice rejected by the Senate in the same form not less than three months apart. That is to say, the reserve power to call an election only applies to the House of Representatives and it does not apply to either half Senate elections or double dissolutions.

There are no Federal examples of an exercise of this reserve power. Technically, the 1975 Federal election was not an example of the use of this reserve power; rather it was an example of the Governor-General acting on the advice of a caretaker Prime Minister to call a double dissolution.

Codifying the reserve powers

While the exercise of the powers of the Governor-General are a matter of unwritten convention, there have been many attempts to codify these powers - especially in the context of the debate about Australia becoming a republic and repatriating its head of State.

The Republic Advisory Committee developed one example of codification in their 1993 report (pages 108-112). However, it should be noted that this example of codification introduces a number of checks and balances, which are not a part of the current conventions.