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House of Representatives                                Ch 1                                                 p 4

Prerogative powers

Although since Federation it has been an established principle that the Governor-General in exercising the powers and functions of the office should only do so with the advice of his or her Ministers of State, the principle has not always been followed. This principle of responsible government is discussed further in the Chapter on ‘House, Government and Opposition’. The Constitution provides definite and limited powers, although in some cases the ways in which these powers may be exercised is not specified. The identification and range of prerogative powers are somewhat uncertain and have on occasions resulted in varying degrees of political and public controversy.

Quick and Garran defines prerogative powers as:

. . . matters connected with the Royal prerogative (that body of powers, rights, and privileges, belonging to the Crown at common law, such as the prerogative of mercy), or to authority vested in the Crown by Imperial statute law, other than the law creating the Constitution of the Commonwealth. Some of these powers and functions are of a formal character; some of them are purely ceremonial; others import the exercise of sovereign authority in matters of Imperial interests. ¹

To some extent this definition may be regarded as redundant or superfluous in modern times. However, the fact that the Constitution states, in some of its provisions, that the Governor-General may perform certain acts without any explicit qualification, while other provisions state that the Governor-General shall act ‘in Council’, suggests an element of discretion in exercising certain functions—that is, those in the first category. Quick and Garran states:

The first group includes powers which properly or historically belong to the prerogatives of the Crown, and survive as parts of the prerogative; hence they are vested in the Governor-General, as the Queen’s representative. The second group includes powers either of purely statutory origin or which have, by statute or custom, been detached from the prerogative; and they can, therefore, without any constitutional impropriety, be declared to be vested in the Governor-General in Council. But all those powers which involve the performance of executive acts, whether parts of the prerogative or the creatures of statute, will, in accordance with constitutional practice, as developed by the system known as responsible government, be performed by the Governor-General, by and with the advice of the Federal Executive Council . . . parliamentary government has well established the principle that the Crown can perform no executive act, except on the advice of some minister responsible to Parliament. Hence the power nominally placed in the hands of the Governor-General is really granted to the people through their representatives in Parliament. Whilst, therefore, in this Constitution some executive powers are, in technical phraseology, and in accordance with venerable customs, vested in the Governor-General, and others in the Governor-General in Council, they are all substantially in pari materia , on the same footing, and, in the ultimate resort, can only be exercised according to the will of the people. ²

Modern references relating to the prerogative or discretionary powers of the Governor-General clarify this view in the interests of perspective. Sir Paul Hasluck made the following observations in a lecture given during his term as Governor-General:

The duties of the Governor-General are of various kinds. Some are laid on him by the Constitution, some by the Letters Patent and his Commission. Others are placed on him by Acts of the Commonwealth Parliament. Others come to him by conventions established in past centuries in Great Britain or by practices and customs that have developed in Australia. ³

All of these duties have a common characteristic. The Governor-General is not placed in a position where he can run the Parliament, run the Courts or run any of the instrumentalities of government; but he occupies a position where he can help ensure that those who conduct the affairs of the nation do so strictly in accordance with the Constitution and the laws of the Commonwealth and with due regard to the public interest. So long as the Crown has the powers which our Constitution now gives to it, and so long as the Governor-General exercises them, Parliament will work in the way the Constitution requires, the Executive will remain responsible to Parliament, the Courts will be independent, the public service will serve the nation within the limits of the law and the armed services will be subject to civil authority. ⁴

The dissolution of Parliament is an example of one of the matters in which the Constitution requires the Governor-General to act on his own. In most matters, the power is exercised by the Governor-General-in-Council, that is with the advice of the Federal Executive Council (in everyday language, with the advice of the Ministers meeting in Council). ⁵

The Governor-General acts on advice, whether he is acting in his own name or as Governor-General-in-Council. He has the responsibility to weigh and evaluate the advice and has the opportunity of discussion with his advisers. It would be precipitate and probably out of keeping with the nature of his office for him to reject advice outright but he is under no compulsion to accept it unquestioningly. He has a responsibility for seeing that the system works as required by the law and conventions of the Constitution but he does not try to do the work of Ministers. For him to take part in political argument would both be overstepping the boundaries of his office and lessening his own influence. ⁶

On 12 November 1975, following the dismissal of Prime Minister Whitlam, Speaker Scholes wrote to the Queen asking her to intervene and restore Mr Whitlam to office as Prime Minister in accordance with the expressed resolution of the House the previous day. ⁷ On 17 November, the Queen’s Private Secretary, at the command of Her Majesty, replied, in part:

The Australian Constitution firmly places the prerogative powers of the Crown in the hands of the Governor-General as the representative of The Queen of Australia. The only person competent to commission an Australian Prime Minister is the Governor-General, and The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution. Her Majesty, as Queen of Australia, is watching events in Canberra with close interest and attention, but it would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act. ⁸

Other than by recording the foregoing statements and discussing the question of dissolution ( see below ), it is not the intention of this text to detail the various constitutional interpretations as to the Governor-General’s discretionary powers. Based on informed opinion, the exercise of discretionary power by the Governor-General can be interpreted and regarded as conditional upon the following principal factors:

Quick and Garran , p. 390.

Quick and Garran , p. 406.

Sir Paul Hasluck, The Office of Governor-General , Melbourne University Press, Carlton, 1979, p. 10.

Hasluck, p. 12.

Hasluck, p. 16.

Hasluck, p. 20.

VP 1974-75/1125-7.

H.R. Deb. (17.2.76) 6.