The Role of a State Governor (p3 of 5)

Assent to Bills

No bill passed by the Legislative Assembly becomes law until it is assented to by the Governor. In Queensland, New South Wales, Victoria and Western Australia, assent is given in the name of the Queen and in the other two States in the Governor's name. The Australia Acts expressly repealed the provision in the Constitution Act (s.llB, inserted in 1977) which required him to act in obedience to instructions conveyed to him by the Monarch for the exercise of his powers to assent, dissent or reserve for Her Majesty's pleasure Bills to be passed by the Legislative Assembly. I mention that no British Monarch has refused assent to an act of Parliament since 1707. The Governor has, as does the Monarch, the power to refuse assent to bills duly passed by the Parliament, and, in this context, I mention the possibility of a government advising the Governor to refuse such assent.

Prior to the passage of the Australia Acts the practice was that the Queensland Attorney-General furnished a certificate to the Governor in relation to each Bill to the effect that there was no objection to the Bill being assented to by the Governor and that there was no requirement to withhold assent or to reserve the Bill for Her Majesty's approval. However, after the passage of those Acts I requested that a certificate be issued to the Governor by the Attorney-General merely informing him that the particular Bill presented with the certificate for Royal assent has been duly passed through all stages by the Legislative Assembly and that it is in order for the Governor to assent to the Bill. This is now done in every case.

Executive Council

Before dealing with this aspect let me remind you of what was pointed out by Walter Bagehot in his work The English Constitution (1867), when he explained that the Monarch's effective power is to be found in her celebrated rights to be consulted, to encourage and to warn. Consequently, in the exercise of his constitutional powers and responsibilities, the Governor possesses those rights in respect of ministerial advice given to him.

Bagehot's actual words aptly express the role of the Monarch, and of the Monarch's representative. He said (0.U.P. 1955, p.67): "To state the matter shortly, the Sovereign has, under a constitutional monarchy such as ours, three rights - the right to be consulted, the right to encourage, the right to warn. And a king of great sense and sagacity would want no others. He would find that his having no others would enable him to use these with singular effect. He would say to his minister: 'The responsibility of these measures is upon you. Whatever you think best must be done. Whatever you think best shall have my full and effectual support. But you will observe that for this reason and that reason what you propose to do is bad; for this reason and that reason what you do not propose is better. I do not oppose, it is my duty not to oppose; but observe that I warn'. Supposing the King to be right, and to have what kings often have, the gift of effectual expression, he could not help moving his minister. He might not always turn his course, but he would always trouble his mind."

It is provided by the Office of Governor Act (s.6) that there shall be an Executive Council for the State consisting of the persons who immediately before the passing of the Act are members of that Council, and persons who may at any time be members of the Council in accordance with any Act in force, and such other persons as the Governor shall from time to time appoint until their membership be terminated by death, resignation or removal by the Governor. An Executive Council had been constituted in similar terms by the preceding Letters Patent. In Queensland and in, I think, every other state of Australia, every Cabinet Minister is sworn as a member of the Executive Council, the Council is comprised solely of cabinet ministers, and the convention is that, when such person is no longer a minister, he or she resigns or is dismissed from the Executive Council.

The Governor is not himself a member of the Executive Council although the Act provides (s.7) that the Governor shall attend and preside at all meetings of the Council unless prevented by some good and sufficient cause and, in his absence, such member of the Council as the Governor may appoint, or in the absence of such appointee, the member of the Council taken to be the most senior of the members present shall preside. Of course, as I mention later, in the absence of the Governor, should an administrator be appointed or should the Governor appoint a deputy, such person presides at Council meetings.

In the 1925 Royal Instructions to the Governor (cl. vi), it was expressly stated that: "In the exercise of the powers and authorities vested in him the Governor shall be guided by the advice of the Executive Council, but if in any case he shall see sufficient cause to dissent from the opinion of the said Council he may act in the exercise of his said powers and authorities in opposition to the opinion of the Council, reporting the matter to us without delay, with the reasons for his so acting"

It is interesting that the Letters Patent of the 14th February, 1986, in revoking the 1925 instructions to the Governor, revoked that part of the instructions which was to the effect that the Governor in the execution of his powers and authorities shall be guided by the advice of the Executive Council. The 1986 Letters Patent did not repeat those words nor does the Office of Governor Act which suspended the 1986 Letters Patent. I interpose here to say that the fresh 1986 Letters Patent relating to the Governors of the states of South Australia, Western Australia, and Tasmania provide that there shall be an Executive Council to advise the Governor in the government of the state. In the case of Victoria the Letters Patent provide that there shall be an Executive Council to "advise the Governor on the occasions when the Governor is permitted or required by any statute or other instrument to act in Council. The Premier (or in his absence the Acting Premier) shall tender advice to the Governor in relation to the exercise of the other powers and functions of Governor." In New South Wales the Constitution (Amendment) Act 1987, which I have mentioned earlier, provides that there shall continue to be an Executive Council to advise the Governor in the government of the state. So far as I have been able to ascertain the states, other than New South Wales and Queensland have not as yet enacted legislation to take the place of their Letters Patent and Royal Instructions.

So, in Queensland, unlike the situation in the other states, it is not expressly laid down that the Governor shall be guided by the advice of the Executive Council although it is provided (Acts Interpretation Act 1954-1985 (s.36)) that in any Act, unless the contrary intention appears, the term "Governor in Council" means "the Governor acting by and with the advice of the Executive Council". Of course, in accordance with constitutional convention, the Governor of Queensland should always act on such advice - except in the cases of the exercise of the "reserve" powers which I will consider later. The principle that the Governor acts only with the advice of ministers is the very essence of our system of responsible government. After all, by Section 14 of the Constitution Act and by provisions contained in a large number of other Acts, it is made clear that it is the Governor in Council which gives legal authority to actions to be taken or decisions made under the Constitution Act and under the other Acts of the Parliament of Queensland. The Executive Council exists, primarily, to put into official form decisions which have been made elsewhere. It is a body which gives formal advice to the Governor by way of seeking approval of a written submission.

The Executive Council is not a deliberative body or a forum for debates and the expression of varying opinions, as is the Cabinet. The Governor does not reject the advice given him by the members of the Executive Council but, in accordance with his rights to be consulted, to encourage and to warn, he may, in response to such ministerial advice, ask questions and seek further information. In doing so he must be careful that he is by no means acting in any way which shows that he favours the view, perhaps, of one or more ministers as against the views expressed by other ministers. I also point out that the Cabinet papers are delivered to the Governor in advance of Cabinet Meetings - just as they are circulated in advance to ministers - so that he is able to keep in touch with Cabinet business.

Documents are placed before the Executive Council in the form of departmental minutes. These minutes constitute recommendations by the responsible ministers that certain action be taken. Each minute is initialled prior to the meeting by all the ministers (even though some of them may not be personally present at the meeting) indicating their acquiescence to its approval. Of course, an explanatory memorandum is attached to each minute, and the ministers take responsibility for the advice which they give. When appointments to the many and varied statutory authorities come for approval to the Council, the relevant minute contains an explanatory memorandum indicating why the appointment needs to be made and giving information about the person recommended for such post. I find these memoranda extremely helpful and, on occasions, have taken the opportunity to discuss with ministers the nature of the appointment. The Governor signs the departmental minute indicating formal approval of it, and he also signs the Executive Council minute.

In Queensland a practice has recently been instituted whereby the Executive Council minutes are submitted to the Governor the day before the meeting of the Executive Council so as to give him the opportunity to peruse them. Generally, the Governor does not know which ministers will be present at a particular meeting of Executive Council, until he attends an hour or so before the meeting is due to commence in order to sign the relevant documents. A quorum of the Council consists of two ministers exclusive of the Governor or of the member presiding.

In Queensland, the Executive Council meets weekly, generally in the Executive Building, or in a room at Parliament House when Parliament is sitting. Sometimes it meets at Government House, but this involves certain practical difficulties and inconvenience since, at present, there is no specific Executive Council room at Government House and sometimes a large number of ministers attend. Queensland Government House is, I believe, the only State Government House which was not originally built as a Government House, although it is a very comfortable place in which to live, to receive callers, to transact the business of Government House, to hold receptions, dinners and other formal functions which are the lot of a Governor. To my knowledge it has been the general custom for the Governor of Queensland to meet with the Executive Council at the other places outside Government House which I have mentioned.

It is pleasing if a number of ministers attend meetings of the Executive Council because it then gives the Governor the opportunity to raise, with a particular minister, any questions concerning matters submitted to the Council. Of course, the Governor is free to get in touch with any minister prior to the meeting in order to seek clarification of a recommendation made by that minister. When I have done this I have always found the ministers to be very helpful and co-operative.

You are all fully aware that the range of activity by government these days is a very broad one and the minutes presented for the approval of the Governor in Council often exceed more than a hundred a week. They include the making of proclamations and orders, regulations, appointments to statutory bodies and to senior Public Service positions and many other matters of government business.

In cases of urgency a special meeting of the Executive Council is held, usually at Government House. If the Governor is satisfied of the urgency of the matter, he will approve of the minute, and at the next regular meeting of the Council the Governor will report to it on the business conducted at the special meeting. Prior to approving the minute or minutes placed before the special meeting, the Governor may well take the course of asking in some detail about the matter and why it is urgent.

Continued…

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