The Role of a State Governor (p2 of 5)

Of course, for more than sixty years, the Monarch would not have contemplated negating the will of a duly elected parliament of a state, and for a long time the U.K. Government has discharged no independent responsibility for the government of a state. These matters of historical constitutional development have now been formally recognized by the recent legislation.

By reason of the enactment of the Australia Acts, but shortly before they came into force, fresh Letters Patent constituting the Office of Governor of Queensland were made by Her Majesty on 14th February, 1986 and proclaimed in this State on 6th March, 1986. These new Letters Patent, in addition to constituting the office of Governor of Queensland, revoked the earlier Letters Patent and the Royal Instructions to the Governor dated 10th June 1925. Because of the Australia Acts, fresh Letters Patent were also issued by Her Majesty at the same time in the other states (except New South Wales) making new provisions relating to the state Governors. In the case of New South Wales, additional instructions to the Governor were issued by the Queen revoking the previous instructions insofar as they were inconsistent with the Australia Acts, and the New South Wales Parliament last year enacted the Constitution (Amendment) Act 1987, assented to on 3rd June 1987, cancelling the prior Letters Patent and Instructions to the Governor.

In Queensland, the Constitution (Office of Governor) Act 1987, (referred to herein as the Office of Governor Act), was passed by the Legislative Assembly and became law on 1st December 1987. This Act (s.13) suspended the operation, as long as its relevant provisions remain in force, of the provisions of the Letters Patent made by Her Majesty in February 1986. Section 3 of the Act provides that there shall be a Governor in and over the state to hold office during Her Majesty's pleasure and to be terminated only by instrument under Her Majesty's Sign Manual taking effect upon publication thereof in the Government Gazette or at a later time specified in the instrument in that behalf. It provides (s.4) that the Governor is authorised and required to do and execute all things that belong to his office according to the laws that are now or shall hereafter be in force in the state. The Office of Governor Act also sets up an Executive Council for Queensland, but I will come to this later.

So the present powers of the Governor of Queensland are derived from his commission, from the provisions of the Australia Acts, from the provisions of the Office of Governor Act, from provisions contained in the Constitution Act, and from provisions contained in a number of other Acts which provide for certain things to be done or approved by the Governor in Council.

I will endeavour now to deal shortly with the role of a Governor under a few selected headings.

Appointment to Office and Termination of Appointment

Prior to the passage of the Australia Acts two years ago, any advice to the Monarch in relation to state matters was tendered by British Ministers pursuant to an approach made by the State Government through the Foreign and Commonwealth Office in London. Consequently, up to that time Her Majesty was entitled to receive advice from her United Kingdom ministers in regard to the appointment, or to the termination of appointment, of a Governor of a state.

In passing I will mention that, as a result of the "Balfour Declaration" at the 1929-30 Imperial Conference, a new constitutional convention was established, namely, that the Governor-General of a dominion was to be appointed by the Sovereign on the advice of the ministers of state in the dominion. This convention applied only to the dominions which were parties to the Conference. It did not apply to the states of Australia nor did it apply to the Canadian provinces where the Lieutenant-Governors are appointed by the Governor-General in Council. However, it appears that, at least since the end of World War II, this convention became established as a right in the states of Australia. But now it is clear and definite that such advice is to be tendered by the State Premier, and the Queen would be obliged, by constitutional convention, to follow such advice. The Prime Minister is not involved in the appointment of State Governors and the Queen receives no advice thereon from her British ministers.

A State Governor is appointed for an unlimited term, but the accepted convention is that his term of office is five years, although such term can be extended.

It is interesting to note that the Advisory Committee on Executive Government to the Constitutional Commission, a body established by the Commonwealth Government, has considered the question whether we need a Head of State as part of our system of government. It has recommended to the Constitutional Commission, which has not yet made recommendations to the Commonwealth Government, that a Head of State be maintained whether Australia remains a monarchy or becomes a republic. Another question put to the Committee was whether Australia should be a monarchy or a republic and, after fully considering that question, the Committee said that it did not recommend, at this time, a referendum for a republic nor did it recommend that there should be an amendment to the Constitution to allow for the possibility of transition to a republic at some future time.

When considering the question of the appointment of the Governor-General and whether he should be appointed for a fixed term the Committee recommended that the current constitutional position remain unchanged, namely, that Governors-General should continue to be appointed "during the Queen's pleasure". It went on to recommend that no maximum term of appointment should be specified and, on the assumption that by convention the current term is five years, that term should be capable of extension. It is of interest that, when considering the question of the removal of the Governor-General, the Committee referred to considerable discussion suggesting that the Prime Minister could secure the immediate dismissal of the Governor-General by a mere telephone call to Buckingham Palace. The text of the Committee's report stated that its members thought that, if the Prime Minister advised the Queen to dismiss the Governor-General, it was highly improbable that she would act without taking time to consult, to consider the matter fully and perhaps to seek the written advice of the Prime Minister. In that context reference was made by the Committee to the provision contained in the Letters Patent of the 14th February 1986 of the Governor of Queensland. As I have said, those Letters Patent are now no longer in effect but the relevant provision is repeated in the Office of Governor Act (s.3(2)(B)) which states that the appointment of a governor "may be terminated only by instrument under Her Majesty's Sign Manual taking effect upon publication thereof in the Government Gazette or at a later time specified in the instrument in that behalf". The Committee then went on to say that if "such a provision were included in the Letters Patent of the Governor-General it would not take from the Prime Minister his power to advise the Queen to dismiss the Governor-General nor her ultimate duty to act on that advice… It should, however, counter the misunderstanding evident in numerous discussions of the 1975 crisis that the Queen would have been obliged to dismiss the Governor-General immediately upon receiving the Prime Minister's advice that his appointment should be terminated". So, in Queensland the requirements of the Queen's signature and publication in the Gazette appear to make impossible a request to Her Majesty for the instant dismissal of the Governor in order to prevent him from carrying out his constitutional responsibilities.

A significant Section (s.53) of the Constitution Act, inserted in 1977, specifies that a Bill which expressly or impliedly provides for the abolition of or alteration in the office of Governor shall not be presented for assent unless it has first been approved by a referendum, and further, that referendum section itself cannot be altered unless first approved by referendum. So, since it is provided in the Constitution Act (S.llA) that the Queen's representative in Queensland is the Governor, this provision cannot be abolished or changed without a referendum, but whether any parliament of the State of Queensland would be acting validly and constitutionally if it purported to repeal those referendum provisions, without first holding a referendum, is an issue which I will not discuss here.

Continued…

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