The Role of a State Governor (p4 of 5)
Sir Paul Hasluck in his publication The Office of Governor-General (1979) pointed out that "part of the value of the work of the Executive Council was in protecting the Government and especially the Prime Minister from the carelessness or precipitate action either of neglectful ministers or self-willed departments".
The Governor of Queensland then has no right to dissent from the opinion of the Council, although he may suggest that a particular recommendation be stood over or deferred until further consideration has been given to it or until further relevant information is obtained from the appropriate minister. No doubt the particular approach adopted by any Governor will vary because much depends upon the Governor's own personality and his own way of doing things. As I have indicated, my experience has been that the premiers and the other ministers have been extremely cooperative and they take pains to explain matters to me should I have any questions.
Dissolution of Parliament, Appointment of Ministers and Discretionary Powers
I think I have already made it clear that, in the normal exercise of his powers and duties, the Governor in accordance with constitutional convention must act on the advice of his ministers - and this advice comes usually from the Executive Council. In short the Governor's only advisers, apart from when he is exercising the discretionary powers to which I will refer later, are his ministers. The Governor has only one set of advisers.
What is meant by the expression "constitutional convention"? Sir Kenneth Wheare (Modern Constitutions (1951), p. 179) wrote: "By convention is meant a binding rule, a rule of behaviour accepted as obligatory by those concerned in the working of the constitution." Dicey (The law of the constitution (1959)10th ed., p.24) said that they were "conventions, understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power ... are not in reality laws at all since they are not enforced by the courts". Constitutional conventions have their basis in the very nature and operation of the system of parliamentary government with the executive being responsible to the parliament. The answers to questions as to which conventions should apply in particular cases, and the formulation of such answers as propositions of accepted principles of constitutional usage and practice, are derived from precedents and from the writings of constitutional lawyers, political scientists and other scholars in this field. A recent publication which deals with these usages, and with many of the unresolved arguments about some of them, is Constitutional Conventions 1984) by Geoffrey Marshall. For example, one of these constitutional maxims is that the Monarch, or the Governor, must assent to any bill which has been duly passed by the Parliament, another that ministers should resign when they cease to command the confidence of Parliament.
May I refer now to certain provisions of the Constitution Act? That Act (s.12) empowers the Governor to fix the place and time for the holding of every session of the Legislative Assembly, and also to prorogue and dissolve the Assembly from time to time whenever he shall deem it expedient. Normally the Governor would exercise these powers on the advice of his ministers, in effect the Premier. The Constitution Act (s.14) also provides that appointment to all public offices shall be vested in the Governor in Council with the exception of officers liable to retire from office on political grounds which appointments shall be vested in the Governor alone. The expression "officers liable to retire from office on political grounds" clearly includes ministers. A significant amendment to that Act was made in 1977 by the insertion of a provision (s.14(2)) stating that officers liable to retire from office on political grounds shall hold office at the pleasure of the Governor who in the exercise of his power to appoint and dismiss such officers shall not be subject to direction by any person whatsoever nor be limited as to his sources of advice. It appears that there has not been any legislation enacted in the other Australian states corresponding to this 1977 Queensland provision as to the Governor not being subject to direction and not being limited as to his sources of advice.
It seems that the only powers in the exercise of which the Governor retains a personal discretion (sometimes referred to as the "reserve powers"), and in which he may act without or contrary to ministerial advice, are his powers to dissolve the Legislative Assembly and to appoint and dismiss the ministers when circumstances require a change of government. The need for the exercise of these discretionary powers, when a Governor has to act in his own deliberate judgement, may arise after an election, for example when there is a hung parliament or even during the life of a parliament when it is not clear which person or political party can command the confidence of the parliament. It is the prerogative of the Chief Minister, the Premier, to choose his Cabinet Ministers, and the appointment and dismissal of individual ministers (other than the Premier) is, by constitutional convention, done by the Governor only on the advice of the Premier. When a premier himself resigns his government falls and all ministerial offices are at the disposal of his successor - it is the new Premier who will then form his own administration. Whether Parliament should be dissolved and which person should be commissioned to form a government may depend on a number of factors which have to be considered by the Governor. It is not appropriate or desirable for me to discuss the several situations which have arisen in the past and which may arise from time to time in the future, or to deal at any length with the constitutional conventions which may apply to the many different circumstances. As I have indicated, there is a large literature to be found in books and learned articles which have been written about these matters. A leading Australian work is Dr H.V. Evatt's The King and His Dominion Governors. One recent instance of the exercise of this independent power was, as you will recall, the dismissal of ministers by the Governor-General in 1975. I will not go into the issue as to whether the powers of a state Governor are to be equated to those of the Governor-General of Australia, or as to whether the Governor of a state possesses a wider degree of discretionary authority than that which resides in the Governor-General and probably wider than that which adheres in the Monarch in the United Kingdom. In Queensland the power of the Governor to appoint and dismiss ministers is a statutory power stemming from the explicit provisions of the Constitution Act to which I have referred. In the exercise of this power the Governor does not consult the Queen. Further, in exercising his powers the Governor must act constitutionally and not arbitrarily. But apart from the direct exercise of discretionary powers, it should be borne in mind that a Governor, in times of political crisis, has a constitutional right to advise and counsel ministers and those who are seeking to form a government with the object of bringing about conciliation or accord between opposing factions or parties - advice based on the wish for the retention of stable and orderly government.
Dr Anthony Low, a former Vice-Chancellor of the A.N.U. and now Smuts Professor of the History of the British Commonwealth at Cambridge, has written about the Westminster System: see Buckingham Palace and the Westminster Model; "The Round Table" (1987) 304. He points out that at the death of King George V there were twenty-one replicas of the Westminster model, all of them in white territories, whereas last year when he wrote his paper, there were eighty-five such replicas in the Commonwealth. This was taking into account the Australian, Indian and Malaysian states and the Canadian provinces. Each of these states has a non-executive constitutional head, each distinguishes clearly between the headship of state and the headship of government and, to a greater or less extent, each derives its constitutional precedents from the British model. When Professor Low gave evidence, in September 1986, before the Advisory Committee on Executive Government of the Constitutional Commission, he listed fifty-three occasions since the Second World War when political crises in the Commonwealth had involved a constitutional head in decision making. This list did not include occasions when a coup d'etat had led to the supersession of constitutional headship by an executive presidency nor occasions when governments had changed without the calling upon the discretion of the head of state. I mention that one such incident in Professor Low's list was the refusal of the acceptance of ministerial resignations by the Governor of Queensland in 1983.
I will content myself by merely referring briefly to a few of the constitutional conventions which could be said to be relevant to the role of a Governor. But I stress that the statements which follow are set out in broad terms and I refer to them merely by way of illustration of the constitutional practices which appear to have evolved over time. It is important to bear in mind that all possible contingencies cannot be anticipated, that the circumstances will often vary from case to case and from country to country, and that what I say should not be taken as amounting to definitive or accepted propositions in this field.
With regard to the dissolution of the Legislative Assembly if a premier, who has the confidence of that Assembly, advises the Governor to dissolve the Assembly before the expiry of the parliamentary term laid down in the Constitution Act, the Governor in general will act on such advice. In such cases constitutional convention requires a Governor to accept the Premier's advice in all but exceptional circumstances, such as the arising of a constitutional crisis or where there has been a serious breach of constitutional convention or, perhaps, where the Governor formed the opinion that his ministers were acting illegally, as was the case when Sir Phillip Game dismissed Mr Lang from the premiership of New South Wales in 1932. In addition to the convention that the Governor can only act on the advice of his ministers there are two other basic principles, namely, that the Governor must not take sides in an open political conflict - the Crown must be seen as impartial in the interests of all people - and that, in choosing the Chief Minister (the Premier), the Governor must be guided by the test that the person chosen must be the one who can command the majority of votes in the parliament.
If a premier has had the support of the Legislative Assembly and is subjected to a vote of no confidence, or is defeated on an important issue, he should in general resign; but it may be that the Premier in lieu of resigning will ask for a dissolution. In deciding whether or not to grant a dissolution of parliament, the Governor may take a number of matters into account. Let me just say that there is strong authority that, in the exercise of the power to dissolve parliament, the Governor may in certain circumstances refuse to act on ministerial advice - for example where a premier has lost a vote of no confidence but will not resign or call a general election and there is a stable alternative government available. Although a Governor may commission a new premier when the existing government no longer enjoys the support of the Assembly and an alternative administration is possible, in most cases a defeated premier would be granted a dissolution. However, a Governor may, for instance, determine not to grant a dissolution if the request is made early in the parliamentary term and an alternative government is available. Where no viable alternative government can be found, a premier who has the support of the Assembly is clearly entitled to a dissolution.
The Office of Governor Act (s.8) empowers the Governor, so far as it is within the powers of the Queen and upon sufficient cause, to remove or suspend from office any person appointed under the authority of the Crown; and also in the case of an offender, to grant, in the name of Her Majesty, a pardon, or commutation of sentence, or reprieve of execution of a sentence or to remit fines, penalties etc. In exercising his powers to remove persons from office, or in granting pardons or reprieves, the Governor again acts on the advice of his ministers. The Constitution Act (s.18) makes it unlawful for the Legislative Assembly to originate or pass any money vote or Bill unless first recommended by a message from the Governor to the Assembly, and also (s.19) no part of the public revenue may be issued except by warrant of the Governor. In these cases the Governor will act on the advice of his ministers. The Governor, acting on the advice of the Executive Council, appends his signature to grants, dispositions and leases of crown land, including mining leases. (Land Act 1962-1987).
Every state Governor holds a dormant commission from the Queen appointing him to administer the Government of the Commonwealth in the absence of the Governor-General, and the senior state Governor is usually requested to do this. Such request comes from the Governor-General or the Prime Minister. In the absence of the Governor it is provided now by the Office of Governor Act (s.9) that the Lieutenant-Governor, or if there be no such officer the Chief Justice, or if the latter is unable to act the next senior Judge able to act, shall administer the government of the State. The Act also provides that, in the case of his temporary absence from the seat of government or illness of short duration, the Governor may appoint one of the persons in the above order as his deputy. In Queensland there has been no office of Lieutenant-Governor for over forty years, so the Chief Justice is usually appointed as the Administrator or as the deputy of the Governor.
In relation to the election of State Senators the Governor in Council is empowered (the Senate Elections Act 1960-1984) to fix dates for the issue of the writ, the nomination of the candidates, polling and so on. In such cases the Governor does so following upon a request from the Governor-General; and the Governor is also constitutionally involved (the Constitution of the Commonwealth (ss.15 and 21)), acting on the advice of the Executive Council, in the choosing of persons to fill casual vacancies in the Senate.
Incidentally, there is a sound argument that an important constitutional change was made by the Australia Acts (s.2) in that they have removed certain limitations which may have previously existed on the ability of the states to legislate extraterritorially. Ever since the Statute of Westminster was adopted, the Commonwealth Legislature has been free of any territorial restrictions and now it would appear that the states may be in an equivalent position to that of the Commonwealth.