Accountability of the Governor-General
The 1975 Constitutional Crises, Kerr, Hollingworth and the Republic debate.
- Accountable to PM (Hollingworth, Kerr)
- Queen (Kerr, re. Scholes)
- In a sense, the general public and media (Hollingworth)
- Those prescribed in the Constitution
- Issuing writs for elections
- Dissolving Parliament s5, 57
- Appointing HC judges s 72
- Appointing Ministers s 64
- Commander in chief of the armed forces s 68
- Assent to legislation passed in Parl s 58
- Opening Parliament
- Swearing in PM and Ministers
- Receiving ambassadors and diplomats
Non ceremonial role:
- Speaking engagements
- Patron for charities and community agencies
- Symbolising the nation’s spirit – mateship and bravery
- Express powers of the GG are those that are explicitly mentioned in the Constitution, and are used daily by him, on the advice of the Federal Executive Council s 62. By convention, these are exercised on behalf of Parliament with the advice of the FEC. The GG has no personal discretion with these powers.
- Reserve, or prerogative, powers are those that he can use without the advice of the Ministers. GG may use these powers at his discretion. To be used when political leaders cannot act, or during a political crisis. In most cases, powers that are normally express, but used without or contrary to the advice of the FEC become reserve powers.
- Express powers’ scope are limited by the Constitution and by conventions.
- Reserve powers’ scope is greater than the express powers.
The Supply crisis and dismissal were only possible because a number of longstanding conventions (constitutional and Westminster) were broken.
- That Senate casual vacancies were to be replaced by the State gov’ts by members of the same party. This was broken when NSW and QLD appointed non-Labor Senators to replace Murphy and Milliner.
- The convention that the Senate would always pass Supply was broken by the Senate. The Leader of the Opposition in the Senate, Reg Withers, and Malcolm Fraser used their numbers to block Whitlam’s Budget.
- However, the convention that, in the event that Supply is blocked, the PM should resign or call an election was also breached.
- The convention that the GG not use his reserve powers, and only act on the advice of the PM and Ministers, was broken. Kerr dismissed Whitlam.
- Kerr then made Fraser PM, even though he did not have the confidence of the HoR.
Influence of the Senate
- The Senate had a direct influence on the events of 1975
- The Opposition-controlled Senate blocked Supply to the Government
- S 53 – the Senate may not amend money bills, but is able to block them
- It broke many conventions, both constitutional and Westminster
- Dual responsibility seems to be a key part of Australia’s system
- Unlike the UK, the gov’t needs support from both chambers to pass a budget, but in both systems, should a gov’t fail to do so, either an election must be held or the PM must resign
- Any Government which is defeated by the Parliament on a major taxation Bill should resign’ – Gough Whitlam whilst in Opposition
Based on the principles of responsible government, a PM who cannot obtain supply … must either advise a general election or resign. If he refuses to do this, I have the authority to withdraw his commission.
– John Kerr
Influence of the GG
- Based on the Constitution, the GG has the constitutional power to dismiss Ministers under s 64.
- However, it is convention that the GG acts only on the advice of the PM and the FEC
- One of the most controversial actions was that Kerr consulted with Barwick CJ
- It is widely accepted that the GG is able to consult the PM, FEC, Attorney General and Solicitor General
GG consulting the CJ (For and Against)
- Firstly, the CJ is unable to advise anyone on legal issues
- Secondly, the only source of advice for the GG is from the PM and Cabinet
- Barwick believed that ‘on non-justiciable questions’, he did not compromise the independence of the judiciary
- I considered myself, as CJ of Aus, free … to offer you legal advice as to Your Excellency’s constitutional rights and duties in relation to an existing situation which of its nature was unlikely to come before the court’ Barwick CJ in his letter to Kerr
- Reserve powers are clearly non-justiciable
Was Kerr right in inquiring advice from the CJ?
- He could not consult Whitlam, as it would be a conflict of interest
- Kerr’s actions in ignoring Whitlam was constitutional and proper, and the subsequent dismissal was also constitutional and he was well within his reserve powers and rights
- It has also been said that the GG can seek advice from anywhere that assists in the exercise of his various functions
- There is historical precedent. Before 1975, at least 3 CJs have advised 8 GGs on their roles, and it is thought that the Chief Law Officer of the Government should be able to advise the Head of State, and the HoS to seek advice.
- These have all occurred when the GG is unable to consult the FEC, due to conflicts of interest such as when the PM has lost confidence, or a new PM is to be appointed.
- Examples: Lord Northcote consulting Griffith CJ regarding whether or not to allow an election because Watson failed to pass a crucial Bill. Instead, Northcote commissioned Reid (Opposition Leader) to form government.
- Barwick CJ also advised Lord Casey on what to do following Holt’s disappearance. He appointed McEwen as PM whilst Gorton was moved into the HoR and a new Liberal leader was found.
- On a constitutional level and a propriety one, both the GG and the Senate acted correctly
- The Constitution was not broken, only several conventions
- They had (and still have) the right and ability to do what they did
- In order to prevent this from happening again, codification and updating of the Constitution is needed so that an unelected Head of State cannot dismiss an elected PM and Government
- Bach states that Conventions that give shape and stability to the British political system effectively substitute for a written constitution; they do not supplement it or supplant it
- However, in Australia, the written Constitution overrides the conventions
Issues regarding the role of the GG in the 1975 crisis (debatable)
- Use of the GG’s reserve powers
- The power of an unelected GG to dismiss an elected PM and gov’t
- More powerful than PM? Lack of tenure may contribute to instability.
- Scope and application of reserve powers
- The appropriateness of consulting with the CJ
- Issues of accountability – to whom is the GG accountable?
- Republican debate
- Appointed GG by John Howard in 2001, resigned in 2003
- Used to be Archbishop of Brisbane
- Forced to resign via public pressure and media scrutiny, as he did not deal with properly the sex abuse allegations made against a priest during his time as Archbishop.
- Hence, it appears as if the GG is also accountable to the public over their personal propriety and needs to be a figure of national unity.