My brief is to speak about the role of the Governor-General, as we know that office today. I shall speak about the history of the office, about the duties of the office, and about current proposals to alter the Australian Constitution by changing its provisions relating to the office.
Foremost among the reasons given for constitutional change is the claim that the republic will give us an Australian Head of State. This claim is as mischievous as it is dishonest. Its success is dependent on the notorious ignorance of the vast majority of Australians about their Constitution. 1 The truth is that Australia has two Heads of State. The Queen is our symbolic Head of State, the Governor-General is our constitutional Head of State, and we have had Australians in the office of Governor-General since Lord Casey's appointment in 1965.
The claim that the Governor-General is our constitutional Head of State is not some bizarre theory dreamed up for the purposes of the current debate, for it has been so since the beginning of federation, and there is much supporting evidence, both anecdotal and legal.
A Canadian Governor-General, Lord Dufferin, described a Governor-General as a constitutional Head of State in a speech given in 1873. 2 Even Paul Keating referred to the Governor-General as our Head of State in the very speech in which he announced in Parliament on 7 June, 1995 his Government's proposals for the republic. 3 Current scholars such as Brian Galligan, 4 Professor of Political Science at the University of Melbourne, and Stuart Macintyre, 5 the Ernest Scott Professor of History at the University of Melbourne and Chairman of the Keating-appointed Civics Expert Group, also use the description.
Even the media, so intent on pushing for the republic, use the description. After Mr Bill Hayden's speech to the Royal Australasian College of Physicians in 1995, The Australian published an edited version under the heading, "The Governor-General has made one of the most controversial speeches ever delivered by an Australian Head of State." 6 The next day's editorial in the same newspaper said that "it is perfectly appropriate at this stage of our constitutional development that the Head of State address important issues of social policy." 7 More recently, the same newspaper referred to the present Governor-General, Sir William Deane, as Head of State. 8 And twenty years ago the opening sentence of an editorial in The Canberra Times was, "We shall have today a new Governor-General, Sir Zelman Cowen, as our Head of State." 9
Just in case this anecdotal evidence isn't convincing enough, let me also cite the legal evidence. During 1900 Queen Victoria signed a number of constitutional documents relating to the future Commonwealth of Australia, including Letters Patent constituting the Office of Governor-General, 10 and Instructions to the Governor-General on the manner in which he was to perform certain of his constitutional duties. 11
Two distinguished Australian constitutional scholars -- A Inglis Clark, 12 who had worked with Samuel Griffith on his drafts of the Constitution, and who later became Senior Judge of the Supreme Court of Tasmania, and W Harrison (later Sir Harrison) Moore, 13 who had worked on the first draft of the Constitution that went to the 1897 Adelaide Convention, and who later became Professor of Law at the University of Melbourne -- expressed the view that the Letters Patent and the Instructions were superfluous, or even of doubtful legality. This was on the grounds that the Governor-General's authority stemmed from the Australian Constitution, and that not even the Sovereign could direct him in the performance of his constitutional duties.
As Inglis Clark pointed out, The British North America Act 1867 did not contain any provisions relating to the appointment of the Governor-General of Canada, or to the exercise of executive authority in that Dominion, that were in any way similar to the provisions contained in sections 2 and 61 of the Australian Constitution relating to the powers and functions of our Governor-General; 14 nor did the Constitutions of any of the Australian States contain any similar provisions relating to the State Governors. These provisions were peculiar to the Australian Constitution, and they conferred upon our Governor-General a statutory position which the Imperial Parliament had not conferred upon any other Governor or Governor-General in any other part of the British Empire. 15
Unfortunately, British Ministers advising Queen Victoria failed to appreciate the unique features of the Australian Constitution, and Australian Ministers failed to appreciate the significance of the Letters Patent and the Instructions which Queen Victoria had issued to the Governor-General. Just as unfortunate was the fact that no notice was taken of the views of Clark and Moore, neither in Britain nor in Australia, and between 1902 and 1920, King Edward VII and King George V were to issue further Instructions, 16 while in 1958 Queen Elizabeth II amended the Letters Patent and issued further Instructions. 17
In 1922, during the hearing of an application by the State Governments for special leave to appeal to the Privy Council from the High Court's decision in the Engineers' Case , Lord Haldane asked, with reference to s.61, "does it not put the Sovereign in the position of having parted, so far as the affairs of the Commonwealth are concerned, with every shadow of active intervention in their affairs and handing them over, unlike the case of Canada, to the Governor-General?" 18 It would seem that Lord Haldane was indicating that he, too, was inclined to the view of our constitutional arrangements in respect of the Governor-General's powers which had been expressed earlier by Clark and Moore.
At the 1926 Imperial Conference, the Empire's Prime Ministers declared that the Governor-General of a Dominion was no longer to be the representative of His Majesty's Government in Britain, and that it was no longer in accordance with a Governor-General's constitutional position for him to remain as the formal channel of communication between the two Governments. The Conference further resolved that, henceforth, a Governor-General would stand in the same constitutional relationship with his Dominion Government, and hold the same position in relation to the administration of public affairs in the Dominion, as did the King with the British Government and in relation to public affairs in Great Britain. It was also decided that a Governor-General should be provided by his Dominion Government with copies of all important documents, and should be kept as fully informed of Cabinet business and public affairs in the Dominion as was the King in Great Britain. 19
The 1930 Imperial Conference decided that, henceforth, recommendations to the King for the appointment of a Governor-General would be made by the Prime Minister of the Dominion concerned, and not by British Ministers as had been the case until then. This decision further strengthened the constitutional role of Governors-General and their relationships with their Dominion Government. 20
The Conference decision was taken at the height of, and in support of, action which had been initiated earlier that year by Australia's Prime Minister, J.H. Scullin, in insisting on advising the King on the appointment of Australia's next Governor-General. Thus, Scullin's insistence on the right to recommend the appointment of Sir Isaac Isaacs as Australia's first Australian-born Governor-General became the genesis of the new rule for the appointment of Governors-General throughout the Empire.
Our early Governors-General were British. They were appointed by the Sovereign on the advice of British Ministers and were in reality British civil servants. Their role was to represent British interests in Australia. Their principal duties and responsibilities were to the British Government. The 1926 and the 1930 Imperial Conference decisions changed the status of the Vice-Regal office and established a new relationship between the Governor-General and the Australian Government. What we did was alter our constitutional arrangements to meet evolving constitutional needs, but without having to alter one word of the Constitution itself. These changes are perfect examples of the far-sightedness of our Founding Fathers, and evidence of the adaptability and flexibility of our allegedly horse-and-buggy and inflexible Constitution.
In 1953, in the course of preparing for the 1954 Royal visit to Australia, Prime Minister Menzies wanted to involve the Queen in some of the formal processes of government, in addition to the inevitable public appearances and social occasions. But the Government's legal advisers suddenly discovered what had been apparent to Clark and Moore at the time of federation. They pointed out that the Constitution placed all constitutional powers, other than the power to appoint the Governor-General, in the hands of the Governor-General; that he exercised these constitutional powers in his own right, and not as a representative or surrogate of the Sovereign; and that no-one, not even the Sovereign, could instruct or direct him in the exercise of those powers. It was further pointed out that the Governor-General's statutory powers were also conferred on him in his own right and could be exercised by no one else - not even the Sovereign.
Nothing could be done, except by recourse to s.128 of the Constitution, to delegate the Governor-General's constitutional powers to the Sovereign, but by means of the Royal Powers Act 1953, Parliament empowered The Queen, when she was personally present in Australia, to exercise any power under an Act of Parliament that was exercisable by the Governor-General. The Act further provided that the Governor-General could continue to exercise any of his statutory powers even while The Queen was in Australia, and in practice Governors-General have continued to do so.
In 1975 the Commonwealth Solicitor-General, Mr (later Sir) Maurice Byers, gave Prime Minister Gough Whitlam a legal opinion that the Governor-General's constitutional powers could not properly be the subject of Instructions, thus again echoing the views expressed at the time of federation by Clark and Moore, and confirming that all Head of State powers and functions, except the power to appoint or remove the Governor-General, had been given to the Governor-General by the Constitution on 1 January, 1901.
The dismissal of the Whitlam Government later that year was to provide concrete evidence of the correctness of all the legal opinions which had been given over the previous seventy-four years. Writing after the event, Sir John Kerr said:
After the Governor-General had withdrawn the Prime Minister's Commission, the Speaker of the House of Representatives wrote to the Queen to ask her to restore Whitlam to office as Prime Minister. In the reply from Buckingham Palace, Mr Speaker was told:
That reply confirmed, if confirmation were needed, that the Governor-General is indeed Australia's constitutional Head of State. Even so, it took another nine years before the matter was resolved.
On 21 August, 1984, on the advice of Prime Minister Hawke, the Queen revoked Queen Victoria's Letters Patent and the Instructions to the Governor-General, and issued new Letters Patent which, in the words of the Prime Minister, would "achieve the objective of modernising the administrative arrangements of the Office of Governor-General and, at the same time, clarify His Excellency's position under the Constitution." 23
Four years later, in its Final Report, the Constitutional Commission said:
If there should still be any doubt about the fact that the Governor-General is indeed our constitutional Head of State, let me clinch the argument by returning to Prime Minister Keating's statement to Parliament on the republic.
In order to avoid the problem of a powerful President, republicans had said that the reserve powers of the Crown, and the conventions associated with their use by the Governor-General, should be codified; but finally Mr Keating had to tell Parliament that it was not possible to foresee all the possibilities that might arise. His Government had therefore concluded that:
At last we see the delusion that lies behind the push for a republic. We are told that we lack an Australian Head of State - that we must get rid of the Governor-General and replace him with a President in order to achieve full independence and national sovereignty. But then we are told that the President would have exactly the same powers and exactly the same duties as the Governor-General has now - nothing would be added, and nothing would be subtracted. One Australian would replace another Australian and do exactly the same job. All that would be changed would be the title on the letter-head. If such a President would be an Australian Head of State, then that is precisely what the Governor-General is now.
Having established, I trust, that the Governor-General is indeed the constitutional Head of State, I turn now to an examination of the job itself. Professor L.F. Crisp, a former Professor of Political Science at the Australian National University, described it as the "keystone to the constitutional arch." 26 Sir Paul Hasluck, a former Governor-General, saw it as the highest office in the land 27 and as the apex of Australian society. 28 Sir Zelman Cowen, another former Governor-General, described it as the most exciting and the most challenging of all of his appointments in a lifetime of exciting and challenging appointments. 29 And former Senator and Minister of the Crown, Peter Walsh, has said that many members of the Australian Labor Party regard Bill Hayden's outstanding record of service and leadership to the Party as having been tainted by his acceptance of the appointment as Governor-General. 30 I find that a rather sad, if revealing, commentary.
The Constitution requires the Governor-General to appoint a Federal Executive Council to advise him in the government of the Commonwealth; to establish departments of State and to appoint Ministers of State to administer them; to summon, prorogue and dissolve Parliament; to give the Royal assent to a Bill which has been passed by both Houses of the Parliament; and to exercise the command-in-chief of the Defence Force of the Commonwealth. All of these actions are taken on ministerial advice.
The Constitution also sets out many other powers, as part of the machinery of government, that are to be exercised either by the Governor-General, acting on the advice of a Minister, or by the Governor-General in Council, i.e., the Governor-General acting with the advice of the Federal Executive Council. It is the Governor-General who issues the writs for general elections of members of the House of Representatives; 31 informs the Parliament of the purpose of every appropriation of revenue or moneys (for without such a message from the Governor-General a proposed appropriation may not be passed by the Parliament); appoints the Justices of the High Court of Australia and of the other courts created by the Parliament, such as the Federal Court and the Family Court; appoints deputies to carry out such powers and functions as he may assign to them; and submits to the electors such proposals for the alteration of the Constitution as have been passed by the Houses of the Parliament in accordance with the provisions of the Constitution.
But by far the majority of the Governor-General's powers and duties are imposed upon him by statute. Virtually every Act passed by the Australian Parliament empowers the Governor-General to perform some executive function, such as to make and amend regulations, or to issue orders which amplify the legislative provisions; to issue proclamations; to make and terminate appointments to public office; to approve treaties with foreign governments; to appoint Ambassadors and High Commissioners; or to issue commissions to officers of the Defence Force. These are the kinds of executive actions which the Parliament has judged ought not to be left solely to the Minister of State who is responsible for the administration of the particular Act of Parliament, and which therefore require the Minister to seek the approval of the Governor-General in Council.
In discharging his constitutional and statutory functions, the Governor-General acts on the advice of his Ministers. As former Governor-General Sir Paul Hasluck put it, in a lecture given when he was still in office:
It would be very easy to conclude that a Governor-General who is required to act on the advice of his Ministers has no power at all, or that Ministers whose advice has to be taken have no restraints placed on their use of executive power, but to do that would be to misunderstand the basic principle which underlies our system of constitutional government. For their part, Ministers are not able to carry into effect, on their own, all of the executive powers conferred on them by the legislation which they administer without first obtaining the approval of their fellow Executive Councillors and the Governor-General. So the real question is not at all how much power does the Governor-General himself have or exercise, but rather how much absolute power does his presence in our system of government deny to those who are in Government, and who must first seek to advise and persuade him.
In the words of another former Governor-General, Sir Zelman Cowen:
The powers and functions which are assigned to the Governor-General by the Constitution and by Acts of Parliament are the legal basis for his statutory duties, and they are the reason for having such a person in our system of government. On the other hand, for the vast majority of his fellow Australians, their contact with, or knowledge of, the Governor-General is through his public duties - both ceremonial and non-ceremonial.
His ceremonial duties include opening Parliament; swearing-in Prime Ministers and Ministers; receiving the credentials of foreign diplomats; holding investitures; reviewing military parades; receiving and entertaining foreign Heads of State and heads of government in accordance with the accepted standards of international diplomacy and protocol; and representing Australia on State and official visits to foreign countries, made at the invitation of foreign governments and with the advice and approval of his own Government.
His non-ceremonial duties include speaking at, and opening, national and international conferences; presenting awards at major public gatherings ranging from exhibitions and sports meetings to university graduations, or at meetings of learned societies and professional institutes; attending functions held by all kinds of community organisations, and particularly those of which he is patron or principal office-bearer; and making official visits to the States and Territories or to regions or localities. In addition, the Governor-General, and the Governor-General's spouse, receive what are known as "courtesy calls" by office bearers and other representatives of national, regional and, occasionally, international organisations; and give dinners, lunches and receptions to which they invite guests from all sections of the Australian community.
Given the vastness of Australia and its Territories, the task of moving about in the Australian community has loomed large in the duties of every Governor-General. Again to quote Sir Zelman Cowen:
In carrying out his public duties, the Governor-General uses the status and prestige which the community attaches to his position to acknowledge the vast number of organisations, institutions and individuals who contribute to the well-being of our society. By his presence and by his interest in their work, the Governor-General plays a vital role in encouraging the continuation of activities which make a constructive contribution to the life of the community.
Again to quote Sir Paul Hasluck, in a comment made some years after he had left Vice-Regal office, he remained:
The only way in which the Governor-General is able to influence the structure of Australian society and the outlook of the Australian community is by the speeches he makes as he moves about in the community. Sir Zelman Cowen, who followed Sir John Kerr and who set himself the task of bringing a touch of healing to the office, judged the speeches to be the most important element of his work. 36 To him they were the vehicle by which he conveyed the point that, as Governor-General, he was concerned with the affairs, the concerns and the problems of all Australians. 37 (The emphasis is Sir Zelman's.)
Because it is in the nature of the media today to wring every drop of controversy out of any Vice-Regal speech that presents a target, and because many journalists know not and care not what happened before they took up the pen, a casual observer might conclude that each Governor-General who makes a newsworthy speech has done something that none of his predecessors ever did. The breathless reporting of such occasions might do something for circulations and ratings, but it does nothing for the notion of truth in reporting.
Every Governor-General in recent times, and no doubt most if not all of the earlier ones, has made speeches of substance that pricked the conscience, or posed a question, or exposed a need, or pointed a direction. That so little is known, and even less is understood, about this important aspect of Vice-regal public duty is due to the persistent failure of the media to take any interest in it unless it presents an opportunity to whip up controversy and startling headlines. If Vice-Regal speeches nowadays seem to have more drama and more impact than those of earlier years, it is because many of the issues of public concern and public debate today are more dramatic and more pressing than those of earlier years. And if Vice-Regal speeches nowadays seem to receive more media coverage than those of earlier years, this is due, in some measure at least, to their being brought to the notice of the media by methods not previously thought appropriate to be employed by Government House.
Sir Paul Hasluck expressed the hope that we will never have the misfortune to have an inactive Governor-General, 38 and no-one would want a Governor-General who had no interest in, or influence on, community issues. On the other hand, there will always be matters with which a Governor-General should not become involved, and lines beyond which a Governor-General should not go. And views will differ about just where these points of demarcation should lie along the continuum of public debate. In the final analysis, a Governor-General's words are effective only so long as those who are able to influence the course of events are still listening to what he has to say. It is not easy to be consulted, to encourage and to warn when you are out on a limb all by yourself.
|1||. See Final Report of the Constitutional Commission, Australian Government Publishing Service, Canberra, 1988, p.43; and Whereas the people...Report of the Civics Expert Group, Australian Government Publishing Service, Canberra, 1994, pp.18Ä19. The former found that almost 50 per cent of all Australians were unaware that Australia has a written Constitution, and that in the 18Ä24 year age group the level of ignorance rose to nearly 70 per cent; the latter found that 82 per cent of Australians knew nothing about the content of the Constitution.|
|2||. Lord Dufferin, then Governor-General of Canada, in a speech delivered at Halifax, Nova Scotia, in August, 1873, described the Governor-General as "the head of a constitutional State, engaged in the administration of parliamentary government". Quoted by John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth, Angus and Robertson, Sydney, 1901, p.700, and by L.F. Crisp, Australian National Government, Longman Cheshire Pty. Limited, Melbourne, 1978, p.400.|
|3||. Parliamentary Debates, Vol. H. of R. 201, 7 June, 1995, pp.1434Ä41.|
|4||. Brian Galligan, A Federal Republic: Australia's Constitutional System of Government , Cambridge University Press, Cambridge, 1995, pp.21Ä2 and 245Ä7.|
|5||. Stuart Macintyre, A Federal Commonwealth, An Australian Citizenship , a lecture in The Australian Senate Occasional Lecture Series, 14 February, 1997, p.3.|
|6||. The Australian, 23 June, 1995.|
|7||. The Weekend Australian, 24Ä25 June, 1995.|
|8||. The Australian, 6 September, 1996.|
|9||. The Canberra Times , 8 December, 1977.|
|10||. Commonwealth Statutory Rules 1901Ä1956, Vol. V, pp.5301Ä3.|
|11||. Ibid. , pp.5310Ä12.|
|12||. A Inglis Clark, Studies in Australian Constitutional Law, Charles F Maxwell (G Partridge & Co., Melbourne, 1901), pp.54Ä7.|
|13||. W Harrison Moore, The Constitution of the Commonwealth of Australia, Charles F Maxwell (G Partridge & Co., Melbourne, 1910), 2nd. Edition, p.162.|
14. "2. A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him."
|15||. A Inglis Clark, op.cit. , pp.52Ä3.|
|16||. Commonwealth Statutory Rules 1901Ä1956 , pp.5312Ä14.|
|17||. Commonwealth Statutory Rules, 1958, pp.494Ä5.|
|18||. Transcript of argument, pp.22Ä3. Quoted in H.V.Evatt, The King and his Dominion Governors, Frank Cass and Company Limited, London, 1967, p.311.|
|19||. Christopher Cunneen, Kings' Men: Australia's Governors-General from Hopetoun to Isaacs , George Allen & Unwin, Sydney, 1983, p.168; and (Sir) Zelman Cowen, Isaac Isaacs, Oxford University Press, Melbourne, 1967, p.191.|
|20||. Cunneen, op.cit. , p.179; and Cowen, op.cit. , pp.197Ä8.|
|21||. Sir John Kerr, Matters for Judgement, The Macmillan Company of Australia Pty.Ltd., South Melbourne and Artarmon, 1978, p.330.|
|22||. Ibid. , pp.374Ä5.|
|23||. Statement by the Prime Minister to the House of Representatives, Parliamentary Debates, Vol. H of R. 138, 24 August, 1984, p.380. The Prime Minister tabled a copy of the amended Letters Patent relating to the office of Governor-General, together with the text of a statement relating to the document, but for some unknown reason he did not read the statement to the House, nor did he seek leave to have it incorporated in Hansard. The statement was later issued by the Prime Minister's Press Office.|
|24||. Final Report of the Constitutional Commission , p.313, para.5.17.|
|25||. Parliamentary Debates, Vol. H of R. 201, 7 June, 1995, p.1438.|
|26||. L.F. Crisp, Australian National Government, Longman Australia Pty.Limited, Hawthorn, 1975, p.415. The description appeared in all editions and reprints from 1965 to 1975, but was omitted from the fourth edition published in 1978, its place being taken by an account of the 1975 constitutional crisis and criticism of the actions of Governor-General Sir John Kerr.|
|27||. Sir Paul Hasluck, The Office of Governor-General (originally given as The William Queale Memorial Lecture, Adelaide, 1972), Melbourne University Press, Carlton, 1979, p.30.|
|28||. Ibid. , p.46.|
|29||. Sir Zelman Cowen, Australia Day Address, Canberra, 26 January, 1982; and National Press Club Address, Canberra, 21 July, 1982.|
|30||. Peter Walsh, Confessions of a Failed Finance Minister, Random House Australia Pty.Ltd., Sydney, 1995, p.193.|
|31||. Writs for the election of Senators are issued by the respective State Governors.|
|32||. Hasluck, op.cit. , p.20.|
|33||. Sir Zelman Cowen, The Crown and its Representatives in the Commonwealth , an address given at the annual conference of the Law Society of Scotland, Gleneagles, 1985, p.21.|
|34||. Ibid. , p.25.|
|35||. Hasluck, op.cit. , pp.29Ä30.|
|36||. Sir Zelman Cowen, Leadership in Australia: the Role of the Head of State , The Williamson Community Leadership Lecture, Melbourne, 31 May, 1995, p.2.|
|37||. Ibid. , p.12.|
|38||. Hasluck, op.cit. , p.22.|