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The reserve powers of the Governor-General.

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D e p a r t m e n t o f t h e P a r l i a m e n t a r y L i b r a r y

RESEARCH NOTE Number 25, 1997-98 ISSN 1328-8016 The Reserve Powers of the Governor-General The Constitution provides the Governor-General with a number of express powers such as the command of the defence forces and the power to appoint judges to the High Court.1 These seemingly far-reaching powers are in practice tempered by the convention that the Governor-General exercises them in accordance with Ministerial advice ('the principle of responsible government'). However, there are powers that the Governor-General may, in some situations, exercise without Ministerial advice or even contrary to Ministerial advice. These 'discretionary powers' are known as the reserve powers. The scope of the reserve powers is uncertain and their use has proven contentious. This is in part because the Australian model of government relies on unwritten rules or 'conventions' to flesh out the 'bare bones' of the Constitution. It is thus (by convention) accepted that there must be an office of Prime Minister and a Cabinet even though their existence is not constitutionally mandated.2 Likewise, not all the powers of the Governor-General are codified in the written Constitution and many of them are similarly constrained by such unwritten rules. A further complication is the difficulty of determining when mere custom and practice attains the status of a convention. That said, it is generally accepted that the reserve powers of the Governor-General include: the power to appoint a Prime

Minister if an election results in a hung Parliament

the power to dismiss a Prime Minister in circumstances where the House of Representatives has passed a 'No Confidence' motion against the Prime Minister, and

the power to refuse to dissolve the House of Representatives contrary to Ministerial advice. The refusal by a Governor-General to dissolve House on Ministerial advice has been the most frequently used of the reserved powers in Australia.3

The more 'doubtful' reserve powers that arguably may also be held by the Governor-General are:

the power to refuse a double dissolution (although this has not been exercised in Australia on any of the six occasions when a double dissolution of Parliament has been requested)4

the power to withhold assent to Bills that Parliament has passed and contrary to Ministerial advice (i.e. the power of veto)

the independent discretion to select a new Prime Minister in circumstances where the outgoing Prime Minister resigns after a defeat in the House of Representatives. It is argued that there is a convention which fetters the use of the Governor-General's power such that he or she is obliged to follow the advice of

the resigning Prime Minister as to the suitable replacement. (The contrary argument is that such a convention would mean the demise of the reserve power leaving no independent discretion to act in the face of unlawful or clearly erroneous advice. On this view, the reserve power exists to allow the Governor-General discretion to reject advice of the resigning Prime Minister not given in good faith),5 and, lastly,

the power to dismiss a Prime Minister in circumstances where the Government cannot obtain supply and the Prime Minister refuses to resign or to call an election.

The Use of the Reserve Power in 1975 The action by the Governor-General Sir John Kerr in 1975 to dismiss then Prime Minister Whitlam (who retained the confidence of the lower House but was unable to obtain supply from the upper House) is Australia's most famous example of the exercise of reserve power. Opinion is divided as to whether or not it was an appropriate use of the power and as to how and when the power was exercised. Proponents of the arguments in favour say that a Government must be able to secure supply and so in that sense must retain the confidence in both houses necessary to achieve this. Therefore, they argued, failure to obtain supply was an expression of a loss of confidence in the

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Government and should have resulted in the Government's resignation. Those opposed to this view argue that it has never been a requirement for a Government to enjoy the confidence of both houses and that acceptance of the Kerr/Barwick view would undermine responsible government and would automatically call into question the legitimacy of any government without a Senate majority.

What Difference Would A Republic Make? The Governor-General, as the Queen's Representative, is regarded as above party politics and so has a duty to remain impartial. In the event that the Constitution were amended to provide that a Head of State undertake the duties currently performed by the Queen and the Governor-General, thought would need to be given to whether or not the reserve powers of that person should be the same as the Governor-General and/or whether they need to be spelled out in the Constitution. The arguments in favour of specifying the Head of State's powers are that it would clarify the scope of the reserve powers and arguments about whether or not a particular constitutional convention existed would be avoided.

The arguments against codification are that express delimitation of the powers is almost impossible to achieve as, from a practical perspective, it would be extremely difficult to spell out the existing reserve powers given that there is considerable disagreement about what they are and where their limits lie. A further argument against codification is that the powers would have to be drafted in a very specific way foreseeing all crises. A general statement of powers would not suffice as, in the first crisis, there would be arguments about how broad the power was and how it could be interpreted. Another argument against codification is that it might result in a variation of the existing balance of powers such that either the Governor-General (or Head of State in a revised constitution) has significantly more or significantly less power than now or Parliament has more or less power.

The appropriate scope of the express and the reserve/implied powers of the Governor-General will also be influenced by the manner of election or appointment of the Head of State. Concerns over selecting the Head by popular election would arguably be diminished if that person were to perform a more limited or largely ceremonial role.

Conclusion The Australian Constitution does not specify what the Governor-General's reserve powers are and it is likely that they are not capable of exhaustive definition. Nevertheless, if Australia moves to a Republic, it is crucial that the question of the reserve powers of the Head of State be addressed. It must be recognised that in doing so proponents of change may also need to re-examine other constitutional provisions such as those dealing with relations between the House of Representatives and the Senate.

1. Sections 68 and 72 of the Constitution respectively. Other powers include the power under section 61 to exercise the executive power of the Commonwealth (e.g. to declare war or make peace). 2. An Australian Republic: the options-the appendices, Report of the Republic Advisory Committee, AGPS, Canberra, 1993, p. 246. 3. The reserve power was exercised on three occasions between 1904 and 1909. The first time 8 months into Parliament's

term, in August 1904, Governor General Lord Northcote refused a request to dissolve of the House of Representatives. The second instance, in June 1905, saw Deakin replace Reid as Prime Minister and form a Government that went full term. The third instance, in June 1909, was more controversial in that a 'newly formed' coalition was able to form government despite not having faced the electorate as a coalition. See Evatt and Forsey on the Reserve Powers, Legal Books, Sydney, 1990, pp. 50-54 and A. R. Browning, House of Representatives Practice, 2nd ed., AGPS, Canberra, 1989, p. 11. 4 The Republic Advisory Committee, op. cit., p. 269. 5. Ibid., pp. 255-256.

Susan Downing Law and Bills Digest Group Information and Research Services

23 January 1998

Phone: (02) 6277 2784 Fax: (02) 6277 2407

Views expressed in this Research Note are those of the author and do not necessarily reflect those of the Information and Research Services and are not to be attributed to the Department of the Parliamentary Library. Research Notes provide concise analytical briefings on issues of interest to Senators and Members. As such they may not canvass all of the key issues. Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.

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