How the Reserve Powers Work
By Sir John Young AC KCMG
Address to 2002 ACM Conference, October 5, 2002, Box Hill Golf Club, Melbourne, Australia
As released by ACM Office of Press Secretary
SIR JOHN: It might be possible to answer the question "What is the role of the Crown in the Victorian Constitution?" simply by saying "The Role of the Crown is to govern Victoria." It might not be a very helpful answer but it would be another way of saying that we live under a constitutional monarchy.
The constitutional monarch under which we live has evolved over hundreds of years, beginning perhaps with Magna Carta. I think the single most important step in that evolution was the Glorious Revolution of 1688 from the consequences of which our principle liberties stem. A full understanding of our system of government requires a study of how the evolution took place, but the essence of the system is not all that difficult to understand although the level of ignorance in the community is sometimes alarming and that no doubt is what you are concerned about.
A constitutional monarchy is a system of government, a system of government in which the head of state rules according to the constitution. The constitution may - be written or unwritten - or a mixture of both. In Britain and New Zealand the constitution is unwritten. In Australia of course we have a written constitution but some of the constitutional powers of the Queen and her Governor-General are not codified in the constitution but remain unwritten and the subject of convention.
In Victoria the position is broadly similar. We have a written constitution but some of the constitutional powers remain the subject of convention.
The Victorian Constitution is different in kind from the Constitution of the Commonwealth. The latter is an Act of the Parliament of the United Kingdom constituting or creating the Commonwealth of Australia and the Constitution contained in it can only be amended by the means provided for in Section 128 (usually called a referendum). The Victorian Constitution on the other hand is an Act of the Victorian Parliament - the Constitution Act 1975 which was reserved for the Royal Assent and assented to on 22 October 1975. It may be amended by the Parliament of Victoria subject in some cases to the concurrence of an absolute majority of the whole of the members of the Council and of the Assembly (Section 18). There was of course an earlier equivalent, the first being adopted in 1884-5 establishing the Colony of Victoria.
The present Constitution Act has eight parts but I shall only refer to those which directly affect the three principle areas of Government: the Legislature, the Executive and the Judiciary.
The first part of the Act is entitled "The Crown". It provides for the appointment of a Governor (and also for the appointment of a Lieutenant-Governor whose role is simply to stand in the place of the Governor if he should be out of the State or through illness or for any other reason unable to act).
There must always be someone available to "administer the Government." That part of the Act (Part 1) gives the Governor certain express powers relating to the holding of Parliamentary Sessions, but I shall not go into the details of those provisions.
The Governor has other powers conferred upon him by other Acts and I shall refer to those in a little more detail when I come to deal with the Executive.
The second part of the Constitution Act deals with the Parliament about which I shall only say that it follows the British tradition whereby broadly speaking the powers which it exercises were once the powers exercised by the reigning monarch.
But I want to draw your attention to how Acts of the Victorian Parliament used to begin, because the words encapsulate the essence of Constitutional monarchy.
Until recently all Acts of the Victorian Parliament began: "Be it enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):-" Very similar words are used in the British Parliament and in the Federal Parliament in Canberra.
Although what follows is called an Act of Parliament, it is the Queen who "enacts".
No Act so passed by Parliament becomes law until it has received the Royal Assent, given of course by the Queen's representative. The Governor cannot refuse to give the Royal Assent to a Bill presented to him or more accurately would do so at his peril. If he wrongly refused to give the Assent the Premier would probably advise the Queen to withdraw his commission. Yet it is not written down anywhere that the Governor is bound to give the Royal Assent: it is a matter of convention.
Victorian Acts no longer begin with the time honoured words which I have quoted, but simply with the words "The Parliament of Victoria enacts as follows:" but the effect is the same and the Royal Assent is still required. I shall not trouble you with the details of the language that is used.
Part 4 of the Constitution Act deals with the Executive.
This Part provides for the appointment of members of the Executive Council and for meetings of the Council. Members are appointed by the Governor on the recommendation of the Premier and are invariably the Ministers of the day. The Council consists of the Governor and two or more of those ministers. It usually meets on Tuesday mornings.
Most of the business of government is conducted by the Executive and much of that is done through the Governor-in-Council. Very many Acts of Parliament confer powers on the Governor-in-Council, such as the power to appoint judges and other important statutory offices, to approve the lease or sale of Crown land, to make and amend regulations and so on. Instead of authorising a Minister to make regulations for instance, Parliament authorises the Governor in Council to do so. This is a very important check in the system. It means that a Minister's proposed action is examined and considered not for its political policy but for its constitutional validity and its consistency with the practices and conventions of good government. The Governor acts on the advice of the Executive Councillors, but he is entitled to ask questions and to advise and to warn. He may advise against a particular course but if the Ministers (Executive Councillors) adhere to their advice the Governor is bound to act on it and not on his own opinion.
Many Acts confer powers on the Governor, sometimes on the Governor in Council. In the latter case the Governor acts on the advice of the Executive Council but if the power is simply conferred on the Governor he is bound to act on the advice of the Premier (Constitution Act S.87E).
The Governor is appointed Visitor to each Victorian University (by the Act constituting the University) to deal with disputes within the University but in exercising the powers so conferred the Governor is not required to seek Ministerial advice. In practice the Governor usually appoints a Supreme Court judge to hear argument on the dispute and advise the Governor on the appropriate order to make.
The Governor exercises very little personal power. His only personal power is what is known as the reserve power which for present purposes may be described as the power to dismiss a Premier who, for instance, lost an election and refused to resign or who proposed to act illegally. In such a case the Governor acts without Ministerial advice and in the case of a lost election would dismiss the Premier and call upon the Leader of the party with the largest number of seats in the Legislative Assembly to form a government.
The reserve power is not written down anywhere. It is an inherent power in the Sovereign's representative derived from the Constitutional Monarchy and the retention of the power in the Sovereign or her representative to ensure that the ultimate power of the people should prevail.
If Victoria became a republic the power would disappear unless it were in some way conferred on a new Head of State. To do so would involve specifying and describing the circumstances in which the power might be exercised. That would be a very difficult task: it was one which the Commonwealth baulked at on the occasion of the referendum in 1999 and any attempt to codify a power similar to the reserve power would probably be justiciable in the Courts with all the attendant difficulties and delays. The exercise of the reserve power is not justiciable. The cases in which the reserve power has been exercised in the past differ markedly from one another and that is what would make the circumstances of its use so difficult to codify.
Perhaps it might be thought that we could do without the existence of such a power. If so it would be as well to remember what has often been said viz that the strength of our constitutional monarchy is not the possession of power by the Monarch but the fact that the Monarch or her appropriate representative can deny anyone the acquisition of ultimate power. The monarchy does not exist in the interests of the Monarch: it exists in the interests of the people. As Professor Bogdanor says at the conclusion of his book The Monarchy and the Constitution (Oxford University Press, 1995) "constitutional monarchy survives in a small number of favoured nations mainly in Western Europe, in which far from undermining democracy, it serves to sustain and to strengthen democratic institutions; and, if the conjunction of monarchy and democracy may seem a contradiction, it would be well to bear in mind Freud's aphorism that it is only in logic that contradictions cannot exist" (p.309).
The disappearance of the reserve power upon becoming a republic (unless specifically enacted) highlights to my mind the absurdity of considering how a Head of State should be chosen or appointed without first deciding what powers the Head of State is to have or to exercise.
Part 3 of the Constitution Act deals with the Supreme Court and I do not propose to say much about it. It is one of the Royal Courts of general jurisdiction in the British tradition. The judges are appointed by the Governor on the advice of the Executive Council and hold office during good behaviour, a fundamentally important right acquired as a result of the revolution in England in 1688. You will remember that in Stuart times judges held office during pleasure and were liable to be dismissed if they gave judgements which displeased the monarch. It is in the Supreme Court that the Executive Government prosecutes all serious crime in the name of the Crown. Cases are reported as Regina v. the accused and indeed the whole of our criminal jurisprudence is based on the fact that the Crown prosecutes all serious crime in the Royal Courts.
In preparing these remarks I have drawn upon a very good little pamphlet which I commend to you, if you do not already know it. It is called Victoria's Constitution - The Constitution of Victoria with notes on how it works published in 1995 by Law Press. It was the work of a committee headed by Mr. Richard McGarvie when Governor and the notes were mostly written by Mr. John Waugh, Lecturer in Law in the University of Melbourne.
Another very good little pamphlet is one entitled The Role of the Governor of Victoria published in response to public demand in 1994 by the office of the Governor.
Reference to that pamphlet leads me to say a little more about the role of the Governor beyond his formal or statutory powers, and in doing so I wish to commend to your attention two excellent publications, one by a former Governor of Victoria and one by a former Governon-General.
In 1993 Dr. Davis McCaughey as Governor of Victoria delivered the Eighth Hugo Wolfson Memorial Lecture at La Trobe University. It was entitled The Crown at State Level. He dealt not only with what he called the constitutional responsibilities of a Governor but also with the ceremonial and social role.
In the first part Dr. McCaughey covered more elegantly than I have done the role of the Governor and I would steal from it a quotation from the Queen herself speaking in Quebec in 1964. "The role of the constitutional monarch" she said "is to personify the democratic state, to sanction legitimate authority, to ensure the legality of its measures, and to guarantee the execution of the popular will. In accomplishing this task, it protects the people against disorder." And that is exactly what the Governor does in Victoria pursuant to his statutory powers.
Dr. McCaughey also discussed the ceremonial role and emphasised not only such functions as the opening of Parliament and the swearing in of Ministers but also the ceremonial or symbolic significance of having a Head of State (which a Governor is) in an international setting. Many foreign Heads of State visit Victoria and they can only properly be received by a Head of State. Likewise ambassadors. The section is a thoughtful and important contribution on this part of the Governor's role. Likewise Dr. McCaughey's consideration of the social role of the Governor is penetrating and thoughtful and shows how that role has changed as Victorian society has changed. A recent development is the invitation to the Governor to visit foreign countries to assist in the development of friendly relations with those countries.
The other publication is a pamphlet entitled The Office of Governor-General by Sir Paul Hasluck. The centrepiece of this pamphlet is The Queale Memorial Lecture delivered in Adelaide on 24th October 1972. In this lecture Sir Paul covered very fully all aspects of the role of the Crown in the Government of the Commonwealth but in addition the pamphlet contains useful notes and a section on his own particular method of working in the office of Governor-General.
Another important role of the Crown is as the fountain of honour. Honours are created and conferred pursuant to the prerogative powers of the sovereign and this power is not exercised by the sovereign's representatives. It is only honours that stem from the Crown that are officially recognised. The Order of Australia is a Royal Order established by the Queen by Letters Patent and the insignia include a crown. State Governors do not have any role in the process of granting honours but the Governor-General is charged with the administration of the Order. It seems to me that the Order would necessarily go if Australia became a republic, although I suppose something else could be substituted by whatever authority was thought to have the power to confer honours.
I want to conclude by saying something not so much about the role of the Crown as about its significance in our system of government. The strength of the constitutional monarchy lies in the fact that the Head of State is non-political, free from party ties. And I think Professor Bogdanor has written somewhere that whatever system of government in a republic is devised, the Head of State usually turns out to be a politician (cf. Bogdanor, The Monarchy and the Constitution, Oxford University Press, 1995 p.63). That certainly happened in the United States of America in spite of the strenuous efforts of the founding fathers to ensure that the President stood "apart from and above political parties." (Bryce, The American Commonwealth, 1888 Macmillan, Vol. I, Ch.V).
Our system of constitutional monarchy with its many conventions and traditions imposes on governments and on individuals a standard of behaviour that I believe could not be replicated in a republic. Why this should be so and the significance of the Crown in producing the result is not easy to express or even to describe; it is almost totally intangible, but nevertheless I think it is very real. It derives from the fact that the Head of State is non-political and it permeates every aspect of government. The fact that all government is carried on in the name of the Crown, that Ministers are appointed by the Crown and swear allegiance to the Crown, that criminals are prosecuted in the name of the Crown and all the many conventions of government I believe raise the performance of ordinary mortals, if only a little bit, and impose on governments and individuals a little restraint, which is surely vital to good government. I think that the significance of the Crown in the government of the State is as important as the constitutional role of the Crown which I have endeavoured to describe.
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©2002 Sir John Young