Contents ...
Reading
- Blackshield & Williams chapter 10
Additional reading
- This final lecture deals with the relationship
between the Parliament and Executive (in particular the Queen and
Governor-General), by examining the events surrounding the 1975
dismissal of the Whitlam Labor government (the only situation at
federal level where the nature and scope of Executive reserve powers
has ever been tested). This area of the Constitution is
important, because, although such crises are very infrequent, they
have the potential to cause major social and political dislocation and
even war or revolution (e.g. the recent Fiji constitutional crisis, or
the current situation in Indonesia between President Wahid and the
Parliament)
- I do not intend dealing with the role and powers
of the Executive generally; the so-called 'nationhood' power; or the
"Shield of the Crown" (including inter-governmental
immunities). These parts of Chapter 10 will be dealt with in the
semester 2 unit Constitutional Law.
- There are numerous sections of the Constitution
which confer powers and functions on the Governor-General e.g.
sections 5, 32, 57, 58, 60, 61, 64, 68, 72.
- Most of these sections use the formulation
"the Governor-General in Council" (i.e. the Executive
Council - see sections 62 and 63). It is beyond question that
where this formulation is used, the Governor-General must act only on
the advice of the Prime Minister.
- However, there are some sections which do not use
this formulation e.g. section 61 which simply vests the whole of the
executive power of the Commonwealth in the Queen and states that it is
to be "exercisable by the Governor-General"; or section 62,
which simply provides that the Governor-General may choose his
Executive Council.
- A minority of commentators have argued that any
section where the formulation "the Governor-General in
Council" is not used is a potential area where, at least in some
circumstances, the Governor-General is free to act on his own
judgment. However, that is certainly not the generally accepted
view. Indeed if it were accepted, the office of Governor-General would
have powers approaching those of an absolute monarch. The
accepted view is that there are only 4 powers which the
Governor-General may properly exercise on his own judgment (i.e. other
than on the advice of the elected government or strictly in accordance
with convention).
- It is generally accepted that there are 4
so-called 'reserve' powers i.e. powers that may in some circumstances
properly be exercised by the Governor-General either without the
advice of the Prime Minister or even contrary to it. They are the powers
to:
- appoint a Prime Minister (section 64 of the Constitution);
- dismiss a Prime Minister and thus a government (section 64);
- refuse to dissolve the House of Representatives (sections 5, 28);
and
- force a dissolution of the House of Representatives (sections 5 and 28 of
the Constitution).
- One can clearly see that the Head of State needs
to have some freedom of action in these areas at certain times e.g.
the power to appoint a Prime Minister may be needed where a PM dies in
office and it is not clear who the governing Party intends to elect as
his successor (the Harold Holt situation). The power to dismiss
a PM may be needed where the government refuses to resign or advise an
election despite having lost the confidence of the Lower House.
However, some possible uses of the reserve powers are more
controversial. The situation surrounding the Whitlam dismissal
provides the classic example.
- The rules as to when a Governor-General is
entitled to exercise these powers on his own initiative are found only
in unwritten conventions, not in the text of the
Constitution.
- For a useful, straightforward discussion of the
reserve powers, see The Governor-General's reserve powers
from Palmer's Oz Politics. For a more complete coverage see:
Downing S, The
Reserve Powers of the Governor-General - Cth
Parliamentary Library Research Note 25 1997-98 (23 January 1997)
- The generally accepted scope of the conventions as to when a Governor-General
could properly dismiss a Prime Minister prior to the events of 1975
were:
- when the Prime Minister refuses to resign in situations where
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
- The events of 1975 have arguably added a third situation, namely
inability to obtain Supply, although some still argue that the
Governor-General's actions were entirely improper, and that there are
still only 2 situations where the Governor-General may properly
exercise his power of dismissal (namely loss of a no
confidence motion; and persistent and serious illegal conduct).
- Note that it is meaningless to talk about "legality" in
relation to the Governor-General's exercise of the reserve
powers. They are universally accepted as being non-justiciable
(i.e. not subject to adjudication as to the legality of their exercise
by the High Court or any other court). Thus, the only sanctions
for improper exercise of the reserve powers are political ones
(including the fact that the Queen can, and is ultimately obliged to,
dismiss the Governor-General on advice of the Prime Minister - as to
which see below).
- Note, too, that although there is general agreement about the scope
and meaning of the conventions in most situations, there are some
areas where disagreement and uncertainty remain. Some regard
this as a strength of Australia's constitutional system, while others
view it as a source of potential instability. Uncertainty about
the exact content of the conventions clearly played a role in the
events of 1975.
Constitution section 53 reads:
"Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a
proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its
containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand
or payment or appropriation of fees for licences, or fees for services under the proposed law.
The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys
for the ordinary annual services of the government.
The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.
The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not
amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of
Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications.
Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect
of all proposed laws."
Constitution section 57 reads:
"If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it
with amendments to which the House of Representatives will not agree, and if after an interval of three months the
House of Representatives, in the same or the next session, again passes the proposed law with or without any
amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass
it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may
dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place
within six months before the date of the expiry of the House of Representatives by effluxion of time.
If after such dissolution the House of Representatives again passes the proposed law, with or without any
amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass
it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may
convene a joint sitting of the members of the Senate and of the House of Representatives.
The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last
proposed by the House of Representatives, and upon amendments, if any, which have been made therein by one
House and not agreed to by the other, and any such amendments which are affirmed by an absolute majority of
the total number of the members of the Senate and House of Representatives shall be taken to have been carried,
and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total
number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed
by both Houses of the Parliament, and shall be presented to the Governor-General for the Queen's assent."
- In the lead-up to the 1975 dismissal, the
effectively Liberal-controlled Senate had delayed and deferred passing
a Supply Bill (i.e. a Money Bill) proposed by the Whitlam Labor
government to appropriate revenue for government use. A double
dissolution "trigger" had not yet been created by the
failure to pass Supply, because there had not been 2 separate failures
to pass at least 3 months apart (see section 57). However, there
were already double dissolution "triggers" arising from
failure by the Senate to pass various other Bills. Thus, Prime
Minister Whitlam could have advised the Governor-General to call a
double dissolution election at any time to resolve the deadlock
between the Houses, and the Governor-General would certainly have
granted it.
Constitution section 83 provides:
"No money shall be drawn from the Treasury of the Commonwealth except under
appropriation made by law."
The events leading to the
Whitlam dismissal
- See The PM and the Governor General
- Monash University
political science lecture notes which provide an excellent and detailed summary
of the events of and surrounding the dismissal.
Arguments for and against
Sir John Kerr's actions
Academic commentators' views
(a) "It is precedent that determines so much of the scope of the
exercise of power in the office of Governor-General, and practice that
puts bounds to the royal prerogative. Some of the arguments that were
advanced against what the Governor-General did before he did it -- which
were arguments intended to deter him from doing it or others from saying
he ought to do it -- have been negated by the fact that he did it. The
powers of the Senate to refuse supply as well as the functions of the
Governor-General, have been clarified by the events. What portents exist
for the future, and whether in the light of what the future holds the
actions of any persons concerned will be judged not to have been
prudent, is another matter."
Professor D. P. O'Connell writing in 1976 about the events of 11
November 1975.
(b) "There can be no question about [Sir John Kerr's] legal
power to do what he did and there can be equally little doubt that some
of the wider dicta in constitutional histories and textbooks about the
reserve power of the Crown and Governors provided general principles of
'constitution preservation' under which the particular circumstances of
his action could be subsumed. It is also possible that in a relatively
short space of time, he would have been compelled to take some such
action because of a pressing and more defensible ground for action --
namely the occurrence of illegal conduct on a substantial scale, shown
to be illegal either by judicial decision or at least by inherently
credible opinions not seriously open to question, or as to which no
rebuttal was attempted, and systematically undertaken or authorised by
Mr Whitlam and his ministry in an effort to do without relevant
Appropriation Acts. However, in the circumstances which actually existed
on 11 November 1975, and having regard to the way in which he acted, Sir
John Kerr is open to the criticism of having (i) adopted a wrong
procedure, (ii) based his decision on a mistaken principle, and (iii)
intervened prematurely."
Professor Geoffrey Sawer writing in 1977 about the
events of 11 November 1975 (1977, at page 170).
(c) "The Governor-General is under a constitutional obligation
to have as his advisers -- to be the government of this country -- only
parliamentarians who are able to secure supply. Such advisers must have
and retain the approval of the Parliament to be and remain the
government of the country. The grant of supply is the ultimate mark of
that approval."
Sir Garfield Barwick writing in 1983 about the
events of 11 November 1975 (presumably reflecting the advice he
actually gave to Sir John Kerr immediately prior to 11 November
1975, and which in part led to the dismissal).
1. Is there a conflict between the conventions about the use of the
reserve powers and the doctrine of responsible government?
- The Governor-General's failure to warn the Prime
Minister of his intention to
dismiss him if Supply was not obtained (or an election advised) was a
clear breach of convention, and thus of the principles of responsible
government (of which the conventions form part). It also flies
in the face of the doctrine of Ministerial responsibility: the Prime
Minister and Cabinet make all Executive decisions save in
extraordinary circumstances, and are entitled to know in advance if
the Governor-General regards such circumstances as imminent, so they can take
whatever legal steps may be open to them to obtain Supply or
advise an election, thereby facing the people without a taint of
impropriety (which is what occurred because of the way Kerr handled
the crisis).
- Leaving aside the question of Kerr's failure to warn Whitlam of his
intentions, the question of whether the dismissal conflicted with the
responsible government doctrine depends on how one conceptualises that
doctrine. The traditional (i.e. UK/Westminster) model dictates that
the Ministers are responsible only to the popularly elected Lower
House. However, as Barwick has pointed out (see
The Whitlam Dismissal
- Chief Justice Barwick's Advice to Sir John Kerr),
that doctrine applies in a system where the Upper House (House of
Lords) is unelected and has no power to block or amend Money Bills
(and only limited power to delay other bills). The Australian
system is quite different. Our Senate is directly popularly
elected by the people (despite Paul Keating's attempts to characterise
its members as "unrepresentative swill"); and does
have an express constitutional right to block Money Bills (although
not to initiate or amend them - see section 53 set out above).
Barwick's view (that the Governor-General may dismiss a Prime Minister
who is unable to get Supply through the Senate) is also arguably
consistent with the High Court's recent decision in Egan v Willis
to the effect that responsible government means that Ministers are
responsible to Parliament as a whole and to each of its Houses, not just to the Lower House.
2. Why was Sir Garfield Barwick able to advise the Governor-General in
advance about the constitutionality of his actions? Is there a
conflict with the doctrine of separation of powers?
- The Governor-General's exercise of his
constitutional powers (especially the reserve powers) is universally
regarded as non-justiciable. Thus, there was no risk that
Barwick CJ could be called on to adjudicate the question on which he
advised the Governor-General (note that Sir Anthony Mason also gave
advice). Moreover, there had been several precedents where High
Court Justices had given advice to Governors-General in somewhat
analogous situations (see The 1975 Dismissal: Setting the Record Straight
by Sir David Smith - Samuel Griffith Society
(1995) - where examples of such situations are given).
- However, the fact that Australia's constitutional
system has evolved in a manner whereby High Court Justices can
properly give advice to Governors-General in such situations certainly
represents a noteworthy exception to the normal jealously guarded
separation between judicial and executive functions.
- One might even argue that such a practice
potentially undermines the perceived independence and integrity of the
High Court. Certainly many people at the time saw Barwick CJ as
taking a partisan political position. On the reasoning in
Wilson v Minister for Aboriginal Affairs (or Kable's case)
that would tend to suggest a conclusion that such a role may not be
consistent with judicial power. On the other hand, if it is
generally understood and accepted that the Chief Justice has a
proper role in such a situation (provided that the advice can be seen
to be non-partisan), there may be less scope for a perception that the
Court is being politicised. The problem with Barwick CJ's
position was that he was a former Coalition politician giving advice
which happened to favour his former political colleagues, and moreover
advice which differed from the generally accepted view of the reserve
powers at the time (albeit that his view might now be seen as at least
arguable if not persuasive - see above).
3. What do the above differing opinions as to the Governor-General's
actions say about the role of conventions in Australia's existing
constitutional system?
- There is no doubt that any constitutional system must operate to
some extent on the basis of conventions or informal understandings as
to how constitutional discretions are to be exercised. It is not
practically possible to specify in advance in a constitutional
document an exhaustive list of the situations and factors which might
affect the exercise of such powers. Moreover, it is in their
nature that understandings about conventions will develop over time
through experience. Nevertheless, one may reasonably argue that the
complete lack of any specificity in Australia's Constitution creates a
potential area of systemic instability. There is a strong case
at least for defining in our Constitution which of the
Governor-General's powers may sometimes be exercised on his/her own
initiative, and probably also a non-exhaustive list of factors
relevant to exercise of those reserve powers.
4. Was Sir John Kerr's fear, that Prime Minister Whitlam might act
pre-emptively to sack him as Governor-General if Kerr had warned him
in advance of the possibility of dismissal, a reasonable
one? Why?
- No. The generally accepted view about the role of the Queen
was propounded by Walter Bagehot (The English Constitution
(1867)):
"The Sovereign has, under a constitutional monarchy such as ours, three rights--the
right to be consulted, the right to encourage, the right to warn."
The Crown
is to be absolutely neutral in political affairs and is duty-bound
ultimately to act on the advice of the elected ministers (except
perhaps in cases where the advice being given is seriously and
patently unconstitutional). Thus, if the Queen had received
advice from Prime Minister Whitlam to dismiss her Australian
Governor-General instantly, she would certainly have demanded a full
explanation and extensive consultation before acceding to that advice.
It is likely that she may even have insisted that the Prime Minister
go to London to confer on the matter. If Sir John Kerr had
consulted the Queen in advance about his proposed course of action,
and if she had concurred in it, then she would certainly have insisted
on a reasonable period to consider the Prime Minister's advice. Thus Kerr could
have formally warned Whitlam of his intention to proceed to dismissal
if the Supply crisis was not resolved within a nominated reasonable
period of time, in the sure knowledge that Whitlam would not be in a
position to effect a pre-emptive retaliatory dismissal. Note
that recent statements by the Queen's former assistant private secretary
Sir William Heseltine indicate that the Queen believed that she should
have been consulted by Sir John Kerr about his proposed course of
action, and would if consulted have advised Kerr that his actions were
premature.
5. Would the substitution of a President to fulfil the role of Head of
State, with the Prime Minister having the power to dismiss the
President at any time, and without any other constitutional changes to
the relationship between Parliament and the Executive (as proposed in
the 1999 Republic Referendum), avert a 1975-style constitutional
crisis should an analogous fact situation arise in future?
- Clearly not. In fact the 1999 referendum proposal was clearly
inferior in a functional sense to our current constitutional
structure. There was no equivalent to the role of the Queen as a
'circuit breaker', obviously a necessary role to avoid instability
where the Head of State (whether called Governor-General or
President) and the Head of Government (the Prime Minister) each has
effective power to dismiss the other. The 1999 referendum model
gave excessive, unchecked power to the Prime Minister, in that he was
to be able to dismiss the President at any time. A viable
republican model must address this issue and provide a mechanism at
least as stable as the one we have now.
6. Proponents of a "Yes" vote at the 1999 Republic Referendum
argued that a popularly-elected President would necessarily result in
a fundamental change to Australia's existing constitutional system,
inter alia because they asserted that it would be impossibly
complicated to define the reserve powers with sufficient precision to
avoid giving the President too much power (given that he/she would,
unlike the Prime Minister, be able to claim a national popular
mandate). Would it really be too complicated to define the reserve
powers, or might there have been other reasons why this assertion was
made?
- There has never been a drafting problem in defining the reserve powers (contrary to the
Australian Republican Movement's claims prior to the 1999 referendum),
although obviously they cannot practically be defined down to the
tiniest level of detail, nor can every possible particular situation
necessarily be anticipated. Nevertheless, the outline and
principles for exercise of the President's powers are clearly capable
of definition. The problem is a purely political one: the ALP cannot bring itself to agree to any formulation of the reserve powers which accepts the legitimacy of a Head of State dismissing an elected government (which retains the confidence of the Lower
House) because of inability to get Supply through the Senate. Conversely, many other observers (myself included) regard the Senate as one of the few features of Australia's system preventing us from becoming an elective dictatorship, and would never agree to removal of its power to block legislation including
Money Bills. My own view is that Labor is just going to have to get over the Keating view of the Senate as "unrepresentative swill" and accept that it has an important role in "keeping the bastards honest".
- Having considered briefly a couple of issues
relating to Australia's republican future, the last word in this
Introduction to Public Law unit belongs to Walter Bagehot (The
English Constitution (1867)). The following immortal quote
not only provides a persuasive (if unintentional) argument for
republicanism, but also reminds us that constitutional law probably
should not be taken too seriously (except at exam time):
"Royalty is a government in which the attention of the nation is concentrated on
one person doing interesting actions. A Republic is a government in which that
attention is divided between many, who are all doing uninteresting actions. Accordingly,
so long as the human heart is strong and the human reason weak, Royalty will be strong
because it appeals to diffused feeling, and Republics weak because they appeal to the
understanding."
It will be obvious to modern readers that Bagehot
failed to foresee either Bill Clinton or George W. Bush.
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