Monarchy or republic? Reserve powers of the head of state: the Gordian knot
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Department of the
Parhamentary
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Monarchy or Republic? Reserve Powers ofthe Head ofState The Gordian Knot
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ISSN 1037·2938
Copyright Commonwealth of Australia 1993
Except to the extent of the uses permitted under the Copyright Act 1968, no part ofthis publication may be reproduced or transmitted in any form or by any meana including information storage and retrieval system, without the prior written consent of the Department of the Parliamentary Library, other than by Members of the Australian Parliament in the COU1'8e of their official duties.
Published by the Department of the Parliamentary Library, 1993
Yvonne Marsh Law and Government Group 30 July 1993
Parliamentary Research Service
Background Paper Number 17 1993 Monarchy or Republic? Reserve Powers ofthe Head ofState
The Gordian Knot
Telephone: 06 2772477 Facsimile: 06 2772407
Acknowledgment
The writer wishes to acknowledge the assistance of Bernard Pulle, the Acting Director of the Law and Government Group, Parliamentary Research Service and support officer Maryanne Lawless in the preparation of this paper.
This paper has been prepared for general dittribution to Members of the Australian Parliament. Readers outside the Parliament are reminded that thia ia not an Auatralian Government document, but a paper prepared by the author and published bY the Parliamentary Re8earch Service to contribute to consideration ofthe issues by Senators and Members. The viewa expreaed in this Paper are th.oae of the author and do not necessarily reflect thoee of the Parliamentary Research Service and are not to be attributed to the Department of the Parliamentary Library.
CONTENTS
Inclusion:
Readers' Feedback Questionnaire Tear-off
1. lrlt;rl>lltlcti<ln. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Part I 2. Head <If State - d<l we need <lne? .... . . . . . . . . . . . . . . . . 2
2.1 Arguments in fav<lur <If a Head <If State 3
2.2 Resp<lnsible g<lvernment needs an 'umpire' 3
2.3 Dem<lcracy - checks and balances 4
2.4 Nati<lnal symb<ll 5
2.5 The Head <If State sh<luld n<lt be the head <If g<lvernment . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.6 Psych<ll<lgical barriers and <lthers 6
2.7 The experience <If <lther c<luntries . .. 7
3. C<luld the functi<lns <If the G<lvern<lr-General be perf<lrmed by an<lther? 7
Part 11 4. P<lwers f<lr the Head <If State? . . . . . . . . . . . . . . . . . . . .. 10
5. The p<lwers <If the G<lvern<lr-General . . . . . . . . . . . . . . .. 11
6. The reserve p<lwers 11
7. Dil:lmissal and f<lrced diss<>ltlti<ln . . . . .. 12
8. C<lnventi<lns regulating the dismissal p<lwer 14
9. Other f<lrmulae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 15
10. Kerr· Barwick the<>ry <If the dismissal p<lwer 17
11. The power t<> refuse a diss<>ltlti<ln . . . . . . . . . . . . . . . . .. 21
12. Precedents 23
13. M<ldern appr<laches t<l the 'c<lnfidence <If the . L<lwer H<luse' and 'alternative g<lvernment' c<lnventi<ln .. 25 14. Other f<lrmulae 27
15. Harris and Crawf<lrd f<lrmula 28
16. M<ldern appr<laches . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 29
Part ill 17. Opti<lI18...................................... 31
17.1 Three questi<lns are raised: 31
17.2 S<lme preliminary <lbservati<lns 31
18. Sh<lwd we maintain the status qtl<l? 32
19. Arguments in fav<lur <If c<lnferring the reserve p<lwers <In the head <If state 33
19.1 Resp<lnsible g<lvernment - checks and balances 33 19.2 P<llitically neutral interventi<ln 34
19.3 Useful in a c<lntingency 34
19.4 Unc<ldified reserve p<lwers are appr<lpriate t<l the Australian c<lnditi<ln 35
19.5. All p<ltential emergency situati<lns n<lt f<lreseeable . . . . .. 35
19.6. Elbow room for the Head of State . . . . . . . . . . . . . . . . .. 35
19.7 Powers to the Head of State rather than other office ... 36
20. Should the reserve powers of the Head of State be abolished or limited? . . . . . . . . . . . . . . . . . . . . . . . . . . .. 36
21. Arguments in favour of limiting or abolishing the reserve powers 37
21.1 A matter of trust 37
21.2 Certainty of government . . . . . . . . . . . . . . . . . . . . . . . .. 38
21.3 The unwritten convention cannot override the words of the Constitution . . . .. 38
21.4 Compromise the neutrality of the Head of State 39
21.5 A disturbing philosophy behind the institutions of government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 39
21.6. The Head of State should be ceremonial only 39
22. Two exercises in modification of the reserve powers 40 22.1 A Model 40
22.2 A draft republican model constitution . . . . . . . . . . . . . .. 42
PartN 23. Codification................................... 42
23.1 Should the reserve powers of the Head of State be reduced to known principles? 42
23.2 Methods of codification . . . . . . . . . . . . . . . . . . . . . . . . .. 46
24. Arguments against codification . . . . . . . . . . . . . . . . . . .. 49
25. Other matters - codification 51
Part V 26. . The Senate . . . . . . . . . . . . . . . . . . . .. 52
27. Table of Propositions , 54
28. Conflict between the Houses - s.57 of the Constitution .. 55 29. Inadequacies of section 57 56
30. Objections to the present mechanics and its inadequacies in the 1975 crisis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 57
31. Options for reform 58
31.1 Proposition I The status quo 59
31.2 Proposition II Limit the Senates control over supply . . . . . . . . . . . . . .. 60
31.3 Proposition III Constitutional Amendment of s.57 . . . . . . . . . . . . . . . . .. 61
31.4 Proposition N Reserve powers codified and limited 62
31.5 Proposition V Minimise the chances of a deadlock . . . . . . . . . . . . . . . .. 63
35. Not a simple matter 64
36. Future directions - preservation of democratic rights . . .. 64
Appendix:
1992 and 1993 List of PRS Publications
Monarchyor Republic? Reserve Powers ofthe Head ofState The Gordian Knot 1
1. Introduction
The issues, the subject of this paper, will inspire the most apolitical persons to comment. There is little doubt that opinions will inevitably be influenced by the most controversial part of Australia's recent political history and experience, - the experience, of course, of 1975,
where constitutional law and politics are inextricably bound together. Whilst it is not the intention of the writer to become embroiled in that debate, the principles there involved are matters which will, in part, mould Australia's constitutional future, in the event of a republic. When determining what powers the head of state should have in
republican Australia, we have the benefit of history and experience on which to draw.
Whilst the aim of this paper is to spark discussion of the issues involved in determining those powers which should be entrusted to a head of state, this paper does not pretend to be an exhaustive discussion or to arrive at any conclusions.
The first part of the paper is a consideration of the question whether republican Australia should, in fact, have a head of state.
The second part is concerned with the reserve powers of the probable 'predecessor' to the head of state, the Governor-General, and focuses on three reserve powers. The third part considers the 'reserve power options' available under a republic and whether those powers should rlilside intact with a head of state, and if not, whether they should reside in a modified or codified form.
Finally, the paper canvasses some matters from which, it will be submitted, the reserve powers cannot be considered in isolation, in particular the Senate and the manner in which it has and can influence the exercise of the reserve powers, and how reform of that chamber could either render obsolete or reduce the necessity for the
exercise of, the reserve powers.
Note: The writer notes that the sources from which the material is drawn may appear to be predominantly republican. Any such prejudice is unintended and can be attributed to the paucity of academic material, to date, available for the monarchical case.
2 Monarchyor Republic?Reserve Powers of the Head ofState The Gordian Knot
Part 1 2. Head of State - do we need one?
Although much of the discussion about a republic has presumed that there will in fact be a head of state, it seems incomplete and prejudicial to commence this discussion on the same pretext. There are authorities for the proposition that the appointment or the selection
of a head of state is not fundamental or vital to the existence of a republican form of government.
But a separate head ofstate is not an inexorable requirement of responsible republican government. It is quite possible to envisage a republic without any head of state at all; the monarchy and governorship-general could be abolished and the functions formerly performed by the Governor-General
(including exercise ofthe 'reserve powers') vested in other bodies or officials, or dispensed with altogether, as was proposed (unsuccessfully) by the Papua New Guinea Constitutional Planning Committee in 1974. 1
The need for the creation of the office of head of state might depend on the type of powers and the extent thereof which the head of state is to be given. If, for example, the head of state were to do nothing more than perform a selection of ceremonial duties and functions then there may be room for arguing that those duties ought to be, and could be, performed in a more cost effective way by other officers or representatives of the republic. Alternatively, if it is considered that
there could be a neutral office in which can be vested powers of ultimate sanction of government and the authority to preside over the administration of responsible government, then the creation of a head of state might be the most practical option - least disruptive to our present form of government.
AJ5 has previously been canvassed, the method of selection of the head
of state might influence the appropriateness of vesting certain powers in that office. 2 If the head of state is selected by appointment, then perhaps the head of state should be confined to ceremonial duties only. If the head of state is elected, then it seems that the office could be conferred with weighty discretions, and be an office capable ofwielding great power. To coin a phrase, one must put the horse before the cart, and presumably the consideration of the powers will dictate the
method of selection rather than the reverse.
Given the machinery prescribed under our Constitution for such reform, the direction taken will most likely be influenced by the
1 Winterton, G. Monarchyto Republic, Oxford University Press, 1986: 9.
2 Twomey, .Anne, Monarchy or Republic? Selection of a Head ofState., Dept of Parliamentary Library, 1993.
Monarchyor Republic? Reserve Powers ofthe Head ofState The Gordian Knot 3
chances of success of the proposal at referendum. Whereas the electorate might approve the replacement of the Governor-General by a head of state, the electorate might be less inclined to approve constitutional reform which might deposit smatterings of power onto positions which have previously been taken to be less powerful. No doubt the more sweeping the proposed change to our familiar system of government, the more wary will the electorate be.
Similarly, any proposed change to the Constitution to defeat the referendum requirements for constitutional amendment might be viewed with suspicion.
There are many writers who share the view that there is still a need for a head of state even were the office to be confined to ceremonial duties. That view is often expressed as a need for Australia to have an office which represents the populace as a whole, which is above politics, which is the symbol of national identity and pride, 'to
represent symbolicallythe divinity of the people themselves,.3
2.1 Arguments in favour of a Head of State
2.2 Responsible government needs an 'umpire'
It has been stated that the Westminster system of responsible government requires a separate head of state to act as an 'umpire,4 and supervise changes ofgovernment in accordance with the wishes of the electorate. 5
Professor O'Connell asserted that one feature of the monarchical system of government which should be retained in a republic is the 'umpire',6 in whom is vested 'a reserve of power ... unlikely to be used
3 Home, D. 'What Kind of Head of State', in Change the Rules! Towards a Democratic Constitution, eds S. Encel, D. Home & E. Thompson, Penguin Books, 1977: 74.
4 O'Connell, D.P. 'Monarchy or Republic', in Republican Australia?, ed G.Dutton, Sun Books, Melbourne, 1977: 36.
5 Dunstan, D. 'The State, the Governors and the Crown', in RepublicanAustralia?, ed G.Dutton, Sun Books, Melbourne, 1977: 206.
6 The role of Sir John Kerr was referred to as that of 'umpire' in the 1975 Constitutional crisis; See Kerr, Sir John, Matters for JUdgment, Macmillan of Australia, 1978: 394. Sir John was quoting Sir Kenneth Wheare, in his article 'Australia's Constitutional Crisis', in The Parliamentarian, vol. 59, 1978: 69. Professor Sir Kenneth wrote: 'It was understandable that Mr Whitiam should
raise the historic cry of the Australian football crowds in moments of anguish: 'Shoot the umpire'. Note: This must be read in the context of the whole article.
4 Monarchyor Republic?Reserve Powers of the Head of State The Gordian Knot
except to curb illegality, a threat only to those who will not or cannot govern within the confines of Parliamentary convention ... '. Such an umpire is needed, it is argued, for the 'preservation of civilliberty'.7
Similarly, it has been asserted that a head of state with reserve powers is necessary in times of constitutional crisis. A former Labor Premier has said:
The transition from one elected Government to another in a Westminster system ... is fraught with so many conceivable vicissitudes and varying circumstances that a direction to resolve the matters of conflict needs to reside in an independent office. It is impossible to write a set of rules in such a way as to ensure automatic transition in a correct manner in all circumstances.8
The contrary view has been put by former Prime Minister Whitlam that this function does not require such supervision. He stated that '... the idea that the orderly handing over of government can be guaranteed only by a head of state is a fallacy,.9
2.3. Democracy - checks and balances
Some advocate that the existence of a head of state with substantial powers serves as a protection of democracy, and is one of the essential checks and balances necessary to guarantee the survival of a parliamentary democracy. The view has been expressed thus:
In a Westminster system it is quite essential as a protection to the populace that there be a Head of State independent of Legislature, Judiciary and Executive. Without such an office one of the essential checks in the Constitution would be missing. IO
w.e. Wentworth has commented that 'the real function of a Head of State should be the preservation of the integrity of the democratic process'. He argued that where a head of state is a mere figurehead
7 O'Connell, D.P. 'Monarchy or RepUblic?', in Republican Australia?, ed G.Dutton, Melbourne, 1977: 36-37.
8 Dunstan, D. 'The State, the Governors and the Crown', in RepublicanAustralia?, ed G.Dutton, Melbourne, 1977: 206.
9 Whitlam, E.G. The Truth of the Matter, Penguin Books, Victoria, 1979: 184.
10 Dunstan, D., The State, the Governors and the Crown, in RepublicanAustralia?, ed G.Dutton, Sun Books, Melbourne, 1977: 202.
Monarchyor Republic? Reserve Powers of the Head ofState The Gordian Knot 5
with no real powers, 'resistance to dictatorship has also been weak'. A head of state can preserve individual freedoms.ll
2.4. National symbol
There are practical as well as sentimental reasons for charging a separate head of state with the duty of being Australia's national symbol. The performance of ceremonial functions by a politically neutral, national representative might be more acceptable to the populace as a whole. It could conceivably engender some resentment if those tasks were performed by a person elected or appointed by a political party. A head of state should represent the whole nation, not
only those whose votes enabled a particular political party to win office. 12 The importance of a head of state as a symbol of national identity should not be underestimated, especially in a country where partisan politics predominates.
There are numerous occasions when a head ofstate is needed to act in the name of the whole nation - and to act in such a form that the action will be recognized by all concerned, including foreign governments, as having been done legally and properly on behalf of the whole nation. 13
Such occasions might be when a declaration of war is made, or the administration of the oath to public office holders where the oath is made not to the person administering the same, but to the nation.
2.5. The Head of State should not be the head of government
Whilst some argue that to expect another, such as the Prime Minister or the Speaker of the House of Representatives, to perform all the ceremonial functions, would be to overburden those already preoccupied with onerous commitments,14 others have expressed warnings against the conferring of the duties of head of state on the head of government:
I think this is possibly a dangerous proposal. For one thing, it is a trick. It simply means that, in ceremony, power and dignity, the Prime Minister
11 Wentworth, w.e. 'Australia and the Monarchy-A Liberal View', in Republican Australia?, Sun Books, Melbourne, 1988: 122-123.
12 McMillan, J., Evans, G., & Storey, H. Australia'sConstitution, Time for Change? George Allen and Unwin Australia, 1983: 191.
13 Hasluck, Sir Paul, The Office of the Governor-General, Melbourne University Press, 1979: 3.
14 McMillan, J. Evans, G., & Storey, H. Australia's Constitution, Time for Change? George Allen and Unwin Australia, 1983: 191.
6 Monarchy or Republic?Reserve Powers of the Head ofState The Gordian Knot
would, in effect, be the head of state as well as being the head of
government. In that sense he would be the same as the U.S. President.
But unlike the U.S.President he would not be elected directly by the people, but by a meeting of the political party or parties controlling Parliament, ... his government would not be checked by Parliament, instead Parliament would be under the control of the government, ... he could call an election whenever it was to his advantage, with no limit to his term of office. We would give this indirectly elected head of government more political power than the president of the U.SA possesses, and add to it all the prestige of glamour of being the only visible representative of the people of Australia. 15
Other writers have formed similar conclusions but for different reasons. For example, it has been asserted that:
... a head ofstate can serve a useful function in acting as a personal symbol of national identity, especially on ceremonial occasions, thereby providing an alternative focus of national attention and respect, which serves to diminish somewhat the aura of importance (and, hence, the power) surrounding the head of government. 16
2.6. Psychological barriers and others
Donald Home has suggested two other reasons for the creation of the office of head of state. First, he suggests that it would overcome a psychological barrier present in parts of the electorate that:
for generations, Australians were not taught esteem for democratic institutions earned by the struggles of their predecessors and commemorated in a democratically expressed constitution. Instead they were taught gratitude to the British for bequeathing democratic institutions to Australia.
Home suggested that a head of state might serve as a distraction for such persons, 'to help them overcome their withdrawal symptoms'.
Home's second reason was that it would 'offset the prestige of the government in general and the head of government in particular'.17
15 Horne, D. 'What Kind of Head of State', in Change the Rules! Towards a Democratic Constitution, ads S.Encel, D.Horne & E.Thompson, Penguin Australia, 1977: 74-75.
16 Winterton, G. Monarchy to Republic, Oxford University Press, 1986: 11.
17 Horne, D. Power from the People. A New Australian Constitution?, Victorian Fabian Society Pamphlet No.32, October, 1977: 18-19.
Monarchyor Republic? Reserve Powers of the Head ofState The Gordian Knot 7
2.7. The experience of other countries
Virtually all nations appoint a head of state and commentators generally anticipate that Australia will follow suit. 18 The
recommendation ofthe Advisory Committee on Executive Government to the Constitutional Commission was that a head of state should be maintained in the Australian system of government, regardless of whether monarchical or republican. 19
It can be argued that Australia needs such a head of state to facilitate international relations, and for Australia to be properly able to take its place on the world stage. The experience of other nations supports the notion that the position of head of state is 'a recognition of a practical necessity in the handling of a nation's affairs'.2o Indeed, given the
technological advantages of modern times facilitating communication between nations and international communities, it is difficult to imagine a nation without a ceremonial mouthpiece at the ready to dutifully attend to formal acknowledgments of all kinds.
3. Could the functions of the Governor-General be performed by another?
It has been asserted that the ceremonial functions of the Governor General could conceivably be performed by another, but arguments have been raised as to the sense and practicality of doing so. It has been suggested that the ceremonial functions of the head of state could be performed, for example, by the Prime Minister, the Speaker of the
House of Representatives, the High Court of Australia, the President of the Senate or an independent panel or Commission.21 Some might consider that the mere existence of a head of state, in itself, constitutes the performance of a 'ceremonial function' - that function being the
symbolic representation of Australia - a national symbol. An alternative is that 'the people' could be the national symbol. In fact the
18 Winterton, G. Monarchy to Republic, Oxford University Press, 1986: 10. Also see: Horne, D. Power from the People. A New Australian Constitution?, Victorian Fabian Society Pamphlet No. 32, October, 1977: 18.
19 Report of the Advisory Committee on Executive Government to the Constitutional Commieeion, St. James, NSW, Constitutional Commieeion, 1987: 3.
20 Hasluck, Sir Paul. The Office ofGovernor-General,Melbourne University Press, 1979: 3.
21 Report of the Advisory Committee on Executive Government to the Constitutional Commieeion, St. James, NSW, Constitutional Commieeion, 1987: 2.
8 Monarchy or Republic?Reserve PowelS of the Head ofState The Gordian Knot
use of 'the people' as a national symbol has been proposed, whether there is a head of state or not:
In his symbolic functions the head of state would be taken to represent the people of Australia. We would be 'loyal' not to the head of state, but to the idea of the Australian people. The "loyal toast", for instance, would be to the people, not to the head of state.22
What of the other functions of the Governor-General?
The 'government-making' function of the Governor-General has been variously described as being of such an important and essential character, that it requires independent guardianship.23 This raises the question, whether there is, in practice, any residual guardianship
vested in the Queen. According to the Queen herself, it seems not.
As we understand the situation here, 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 GovernorÂ
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 GovernorÂ
General by the Constitution Act.24
Could the 'government making' function of the Governor-General be transferred to an authority other than a head of state in republican Australia? Is there a necessity for there to be a 'guardian' of this function?
It could be that an unclear election result could precipitate a situation where it could be in the best interests of the electors that the
transition ofgovernment is presided over by an independent authority. Likewise, in the case of the unexpected infirmity or suspected demise
22 Horne, D. Power from the People. A New Australian Constitution?, Victorian Fabian Society Pamphlet No. 32, October, 1977: 18.
23 Dunstan, D. 'The State, the Governors and the Crown', in RepublicanAustralia?, ed G.Dutton, Sun Books, Melbourne, 1977: 204.
24 Hanks, P.J. Fajgenbaum & Hanks Australian Constitutional Law; 2nd edn, Butterworths, 1980: 372. These remarks constitute the substantial body of the letter forwarded by the Queen's private secretary to the Speaker of the House of Representatives G.Scholes, in response to a letter sent by the Speaker requesting the Queen to intervene by implementing the no-confidence resolution of the Lower House in Mr Fraser and to reinstate Mr Whitlam. The resolution was made on 11 November 1975 after the Government had been dismissed.
Monarchyor Republic? Reserve Powers of the Head ofState The Gordian Knot 9
of a prime minister. 25 This argument may be met by the proposition that the Constitution itself should speak clearly in respect of these matters. The Constitution could, and arguably should provide for an interim caretaker government in appropriate circumstances.
There is a repository of residual or reserve powers vested in the Governor-General which many view as useful, necessary or vital in the resolution of deadlocks, between the government and the Parliament, in emergencies and in safeguarding the Constitution (others consider them unnecessary, inappropriate or dangerous). Some proponents of this position may use the argument that history itself supports the notion that such interventionist powers are a necessary fact of life. Could these powers reside elsewhere than in a head of state? Theoretically, the Constitution itself could speak plainly enough to dictate the procedure to be followed in cases of conflict, or
alternatively, reliance could beflaced on the prevailing democratic and political processes of the day.2
AB to the executive functions entrusted to the Governor-General, such as the issuing of election writs, granting of pardons, the creating of Departments and the signing and promulgating of legislation, it has been submitted that these functions could be performed by another.
It does seem desirable however that the executive functions should continue as they constitute a 'check' on the lawfulness of executive action.
Executive Council papers can be scrutinised and proposals examined to ensure that there is no proposed action which would exceed constitutional authority. The scrutiny process, for example, might be better performed by members of the judiciary - especially where questions of legality are involved, or by the Parliament itself, if what
is required is an independent check on ministerial action. 27
25 McMillan, J. Evans, G. & Storey, H. Australia's Constitution, Time for Change? George Alien and Unwin Australia, 1983: 189-190.
26 McMillan, J. Evans, G. Storey, H. Australia's Constitution, Time for Change? George Alien and Unwin Australia, 1983: 190-191.
27 McMillan, J., Evans, & G. Storey, H. Australia's Constitution, Time for Change? George Alien and Unwin Australia, 1983: 191.
10 Monarchyor Republic? Reserve Powers of the Head of State The Gordian Knot
Part 11 4. Powers for the Head of State?
The most controversial question which confronts those looking to republican Australia, is what powers should be given to the head of state. Should a blue print of the powers of the present office of the Governor-General be bequeathed to the head of state? Should the head of state be a ceremonial figure only, deprived of any real power
or influence? Or should certain powers, limited and codified, be entrusted to the head of state? The question begs an examination of the powers of the Governor-General, and the conventions regulating the exercise thereof. Then, after the identification process,
consideration can be given as to whether the same powers or like powers are desirable for the head of state.
What are conventions? Conventions are 'rules of political practice,28 not stated in any formal rules (as yet) which can regulate the relationship between the formal head of state, the lolitical head of government and the Parliament:
That relationship, which is commonly labelled 'responsible government', depends for its definition on constitutional conventions, which are not enforced by the courts but which depend upon a variety of political and . financial considerations for their legitimacy and authority.29
Conventions evolve with the system of government, and, by practice and tradition, can determine the exercise of power. They are 'a means of modifying the system of government to make it compatible with the requirements of a changing society and acceptable to the people
governed', yet they are not legally enforceable:
The term "unconstitutional" is sometimes used to describe the behaviour of an actor in a political event, not to denote that the behaviour is in breach of a constitutional law, but rather to indicate that the behaviour breaches a convention or tradition considered to be important in controlling the way
in which powers are used. 30
28 Hanks, P.J. Fajgenbaum & Hanks Australian Constitutional LaW; 2nd edn, Butterworths, 1980: 156.
29 Hanks, P.J. Constitutional Lawin Australia, Butterworths, 1991: 20-21.
30 Hyndman, P. Constitutional Law and Government, Canberra, School of Administrative Studies, Canberra College of Advanced Education, 1980: 39.
Monarchyor Republic? Reserve Powers ofthe Head ofState The Gordian Knot 11
5. The powers of the Governor-General
The Governor-General derives his powers and functions from the Constitution. Although the Letters Patent are often referred to as being the source of some of the power, the modern understanding is that the Letters Patent are largely superfluous and confer no
additional powers on the Governor-General to those expressly conferred under the Constitution itself. 3! There are essentially two categories of power attaching to the office of the Governor-General. These are: prerogative and constitutionally conferred powers.
The written word of the Constitution confers extensive powers on the Governor-General. However, in practice, the powers are circumscribed by, amongst other things, convention. It is an established principle that the Governor-Generalshall only exercise the powers and functions
conferred by the Constitution (excepting, ofcourse, the reserve powers) on the advice of the Prime Minister and ministers enjoying the confidence of the Lower House. Such a convention is part of the doctrine of responsible government.32
Much has been made of the fact that some of the powers are conferred on the 'Governor-General' and some on the 'Governor-General in Council'.33 It seems the widely accepted view is that all the powers (except the reserve powers) vested in the Governor-General or the Governor-General in Council should be exercised only with ministerial advice, and that the different expressions used are of historical and ttaditional significance only.
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 subetantially in pari materia, on the same footing, and in the ultimate resort, can only be exercised according to the will of the people. 34
6. The reserve powers
The reserve powers ofthe Governor-General exist as that small bundle of powers which can be exercised without or contrary to the advice of
31 Hanks, P. Fajgenbaum & Hanks Australian Constitutional Lew, 2nd edn, Butterworths, 1980: 355.
32 Browning, A.R. House ofRepresentativesPractice, AGPS, 1989: 4.
33 See the discussion in Cooray, L.J.M. Conventions, the Australian Constitution and the Future, Legal Books Ltd, 1979: 19.
34 Quick,J. & Garran,R. AnnotatedConstitution ofthe Australian Commonwealth, Angus and Robertson, 1901: 406.
12 Monarchyor Republic?Reserve Powers of the Head ofState The Gordian Knot
the Prime Minister or ministers. Some writers have queried the existence of such powers:
It is a well established constitutional principle that the Crown will act on the advice of responsible ministers. The question remains whether there are any circumstances in which the Crown may act otherwise than on ministerial advice, in exercise of 'ill-defined residuary discretionary powers'. 35
Whereas Howard and Saunders consider that 'the extent and perhaps the very existence of the reserve powers of the Crown is uncertain'36 others have acknowledged their existence:
My own view is that these powers exist and under our Constitution as presently framed are necessary to deal with extreme cases. They are there to protect the 1 37 peop e ....
The existence of the reserve powers may be inferred from, amongst others, sections 5, 57 and 64 of the Constitution. Those sections do not specify the circumstances in which the Governor-General may exercise those powers without or contrary to, ministerial advice.
It has been submitted that the words 'reserve power' are self explanatory, and that a reserve power is a power in reserve, which can be exercised 'only on extraordinary occasions to prevent a flagrant breach of constitutional right.... when Cabinets forget themselves,.38
This paper will focus on three reserve powers: the power to dismiss a prime minister and force a dissolution (considered together), and the power to refuse a request for a dissolution of the Lower House.
7. Dismissal and forced dissolution
The power of dismissal is the most controversial power attaching to the Governor-General. The reserve powers to dismiss a government
35 Howard, C. & Saunders, C. 'The Blocking of the Budget and Dismissal of the Government' in LaOOr and the Constitution 1972 . 1975, ed. G. Evans, Heinemann Educational Australia Pty Ltd, Melbourne, 1977: 276.
36 Howard, C. & Saunders, C. 'The Blocking of the Budget and Dismissal of the Government' in LaOOr and the Constitution 1972 - 1975, ed. G. Evans, Heinemann Educational Australia Pty Ltd, Melbourne, 1977: 276. See also Howard, C. Australian Federal Constitutional Law, 3rd edn. The Law Book
Company, 1985: 117-119.
37 Ellicott, R.J. 'Commentaries' in LaOOr and the Constitution 1972 - 1975, ed. G. Evans, Heinemann Educational Australia Pty Ltd, Melbourne, 1977: 276.
38 Forsey, Dr.E.A Freedom and Order, Toronto: McClellimd and Stewart, 1974: GO.
Monarchy or Republic? Reserve Powers of the Head ofState The Gordian Knot 13
and to force a dissolution are 'considered together because the latter can only occur as a consequence of the former. 39
In other words, a forced dissolution can occur only as a result of the dismissal of a government (especially one with a majority in the lower house) for gross violation of the constitution (or, conceivahly, pursuant to the unwarranted Kerr-Barwick thesis, upon the denial of supply hy an
40
upper house).
History records the inevitability of the coincidental use of the powers. The NSW Lang Government was dismissed in May 1932 and the Wbitlam Government in November 1975. Each dismissal was followed by what was, in reality, an exercise of the reserve power to force a
dissolution (in 1975, a double dissolution), notwithstanding that the dissolution machinery was initiated by the request ofthe chiefminister of the caretaker governments.
The sections conferring the powers, ss 5, 57 and 64 ofthe Constitution, do not dictate the precise circumstances in which the powers should be, or can be, exercised. The absence of express guidance as to the . circumstances warranting the exercise of the powers has led to intense
debate concerning the propriety of their use. Whilst some might view the exercise ofthe power as one of the essential checks in a democratic form of responsible government, others view it as the antithesis of the processes of parliamentary democracy and the paralysis of responsible government. The grave consequences of the exercise of the power in
1,975 prompted writers to make observations as such:
'" the titular Head of State had suddenly acted in a fashion in which no
Governor-General of Australia had ever been intended or expected to act. He had asserted very considerable powers which, whatever the theory ofthe thing, no-one had in practice believed him to possess. The event transformed the position of the Head of State in this country. From being a cultural adornment it became an arm of government. In a matter of
hours a centre of power appeared where none had been before. It was a revolution in our institutional structure.41
The exercise of the powers in 1932 and 1975 demonstrate the diversity of opinion as to the nature of the circumstances which might necessitate the exercise of this, the most controversial, arguably the most dangerous and undemocratic of all the powers of the Governor-
39 Winterton, G. Monarchy to Republic, Oxford University Press: 51.
40 Winterton, G. Monarchyto Republic, Oxford University Press, 1986: 51.
41 Howard, C. 'Legal and Constitutional Implications', in RepublicanAustralia?, ed G.Dutton, Sun Books Pty Limited, 1977: 65-66.
14 Monarchyor Republic?Reserve Powers of the Head ofState The Gordian Knot
General. It begs the question, whether Australians want a head of state to be an 'arm of government' or a 'cultural adornment'.
8. Conventions regulating the dismissal power
What are the limits of the exercise of this power? What is the consensus view regarding the circumstances which demand or necessitate the dismissal of a prime minister and the elected government? As a general statement, Lumb described the
circumstances in the following terms:
... where there has been a grave breach of the basic principles or
conventions of the constitution by the incumbent government.42
Lumb cites as 'obvious examples' situations where the government suffers a loss of confidence in the House of Representatives, evidenced by either a vote ofno confidence or a denial of supply by that chamber, coupled with the government's refusal either to resign or go to the
electors. Lumb argues that the justification for the exercise of the reserve power in these instances is the prevention of a constitutional . dilemma which could undermine the fabric of government (in the case of loss of confidence), or the prevention of chaos and illegality on the part of the government (in the case of the denial of supply). It may be that the illegality must be patent and the time frame not allow for the possibility of judicial consideration.43
As to the exercise of this power, it seems that Sawer considered it may only be exercised to prevent the occurrence of a specific illegal act, such as the raising or spending of public money without statutory authorisation. 44
George Winterton argues that the Governor-General must have first exhausted all other options of resolving the situation which may lead him to a consideration of whether an exercise of the power to dismiss is warranted. He discusses the enormous pressure which may be brought to bear on parliamentarians· politicians -by publicly appealing for a resolution. Mter all, governments are made and unmade by public opinion. Winterton argues that such a course would be far less
compromising to the Governor-General's position, or the Crown's. In contrast, disrepute might be brought on his own office, or,
42 Lumb, R.D., Australian Constitutionalism, Butterworths Pty Limited, 1983: 78.
43 Lumb, R.D., Australian Constitutionalism, Butterworths Pty Limited, 1983: 78.
44 Sawer, G. The Australian Constitution, AGPS, Canberra, 1988: 121.
Monarchy or Republic? Reserve Powers ofthe Head ofState The Gordian Knot 15
theoretically, the Monarchl5, by dismissing the country's elected head of government.46 Where all other means of resolution have been exhausted and there remains only one remedy, that of dismissal, Winterton describes three situations in which it may, as a last resort,
be used:
1. Where the Lower House has passed a 'constructive no-confidence' resolution (ie, one calling for the appointment of a specific person as prime minister) and the incumbent prime minister refused to resign (after being allowed a reasonable time to secure a reversal
of the resolution);
2. Where the Lower House passed a simple no-confidence resolution and the incumbent prime minister (again, after being allowed reasonable time to secure a reversal of the vote) refused either to resign or advise a dissolution of Parliament; and
3. Where: a. it is clear beyond reasonable doubt that the government has persisted in breaching a fundamental constitutional provision; .
b. The Governor-General has urged it to desist but the
government has ignored that advice, and
c. The contravention is not justiciable .. .'47 48
Note: Winterton has expressed reservations about this third category.
9: Other formulae
Several writers have suggested different formulae which might govern the exercise of the reserve powers of dismissal and the forcing of a dissolution - that is, different conventions, different unwritten maxims. One such suggested convention is that the Governor-General may
45 Note: But refer to the letter of the Queen's Private Secretary to the speaker of the House of Representatives in November 1975, reproduced herein at p.8 para 3.
46 Winterton, G. Monarchy to Republic, Oxford University Press, 1986: 45.
47 Winterton, G. Monarchyto Republic, Oxford University Press, 1986: 45-46. An example of a breach of a fundamental constitutional provision might be the government's refusal to call an election at the expiration of its Parliamentary term, or the spending of funds not appropriated by Parliament.
48 Note: 'Non-justiciable' means 'That which cannot be heard and determined in a court.' See Marantelli, S. & Tikotin, C. The AustralianLegalDictionary, Edward Arnold Australia, 1985: 198.
16 Monarchyor Republic?Reserve Powers of the Head ofState The Gordian Knot
exercise the power to prevent the implementation of 'major and perhaps irreversible policies' without reference to the electorate. 49 Obviously, the policies in mind would be ones likely to have an enormous impact on, perhaps, the economic front, or Australia's social structure and ones which might challenge the Australian way of life in some significant respect.
As has already been mentioned, illegality on the part of a government is generally recognised as attracting the exercise of the reserve powers. 50 The precise formulation of this convention is not clear for it raises issues such as whether the government must have actually
been performing an illegal act or just contemplating or preparing to do so; and whether the illegality must be non-justiciable. Does non justiciable refer only to the lack ofjurisdiction of the courts, or does it include the inability of a court to determine the matter within a
necessary time-frame?
It must not be forgotten that the courts are the primary organs for determining illegality. Thus ... for the vice-regal representative to intervene on thia ground, the illegality must be patent, allowing for no determination of the issue by a court within a reasonable period of time, taking account of the likely parties to, and the subject-matter of, a possible action. 51
Another approach is that the use of the reserve powers is justified where there is 'action that subverts the democratic basis of the Constitution'. Such action may be the introduction of an 'extreme electoral gerrymander' or the obstruction of the administration of justice. 52
In a lecture given by Sir Paul Hasluck on 24 October 1972, he referred to these very powers. He said that in 'normal times' the role of the Governor-General is routine. But in 'abnormal times or in case of any attempt to disregard the Constitution or the laws of the
Commonwealth, or even the customary usages of Australian
49 McMillan, J., Evans, G. & Storey, H. Australia's Constitution, Time for Change? George Allen and Unwin Australia, 1983: 201.
50 See for example the discussion of the dismissal of the NSW Lang Government in 1932 in Hanks, P.J. Fajgenbaum& HanksAustralian ConstitutionalLaw, 2nd edn, Butterworths, 1980: 409-412. The dismissal of the Lang Government is usually cited as precedent for thia convention, but frequently with the reminder that exercise of the power may have been improper because some of the matters may have been justiciable, and therefore outside the circumstances of the
formula or convention.
51 Lumb, R.D. Australian Constitutionalism, Butterworths, 1983: 78.
52 McMillan, J., Evans, G., & Storey, H. Australia's Constitution, Time for Change?GeorgeAllen and Unwin Australia, 1983: 202.
Monarchyor Republic? Reserve Powers of the Head of State The Gordian Knot 17
government' the Governor-General may use the powers entrusted to him to 'check' the elected representatives.53
There are certainly threads common to all the formulated conventions. Those threads are that the exercise of the power must be 'reserved' for extraordinary situations, serious and grave situations, where the elected representatives must be 'checked' on behalf of the electors. Another thread common to the approaches is that they are narrow
rather than expansive. The consequences of exercising the power thrust at the very heart of the principles of responsible government and the democratic processes. The gravity of a single, unelected individual ousting a government which has been elected by the people, cannot be underestimated.
10. Kerr - Barwick theory of the dismiSMl power
Professor de Smith describes the reserve power of dismissal as 'the most drastic form of royal initiative, must be a recourse of last resort, an ultimate weapon which is liable to destroy its user,.54
On 11 November 1975, the then Governor-General Sir John Kerr dismissed Prime Minster Whitlam, and by virtue of the request of appointed caretaker Prime Minister Fraser, secured a double dissolution. The ground given for the exercise of the reserve power was that the Governor-General has the constitutional authority, and
indeed, it is his duty, to dismiss a Prime Minister who is unable to obtain supply and who refuses to resign or advise an election. 55
The exercise of the power on this ground attracted immense criticism and debate as to the propriety of the Governor-General's actions. The debate 'raged' as to whether the circumstances sufficiently justified the exercise of the 'last resort' power. The role ofthe Senate and its power
to block supply was inextricably bound up with the exercise of the reserve power. The debate divided those who considered that the
53 Hasluck, Sir Paul, The Office of the Governor-General, Melbourne University Press, 1979: 14.
54 de Smith, SA ConstitutionalandAdministrativeLaw, 3rd edn, Harmondsworth, Penguin, 1977: 102. Note: The 'royal initiative' is not a personal initiative of the Queen, but, in reality, is the initiative of the individual in the role of Governor-General. See yet again the letter from the Queen's Private Secretary to the speaker of the House of Representatives, G. Scholes, reproduced herein at p. 8 para 3.
55 Hanks, P. Fajgenbaum & Hanks Australian Constitutional Law, 2nd edn, Butterworths, 1980: 387. There is reproduced the statement of reasons for the dismissalbythe Governor-General, entitled 'Statement by the Governor-General'.
18 Monarchyor Republic?Reserve Powers of the Head ofState The Gordian Knot
circumstances necessitated a political resolution from those who considered a constitutional resolution was warranted.
For his part, Sir John Kerr had resolved that the Senate was legally entitled to have acted as it did, in refusing to approve the
appropriation bills, and that no convention prevented that action. 56 Further, the Governor-General had concluded that it is the responsibility of the government to obtain the funds without which it cannot govern, and that the government must obtain these funds from
the Parliament.57 Sir John stated:
The founding fathers in their wisdom had decided to relieve the monarchy of such responsibility and risk of criticism. In drafting the constitution they had seen fit to give all the prerogative powers relevant to handling a supply crisis and its resolution to the Governor-General.58
The Governor-General had, contrary to the advice of the Prime Minister, consulted the Chief Justice of the High Court, Sir Garfield Barwick. Sir Garfield provided written advice to Sir John. The following is an extract from that written advice, delivered to Sir John on 10 November 1975.
The Constitution of Australia is a federal constitution which embodies the principle of ministerial responsibility. The parliament consists of two Houses, the House of Representatives, and the Senate, each popularly elected and each with the same legislative power, with the one exception that the Senate may not
originate nor amend a money bill.
Two relevant constitutional consequences flow from this structure of the Parliament. First, the Senate has constitutional power to refuse to pass a money bill; it has power to refuse supply to the government of the day. Second, a prime minister who cannot ensure supply to the Crown, including funds for
carrying on the ordinary services of government, must either advise a general election (of a kind which the constitutional situation may then allow) or resign.
If, being unable to secure supply, he refuses to take either course, Your Excellency has a constitutional authority to withdraw his commiseion as prime minister. 59
56 Note: The Senate did not even formally consider the Appropriation Bills. The Senate deferred consideration.
57 Kerr, Sir John, Matters for Judgment, MacmilIan of Australia, 1978: 321-322.
58 Kerr, Sir John, Matters for Judgment, Macmillan of Australia, 1978: 330.
59 Hanks, P. Fajgenbaum & Hsnks Australian Constitutional Law, 2nd edn, Butterworths, 1980: 389. There reproduced is the text of the advice of Sir Garfield Barwick to the Governor-General, Sir John Kerr.
Monarchyor Republic? Reserve Powers ofthe Head ofState The Gordian Knot 19
Barwick drew an analogy between a prime minister who has lost the confidence of the House of Commons, and the prime minister who has lost the confidence of the Parliament, emphasising that Parliament is composed of both Houses. Barwick concluded that in each case the
duty and responsibility ofthe Prime Minister to the Crown is, if unable to secure supply to the Crown, to resign or to advise an election. GO
The Kerr-Barwick thesis (or Barwick-Ellicott thesis as it is also known)61 has been subject to intense criticism and rejection by many constitutional authorities. 62
Winterton rejected the exercise of the power on these grounds, among other reasons,
Because the Commonwealth and State governments are not responsible to the upper houses of their parliaments ( and no-one inclUding Sir Garfield Barwick, has suggested the contrary), an upper house's rejection of supply is constitutionally irrelevant until the Treasury's funds are exhausted - which was
not the case in 1975. Once that occurs, the government will run the risk of dismissal for persistent violation of the constitution if it withdraws funds without parliamentary appropriation. But it may have no alternative, except to succumb to the upper house's demands, since the government obviously requires funds to run the administration. 63
Winterton concluded that the denial of supply by the Upper House is relevant in that it may lead to the exercise of the reserve power. This is different from the denial of supply (or the blocking of supply - an expression used to refer to both denial and deferral of the
Appropriation Bills) itself justifying dismissal.
Other objections taken to the exercise of the prerogative in these circumstances were that:
60 Note: How does this analogy stand in view of the fact that the House of Lords does not now, and did not in 1975, have the power to block supply, as has the Senate under our Constitution? In fact, the power to block supply was reduced to a power to delay in 1911, and was later (1948) reduced even further, signifying, perhaps, the undemocratic nature of such an action.
61 Marr, D. Barwick. Sydney: George Allen & Unwin, 1980:273.
62 See for example Cooray, L.J.M. Conventions, theAustralianConstitutionandthe Future, Legal Books Ltd, 1979: 155. Cooray stated 'The precedent of vice-regal intervention in 1975 must be disavowed, considered erroneous and therefore not followed'.
63 Winterton, G. Monarchy to Republic, Oxford University Press, 1986: 47.
20 Monarchyor Republic?Reserve Powers of the Head ofState The Gordian Knot
1. The Bills had not been rejected - only deferred. 64
2. There was still money in the Treasury available until 30 November 19%.% .
3. The public service, armed forces, the union movement, industry, national transport and the post were functioning normally.
4. Supply having been secured and Parliament dissolved, Whitlam could have been recommissioned as the caretaker Prime Minister.
5. There was strong suggestion or expectation of Liberals 'crossing the floor' and the Senate no longer maintaining the numbers to defer the approval of the supply bills. 66
6. There were other options which the Governor-General had not exhausted such as appealing to the public and using the art of persuasion to exert pressure and influence on the Houses to resolve the deadlock. 67
7. The dismissal represented approval for the Upper House to use its power to block supply to force an elected government to an .election. 68
Some of these objections are summarised in the words of former Prime Minister Whitlam:
... that the crisis of 1975 was essentially not only a constitutionalcrisis but also a politicalcrisis; that the action ofthe Governor-General can be understood only in political terms, not in constitutional terms at all; and that his action represented not only a gross perversion of the constitution and its conventions but a gross misreading of the political realities. The Governor-General had no
right whatsoever to make a political assessment, even if it had been correct. There was a political crisis entirely capable of a political solution. Although the
64 Cooray, L.J.M. Conventions, the Australian Constitution and the Future, Legal Books Ltd, 1979: 157.
65 See SupplyAct (No. 1) 1975-76, (No. 38 of 1975), s.4.
66 Cooray, L.J.M. Conventions, the Australian Constitution and the Future, Legal Books Ltd, 1979: 157-158.
67 Winterton, G. Monarchy to Republic, Oxford University Press, 1986: 45.
68 Coper, M. Encounters with the Australian Constitution, CCH Australia Ltd, 1987: 247-250.
Monarchyor Republic? Reserve Powers of the Head ofState The Gordian Knot 21
constitutional anomalies would remain, the political resolution was imminent.69
Whitlam described his chief objective at that time, as forcing the Senate to do its constitutional duty and vote directly and explicitly on the budget, either to pass or reject it. 7o
11. The power to refuse a dissolution
The Governor-General is given an authority under s.5 of the Constitution to 'dissolve the House of Representatives,.71 The power is also referred to in s.28 of the Constitution which specifies that such a dissolution by the Governor-General may take place prior to the expiration of the three year term ofthe House, which extends from the first meeting of the House.72 The power does not extend to the Senate; the Governor-General's powers in respect of double
dissolutions are confined to s.57 situations which are discussed below in Part V 'The Senate'.73
The Constitution does not specify the criteria by which the Governor General is to determine whether and in what circumstances a request for· dissolution should be acceded to or refused. The power of dissolution is regulated by constitutional convention. But, it is the practice of the prime minister to state the grounds justifying the need for a dissolution prior to the end of the stated three year term.74 The Governor-General then exercises his independent discretion as to whether to accept the advice given.
69 Whitlam, E.G. The Truth of the Matter, Penguin Books, 2nd edn, 1983: The Preface at p.x.
70 Whitlam, E.G. The Truth of the Matter, 2nd edn, Penguin Books, 1983: The Preface at p.x. Note: Following the dismissal of Whitlam on 11 November 1975, the Parliament resumed sitting at 2pm and the Senate had passed the Budget by 2.20 pm.
71 The relevant words of s.5 of the Constitution are: 'The Governor-General may ... by Proclamation or otherwise ... dissolve the House of Representatives.'
72 S. 28 of the Constitution: 'Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General.'
73 Double Dissolutions occurred in July 1914, March 1951, Apri11974, November 1975, February 1983, and June 1987.
74 House ofRepresentativesPractice, 2nd edn, ed A.R.Browning, AGPS, 1989: 7.
22 Monarchy or Republic?Reserve Powers of the Head ofState The Gordian Knot
... A solemn responsibility rests on [the Governor-General] to make a judgment on whether a dissolution is needed to serve the purposes of good government by giving to the electorate the duty of resolving a situation which the Parliament itself cannot resolve. 75
The view expounded by Sir Paul Hasluck has been criticised by Winterton:
... Hasluck's remarks ... endorse an unrealistically generous view of vice regal discretion unsupported by either constitutional practice Or the accepted commentaries.76
The existence of the reserve power to refuse a dissolution is widely acknowledged:
Theright to dissolve the House ofRepresentatives is reserved to the Crown. This is one of the few prerogatives which may be exercised by the Queen's representative, according to his discretion as a constitutional ruler, and if necessary, a dissolution may be refused to responsible ministers for the time being.77
The power to dissolve should not be under-estimated. It has been described as the most 'cogent' power which may be manipulated to undermine or overcome the will of the people. 78 Further, it has been described as 'an effective political weapon against the opposition'.79
If so, it is one of the most important considerations in the question of the powers to be given to a head of state.
75 Hasluck, Sir Paul, The Office ofGovernor-Geneml,Melbourne University Press, 1979: 15.
76 Winterton, G. Monarchyor Republic, Oxford University Press, 1986: 48-49.
77 Quick, J. and Garran, R. Annotated Constitution of the Australian Commonwealth,Angus and Robertson, 1901: 464. Other authoritative sources in relation to the reserve power of dissolution are: Evatt, H.V. The Kingandhis Dominion Governors, Frank Cass & Co. Ltd. 1967; Forsey, EA The Royal
Power of Dissolution of Parliament in the British Commonwealth, Oxford University Press, Toronto, 1968; Markesinis, B.S. The Theoryand Practice of Dissolution ofParliament, Cambridge University Press, 1972; and Harris and Crawford, The Powers and Authorities Vested in Him, (1969) 3 Adelaide Law
Review 303 at 321-327.
78 Harris and Crawford, The Powers and Authorities Vested in Him, (1969) 3 Adelaide Law Review 303 at 321.
79 Markesinis, B.S. The Theory and Prnctice of Dissolution of Parliament, Cambridge University Press, 1972: 37; The author cites 'Joseph Chamberlain's notorious "khaki elections" and Mr. Lloyd George's 1918 dissolution as examples of the trend to use the dissolution device as a means to defeat the oppoeition. There is also discussion on the effect of the growth of party politics on the use of the dissolution device.
Monarchyor Republic? Reserve Powers of the Head ofState The Gordian Knot 23
There have been three occasions on which the reserve power to refuse a dissolution has been exercised at the Commonwealth level; August 1904, July 1905, and June 1909. There have been none since, and some writers attribute this to the entrenchment of the two party po li tical system in Australia. so The circumstances in which the requests for dissolutions were made are relevant in that they assist in
establishing the principles which guided the Governor-General in the exercise of this power.S1
12. Precedents
On 12 August 1904, the Watson Government had been in power for less than 6 months when it was defeated on an important vote in the Lower House.s2 On the following sitting day, 17 August 1905, Prime Minister Watson informed the House that certain advice which he had
tendered to the Governor-General, Lord Northcote, had not been accepted and as a result he had tendered his resignation which was accepted, and the Governor-General had commissioned Mr.Reid to form a new Government.S3
The request in July 1905 by Prime Minister Reid was made in similar circumstances and refused. Less than eighteen months into the life of the 2nd Parliament the government was defeated on an important amendment.84 On 5 July 1905 Prime Minister Reid informed the Lower House that he had requested a dissolution but the same had been refused. The Government resigned and the Governor-General,
again Lord Northcote, commissioned Mr Deakin to form a new Government.S5
80 McMillan, J., Evans, G., & Storey, H. Australia'SConstitution, Time for Change? Law Foundation of New South Wales and George AlIen and Unwin, Sydney, 1983: 199 and Winterton, G. Monarchy to Republic, Oxford University Press, 1986: 48.
81 There have also been incidents at the state level of the power to refuse a dissolution: Victoria 1924, 1943 and 1952, and Tasmania, 1923.
82 The government was defeated by 36 votes to 34 on a Conciliation and Arbitration Bill. Australia. House of Representatives. Votes and Proceedinfl3, 1904/147.
83 Australia. House of Representatives. Debates, 17 August 1904.
84 The government was defeated by 42 votes to 25 on an amendment to the Address in Reply. Australia. House of Representatives Votes and Proceedinfl3, 1905/7.
85 Australia. House of Representatives. Debates, 5 July 1905.
24 Monarchyor Republic?Reserve Powers ofthe Head ofState The Gordian Knot
The request in June 1909 was made at a time when the 3rd
Parliament had been in existence for over two and a quarter years of its three year term. The Fisher Government was defeated on an important motion86 and the Prime Minister thereafter requested a dissolution which was refused. The Governor-General accepted Prime Minister Fisher's resignation and commissioned Mr Deakin to form a new Government.87
Clearly, requests for dissolutions in these cases were refused because the Prime Minister had lost the confidence of the Lower House and alternative governments could be formed which would have the support of the house. The first ten years of the life of the Constitution were marked by political instability and minority governments.
It has been asserted that the convention upon which the exercise ofthe reserve power in these three instances rested is no longer pertinent to modern political reality which principally features the two-party grouping.88 The possibility of the Governor-General being able to
find an alternative government with the confidence of the House is greatly diminished. However, although unused, it may be that the· convention is still alive and well as demonstrated in the circumstances ofTasmania's hung House ofAssembly following the Tasmanian State election in May 1989. When the House ofAssembly first met after the elections a constructive vote of no confidence was passed in the Gray Government,89 while expressing confidence in Mr Field the Leader of the Opposition. The Governor then called upon Mr Field to form a Government.90 91
Although this paper has specifically mentioned the incidents of refusal to grant dissolutions at the Commonwealth level, much can also be gleaned from the occasions on which early dissolutions were granted. Early dissolutions ofthe House ofRepresentatives were granted on the
86 The government was defeated by 39 votes to 30 a motion to adjourn the debate on the Address in Reply. Australia. House of Representatives. Votes and Proceeding;;, 1909/7.
87 House of Representatives Debates, 1 June 1909.
88 Winterton, G. Monarchy to Republic, Oxford University Press, 1986: 48.
89 Winterton, G. Tasmania's HungParliament, Public Law, Autumn 1992: 423.
90 McMillan, J., Evans, G., & Storey, H. Australia's Constitution, Time for Change? Law Foundation of New South Wales and George Allen and Unwin, Sydney, 1983: 199.
91 Note: Will this convention receive a new application, where, in the event of a refusal of supply by the Senate, the Governor·General forms the view that a new Prime Minister in the House would be able to get supply through the Senate?
Monarchyor Republic? Reserve Powers ofthe Head ofState The Gordian Knot 25
following occasions: 26 March 1917, 3 November 1919, 16 September 1929, 27 November 1931, 7 August 1934, 4 November 1955, 1 November 1963, 10 November 1977, and 26 October 1984. 92
13. Modem approaches to the 'confidence of the Lower House' and 'alternative government' convention
A significant factor seems to be whether the Government has a secure Lower House majority. It has been asserted that a request for a dissolution by a prime minister with a secure Lower House majority cannot be refused, because of the inability of the Governor-General to
find a viable alternative government, coupled with the fact that if the request were refused, the Government could achieve its end anywayby resigning. It is argued that this is the case notwithstanding how far into the parliamentary term the request is made.93
There is authority for the proposition that where a government does not have a secure Lower House majority it is in a weaker position, and that where the Lower House has expressed its lack of confidence by . passing a 'constructive no-confidence' resolution, a dissolution should be refused. 94 The phrase 'constructive no-confidence resolution' refers
to a resolution which not only expresses a lack of confidence in the prime minister, but, at the same time, expresses confidence in an alternative (presumably named) prime minister.
It has been asserted that a request for a dissolution can be refused if it can be established that there is a viable alternative government which will have the confidence of the house. According to one authority, the Governor-General would have to satisfy himselfthat the Parliament is still viable, that a General Election would be detrimental to the nation's economy, and that there is an alternative prime minister available with the confidence of the Lower House.95 96
92 For a discussion of the reasons accepted as justifying an early dissolution see: HouseofRepresentativesPractice, 2nd edn, ed A.R. Browning, AGPS, Canberra, 1989: 8-9. Note: One reason advanced for the early dissolutions in 1917, 1955, 1977 and 1984 was the need to synchronise elections. The dissolution in 1929 occurred after the House amended a bill against the wishes of the government, and the dissolution in 1931 followed the defeat of the government on a formal motion for the adjournment of the House.
93 Winterton, G. Monarchy to Republic, Oxford University Press, 1986: 49.
94 Winterton, G. Monarchyto Republic, Oxford University Press, 1986: 49 and 51.
95 Lascelles, Sir AlIen, Letter to the Editor, Times, 2 May 1950, in Markesinis, The Theoryand Practice ofDissolution ofParliament, Cambridge: University Press, 1972: 263.
26 Monarchyor Republic?Reserve Powers ofthe Head ofState The Gordian Knot
The objection to this formula is that it involves the Governor-General in making subjective political assessments which, it has been argued, are best left to the politicians or to the people to resolve. 97 It might be that the political assessment made by the Governor-General will become the focus for further conflict. The broader issue is then raised as to who should decide whether a government ought remain in office;
the electors or an unelected Governor-General.
The action of the Tasmanian Governor in 1956 has led writers on both sides of the field to claim some support for the positions they have adopted. This precedent, exemplifies the complexity of situations which may arise and against which an assessment must be made as to whether or not the discretion to grant a dissolution should be exercised. A defection by a government member to the opposition gave the opposition a majority in the Legislative Assembly. This led to a vote of no confidence. The Government advised a dissolution and
argued that the Governor should act on that advice. The Governor rejected the view that he should be so constrained, but granted the dissolution anyway, apparently accepting that an alternative government should not be formed relying for its majority on the. support of a member who had defected from the former government.
On the one hand, a dissolution was granted to a minority government, lacking the confidence ofthe house, and when, arguably, an alternative government could have been formed (precedent for the notion that reference ought not to be made to the availability of an alternative government). On the other hand, it has been claimed:
We take this to support our view of the convention that dissolution generally ought not to be granted in the face of an alternative viable government. The majority of the alternative government, depending as it did upon the support of a turncoat, was so precarious that an election was the prudent course to take. 98
Clearly, the 'confidence' formula and the 'alternative government' formula may not always provide the guiding light.
96 It can be argued that there are two prerequisites for 'government' in Australia. The first is that the government must have the confidence of the Lower House. The second is that the government must have supply. Without the latter, the former may be rendered useless.
97 Winterton, G. Monarchy to Republic, Oxford University Press, 1986: 50.
98 Harris & Crawford, The Powers and Authorities Vested in Him (1969) 3 Adelaide Law Review 303 at 332.
Monarchyor Republic? Reserve Powers of the Head ofState The Gordian Knot 27
14. Other formulae
Other guidelines have been suggested for the exercise of the discretion to refuse a dissolution. An oft cited formula is that of Sir Paul Hasluck, who considered that the question centred on the workability (or in fact the 'unworkability') of Parliament. He stated that:
The key question is whether in fact Parliament has become unworkable ... the electorate should only be asked to overcome difficulties which Parliament itself cannot overcome.99
The 'unworkability' formula has been criticised as being applicable only when the request for dissolution is made by a minority
government. 100 This is because a prime minister with the confidence of the House can threaten to resign and the Governor-General would be unlikely to be able to find an alternative viable government with the confidence of the Lower House. Furthermore, this formula is not
supported by history. In 1955 and 1977, dissolutions were requested based on the need to align the elections of the two Houses of Parliament. At the time, Parliament was indeed workable, in fact, in 1977 Prime Minister Fraser had a record majority in the Lower House
and a large majority in the Upper House. The requests were granted. 101 It has been stated that the Governor-General's acquiescence in 1977 confirms:
the constitutional position that only in an extreme case or otherwise extraordinary circumstances can the Crown .... properly exercise a reserve discretion to reject Prime Minister's advice that the lower house be dissolved sooner than at the normal time. 102
Much debate has focussed on whether a Governor-General should satisfy himself that an alternative government can be formed. Emy thought so. He proposed that the test should be whether the government has 'irretrievably broken down' and this would be
evidenced by the fact that there is no alternative government capable
99 Hasluck, Sir Paul, The Office ofGovernor-Geneml,Melbourne University Press, 1979: 16.
100 Kerr, Sir John, Matters for Judgment, MacMillan ofAustralia, 1978: 403-5. But compare the request for dissolution by Prime Minister Menzies in 1963. Menzies had a majority of one (not including the Speaker), and based his request on the fact that he could not be confident in the 'workability' of Parliament in the
future, given this slim majority. The request was granted.
101 Lucy, R. TheAustralianForm ofGovernment, MacMillan, Melbourne, 1985: 241.
102 The Dissolution ofthe Thirtieth CommonwealthParliamenton 10th November, 1977: (1977) 51 ALJ 739.
28 Monarchyor Republic?Reserve Powers ofthe Head ofState The Gordian Knot
of being formed. 103 Other writers have doubted that the guiding principle would be whether an alternative government could be formed. 104
15. Harris and Crawford formula
The problem of determining the conventions which govern the use of the reserve power of dissolution was discussed in an article about the exercise of the powers by the State Governors. It was asserted that 'what he should do is in every case governed by a conventional rule'. Further, as a corollary, where a viable alternative government is possible, the power to dissolve should not be exercised. 105 The rules
governing the exercise of the power were summarised, and, converted to the federal level, are as follows:
1. Where a prime minister has the confidence of the Lower House, the request for a dissolution will be granted.
2. Where a prime minister who has enjoyed the confidence of the Lower House for a substantial period is defeated on an important vote or issue, the question of a dissolution is principally
determined by whether there is an alternative, stable government. If there is, a dissolution will be refused. But other factors may also influence the outcome of this situation, such as:
(a) Whether the Parliament is approaching the expiration of its three year term.
(b) Whether there is a great issue of public policy at stake.
(c) Whether the government has lost its majority support because of 'flagrant disregard' of electoral promises.
(d) Whether the Parliament is at variance with the wishes of the electorate.
103 Emy, H. The Politics ofAustralian Democracy, 2nd 00, MacMillan, 1978: 147-8.
104 Sawer, G. The Governor-Generalof the Commonwealth ofAustralia, Current Mfairs Bulletin, March 1976: 27.
105 Harris and Crawford, The Powers and Authorities Vested in Him, (1969) 3 Adelaide Law Review 303: 322.
Monarchyor Republic? Reserve Powers ofthe Head ofState The Gordian Knot 29
3. Where a government has been dissolved and defeated at an election, and then requests another dissolution, such a request should be refused. 106
16. Modern approaches
The following have been described as situations which might warrant the refusal of a request for a dissolution:
1. Where the prime minister does not have the confidence of the Lower House, but an alternative prime minister would and the house has resolved this state of affairs in a 'constructive no confidence' motion. 107 Similarly, it has been put that where the
government does not enjoy the support of the Lower House a request for a dissolution may be refused if an alternative government is possible. lOB
2. Where a government has the support of the Lower House, views differ. It seems that either:
(a) a dissolution should never be refused, because the practical reality is that the government can force its hand by
resigning; 109 or
(b) a dissolution should always be refused in the early life of the Parliament except in the following circumstances:
(i) where the opposition agrees to the dissolution;
(ii) where there is a major change in public policy or the parliamentary situation; or
(iii) where the prime minister resigns and no alternative government can be found. 110
106 Harris and Crawford, The Powers and Authorities Vested in Him, (1969) 3 Adelaide Law Review 303: 322-327. Note: This is taken to be the highly unlikely situation where a Prime Minister, not wishing to accept defeat at an election, might request another election.
107 Winterton, G. Monarchy to Republic, Oxford University Press, 1986: 51.
108 Lumb, R.D. Australian Constitutionalism, Butterworths Pty Ltd, 1983: 77.
109 Winterton, G. Monarchy to Republic, Oxford University Press, 1986: 49.
110 Lumb, R.D., AustralianConstitutionalismButterworths Pty Ltd, 1983: 77. Note: 2(b)(iii) envisages a set of circumstances which, it can be argued, are highly improbable.
30 Monarchyor Republic?Reserve Powers of the Head ofState The Gordian Knot
However, apart from these exceptions, such a request by a government with the support ofthe Lower House will generally be granted, and the granting of a dissolution at the request of such a government is consistent with the principles of
responsible government. 111
3. Where a prime minister, who has been defeated at an election, requests another dissolution of Parliament before Parliament meets. lI2
4. Where the prerequisites for a double dissolution have not been satisfied as set out in s.57 of the Constitution. lI3 Also, but hypothetically, if the Parliament was given a fIXed term by law and an earlier dissolution would result in illegality, then a request must be refused. lI4
There seems to be a move towards a more restrictive approach to the reserve power to refuse a dissolution. The circumstances described above are specific and narrow. Some writers have gone even further by asserting that a request for a dissolution will be granted when the
Crown is advised by ministers and without any reference to the possibility of an alternative government. lI5 A discussion of modern approaches to the reserve powers must include a reference to the Resolution Adopted at the Australian Constitutional Convention,
Brisbane, 29 July to 1 August 1985, wherein it was resolved by the convention that certain principles and practices should be observed as conventions. 116
The complexity ofthe subject of the transferring of the reserve powers to a head of state can readily be appreciated. Prior to any such transfer, the issue should be determined as to whether it would be in the interests of the Australian community that the powers and the
conventions governing those powers, be identified. In so doing, it
111 Lumb,R.D., Australian Constitutionalism, Butterworths Pty Ltd, 1983: 77.
112 Lumb, R.D., Australian Constitutionalism, Butterworths Pty Ltd, 1983: 77; Winterton, G. Monarchy to Republic, Oxford University Press, 1986: 51.
113 A request for a double dissolution has never been refused.
114 Victoria and South Australia have had fIxed term Parliaments since 1985 and New South Wales and Tasmania subsequently.
115 Crisp, L.F. AustralianNational Government, 4th edn, Longman Cheshire, 1978: 402.
116 Report of the Advisory Committee to the Constitutional Commission, Canberra, 1987: 109 (Appendix v).
Monarchy or Republic? Reserve Powers of the Head ofState The Gordian Knot 31
should be remembered that, according to the Queen's Private Secretary, and therefore, one assumes, according to the Queen, the Governor-General is entrusted with certain powers under the Constitution, and the Queen will not intervene in any decision which the Governor-General may make in exercising those powers. To this extent, therefore, Australians are living a separate constitutional existence already.
Part III 17. Options
Should the reserve powers of the Governor-General be bequeathed to the head of state of republican Australia? From the foregoing there can be little doubt that the subject of the reserve powers of the Governor-General is complex and that the precise circumstances which might warrant their exercise is unclear. Assuming there is to be a head ofstate in republican Australia the opportunity presents itself not
only for a fresh analysis of the reserve powers, but for reform, if reform is deemed the best option at the end of the day. Reform might be in the form of codification and/or modification or limitation.
17.1 Three questions are raised:
1. Should the status quo be preserved, that is, should the head of state inherit the powers of the Governor-General, in the same form, without limitation or modification?
2. Should the reserve powers of the head of state be limited, or even abolished?
3. Should the reserve powers and the conventions regulating the exercise thereof be codified?
17.2 Some preliminary observations
Sir Harry Gibbs, a former Chief Justice of the High Court, has found fault with each of these options. If the reserve powers were to be bequeathed to the head ofstate ofrepublican Australia, 'and no further provision made, there is no certainty that the president would observe
the conventions that now govern their exercise'. Sir Harry pointed out that, according to legal authority, the conventions are not legally enforceable. Furthermore, far from assuming that the position ofhead of state would be in the same, or a comparable position, to the
Governor-General or the Monarchy under the Constitutional monarchical system, the fact is that the president 'would occupy a different place under the Constitution'. Sir Harry pointed out that,
32 Monarchyor Republic?Reserve Powers of the Head ofState The Gordian Knot
'the great danger of a presidential system is that it may lead to a further strengthening ofexecUtive power'. The head of state would not be apolitical like the Governor-General; the head of state would be chosen for political reasons regardless of method of selection used. A political head of state could lead to ever increasing powers of the executive and ultimately to the weakening of the Senate's and the States' positions.
Sir Harry argued that our system of government needs the reserve powers. But in looking at the alternatives in whom the powers could be vested, could see none which could adequately replace the Monarchy. If the reserve powers were to be vested in the House of
Representatives, it would be 'unworkable'. If the powers were vested in a head of state but on the condition that the powers be exercised in accordance with advice from the Executive Council, then the reserve powers as such would exist no more. If the reserve powers were codified and enforceable by the Courts, then, given the delays involved in litigation, the powers would be useless in times of emergency, and so negate their very purpose. 117
Some of Sir Harry's concerns are shared by those who advocate a republican form of government for Australia. But only in the sense that they aspire to finding an alternative to the constitutional monarchical system we now,have which will avoid the pitfalls pointed
out. Debate is the path to resolution of concerns and the birth of ideas. But any formulation of a republican form of government and the debate which precedes it, should not be subsumed by political ambition. In the writers opinion the matter is of such importance and is so critical for the generations ofAustralians to come, that it should, if at all possible, transcend partisan political debate.
18. Should we maintain the status quo?
It is submitted that if we are to maintain the status quo and bestow upon the head of state all those reserve powers which currently reside with the office of Governor-General, then, those powers should be identified, and some type of agreement reached as to the conventions which govern their use. Obviously, if the 'status quo' is to be
preserved, this identification will fall short of codification. But it is difficult to understand how powers which are not fully determined could be conferred on a head of state as a rational proposition. In the least, the Australian community needs to know what the powers are which are being transferred to the head of state. Other consequences
117 Gibbe, Sir Harry, Republic: difficult and dangerous, Canberra Times, Monday 28 June 1993: 11.
Monarchyor Republic? Reserve Powers of the Head ofState The Gordian Knot 33
may flow from the transfer of the reserve powers, intact and uncodified, to a head of state. These are discussed in Part Four of this paper.
A Liberal backbencher was recently asked why the status quo should be maintained. His response was thus:
Well, the fact that they're not clearly defined is, in fact, one of the advantages ofthe existing system, giving it some flexibility and adaptability to changing circumstances, and circumstances which by definition, cannot be foreseen. But we ought to maintain the reserve powers because, in a
sense, they are powers of last resort which can be exercised by the Governor-General in those rare circumstances where action is necessary to preserve the normal functioning of our democratic system. And so they are, to all intenta and purposes, a bulwark or a buffer if you like, against Prime Ministers who want to exceed their proper authority. liB
19. Arguments in favour ofconferring the reserve powers on the Head of State
Certain issues are always at the forefront for those who argue to retain the status quo. There is no doubt that the considerations are weighty and probably represent to some extent the thoughts and concerns of many in the Australian electorate.
19.1. Responsible government - checks and balances
The most powerful objection to the abolition or limitation of the r~serve powers is that to do so would essentially remove one of the
integral parts of our system of responsible government - one of the checks and balances. This argument seems particularly relevant to our system which features only two major parties sharing the political umbrella. In a system where politicians heel to party discipline, it has been theorised that 'the political executive could ignore
Parliament'.lI9
The independent check exerted upon the system of government is essential and vital, it is argued, because it ensures the accountability of government to the people. This idea is succinctly stated thus:
118 'l«lpublican debate: defining the powers of the head of state', Lateline, Wednesday, 2 June, 1993, per Peter l«lith MP.
119 Dunstan, D. 'The States, the Governors and the Crown' in RepublicanAustralia, ed G.Dutton, Sun Books, 1977: 202.
34 Monarchyor Republic?Res€rve Powers of the Head ofState The Gordian Knot
The protection of the electors against the elected is the real and proper function of the Head of State. 120
19.2. Politically neutral intervention
It has been said of the Governor-General that he occupies an important position in that, as the head of state, he 'represents the nation in a way in which an elected government never can,.121 In Australia, particularly where the results of elections are close, it may be said that the government is, or was on election day anyway, the
preferred choice ofabout half the population. Empowering a politically neutral person with authority to settle political battles which threaten to paralyse the country is a safeguard. To the contrary it may be argued that there is no such thing as a 'politically neutral' person, and
that it is even less likely that one could be found amongst the upper echelons of power. On the other hand, the office of head of state would carry with it certain responsibilities, and one ofthe expectations on that office would be that those responsibilities would be borne and the duties performed with personal detachment. There are many
occupations which require people to demonstrate professional detachment of different kinds.
19.3. Useful in a contingency
A related argument is that the reserve powers in their present form, enable intervention in a contingency • such as war, illegality or political stalemate or deadlock - circumstances which could conceivably impair our constitutional system. l22 Not only might such powers be useful, they may be necessary and appropriate. Particularly because such powers allow instantaneous action. The political predicament which may be affecting the nation can be altered within hours.
Examples of other contingencies might be where there is a 'gross and patent breach of the law which cannot be dealt with by the judicature, or where there is other conduct amounting to a gross and patent
120 Wentworth, W.C. 'Australia and the Monarchy - A Liberal View' in Republican Australia, ed G. Dutton, Sun Books, 1977: 124.
121 Cooray, L.J.M. Missing Dimensions, Australians for Commonsense, Freedom and Responsibility, NSW, 1979: 82-83.
122 McMillan, J., Evans, G., & Storey, H., Australia'sConstitution, Time for Change? Law Foundation of New South Wales and George AlIen and Unwin, Sydney, 1983: 196.
Monarchyor Republic? Reserve Powers of the Head ofState The Gordian Knot 35
breach of the provisions of the Constitutional system. 123 In such cases, it can be argued, it is imperative that someone should be in a position with reserve powers at" the ready.
19.4. Uncodified reserve powers are appropriate to the Australian condition
The reserve powers in their present form, not held against a rigid formula, facilitate the evolution and development of a system of government which is appropriate and relevant to the Australian social and political predicament. See the arguments on the codification
option in the paper. 124
19.5. All potential emergency situations not foreseeable
Limiting the scope of the reserve powers might render them useless in times of emergency or crisis as yet not foreseeable. 125 The true nature of the powers, their 'reserved' character, acts as a safeguard in changing times. Limiting the powers to uses which are now
foreseeable, perhaps drawing on past experience to do so, might be ' premature and naive.
19.6. Elbow room for the head of state
It,could be argued that if a head of state is to exist as anything more than a mere figurehead within Republican Australia, which, at least in the short term will probably continue to be dominated by only two .,political parties, the head of state will require some room to
manoeuvre in order to survive the pervasively political atmosphere. If the head of state is to be entrusted with the role of safeguarding the Constitution, then the question is raised as to how, for example, the head of state could bring the two parties to the negotiating table. 126
123 McMillan, J., Evans, G., & Storey, H., Australia'sConstitution, Time for Change? Law Foundation of New South Wales and George :AlIen and Unwin, Sydney, 1983: 196. Note: the authors quote the former Senator and Attorney-General, P. Durack; Australia. Senate. Debates, 23 March 1982: 1049.
124 Harris and Crawford, The Powers and the Authorities Vested in Him, (1969) 3 Adelaide Law Review 303 at 333.
125 Cooray, L.J.M. Conventions, the Australian Constitution and the Future, Legal Books Limited, 1979: 91.
126 McMillan, J., Evans, G., & Storey, H., Australia'sConstitution, Time for Change? Law Foundation of New South Wales and George :AlIen and Unwin, Sydney, 1983: 194.
36 Monarchyor Republic? Reserve Powers of the Head ofState The Gordian Knot
19.7. Powers to the Head of State rather than other office
The reserve powers, intact, should be conferred upon the head of state rather than on any other office because the head of state is the most appropriate office in which to vest such powers: 127
A. The powers are circumscribed by convention and tradition; the alternative view, of course, being that history has shown the opposite to be true and that the powers can be applied contrary to tradition and convention;
B. The powers are rarely used; the contrary view is that in a
republican situation, particularly in the case of an elected head of state, there will be the tendency for the powers to be used more often; 128
C. The head of state is unlikely to exercise the powers to promote his own self-interests; again the contrary view is that an elected head of state may well wish to strengthen his own position; 129
D. The powers are usually exercised to refer matters to the people for resolution; although the alternative view is that the end cannot justifY the means in a democracy, because the actual democratic principle at stake is who should call an election and when. 130
20. Should the reserve powers ofthe Head of State be abolished or limited?
There are those who subscribe to the view that the reserve powers of the Governor-General should be abolished and that any head of state, whether elected or appointed, should exist merely as a ceremonial and symbolic figurehead. Others would have the role of the head of state circumscribed by the much-quoted words of Bagehot that the rights of
127 See the discussion of this issue at p. 5 of this paper.
128 See the discussion of this issue at p.59 of this paper.
129 See the discussion at p. 59 of this paper.
130 Coper, M. Encounterswith theAustralian Constitution, CCHAustralia Limited, 1987: 270.
Monarchyor Republic? Reserve Powers ofthe Head ofState The Gordian Knot 37
the office be confined to the right 'to be consulted, to encourage and to warn'.131
It may be that there are alternatives available to the vesting of reserve powers in a head of state, so that although the head of state may exist as a ceremonial figurehead, the powers which the former Governor General was able to exercise are provided for elsewhere or in other ways. It may not be a fundamental prerequisite to republican Australia that the head of state should be the Governor-General's sole
beneficiary. For example, it has been asserted that an alternative to the reserve powers of dissolution being vested in an independent head of state would be for the Parliament to provide for fixed term Parliaments. 132
There is no doubt that the 1975 crisis will continue to feature significantly in the arguments of those who support the abolition or limitation of the reserve powers.
21. Arguments in favour of limiting or abolishing the reserve powers
There are several justifications advanced for the abolition or limitation of the reserve powers.
21.1. A matter of trust
The first involves the trust of the Australian people. Given the controversy which surrounded the recent exercise of the powers in 1975, and the consequent debate and general confusion which, perhaps from the public's perspective, seemed to shadow the GovernorÂ
General's actions, the Australian people may not be prepared to tolerate and trust the vesting of extensive powers in the head of state. A lack of public knowledge as to what those powers are may heighten this distrust. It may also be argued that it is not in keeping with the
best Australian traditions and culture that the people should have to trust in the unknown.
The question must be raised as to whether the experience of 1975 has irreparably damaged the faith of the nation in the constitutional system. Is there such an attitude of distrust that it has permeated any
131 Bagehot, W. The English Constitution, 4th edn, Fontana, London, 1965: 111; Bagehot was describing the rights of the Sovereign under a Constitutional Monarchy.
132 McMiIlan, J., Evans, G., & Storey, H., Australia'sConstitution, Time for Change? Law Foundation of New South Wales and George Allen and Unwin, Sydney, 1983: 201·202.
38 Monarchy or Republic? Reaerve Powers of the Head ofState The Gordian Knot
respect which the community had for the system ofgovernment which vested extensive powers in an unelected person? That concern has been expressed thus:
On a broader compass, the Governor-General's action is argued to have caused a malignant division in the community, and to have destroyed the trust that many had in the Constitution and in the office of the Governor General.... a limitation of the Governor-General's powers would at least repair some of the damage.133
21.2. Certainty of government
A further argument which may be advanced in favour of limiting or abolishing the reserve powers is that to do so will increase the certainty of government. If a government can be reasonably assured of governing for its three year term, then it can pursue its policies for reform as well as the day to day housekeeping activities of government.
It can be argued that the result ofgovernments constantly looking over their shoulder is instability. Former Prime Minister Whitlam stated that:
No Prime Minister can ever afford to trust a Governor-General again. l34
The abolition or limitation of the reserve powers may increase the certainty of the electorate, as well as the government.
21.3. The unwritten convention cannot override the express words of the Constitution .
Contrary to the argument that the Australian people can take some comfort in the knowledge that the reserve powers are circumscribed by tradition and convention, such reliance is criticised as being ill-placed and naive. Reliance on convention has been described as 'an
insufficient guarantee of stability' because, it is argued, the unwritten convention cannot overrule the express word of the Constitution. 135
133 McMillan, J., Evans, G., & Storey, H., Australia'sConstitution, Time for Change? Law Foundation of New South Wales and George AlIen and Unwin, Sydney, 1983: 197.
134 Whitlam, E.G. The Truth of the Matter, Penguin Books, 1983: 184.
135 McMillan, J., Evans, G., & Storey, H., Australia'sConstitution, Time for Change? Law Foundation of New South Wales and George AlIen and Unwin, Sydney, 1983: 198.
Monarchyor Republic? Reserve Powers ofthe Head ofState The Gordian Knot 39
21.4. Compromise the neutrality of the Head of State
It has been contended that the reserve powers may compromise the dignity and neutrality of the office of the head of state. The powers may be regarded as, or perceived as, politically negotiable. For the head of state to be suspected of collusion with one political party over
another could, it is submitted, subject the office to intense criticism. In such circumstances it would no doubt be recognised as the enemy rather than the protector of democracy. 136 It can be argued that the chances of selecting a politically neutral head of state are almost negligible, and that it is wiser to remove the temptations of power.
21.5. A disturbing philosophy behind the institutions of government
It has been asserted that it is 'institutionally unhealthy for Australia to have a Constitution that confers upon a Governor-General quite crucial powers that are surrounded even now by uncertainty and confusion'. 137
21.6. The Head of State should be ceremonial only
Former Prime Minister Whitlam believes that the head of state should be a ceremonial figure only:
The answer is that we do not need a head of state with any powers at all. The Governor-General was acceptable as a de facto head of state when it was assumed that he had no powers; he is unacceptable as a head ofstate when he assumes powers, or imagines that he derives inherited powers from
a British monarch who is under no such delusion herself. Experience has shown that a Head of State who is anything more than an ornament is a menace. 138
Whitlam has argued that the only requirement of our system is for some type of 'transitional machinery' to operate, to pass government from hand to hand, when the electorate has so spoken. He suggested that perhaps this function could be performed by the High Court or a 'panel of certain office holders'. In direct contrast to the arguments of those in support of the retention of the reserve powers, Whitlam describes the absence of such powers as 'the great attraction and safeguard of a republican constitution'.
136 de Smith, SA Constitutional and Administrative Law, 2nd edn, Harmondsworth!: Penguin education,1973: 104 per Asquith.
137 McMillan, J., Evans, G., & Storey, H., Australia'sConstitution, Time for Change? Law Foundation of New South Wales and George Allen and Unwin, Sydney, 1983: 198.
138 Whitlam, E.G., The Truth ofthe Matter, Penguin Books, 1983: 184.
40 Monarchyor Republic?Reserve Powers of the Head ofState The Gore/lan Knot
Prior to his Prime-Ministership, Hawke expressed the view in a lecture in 1979 that:
I would merely offer the opinion in passing, that I do not believe that Australians would essentially be better off as a Republic, but for reasons of national identity I would prefer to break the link with the British Crown and have our own President as Head-of-State, poesessing formal and ceremonial powers only.139
It is not quite certain what was meant by the word 'formal', but certainly Hawke seems to have envisaged a limited version of the powers currently conferred on the Governor-General.
Donald Horne has suggested that the 'ceremonial' head of state should have limited functions. Apart from symbolising the nation, Horne noted three duties for the head of state:
1. To dismiss a Head of Government who has been 'dismissed' by the Lower House but who refuses to either resign or call an election.
2. To dissolve the Lower House if it attempted to ignore the statutory expiration of its Parliamentary term.
3. To chair 'the meetings of party managers' to determine the candidate for the head of government after an election or crisis. 140
22. Two exercises in modification of the reserve powers
It may be that the thoughts of Sir Zelman Cowen represent the majority feeling, that a compromise should be found. He said:
Between nodding automaton and autocrat we have to find a role, but not at either end point. 141
22.1. A Model
The report of the Advisory Committee to the Constitutional Commission included a package of recommendations proposing the limitation ofthe reserve powers of the Governor-General to particular written 'practices'. When considering the possibility of limiting the reserve powers of the head of state in republican Australia, such
139 Hawke, R.J., The Resolution ofConflict, (1979) Boyer Lectures, Sydney, 1979: 22.
140 Horne, Donald, Power from the people, A New Constitution?, Victorian Fabian Society Pamphlet Number 32: 8.
141 Cowen, Sir Zelman, 'The Constitutional Aspects', in Republican Australia?, ed G.Dutton, Sun Books, 1977: 51-52.
Monarchyor Republic? Reserve Powers ofthe Head ofState The Gordian Knot 41
packages are useful in that they provoke discussion. Modelling the limitation of the reserve powers of the head of state on the
recommendations of that Committee, the following model results:
1. The head of state would have the right to be consulted, to
encourage and to warn.
2. The exercise of the head of state's reserve powers should be reviewable by the courts (in particular, specified cases).
3. Appointment and dismissal. After an election where the government is defeated, the head of state would appoint as head of government, the person who can form a ministry with the confidence of the Lower House.
The head of state would act on the advice of the head of
government to dissolve the Lower House or appoint an alternative head of government who has the confidence of the Lower House where the head of government has been defeated on a no confidence motion and advises the head of state in good faith. The head of government must be guided by the principle that the
ministry must have the confidence ofthe Lower House and if there is such an alternative ministry, he must advise the head of state accordingly. Similarly, where the Lower House has passed a resolution of no confidence in the government, and expressed
confidence in another person as head of government, the head of state must appoint that person.
The head of state shall dismiss the head of government where the Lower House has passed a resolution of no confidence in him, and the head of government refuses to resign or advise a dissolution of either the Lower House or both Houses.
The head of state can dismiss the head of government for 'persisting in grossly unlawful or illegal conduct, including a serious breach of the Constitution'.
4. Dissolutions. The head of state would only dissolve the Lower House on the advice of the head of government.
Where the head of government advises a double dissolution, the head of state shall only act on that advice if he is satisfied that the requirements of s.57 of the Constitution have been satisfied. 142
142 Australia's Constitution, Time to Update. Summary of the Reports of the Advisory Committees to the Constitutional Commission, Canberra, 1987: 42-43.
42 Monarchyor Republic?Reserve Powers of the Head ofState The Gordian Knot
22.2. A draft republican model constitution
The concern expressed regarding the adoption of a republican form of government, that the same may lead to greater executive power, is addressed in the model republican constitution drafted by George Winterton. The republican constitution proposes to adopt all the
features of the present constitution, preserving the checks and balances, but subjecting the executive and the head of state to the rule of law. It is envisaged that the head of state would inherit all the reserve powers which are currently conferred on the Governor-General,
but the exercise of those powers would be defined by Parliament - 'a statutory definition' of the powers. The republican constitution would therefore provide that the conventions which currently govern the exercise of the reserve powers would apply until such time as Parliament exercised its express authority under the Constitution to legislate to regulate the powers of the head of state. 143
This raises the issue of whether the checks and balances of a democratic system could conceivably be compromised by the will of Parliament and whether, under the guise of 'regulation', a Parliament could render the reserve powers useless for particular political purposes. This model also raises the subject of codification, which is
dealt with below.
Part IV 23. Codification
23.1 Should the reserve powers of the Head of State be reduced to known principles?
Eminent constitutional writers on the subject of the reserve powers of the Crown have provided detailed analyses of the instances of the exercise of the powers in relatively recent constitutional history and, as discussed above, have attempted to elucidate the guiding principles
and conventions which regulate the exercise of those powers. l44 It has been asserted that these analyses provide potent proof that there is confusion and uncertainty as to the limits of the reserve powers and as to the circumstances which might necessitate their exercise. One
143 Winterton, G. KeepingIt Simple, The Independent, June 1993.
144 Most notably, Evatt, H.V. The Kingand his Dominion Governors, Frank Cass & Co. Ltd., 1967; Forsey, Dr. EA RoyalPowerofDissolution ofParliamentin the British Commonwealth, 'Oxford University Press, Toronto: 1943; and Wheare, Statute of WElS'tminster and Dominion Status, 5th edition Oxford
University Press, Toronto: 1953.
Monarchyor Republic? Reserve PoweIS of the Head ofState The Gordian Knot 43
need only refer to the controversy evoked by the exercise of the reserve powers in 1975 to conclude, correctly, that there is no agreement as to either when the reserve powers should be exercised or the conventions and principles which should guide the user.
The argument has been cogently put that the very fact that there is uncertainty and confusion justifies the necessity for the reserve powers to be committed to known principles. 145 However, as is discussed below, it has also been argued that the uncertainty is not ajustification
for the codification of the conventions governing the exercise of the powers. 146
The main thesis developed in Evatt's Book, The King and his Dominion Governors is that the reserve powers of the Crown should be subjected to 'the normal and natural process of analysis and definition and reduction to rules of positive law'.147
It has been suggested that the reduction of the reserve powers to known principles could strengthen the position of the Crown which derives respect from maintaining a neutral position. The argument is . that codification will remove the electorates' uncertainty, and indeed
any elected ministry's uncertainty, as to the limitations to which the office is subject. It is claimed that the positive expression of the conventions regulating the use of the reserve powers will place the Crown 'above suspicion,.148 This rationale can be extended to the wider proposition that the electorate might have greater confidence in the administration of their political system:
More, it seems to me that such knowledge should he public in order that electoral opinion may habituate itself to a body of defined and established
145 Evatt, H.V. The Kingandhis Dominion Governors, Frank Cass & Co.Ltd., 1967: xix, per Zelman Cowan (introduction to the second edition). For example Forsey and Evatt disagreed as to the correctness or otherwise of the exercise of the reserve power to refuse and under different circumstances then grant a
dissolution by the Governor-General of Canada in 1926. Mr MacKenzie King's request was refused, and he resigned. His successor did not have a 'stable majority' and almost immediately requested a dissolution which was granted.
146 Cooray, L.J.M., Missing Dimensions, Australians for Commonsense, Freedom and Responsibility, NSW: 1979: 78-79.
147 Evatt, H.V. The King and his Dominion Governors, Frank Cass & Co.Ltd., 1967: xxxvii, per K.H.Bailey (introduction to the first edition).
148 Evatt, H.V. The King and his Dominion Governors, Frank Cass & Co. Ltd., 1967: v, per Harold J. Laski (Forward to the 1st edition).
44 Monarchyor Republic?Reserve Powers ofthe Heed ofState The Gordian Knot
expectation which would serve to prevent the perversion of the prerogative 149 to perty ends.
A further argument advanced in favour of codification is that it might prevent the undesirable involvement of the Crown in a political debacle. The uncertainty and vagueness of the exercise of the reserve powers could lead to an improper exercise of the powers in
unwarranted circumstances, or, to inconsistent action. Hi() The view has been expressed thus:
It is beyond dispute that hitherto this area of the Constitution has been vague and uncertain. This has in turn given rise to a very reel evil, and that is that in the existing state of uncertainty, political polemicists have been able to exploit this phenomenon for unworthy, or at least pertisan ends. Confusion has thus been compounded, and dust thrown in the eyes of thoee conscientious enough to want to know the true constitutional position. 151
It is submitted that these arguments are just as relevant to the reserve powers ofthe head of state in republican Australia (assuming the head of state has reserve powers). First, the codiJYing ofthe reserve powers . and the conventions regulating their use will increase certainty in the electorate. The head of state will know the limits of the powers he or she has, and the circumstances which will warrant their use. Ideally,
the electorate will also understand the limitations and checks which are available to the head of state and the type of situations which will warrant their use. 152 This argument could be widened to suggest that the education of the electorate, and their right to know153 is in
keeping with contemporary thinking (such as freedom of information) and that citizens should know the laws which govern those who govern
149 Evatt, H.V. The Kingandhis Dominion Governors, Frank Cass & Co. Ltd.,1967: v, per Harold J. Laski (Forward to the 1st edition).
150 Evatt, H.V. The King and his Dominion Governors, Frank Cass & Co. Ltd., 1967: xxxiii, per Zelman Cowan (introduction to the 2nd edition).
151 Harris and Crawford, The Powers end Authorities Vested in Him, (1969) 3 Adelaide Law Review 303 at 333.
152 But compere the arguments of Cooray, L.J.M., MissingDimensions, Australians for Commonsense Freedom and Responsibility, 1979: 78-79.
153 Writer's note: It is a contradiction to say that the electorate already has the right to know and that the information is freely available to them if they care to avail themselves of it, if the information is in a form which is, in reality, inaccessible to the majority of the electorate. Can the general public be said to have access when the information is not only to be inferred from the Constitution, but some
of it is in an unwritten form and even what is unwritten is the subject of disputation between lawyers.
Monarchyor Rapublic? Reserve Powers of the Head ofState The Gordian Knot 45
them. To quote an old adage, 'knowledge is power' and in a democracy, the power should be in the hands of the people.
Secondly, codification may improve the public's perception of the integrity and honour of the office of the head of state. The head of state will be perceived as exercising powers which will be the duty of the office to exercise rather than perceived as exercising his own personal discretion in a manner which may appear to be at variance
with the expressed will of the electorate. It is submitted that the latter perception is inevitable given the dichotomy of politics in
Australia. l54
Thirdly, codification will preserve the integrity of the head of state from any suggestion of political persuasion. The codification will distance the head of state from politics and interference from party politics. Ideally, it may protect the head of state from influences which
might conceivably desire the powers to be used in a manner consistent with personal political gain or political expediency. ISO
Fourthly, codification might protect the constitutional system. The' code ideally should operate to prevent the incorrect or improper use of the reserve powers, and prevent inconsistencies in the use of the powers. 156
Fifthly, codification might entrench the divergence of Australia's constitutional and political development from its former British companion. Australia is a unique country with a unique set of needs and aspirations. The values relevant to any other country are not necessarily relevant to Australia. It may be argued that codification
will afford the opportunity for the expression of constitutional and political values which are relevant to this nation. !57
154 Note: the exercise of the reserve powers in 1975 divided the Australian community - it resulted in the polarisation of opinions in the two major political camps.
155 See Evatt H.V. The Kingand his Dominion Governors, Frank Cass & Co. Ltd 1967: v, per Harold J. Laski (forward to the first edition).
156 Evatt RV. The Kingandhis Dominion Governors, Frank Cass & Co. Ltd., 1967: xxxiii, per Zelman Cowan (introduction to the second edition).
157 It might be relevant to consider the provisions made in other Constitutions to regulate the exercise of reserve powers. In this connection, I refer to a paper by Ian Ireland, PRS, which considers the express powers given to the Presidents of the United States, France and the Federal Republic of Germany.
46 Monarchyor Republic? Reserve Powers of the Head ofState The Gordian Knot
23.2 Methods of Codification
Various methods have been suggested by which the reserve powers and the conventions regulating their use could be 'reduced to known principles'.
One such method is legislation. 158 Evatt suggested that the following was an acceptable method for securing the limits and defining the powers of the Governors of the States:
For instance, the Legislature of an Australian State may pass an enactment itself declaring (say) the rules which are to govern the appointment and dismissal of Ministers of the Crown,the dissolution of Parliament, and the special position, if any, of the Premier in the Ministry. There is no difficulty whatever in attaching binding force to legislation of this character. ... All that is necessary to make legislation of the kind already indicated valid and effective, is to specify the remedies obtainable against the Governor and Ministries if the constitutional rules laid down are broken.159
However, Evatt's method of codification is suitable to the States l60 . but it can be argued that it is less suited to the Commonwealth where ordinary enactments cannot amend the Constitution. 161 However, Winterton has argued that the Commonwealthcan legislate to regulate
the exercise of the reserve powers, by virtue of s. 51 (xxxix) of the
158 Harris and Crawford, The Powers and Authorities Vested in Him, (1969) 3 Adelaide Law Review 303. See discussion on the experience in Nigeria.
159 Evatt, H.V. The King and his Dominion Governors, Frank Cass & Co. Ltd., 1967: 289.
160 Note: On 12 November 1975, in the South Australian Legislative Council, a motion was moved by the Hon. D.H.L.Banfield, and carried, regarding constitutional principles. The motion drew the attention of the Governor to certain constitutional principles which were as follows:(i) The Lower House grants supply. The Upper House may scrutinise and suggest amendments to
money bills, but should not frustrate the elected government by refusing or deferring supply; (il) The Governor, ... ,should act on the advice ofhis Ministers, and should not dismiss a Ministry except in the case of that Ministry's acting in breach of the law or its losing the confidence of the Lower House; (ill) ... the action of the Governor-General in dismissing Mr Whitlam ... was wrong
according to all constitutional convention, precedent and propriety, and should not on any occasion be followed in this State. :Parliamentary Debates, South Australia, 1975-76, vol.2: 1835.
161 McMillan, J., Evans, G., & Storey, H. Australia'sConstitution, Time for Change? Law Foundation of New South Wales and George AlIen and Unwin Australia, 1983: 204.
Monarchyor Republic? Reserve Powers of the Head ofState The Gordian Knot 47
Constitution. 162 In Winterton's draft republican constitution, there is provision for the Parliament to define the exercise of the powers of the head of state - 'statutory definition,.I63 An alternative, though related approach might be the formulation of a statement of the
considerations by which a head of state ought to be guided when exercising the reserve powers. The statement could form a schedule to the Constitution. 164
Alternatively, the Governor-General (or head of state) could publish a statement of the rules he or she accepts and will apply in exercising the reserve powers, coupled with the passing of Standing Orders by each House or Parliament legislating in respect of the more controversial conventions. The statement of rules, must be consistent with the Constitution and would be confined to explanations of the provisions of the Constitution and matters about which the
Constitution is silent. 165 This method has the advantage of
removing(arguably) uncertainty, whilst retaining flexibility, so that the rules can be adapted to changing times. 166
Wheare suggested that the committing of conventions to writing in a non-legal form had 'much to commend it,.167 It has been forecast that the codification of the reserve powers and the rules regulating their use would most likely, at least initially, take the form of a
162 See Winterton, G. Parliament, the Executive and the Governor-General, Melbourne University Press, 1983.
163 Winterton, G. KeepingIt Simple, The Independent, June,1993.
164 McMillan, J., Evans, G., & Storey, H. Australia'sConstitution, Time for Change? Law Foundation of New South Wales and George AIlen and Unwin Australia, 1983: 204. The approach discussed by the authors is that of Professor S.A.de Smith, The New Commonwealth and ita Constitutions, Stevens and Sons, London, 1964: 100.
165 Cooray, L.J.M. Conventions, the Australian Constitution, and the Future, Legal Books Ltd, Sydney, 1979: 90-91.
166 But the author argues that the codification will not solve all the problems. See: Cooray, L.J.M., Conventions, the Australian Constitution, and the Future, Legal Books Ltd, Sydney, 1979: 91 and Cooray, L.J.M. MissingLinks, Australians for Commonsense, Freedom and Responsibility, NSW, 1979: 76-81.
167 Wheare, The Statute of W...tminster and Dominion Status, 5th edn, Oxford University Press, 1953: 12. (footnote 2).
48 Monarchy or Republic?Reserve Powers of the Head ofState The Gordian Knot
declaratory statement. This is the direction taken by the Australian Constitutional Convention. 168
The potential codification of the reserve powers and the conventions which regulate the exercise thereof, raises a number of issues which must be settled before any attempt is made at drafting a code, either legal or non-legal. The list could be infinite, but some of the more obvious are:
1. The extent to which, and under what conditions, the head of state should possess the right to refuse a dissolution of Parliament to Ministers.
2. The extent to which, and under what conditions, the head of state should possess the power to dismiss Ministers enjoying the confidence of the Parliament.
3. The extent to which, and under what conditions, the head of state should have the power to force a dissolution against the will of Parliament.
4. The precise relationship between the Prime Minister and other Ministers, and the precise relationship between the head of state and the head of government (assuming the two are in existence) and the government elect.
5. The relationship between the two Houses of Parliament.169
6. The extent to which the reserve powers are to be affected by, or formulated consistently with, the doctrine of responsible government.
7. The considerations and perceptions which mightbe generated by the method of selecting the head of state.
8. The extent to which the head of state is to be the focus of national identity.
9. The extent to which the head of state is to be politically neutral.
10. The form in which the reserve powers and the conventions regulating their use are to be codified, and the related issue of the consequences which might flow to the head of state from a breach or misinterpretation of the powers.
168 McMillan, J., Evans, G., & Storey, H. Australia'sConstitution, Time for Change? Law Foundation of New South Wales and George AlIen and Unwin Australia, 1983: 204. The authors discussed the recommendation contained in the 4th Report of Standing Committee D of the Australian Constitutional Convention, August 1984, that the 32 practices in draft codified form be declared practices
which should be observed as conventions in Australia.
169 McMillan, J., Evans, G., & Storey, H. Australia's Constitution, Time for Change? Law Foundation of New South Wales and George AlIen and Unwin Australia, 1983: 204. The authors cited Smith, E. ConventionsRegulatingtheRelationship between the two Houses ofthe CommonwealthParliament, Paper prepared for Standing Committee D of the Australian Constitutional Convention, 1981.
Monarchyor Republic? Reserve Powers of the Head ofState The Gordian Knot 49
11. The extent to which and from whom the head of state may be able to consult or to take advice as to the legality or propriety of the exercise of the codified reserve powers. 170
24. Arguments against codification
It has been argued that codification will not solve all the problems inherent in the reserve powers and the related conventions. It seems that some of the problems may be inherent in the exercise of the powers rather than in the interpretation of the powers themselves. Uncertainty with respect to the latter is symptomatic and the cure proposed may not cure the inherent difficulties associated with the powers.
First, it can be argued that if much of the uncertainty resides in the application of the powers to the facts of a particular case, any codification which falls short of providing for all possible given situations will not be adequate. l7l
Secondly, it has also been argued that codification might detract from the flexibility of the powers. l72 At present, because the powers and conventions are not strictly confined to a set of written principles, they adapt and respond to change. The objection is that:
-.'.
... the unwritten, unformalised nature ofconventional rules is precisely what imparts flexibility and viability to the Constitution. Once these rules are enshrined in statutory form, they become "concretized" and lose their flexibility. The all-important capacity to develop as and when political
forces dictate constitutional change is whittled away. There is a very real danger that the formalised rules of the Constitution will become part of the
170 Ryan, K.W. Opinion prepared for Standing Committee D, published as an Appendix to the Proceedings of the Australian Constitutional Convention, 1978, para. 31, where it is suggested that the Governor-e;.,neral should be able to refer any problem of interpretation of the constitutional rules to a court for an
advisory opinion. The opinion advanced was that the Constitution should contain: '(a) a clear articulation of some of the conventions by which the system of government operates. and
(b) a clear statement of the powers of the Governor·e;.,neral.' See also S.A.de Smith, The New Commonwealthand ita Constitutions, Stevens and Sons, London, 1964: 54.
171 Cooray, L.J.M. Conventions, the Australian Constitution and the Future, Legal Books Limited, 1979: 91.
172 Cooray, L.J.M. Conventions, the Australian Constitution and the Future, Legal Books Limited, 1979: 91.
50 Monarchyor Republic?Reserve Powers of the Head ofState The Gordian Knot
anachronistic deadwood of the Statute book, and thus stifle the natural and necessary growth processes of the Constitution. I73
This argument has been met with the assertion that it is 'unrealistic' and that a statutory scheme of conventions could be 'amenable to change as and when political necessity dictates'. It was suggested that a Committee, appropriately qualified, could examine the relevance of the statutory rules periodically and make recommendations for change
if and when necessary. Evatt put the 'elasticity' argument in perspective by warning:
It follows that the supposed merits of 'elasticity' in constitutional understandings should not be regarded as including the legal difficulty or impossibility of defining such understandings and enforcing them. Uncertainty, and even tyranny, may be the direct result of continuing in legs! force an undefined discretionary authority.
and later:
The result of not defining, and so confining, such conventions and maxims may easily be to transfer political contests into something like civil war; so anarchy breeds anarchy.I'74
A third argument has been advanced, that the codified rule itself must be interpreted. I75 Much has been written that substantiates the view that lawyers make their own work by drafting legislation and written documents which are ambiguous. Calls for drafting in 'plain English' address this issue. I76 Nonetheless, there is little doubt that there will inevitably be difficulties in interpreting the code which interprets
the powers and conventions.
Fourthly, the difficulty of obtaining agreement as to the content of either what the rules are concerning the reserve powers and the relevant conventions or what the rules should be, might be obstructive to the codification process. However, Evatt asserted that:
173 Harris and Crawford, The powers and the Authorities Vested in Him, (1969) 3 Adelaide Law Review 303 at 333.
174 Evatt, The Kingandhis Dominion Governors, Frank Case & Co. Ltd., 1967: 277.
175 Cooray, L.J.M., Conventions, the Australian Constitution and the Future,Legal Books Limited, 1979: 91.
176 See for example: The Discussion Papers issued by the Senate Standing Committee on Legal and Constitutional Affairs on the 'Cost of Legal Services and Litigation', Canberra, 1991-1992.
Monarchyor Republic? Reserve Powers ofthe Head ofState The Gordian Knot 51
If agreement upon constitutional practice is rendered impossible, the near future must see the end of political democracy.177
Other writers have more confidence that agreement can be reached and satisfactory formulae devised, although the task might be 'extraordinarily difficult,.178
25. Other matters - codification
1. If the codification requires a constitutional change to be effected by referendum (that is, no earlier referendum has altered the manner in which such changes can be achieved), given the reputation of referendums in Australia, it is unlikely that the majorityl79 needed
will be achieved. In this respect it may be that the adoption of a non legal form of codification is the optimum method available within our constitutional system. Certainly, this would be the case if the change to a Republic is to be achieved as a 'minimalist' option.
2. If the reserve powers and the associated conventions are codified, should a decision of a head of state be subject to judicial review? It has been asserted that such review is consistent with the rule that courts should determine whether discretionary powers have been legally
exercised. 180
Opposition to the judicial review of such decisions is based largely on the political nature of such decisions and the inappropriateness of political issues being the subject ofjudicial consideration, or political
177 Evatt, H.V. The Kingandhis Dominion Governors, Frank Case &Co. Ltd., 1967: 281.
178 Harris and Crawford, The Powers and the Authorities Vested in Him, (1969) 3 Adelalde Law Review 303 at 333, foot-note 122. The authors also cite Evatt, The DiscretionaryAuthorityofDominion Governors, (1940) 18 Canadian Bar Review 1 at 6. See also McMillan, J., Evans, G., & Storey, H., Australia's
Constitution, Time for Change? Law Foundation of New South Wales and George Allen and Unwin Australia, 1983: 205.
179 The relevant words in s.128 of the Constitution are: 'And if in a majority of the States a majority of the electors voting approve the propoeed law, and if a majority of all the electors voting also approve the propoeed law, it shall be presented to the Governor-General for the Queen's assent.'
180 McMillan, J., Evans, G., & Storey, H. Australia's Constitution, Time for Change? Law Foundation of New South Wales and George Allen and Unwin Australia, 1983: 205. Judicial review of such decisions also receives support from Evatt, The Kingand his Dominion Governors, Frank Case & Co. Ltd., 1967: 285.
52 Monarchy or Republic?Reserve Powers of the Head ofState The Gordian Knot
communications being subject 'to judicial scrutiny, and to the potential prolonging of a political conflict due to judicial intervention. 18l
Part V 26. The Senate
The view has oft been expressed that the consideration of the powers of the head of state cannot be considered in isolation from the potential conflict which resides between the Senate and the House of Representatives. Colin Howard expressed it thus:
If the head of state is to be deprived of all effective power but nothing is done to prevent deadlocks in Parliament, which effectively negate the powers of the Prime Minister, we are refining our present recipe for disaster. If this argument is accepted, any move towards republicanism should be accompanied by either a strengthening and clear definition of the power of the Head of State to intervene in Parliamentary deadlocks, or changes in the structure of Parliament to prevent the situation arising, or some combination of the two in case something else goes wrong. 182
Stated simply, the question ofwhat powers should be given to the head of state and in what form, must be considered simultaneously with either the measures available under the Constitution to resolve deadlocks between the Houses or the role, composition and powers of the Senate. If there is to be a Senate, (and the writer assumes there
is) then the powers to control, regulate, mediate or preside over conflict between the Houses must be in existence and must reside somewhere.
Alternatively, the potential for conflict between the Houses should be removed. This proposition is based on the presumption that a repetition of a 1975 type situation capable ofprecipitating the exercise of reserve powers to dismiss an elected government, would be an undesirable situation.
Certainly, if we are looking to a republic the long term plan has to be fully explored. None of the issues raised above can be considered in isolation. Below is a table of five propositions. It is submitted that each is a possibility for reform under a republican constitution. Each proposition illustrates the interrelationship and interdependency ofthe
181 McMillan, J., Evans, G., & Storey, H. Australia'sConstitution, TIme for Change? Law Foundation of New South Wales and George AlIen and Unwin Australia, 1983: 205.
182 Howard, C. 'Legal and Constitutional Implications', in Republican Australia?ed G.Dutton, Sun Books Pty Limited, 1977: 69.
Monarchyor Republic? Reserve Powers of the Head ofState The Gordian Knot 53
functioning of the different components in each equation. The discussion which follows in this part is to be read as relating back to these possible schemes ofreform and the possible consequences of each in terms of a 1975-type crisis. If nothing else, the equations suggested here might be the focus for further debate.
27. Table of Propositions
01
"'"
Reserve Powers Machinery for Senate Power of the potential for this
dismissal and resolution of composition Senate to equation to precipitate
~ forced dissolution disputes between and role block Supply a 1975-type
" Senate and House situation III of Reps s. 57 ::l ~ ! ! ! ! ! ::;Proposition reserve powers s. 57 not status quo the Senate a 1975 situation ~ I to head of state- + amended + maintained + retains the = [with a head of state l: power to perhaps more wil1ing g:block supply to wield the use o' ' ..of reserve powers r - see discussion below1'" Proposition reserve powers s. 57 not status quo Senate's power 1975-type situation cl! IT to head of state- + amended + maintained + to block = averted ~ status quo supply t;lremoved or g,limited El:'" Proposition reserve powers 8. 57 amended to: status quo Senate retains 1975-type ~ ill to head of state- + 1. cover deferral + maintained + power to situation Cl. status quo of supply billa by block supply averted 0 ...,the Senate Cl> £" 2. a tighter tim&- lb frame appropriate~ to money bills'"Proposition reaerve powers- s. 57 not status quo Senate retains deadlock situation ~~ N codified and hesd + amended + maintained + power to block = [see discussion below1 ofstate not able supply Opposition could force " to exercise power and election, money could s: 0 disJnialaI when Senate run out - chaos likely ..has blocked supplyProposition reserve powers to s. 57 not Senate 'revamped' Senate retains 1975-type situationV head of state- + amended + a HOIllle of Review- + power to block = unlikely to arise status quo not political supply
Monarchyor Republic? Reserve Powers ofthe Head ofStete The Gordian Knot 55
The 1975 crisis is used to demonstrate the interplay between the different mechanisms within our system of government, and howthose mechanisms may be used legally to attain political ends. It is submitted that the consideration of the reserve powers of the head of state must be examined in tandem with all of the elements referred to in the table. Then, and only then, when the whole picture is
presented, can viable proposals be put forward for a republican constitution.
It is submitted that one ofthe important elements is dispute resolution between the Houses. Codification, limitation or abolition ofthe reserve powers of the head of state can only seriously be considered if there are effective dispute resolution mechanisms provided for in the
Constitution. Alternatively, the opportunity for such destabilising conflict must be removed.
To what extent then, does the Constitution, in its present form, provide for the resolution of deadlocks and stalemates between the Senate and the House of Representatives?
28. Conflict between the Houses - 8.57 ofthe Constitution
The machinery provided by the Constitution for resolving conflict between the two Houses is generally183 that as set out in s.57 of the Constitution. l84 That section makes available two devices, the 'double dissolution'180 of Parliament, a popular expression used to
describe the dissolution of both Houses, and, the joint sitting. Both devices are available at the discretion of the Governor-General. In the first instance, the Governor-General 'may' dissolve both Houses, thus empowering the people to determine the issue, or at least, to allow the people to choose, from the limited choice available in a two party system, who should govern. 186 In the case of continued conflict
following the election, the Governor-General 'may' convene a joint
183 See also the 'conference' device discussed in Browning, A.R. House of RepresentetivesPractice, 2nd edn, AGPS, 1989: 50-51.
184 S.128 sets out the method of dispute resolution between the two houses concerning proposed alterations to the Constitution. Note also that s.5 dissolutions are confined to the House of Representatives, in cases of requests for dissolution prior to the expiry of the three year term.
185 There have been six double dissolutions; 1914, 1951, 1974, 1975, 1983 and 1987; For discussion on these events see Odgers, Australian Senate Practice, 1976: 23-79, and Browning, A.R. House ofRepresentetivesPractice, 2nd edn. AGPS, 1989: 52-74.
186 Whether or not voting patterns are dictated by an issue or an issue can reliably be determined by an election is worthy of a thesis in itself.
56 Monarchyor Republic?Reserve Powers ofthe Head ofState The Gordian Knot
sitting. The issue can then be determined by the vote of the absolute majority of both Houses.
The High Court can review the mechanics of the exercise of the s.57 discretion, to ensure that certain requirements set out therein have been satisfied, but the actual exercise of the discretion ofthe Governor General is nonjusticiable. 187
29. Inadequacies of section 57
It can be argued that the 1975 crisis highlights the inadequacies of the express mechanics of the Constitution to deal with dispute resolution. The fact is that the 1975 situation was not provided for, prompting one writer to state:
... section 57 is totally ineffective to deal with the most deadly blow the Senate can strike at any government, refusal to pass the annual legislation authorizing expenditure to maintain the normal services of running the country. 188
Had it been provided for, then the Governor-General may not have used the reserve powers in the way that he did, in fact, he almost certainly would not have. Why was s.57 useless in this situation? Because, as has been pointed out, the very section which is supposed to deal with deadlocks, in fact only deals with deadlocks in particular prescribed circumstances. Those circumstances are where the Senate has twice rejected a Bill. In November 1975,. the Senate had not rejected the Bill, it had only deferred consideration of it. The scheme devised by the then opposition enabled the circumvention of the
dispute resolution mechanism provided by the Constitution. 189
The second obstacle to s.57 being a successful dispute mediator, is the length of time it takes for a dispute to be brought within the terms of section 57. The Lower House passes a Bill, which the Upper House
187 Lane, P.H. Lane's Commentaryon the Australian Constitution, The Law Book Company Limited, 1986: 291.
188 Howard, C. 'The Constitution as a Legal Document', in Change the Rules! Towards a Democratic Constitution, eds. Sol Encel, Donald Home and Elaine Thompson, Penguin Books, 1977: 39.
189 Cooray, L.J.M., Conventions, The AustralianConstitutionandtheFuture, Legal Books Limited, Sydney, 1979: 117.
Monarchyor Republic? Reserve Powezs of the Head ofState The Gordian Knot 57
then rejects or fails to pass. lOO The Lower House must pass the Bill again within 3 months of the Senate's failure or rejection. The length of time which this takes for the devices available in s.57 to be used to resolve a dispute is particularly inappropriate in the case of money Bills. In addition, s.57 also states that 'such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time'. Yet another long wait if a money bill is the subject of the conflict.
30. Objections to the present mechanics and its inadequacies in the 1975 crisis
Various objections have been raised as to the responses available under the present constitution to a deadlock situation. The first is that the scheme envisaged by the founding fathers is different from that which has occurred in practice; that it was intended that the Senate, acting
as the States' House in defence of State interests - might reject a money Bill altogether ifit had some objection to the Bill itsel£ What was not envisaged was that 'the Senate would use its power to block supply as a means of forcing an election'.191 In 1975, the opposition was able to avoid a resolution under s.57 simply by deferring the
Supply Bills, rather than rejecting them. Unless the opposition relented, the deadlock situation would either force an election or result in chaos as the funds ran out. A government cannot govern without funds. The imposition of an ultimate resolution might come from the people and then it might depend on whom the people target.
'",-
A 'further objection is that instability is the end result of an opposition able to force an election by blocking supply.192 Such an ability might also strike a blow at the principles of democracy. It has been asserted that a 'Senate with the power to block supply, does involve a dilution of the principles of democratic, representative government,.193 This
argument is taken further when the composition of the Senate is
190 Howard, C. 'The Constitution as a Legal Document', in Change the Rules! Towards a DemOCl:'8tic Constitution, eds. Sol Encel, Donald Home and Elaine Thompson, Penguin Books, 1977: 39. The author noted: 'Thus at the very outset the possibility of indefinite delay is imported into the section by the imprecise idea of failure to pass. Failing to pass a measure is a non-event. It is not easy for people to agree on when a non-event has happened'.
191 Coper, M. Encountezswith the Australian Constitution, CCH Australia Limited, 1987: 247-251.
192 Coper, M. Encountezswith the Australian Constitution, CCHAustralia Limited, 1987: 262.
193 Coper, M. Encountezswith the Australian Constitution, CCHAustralia Limited, 1987: 254.
58 Monarchyor Republic?Reserve Powers of the Heed ofState The Gordian Knot
examined. This is because of the 'staggered membership' of the Senate and the prescription of equal state representation. The point is made that although the original role of the Senate may have been as protector of States' interests, the two party political system has 'transformed the Senate ... into a chamber where government and opposition fight the same battles as they do in the House of
Representatives, but with numerically different party strengths' .194
A further objection is that the existence of the mechanics for the Opposition to force an election, is totally unnecessary in a system which guarantees regular elections every three years. It is argued we do not require the Senate or the Opposition to be able to force an election as a safeguard against the potential tyranny of the majority, who have won the right to govern through the Lower House. 195
The claim that the response to the deadlock in 1975 was justified and democratic in that it resulted in an election is countermanded by the objection that the democratic principle involved, in reality, is 'when the election will be and who will call it' and that it is undemocratic for the opposition to be so powerful that it can determine for the country the answers to those questions. 196 The argument regarding the instability caused by the devices available to the opposition can be extended to include the notion of precedent, the precedent being one which can legitimise the use of the mechanics 'for instability and opportunism by the losers of government'. 197
31. Options for reform. Will they avoid a repetition of 1975 in republican Australia?
The following options for reform are set out in the Propositions Table above.
Each proposition is considered in isolation from the others, but the optimum proposal might be a mixture of all the reforms suggested.
194 Coper, M. Encounterswith the Australian Constitution, CCH Australia Limited, 1987: 256.
195 Coper, M. Encounterswith the Australian Constitution, CCH Australia Limited, 1987: 260.
196 Coper, M. Encounterswith the Australian Constitution, CCH Australia Limited, 1987: 260.
197 Coper, M. Encounterswith the Australian Constitution, CCH Australia Limited, 1987: 270.
Monarchyor Republic? Reserve Powers of the Head ofState The Gordian Knot 59
31.1 Proposition I The Status Quo
The head of state is conferred with all the powers of the Governor  General, intact and uncodified, and without further constitutional amendment. If the only change made to the Constitution is the substitution of a head of state for a Governor-General, then certain matters should be borne in mind.
First, a 1975 type-situation could occur again. But, it is submitted, the response of the head of state may be less predictable than it currently is. Secondly, it has been asserted that there are differences in being a republic, which of themselves may affect the usage, and the frequency of the use of the powers by the head of state. If this caution
is to be heeded, then the question of the reserve powers assumes greater importance under a republican form of government than under a constitutional monarchical system of government. The argument is that a head of state in a republic, particularly an elected head of state, would be more likely to exercise the reserve powers than a GovemorÂ
General representing the Monarchy. The fear that the Monarchy might be damaged by any improper exercise of the powers is effectively removed. The head of state will be acting in his or her own right, rather than as 'a mere surrogate'. If that head of state is elected, then he or she may be of the opinion that the office carries with it a mandate and with that mandate resides some considerable powers.
Further, if elected, the head of state may be more willing to recognise a constitutional duty to act on behalf of the electorate in certain circumstances. It has also been suggested that the power to remove the head of state may also be relevant. If the head of state is elected,
then he or she may have 'secure tenure of office'.198 The threat of dismissal which apparently worried Sir John Kerr, will not be a factor. 199
And in a 1975-type situation, how would a head of state be expected to act? Should the head of state simply refuse to exercise the reserve powers remembering the wrath incurred by Sir John Kerr in 1975 and thereafter? Would the head of state be swayed by the opinions of some
constitutional lawyers and writers that the exercise of the power in 1975 was 'erroneous'? For example Cooray stated that (referring to the 'rule' that the exercise of the power is warranted where the Senate has blocked supply):
198 Winterton, G. 'Keeping it Simple', in The Independent, June, 1993.
199 Kerr, Sir John. Matters for Judgment, Macmillan of Australia, 1978: 358. See also Whitlam, E.G. The Truth ofthe Matter, 2nd edn, Penguin Books, 1983: 111.
60 Monarchy or Republic?Reserve Powers of the Head ofState The Gordian Knot
Its disavowal is essential for the functioning of constitutional government. 200
But what of the warning of Sir Harry Gibbs, that 'there would be no certainty that the president would observe the conventions that now govern their exercise'?201
Alternatively, the head of state may conclude that he or she is not bound by the conventions which are said to bind the Governor General, there being no provision inserted into the republican Constitution to say so. Further, it would be open to the head of state
to draw an inference from the conspicuous lack of constitutional amendment to his powers. Rather than accepting that a government may have avoided further constitutional amendment because of the difficulties associated with having the amendments passed by referendum, and as a matter of political expediency, it would be open
to the head of state to conclude that Parliament's intention, and the people's intention, was to ratifY the exercise of the powers in 1975. The head of state would have to reconcile the acute absence of constitutional reform with a general perception that the dismissal in
1975 was exercised on highly questionable grounds. This would be the unenviable position of the head of state. And, with all those tempting powers!
In such a situation, the safest course for the head of state may be to resign, if indeed he or she can.
31.2 Proposition IT Limit the Senate's control over supply
One of the options discussed above, to guard against the crisis of 1975 being repeated, is that the Senate's control over supply be removed. For example, it has been recommended that the Senate should not have the power to block supply for more than 30 days. This option being refused, it was recommended in the alternative that a
government which is denied supply must be able to obtain a double dissolution, whereas as the matter stands under the present arrangements, the blocking of supply can force the Lower House to an election unaccompanied by even a half senate election. 202
200 Cooray, L.J.M. Conventions, The Australian Constitution and the Future, Legal Books Ltd, 1979: 157.
201 Gibbs, Sir Harry, 'Republic: difficult and dangerous' in The Canberra Times, Monday, 28 June 1993.
202 Summary of the Reports of the Advisory Committeea to the Constitutional Commission, Australia's Constitution, Time to Update, Canberra, 1987: 41.
Monarchy or &pubJic? Reserve Powers of the Head ofState The Gordian Knot 61
If the Senate no longer had the power to block supply or to block it for such a period that it can effectively cripple the government, the likelihood of a 1975-type situation revisiting Australia's constitutional scene is greatly diminished, if not completely evaporated.
31.3 Proposition ill Constitutional Amendment of 8.57
It has been suggested that the 1975 crisis and the controversy caused is sufficiently potent that the only proper course is constitutional . amendment:
Since the Governor-General failed to forbear long enough to allow the principle that the Senate should not block supply to become established, it seems that the major movement back towards a more democratic system will occur only through constitutional amendment.203
As mentioned in the Propositions Table above, it is submitted that one of the essential amendments to s.57 must be the extension of that section to situations where the Senate has deferred consideration of the Supply Bills. Equally important is that the machinery so provided by that amendment, must allow for the resolution of the matter within
a time frame appropriate to money bills. 204
It has been suggested that the present s.57 places the Senate in a superior position, and that this, coupled'with its inadequacies exposed by the 1975 crisis, leads to the conclusion that the section ought to be redrafted. The suggested redrafted form, it has been argued, should provide for disagreement between the Houses to be addressed by:
A. A joint sitting of both Houses
B. On certain occasions, when it rejects vital legislation, it shonld be the Senate which should be clissolved as the House expressing disapproval.
C. There should be a more rapid provision for a Referendum on the question. Even a budget could be submitted to the electors directly by a
referendum.205
203 Coper, M.E. Encounters with the Austrilian Constitution, CCH Australia Limited, 1987: 273.
204 Note: It can be argued that these proposed amendments are consistent with the prominence which s.54 of the Constitution gives to Appropriation Bills for the ordinary annual services.
205 Yarra Valley University of the Third Age , The Australian Constitution, Heidelberg,Vic., Yarra Valley U3A, 1989: 24A.
62 Monarchyor Republic?Reserve Powers ofthe Head ofState The Gordian Knot
An alternative constitutional amendment to resolve deadlocks over the money bills, which could operate in conjunction with s.57, is as follows:
Under the present Constitution, the ability of a government to continue or of a person to form a government is dependent upon both winning the confidence of members in the House of Representatives as well as securing the passage of Bills, particularly money bills, through the Senate. The Founding Fathers of the Constitution have, in section 57, provided a procedure for resolving disputes between the Houses on
the basis that under the democratic system that we have, the will of the people will be reflected by a majority at a joint sitting of the Houses.
It is suggested that any proposal of a head of state to exercise a reserve power, whether codified or not, should be put to each House for approval. If approval is not granted by each House to the exercise ofthe reserve power in the manner proposed by the head of state, then it should be put to a joint sitting ofboth Houses. If the proposal is not approved at a joint sitting, then both Houses should be dissolved and
an election called to ascertain the will of the people. In the meantime until the conflict is resolved, there must be provision for the annual services of government to continue based on the pro-rated
appropriation made by Parliament for the previous financial year indexed for inflation. 206
The notion of constitutional reform is hardly new. In 1977, Colin Howard, after discussing the difficulties and shortcomings of not only s.57 but other parts of the Constitution, stated:
There is really only one conclusion to be drawn. The present constitution should be totally replaced.207
31.4 Proposition IV Reserve powers codified and limited
The head of state is not conferred with the power to dismiss the elected government if the Senate blocks supply. The status quo is otherwise preserved.
If the Senate retains the power to block supply, and the Senate chamber is not reformed so that its political initiatives are not
206· Pulle, B. Acting Director ofthe Law and Government Group, Department of the Parliamentary Library, Conversation, 29 June 1993.
207 Howard, Colin. 'The Constitution as a Legal Document', in Change the Rules! Towards a Democratic Constitution, 00. Sol Encel, Donald Home and Elaine Thompson, Penguin Books, 1977: 42.
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curtailed, then a 1975 situation may occur again. Indeed, perhaps it will be just a matter of waiting for the opposition to have a majority in the Upper House and for the right politicians to find the right political moment. If the situation does present itself again, and under
a republican Constitution where the head of state is without power to deal with it and the Constitution itself is without the machinery to deal with it, might not the probable outcome be nothing short of catastrophic? A deadlock situation would occur. The government could be forced to an early election by, arguably, the weight of Australian constitutional convention; or, the opposition could relent.
However, if both government and the opposition refuse to move from their positions, the money will eventually run out. Would chaos reign?
31.5 Proposition V Minimise the chances of a deadlock
Another avenue for reform would be to 'revamp', or 'remodel' the Senate. Perhaps the composition and the role of the Senate should be subjected to closer scrutiny. The powers of the Senate and the exercise. thereof should be dominated by its chief role. Most writers refer to the
intended role of the Senate as the 'House of Review' or the 'States' House'. If this is an acceptable role for the Senate, then ways should be devised to disarm it of the pervasively political character it has assumed. The Senate could be isolated somewhat from party politics. It. should not be the 'alter ego,208 of the opposition, but at the same
time it should be sufficiently distanced from the government ofthe day to perform its intended function. As part of this review issues such as the synchronisation of elections209, the giving of Ministerial
208 Coper, M. Encounterswith theAuatraJian Constitution, CCH Australia Limited, 1987: 262.
209 Whitlam, E.G. The Truth of the Matter, 2nd edn, Penguin Books, 1983: 2-3. Whitlam stated: 'Between 1949, the first election using the proportional system of voting for the Senate, and the 1975 double dissolution, the parties controlling the House of Representatives had a majority in the Senate for only eight years'.
64 Monarchyor Republic?Reserve Powers of the Head ofState The Gordian Knot
portfolios to Senators210, and the election of Senators for the Federal Territories211 could be re-examined.
Proposition V envisages that the Senate could be so radically transformed that any power which it has to block supply would be rendered obsolete. The House of Review would not be motivated to politically undermine a government enjoying the confidence of the
Lower House.
35. Not a simple matter
It is submitted then, that if the response to the 1975 crisis is judged to have been unacceptable, then certain courses ofreform are available to ensure that the situation does not arise again. Whether or not the head of state should have certain reserve powers and whether and in
what circumstances such powers ought to be exercised are bound to other areas of our constitutional system. It is not a simple matter.
36. Future directions - preservation of democratic rights There is no doubt that the matters raised in this paper are, or should be key issues in the republican debate.
The consideration of the question of the reserve powers of the head of state must be reviewed in the light of the democratic freedoms and rights whichAustralians have enjoyed and which they expect to be able to continue to enjoy. What do Australians want? Amongst other things, they want their democratic rights preserved. They want them
intact and uncompromised. It has been stated:
two words are glaringly conspicuous by their absence from the mouths of most proponents of a republic: 'democracy' and 'citizenship,.212
210 This matter was addressed in the Report of the Advisory Committee on Executive Government of the Constitutional Commission, St. James, NSW, Constitutional Commission, 1987: 28. The Commission recommended that there be no constitutional inhibitions on ministers being chosen from the Senate. The writer considers that some of the reasons there given should be further
examined in the light of the broader interests of the Australian community and its constitutional system.
211 Howard, C. 'The Constitution as a Legal Document', in Change the RuleB! Towards a Democratic Constitution, Ed. Sol Encel, Donald Horne and Elaine Thompson, Penguin Books, 1977: 41.
212 O'Brien, P. We the People, The Independent, June 1993.
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There is a heavy onus resting on the advocates of Australia's 'brave new world' to preserve the democratic rights and freedoms of the Australian people, intact and uncompromised. It may be that this is the proper starting point for the debate.
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