Paper presented to the Australian Institute of Management, Melbourne, 8 September 1993, and published in London in The Parliamentarian, vol. 75, no. 3, July 1994, p.149 and in (1994) 90 Victorian Bar News, p.45
The Commonwealth of Australia is a federation consisting of six states each with its own system of government, with a separate Commonwealth system of government for the whole federation. The state and Commonwealth systems are similar, all being based upon that of the United Kingdom.Thus the state of Victoria has: a Governor who acts as Head of State and is appointed by the Queen; a Parliament consisting of an upper House (Legislative Council) and a lower House (Legislative Assembly); a government or Cabinet comprised of the Premier and other Ministers who are drawn from both Houses but have the confidence and support of the majority of the Legislative Assembly; a judiciary; and a public service, for each department of which a Minister is politically responsible to Parliament.
In the Commonwealth system the Governor-General corresponds to the Governor of a state and the Prime Minister to the Premier. The Commonwealth constitution gives the Commonwealth powers over specific subjects including foreign affairs, defence and international and interstate trade: powers not allocated to the Commonwealth are exercised by the states.
The Commonwealth constitution binds the states but most of a state’s constitution is contained in state Acts which can be altered by state Parliament or, if a state Act requires, by a state referendum. Except at the request of all state Parliaments, the Commonwealth Parliament can not alter the constitutions of the states. The Commonwealth constitution can be altered by a referendum of all Australian voters and the opinion is widely held that such a referendum could alter any parts of state constitutions although there are different opinions on this.
The current debate whether to change from the Queen as Head of the Commonwealth of Australia and each state to each having an Australian as republican Head of State reveals that many on both sides lack knowledge of what a Governor now does in Australia.
I refer to the Victorian governorship, the one with which I am most familiar. While there are differences of emphasis it is a fairly typical example of what is done by Governors and the Governor-General today. All have similar powers, restraints and potentials.
There have been great changes in recent decades. Governors are conscious that the continued effectiveness of the governorship depends on the satisfaction of community needs and expectations of that office. In order to continue to comply with those basic needs and expectations, constant adaptations of style and method in response to evolving community changes are necessary. Since 1974 Victorian Governors have been drawn from this community.
Important constitutional changes were made by the Australia Acts 1986 passed at the request of all state Parliaments by the Commonwealth Parliament and the Parliament of the United Kingdom. Once, the Queen had important powers of overriding the Governor, which in practice meant the British government had those overriding powers. The Governor in actual practice then represented the Queen and the interests of the British government. Now the Governor acts entirely independently of the Queen and the British government. The Governor acts on the advice of the Victorian Premier or Executive Council.
Although the Monarch now has no direct influence, Queen Elizabeth II is the outstanding exponent of the way the constitutional powers and functions of Head of State should be exercised in a modern Westminster system. Her example is an invaluable guide for Governors.
Governors and parliamentary democracy
Whatever may have been the position in earlier times, the objective of today's Governors is clear. As I said in my inaugural speech in April 1992, ‘The most important responsibility of the Governor is to facilitate the working of the parliamentary democracy of this state’.
The Governor is guardian for the whole community of the constitution of a democracy. In 1992 the decision of the High Court in the ‘Political Advertising’ case was based on the premise that the system of government provided by the Commonwealth constitution is that of a representative democracy. The same can be said of the Victorian constitution.
A good democracy depends both on a suitable system and suitable community attitudes. A satisfactory system of elections, Parliament, government and courts is needed. It is also necessary for the great majority of people to have confidence in their community and its democracy, a respect for others and their rights and interests, and a readiness to accept and comply with their responsibilities and with the decisions of the decision-making organs of the democratic system just mentioned.
It is the Governor’s responsibility to facilitate the working of the democratic system and to encourage the attitudes necessary to make it work.
Attributes of a Governor
Because it is the function of the Governor to counsel Ministers, on rare occasions to act as constitutional umpire, and to encourage community cohesion, it is important that a Governor should be respected and obviously impartial and apolitical.
There is advantage in a Governor being appointed towards the end of a career. At that stage the person has had time to build the reputation, display the qualities and acquire the knowledge and experience desirable for a Governor.
Our system, which has the basic features of a Westminster system, vests a great deal of power in the Governor. There are constitutional laws and conventions to ensure that those powers are exercised in accordance with the will of the electorate expressed by the election of the majority in the Legislative Assembly of the Victorian Parliament. In all but the most exceptional circumstances, the power of the Governor is exercised as advised by the Premier or by the Executive Council (where usually four Ministers represent the government). The Premier and the Ministers of the government, of course, have the confidence and support of the majority in the Legislative Assembly.
It is essential to the operation of our system as a democracy that the Governor’s powers be exercised almost always in accordance with the advice of the Executive Council, where that is specified by law, or the advice of the Premier in other cases. The mode of appointment and the setting within which a Governor is placed should ingrain this necessity in a Governor’s mind and give every encouragement to comply with it. There should be every discouragement against the temptation to act as a power rival to the Premier and government whose responsibility it is to govern.
Appointment versus election
The Victorian Premier, not the government, chooses who is to be Governor and the Queen makes the appointment on the Premier’s advice. Although a Governor usually arranges to serve for a period of five years, the period which gives full pension entitlement and exceeds the four years’ life of one Parliament, the appointment is ‘at pleasure’. The Premier could decide at any time to have the Governor dismissed and convention would require the Queen to comply.
In Australia during the last 75 years no Governor has been dismissed before the end of the arranged period.
Within the Westminster system, a procedure where the Governor is chosen by the Premier and appointed on the Premier’s advice by a respected office holder or public body has advantages over alternative methods.
If the person to act as constitutional Head of State, such as a Governor, had to be elected by the electorate, the campaign would require expensive and sophisticated organisation. Only the most wealthy could stand without the support of a political party.
A Governor so elected would not be regarded as apolitical and impartial. Moreover, the elected Governor would be regarded both as having a mandate and as owing obligation to the political party, which would bring pressure on him or her to achieve political results through political activism in competition with the Premier.
Many suitable persons with attributes appropriate for a Governor would be reluctant at their stage of life to court the attacks likely to be made on their character during an election or to risk crowning a successful career with electoral rejection.
A process which required a candidate for Governor to be proposed by the Premier and endorsed by a simple or higher majority of both Houses or of a joint sitting of Parliament also carries difficulties.
A parliamentary hearing in which the candidate would be interrogated in much the same way as proposed appointees to the Supreme Court of the United States would be likely to develop. The opposition would endeavour to show the Premier’s nominee unworthy. It could be an effective political tactic for the opposition to withhold votes necessary for endorsement so as to create the impression the Premier was incapable of proposing a person fit to receive parliamentary endorsement. The process itself would tend to identify the nominee in the public eye with the Premier’s party. A person with a good career and reputation asked to agree to be nominated would not welcome running that gauntlet. If a person holding high office were refused parliamentary endorsement some would then question the person’s fitness to hold the high office.
Theoretically Parliament could reach consensus upon a candidate chosen by the Premier after consultation with all parties and interests. Reality reminds that Parliaments in Australia, perhaps because of their relatively small number of Members, have not shown themselves even capable of reaching consensus on a suitable Speaker.
An accommodation might be reached in which the major parties on either side of politics agreed to take turns in having their candidates endorsed unopposed.
It is suggested that there is great merit in the system which has evolved here wherein the Governor is chosen by the Premier alone. The Premier is aware that he or she alone has to bear the responsibility for, and the judgment of, both the community and history upon the quality of the person selected. Alexander Hamilton made the telling observation that it is human nature to wish to be remembered by posterity and that love of fame is the ruling passion of the noblest minds.
Possible republican scenario
Suggesting merit in that aspect of the system does not favour either the monarchic or the republican concept of Head of State. Within a monarchical system the Governor could continue to be chosen by the Premier and appointed by the Queen. Within a republican system the Governor could be chosen by the Premier and appointed on the Premier’s advice by a body of highly respected persons bound in the same way by the same conventions as the Queen now is.
A Constitutional Council of three former Governors, Governors-General or judges could make the appointment: for example a Council headed by a former Governor with a former Governor-General and former Chief Justice as the other members.
Under a republic the Constitutional Council could have the power to dismiss the Governor and be bound to exercise the power on the advice of the Premier in accordance with the same conventions as those which now bind the Queen. It could be provided that such dismissal be no more justiciable by the courts than a dismissal by the Queen would be now.
The Queen's only remaining powers today are to appoint or dismiss the Governor on the advice of the Victorian Premier and the right, if physically present in Victoria, to exercise on the Premier’s advice her powers which have not been conferred on the Governor by legislation. Should the power to appoint or dismiss the Governor on the Premier’s advice be transferred to a Constitutional Council created under the Victorian constitution and the Governor become the constitutional Head of the State of Victoria instead of being the representative of that Head, and the Queen’s right to exercise powers when actually in Victoria be ended, then Victoria would have a republican form of government.
Balance of power
Ought the power to dismiss the Governor at any time remain or should the Governor have a guaranteed term subject to removal only for misconduct or incapacity or on some other basis? I suggest the present system creates a sophisticated and flexible balance between Premier and Governor which a guaranteed term for the Governor would upset. At present a Governor who, without exceptional justifying circumstances, refuses to act on the advice of the Premier or Executive Council, would be aware of the likelihood of being dismissed with public approval.
A system requiring parliamentary endorsement for appointment of a Governor would be expected to provide for dismissal by Parliament. If a Governor were to be elected by the electorate, it would be logical for the electorate to have the power of dismissal. In either case dismissal would be likely to be protracted and cumbersome. In practice a Governor would often be virtually irremovable. The present Westminster system has a capacity to act quickly. The observation that a week is a long time in politics would have particular piquancy if a Governor was actively abusing his or her position and could only be removed by a slow process, if at all.
A Governor is conscious that he or she has not been elected by the electorate or endorsed by Parliament but has been selected by a Premier, past or present. This discourages the Governor from developing the self image of having a mandate which would justify competing in power with the Premier.
To dismiss or be dismissed
Both the Governor and the Premier have the power to dismiss the other or have the other dismissed. Yet each knows full well the damnation which dismissal would earn from the community and from history unless the one who dismissed or brought about the dismissal of the other could show that it was entirely justified. In practice this almost always confines dismissal to circumstances where it is entirely justified. A Premier or Governor whose conduct accords with community expectations virtually never has cause to fear dismissal. In human affairs the attainment of that balance is quite an achievement. An understanding of it depends on an understanding of political realities rather than legal provisions. Ultimately democracy depends on people, politics and practical procedures, not on precepts in pieces of paper.
It might be asked, if the Premier is the one who has the decision to appoint or dismiss a Governor, why have the appointment or dismissal done by the Queen or the Constitutional Council? Why not let the Premier appoint and dismiss?
While the Queen is bound and a Constitutional Council would be bound by convention ultimately to act in accordance with the Premier’s advice, passive compliance would not be required. Whenever the Queen or a Governor is bound by law or convention to act in accordance with the advice of the Premier or the Executive Council there is a right to counsel against the course advised. Traditionally it is called the right to be consulted, to encourage and to warn. The Constitutional Council would also have that right. It would follow that if the Premier advised the appointment of an unsuitable person, the Queen or Constitutional Council would be expected to counsel against it.
Appointment by an apolitical personage or body standing high in community respect tends to confer on the appointee an aura which facilitates performance of the functions of Head of State.
With regard to dismissal, the right of the person or body with the actual power of dismissal to counsel the Premier is also important. Counselling is usually taken seriously by a Premier or other Minister. The person or body would not have to act immediately on the Premier’s advice to dismiss, but could take a few days to obtain necessary information, make inquiries and consider whether to counsel against the course advised. The Governor’s views could be sought. One way or another, the Premier’s colleagues would be likely to learn of the Premier’s advice.
If that happened and the advice to dismiss was unjustified, the political process would be likely to lead to the advice being reversed within those few days.
The Governor and Parliament
The Governor, on the advice of the Premier, dissolves the Legislative Assembly and brings about a general election. He/she issues writs directing the Electoral Commissioner to conduct elections and return the writs to the Governor endorsed with the names of those elected. The Governor summons and opens Parliament, delivering a speech written by the Premier, and sends to the Legislative Assembly the formal message which is necessary to originate a Bill for the spending of any part of the Consolidated Fund. Because the Governor acts on the advice of the Premier in sending such a message, no Bill for spending money in the Consolidated Fund can be initiated without the Premier’s approval.
A Bill passed by both Houses of the Victorian Parliament does not become law until it receives from the Governor the royal assent.
The Senate, the upper House of the Commonwealth Parliament, is treated as the states' House and the Governor, on the advice of the Victorian Executive Council , issues the writ for the election of Victorian Senators in a federal election.
The Governor commissions the leader who has the confidence of the majority in the Legislative Assembly to form the government. The Governor appoints and swears in that person as Premier and the other Members of Parliament nominated by that person as the other Ministers of the government. Sometimes it is not self-evident which leader has the confidence of the majority and the Governor has to investigate and decide.
The Governor, on the advice of the Premier, may pardon a person for a crime, direct the release of a person serving a term or imprisonment or being kept in custody during the Governor’s pleasure, or remit a fine.
As a check to ensure that no money is drawn from the Consolidated Fund except that which has been appropriated by Parliament or is otherwise legally available, the constitution provides that a warrant signed by the Governor is necessary for money to be drawn. In signing such warrants the Governor ordinarily relies on the certificate of the Auditor General.
Governor in Council
Acts of Parliament delegate many powers to be exercised by the Governor in Council. In practice that delegates the decisions upon the exercise of the powers to the government or its Ministers. The order or other action which in law effectively exercises the powers is that of the Governor. The Governor makes the order or takes the other action, such as making a proclamation ‘in Council’. That means that it is done in accordance with the advice of the Executive Council, consisting of at least two, and usually four Ministers.
The Governor presides at meetings of the Executive Council. On average about 60 recommendations by individual Ministers for action by the Governor in Council go before each meeting. Of these only the most important, about 10 per cent, have the endorsement of Cabinet: the rest go forward on the responsibility of the individual Minister.
Acts of Parliament confer on the Governor in Council powers to take executive action, such as appointing judges or department heads; legislative action, such as making regulations; or quasi-judicial action, such as deciding town planning appeals called in by the Minister. Hundreds of such powers are conferred on the Governor in Council by Victorian Acts.
It is in respect of these powers exercised as Governor in Council that the Governor most frequently exercises the constitutional right to offer counsel to Ministers of the government.
Executive Council usually meets at 10 am on Tuesdays. On the previous Thursday, departments deliver to the Clerk of the Executive Council the recommendations and papers which explain what the Governor in Council is being asked to do and why. The Clerk is well versed in the principles of good government and when delivering the papers to the Governor on Friday afternoon identifies any recommendations that appear to require particular attention.
On the Monday, the Governor examines all the papers bearing in mind the right to offer counsel to Ministers in an appropriate case. The Governor’s main concern is not with issues of political policy. Broadly, they have been determined by the election of the government majority.
The concern is to ensure that the powers of the Governor in Council are exercised regularly so as to be constitutional, valid and effective, in compliance with any principles of natural justice or procedural fairness which apply and in accordance with the appropriate practices and conventions of good government.
This is the last check on the work of the public service in a process which is often not the subject of other outside surveillance. The pressures upon busy Minsters often give them no time to check that a recommended action consistent with policy will be regular in the ways mentioned. All in government can be tempted to take short cuts, to seek to conceal earlier errors or to regard the end as justifying the means. The knowledge that there will be a last check, of itself, has a salutary effect.
Counselling against irregularities
The Governor does not investigate the recommendations and supporting papers in great depth. It is seldom necessary to do more than look at the papers and the statutory provisions on which a recommendation relies. It is not necessary to form a view on difficult constitutional questions. Attention is concentrated on those items where, on mere examination, the information provided seems inadequate or there appears to be a serious risk of irregularity. Usually if a difficulty arises the Governor consults the Official Secretary of the Office of the Governor who has long experience of the practice of Governors and who is sworn as a Clerk of the Executive Council.
If inadequate information is provided, the Governor may defer action until sufficient information is provided and considered.
If the Governor is of the view that the above principles require action to be taken to avoid irregularity, there are several courses open. The Clerk may be asked to speak to a departmental officer, and that may be all that is necessary. The Governor may offer counsel directly to the recommending Minister, who may alter or withdraw the recommendation. The Governor may counsel the Ministers present at the Executive Council meeting.
If the Governor does counsel Ministers that what is proposed would not be regular, experience of two governments show that, if Ministers are persuaded of that, they will almost invariably take steps to ensure that what is done is properly done.
Because counselling is confidential to Governor and Minister, a Minister who is persuaded to change a recommendation loses no face by doing so. Counselling Ministers is one of the Governor’s most important functions.
The Governor has real potential for influence over the conscience of governmental affairs.
Ultimately, in all but the most exceptional circumstances, the Governor acts upon each recommendation in accordance with the advice given by the Ministers at the Executive Council meeting; that advice is usually to do what the recommending Minister finally recommends.
An effective check
The processes of Governor in Council enhance the effective operation of Cabinet. The Clerk in examining the recommendations and papers checks that the recommendations comply with Cabinet requirements. All Ministers know that their recommendations which have not gone to Cabinet will be seen by four Ministers at Executive Council, including at least two senior Ministers. This tends to produce conformity with Cabinet policies.
Concerns have been expressed that the strong party system renders a government’s accountability to Parliament relatively ineffective; and that modern systems of organisation and tenure place public service leaders in a less secure position than before to offer strong and unwelcome advice to Ministers.
Under the articulated system which involves the government deciding on action and the Governor taking the action, the Governor has real influence and the government lacks absolute power. It is good for a government or Minister to know that the chosen course of action will need to be explained to the Governor who may question it and counsel against it. It is good for a Governor to know that his or her influence grows from persuasion not power or mandate, and that counselling carries greater weight if it comes from one acting obviously impartially and apolitically.
Reserve power
The Governor has a small residue of discretionary power, called the reserve power. It can be exercised in extraordinary or emergency circumstances without, or contrary to, ministerial advice in order to prevent the democratic system from stalling or from being abused. An occasion for its exercise seldom occurs.
A circumstance would occur if a Premier, having lost an election, refused to resign and to advise the Governor to call upon the Leader of the Opposition to form a government. There, in order to prevent democracy from stalling and being abused, the Governor would ordinarily, without or contrary to the advice of that Premier, dismiss the Premier and commission the Leader of the Opposition to form a government.
The reserve power relates to the appointment or dismissal of a Premier or the dissolution or refusal to dissolve the Legislative Assembly. It appears that a Governor would also be entitled, as a last resort, to decline to act in accordance with ministerial advice to do something clearly illegal, whether as Governor in Council, or in signing a warrant for the withdrawal of money from the Consolidated Fund.
Because there is infinite variety in the ways a democratic system may be brought to stalling point or may be abused, it would be very difficult to set out all the circumstances in which the reserve power may be exercised or to do other than provide the Governor with the existing limited discretion to deal with such a situation if it arises.
Provisions which limit the circumstances in which the democratic system can be stalled or abused may be useful. Thus some constitutions prevent Parliament from being stalled by an upper House refusal of supply.
It is a cardinal principle that a Governor should never ‘ambush’ a Premier — should never exercise the reserve power without having given the Premier adequate warning that it may be exercised.
The practical effect of eliminating altogether the Governor’s reserve power would be to transfer to the then Premier — who may be the one stalling or abusing the democratic process — the discretion the Governor now has.
Community links
The community places the Governor in a position with many opportunities to encourage the attitudes of mind essential to a successful democracy and other attitudes which are in the community interest.
The office of Governor should be seen as a symbol of unity strengthening social cohesion and all citizens should be able to feel an empathy and secure relationship with the occupant of that office. In our democracy where government and opposition are properly in continuous competition for the support of the electorate, it is important that the person performing the functions of Head of State be seen to emphasise that the things that bind the community are stronger than the things that divide.
Acting on behalf of the community, the Governor and the Governor’s spouse express encouragement, appreciation and gratitude to those whose voluntary work enhances the quality of community life; those who excel in occupations, arts or sports; the brave, or those who give other commendable community service. Support and encouragement is given to community organisations which support, encourage or organise those activities.
This is achieved by means of speeches, by the presentation of awards and honours, by visits and by invitations to Government House. With regard to organisations the Governor may become a patron, receive the calls of leaders, attend or open functions or new premises and invite members to Government House.
Administrative role
The Office of the Governor is, within the Public Sector Management Act 1992, an administrative office with the Official Secretary acting as its department head and responsible for its general conduct and management. The Office is related to the Department of the Premier and Cabinet, and the Official Secretary is responsible to the Premier. However, it is universally accepted that the predominant responsibility of the Official Secretary is to the Governor as head of the executive. The working relationship between the Governor and Official Secretary is comparable to that between a Minister and department head.
The Governor has a substantial administrative function in the area of the overall policy of the Office of the Governor and spends a good deal of time on this.
Head of State
The Governor, having the functions of Head of State, and the Governor's spouse, commonly meet on arrival Heads of State of an overseas country or of one of its states, provinces or prefectures and receive, entertain or accommodate them at Government House.
At the request of the Premier, the Governor and Governor’s spouse may travel overseas representing Victoria to strengthen the ties of friendship or cultural or other links.
The Governor often speaks on official formal occasions of importance to the spirit, feelings or traditions of the community. Thus, the Governor delivers the Anzac Day address at the Shrine of Remembrance in Melbourne at the conclusion of the march.
The Governor is custodian of Government House, Melbourne. The Office of the Governor, which has about 30 administrative and service staff, is located there. It is also a reception centre, a place of accommodation for overseas Heads of State and others, and the home of the Governor and his/her family.
In addition to guests being invited to meals and receptions held there, Government House is on occasions made available to the community in other ways. Thus on Open Day in 1992, 22,000 people passed through it.
Building on strength
What I have written is not designed either to support or to resist change in the characteristics or functions of the constitutional Head of State. Any decision whether or not to make change should only be made by a well-informed community after due consideration.
The present system, based on Westminster principles and developed in Australia to suit this community, has substantial though often subtle strengths. They are evident in the relations of a Governor with Parliament, Premier, Government, Executive Council, the democratic system and the community. They should not be lightly discarded.
Any changed system should be one likely to continue those strengths in the real world of practical politics.