An Address delivered on the 22nd March, 1988 to the 1988 Endowed Lecture Before the Royal Australian Institute of Public Administration (Queensland Division).
Our system of government is what is known as a Constitutional Monarchy: the Queen is the Head of State and is represented in the Commonwealth by the Governor-General and in each of the States by the Governor of the particular State. The institutions of the Crown, of parliamentary supremacy and of responsible government have been inherited from the United Kingdom, and The Queensland Constitution Acts 1867-1978 (referred to herein as the Constitution Act) (s.2A(2)) specifically recognises that the Parliament of Queensland consists of the Queen and the Legislative Assembly, this State being the only State in the Commonwealth having a unicameral legislature. Of course, the Queen's participation in legislation of the State is purely formal and her powers are exercised by the Governor.
Over the last couple of years there have been enacted some important statutes which bear upon the office of a State Governor, and this calls for a brief historical account. But I hasten to add that such recent legislation has, by virtue of earlier constitutional developments, made only minor changes to the role played by a Governor.
The office of the first Governor of the Colony of Queensland was created by Letters Patent issued by Queen Victoria on 6th June, 1859 whereby Sir George Bowen was appointed as the first Governor of the new Colony of Queensland. However, when I took up my appointment as Governor in July 1985 the office of Governor of the State of Queensland was constituted under Letters Patent passed under the Great Seal of the United Kingdom, dated 10th June, 1925, and the manner in which the Governor should exercise his office was prescribed in many respects by the provision of such Letters Patent and by Royal Instructions to the Governor of the same date.
On 16th October, 1985 the Australia Acts (Request) Act 1985, having been duly passed by the Legislative Assembly, was assented to, and similar acts were passed by the parliaments of all the other States. Following upon the passage of these several State Request Acts the Commonwealth Parliament enacted the Australia Act 1986 and also the Australia (Request and Consent) Act 1985. Then the Parliament at Westminster passed the Australia Act 1986. Both the Commonwealth and the British Australia Acts came into force on 3rd March, 1986, were in substantially identical terms and constituted legislation to enable certain constitutional arrangements affecting the Commonwealth and the States to be brought into conformity with the status of the Commonwealth of Australia as a sovereign, independent and Federal nation.
The Australia Acts, so far as they relate to the functions of State Governors, provide (s.7) that the Queen's representative in each State shall be the Governor; that all powers and functions of the Queen in respect of a State are exercisable only by the Governor of the State, subject to this not applying in relation to the power to appoint and to terminate the appointment of a Governor, and subject also to not precluding the Queen, while personally present in a State, from exercising any of her powers and functions in respect of the State. The Acts also expressly set out (s.7(5)) that the advice to the Queen in relation to the exercise of the Queen's powers and functions in respect of a State shall be tendered by the State Premier. The Acts (s.8) stipulate that an act of the Parliament assented to by the Governor shall not be subject to disallowance by the Queen nor shall its operation be suspended pending Her Majesty's pleasure. Further, they provide that no law or instrument shall be of any effect insular as it purports to require the Governor to withhold assent from any bill for an act that has been passed in such manner or form as may be required by a law made by parliament (s.9(1)), nor shall a law or instrument be of any effect insular as it purports to require the reservation of any bill for an act for Her Majesty's pleasure (s.9(2)). Prior to the Australia Acts the Governor was required, by the terms of the Royal Instructions issued to him and by the provisions of an Imperial Act, the Australian States Constitution Act, 1907, to reserve certain classes of bills for Her Majesty's pleasure. The Australia Acts also expressly declare that the United Kingdom Government shall have no responsibility for the government of any State (s.10). I mention that the Constitution Act, as amended in 1977, also provides that the Queen's representative in Queensland is the Governor who shall hold office during Her Majesty's pleasure.
Of course, for more than sixty years, the Monarch would not have contemplated negating the will of a duly elected Parliament of a State, and for a long time the U.K. Government has discharged no independent responsibility for the government of a State. These matters of historical constitutional development have now been formally recognised by the resent legislation.
By reason of the enactment of the Australia Act, but shortly before they came into force, fresh Letters Patent constituting the Office of Governor of Queensland were made by Her Majesty on 14th February, 1986 and proclaimed in this State on 6th March, 1986. These new Letters Patent, in addition to constituting the office of Governor of Queensland, revoked the earlier Letters Patent and the Royal Instructions to the Governor dated 10th June, 1925. Because of the Australia Acts, fresh Letters Patent were also issued by Her Majesty at the same time in the other States (except New South Wales) making new provisions relating to the State Governors. In the case of New South Wales, additional instructions to the Governor were issued by the Queen revoking the previous instructions insular as they were inconsistent with the Australia Acts, and the New South Wales Parliament last year enacted the Constitution (Amendment) Act 1987, assented to on 3rd June, 1987, cancelling the prior Letters Patent and Instructions to the Governor.
In Queensland, the Constitution (Office of Governor) Act 1987, (referred to herein as the Office of Governor Act), was passed by the Legislative Assembly and became law on 1st December, 1987. This Act (s.13) suspended the operation, as long as its relevant provisions remain in force, of the provisions of the Letters Patent made by Her Majesty in February 1986. Section 3 of the Act Provides that there shall be a Governor in and over the State to hold office during Her Majesty's pleasure and to be terminated only by instrument under Her Majesty's Sign Manual taking effect upon publication thereof in the Government Gazette or at a later time specified in the instrument in that behalf. It provides (s.4) that the Governor is authorised and required to do and execute all things that belong to his office according to the laws that are now or shall hereafter be in force in the State. The Office of Governor Act also sets up an Executive Council for Queensland, but I will come to this later.
So the present powers of the Governor of Queensland are derived from his commission, from the provisions of the Australia Acts, from the provisions of the Office of Governor Act, from provisions contained in the Constitution Act, and from provisions contained in a number of the other Acts which provide for certain things to be done or approved by the Governor in Council.
I will endeavour now to deal shortly with the role of a Governor under a few selected headings.
Appointment to Office and Termination of Appointment
Prior to the passage of the Australia Acts two years ago, any advice to the Monarch in relation to state matters was tendered by British Ministers pursuant to an approach made by the State Government through the Foreign and Commonwealth Office in London. Consequently, up to that time Her Majesty was entitled to receive advice from her United Kingdom Ministers in regard to the appointment, or to the termination of appointment, of a Governor of a State.
In passing I will mention that, as a result of the "Balfour Declaration" at the 1929-30 Imperial Conference, a new constitutional convention was established, namely, that the Governor-General of a dominion was to be appointed by the Sovereign on the advice of the Ministers of State in the dominion. This convention applied only to the dominions which were parties to the Conference. It did not apply to the States of Australia nor did it apply to the Canadian provinces where the Lieutenant-Governors are appointed by the Governor-General in Council. However, it appears that, at least since the end of World War II, this convention became established as a right in the States of Australia. But now it is clear and definite that such advice is to be tendered by the State Premier, and the Queen would be obliged, by constitutional convention, to follow such advice. The Prime Minister is not involved in the appointment of State Governors and the Queen received no advice thereon from her British Ministers. A State Governor is appointed for an unlimited term, but the accepted convention is that his term of office is five years, although such term can be extended.
It is interesting to note that the Advisory Committee on Executive Government to the Constitutional Commission, a body established by the Commonwealth Government, has considered the question whether we need a Head of State as part of our system of government. It has recommended to the Constitutional Commission, which has not yet made recommendations to the Commonwealth Government, that a Head of State be maintained whether Australia remains a monarchy or become a republic.
Another question put to the Committee was whether Australia should be a monarchy or a republic and, after fully considering that question, the Committee said that it did not recommend, at this time, a referendum for a republic nor did it recommend that there should be an amendment to the Constitution to allow for the possibility of transition to a republic at some future time.
When considering the question of the appointment of the Governor-General and whether he should be appointed for a fixed term the Committee recommended that the current constitutional position remain unchanged, namely, that Governors-General should continue to be appointed "during the Queen's pleasure". It went on to recommend that no maximum term of appointment should be specified and, on the assumption that by convention the current term is five years, that term should be capable of extension. It is of interest that, when considering the question of the removal of the Governor-General, the Committee referred to considerable discussion suggesting that the Prime Minister could secure the immediate dismissal of the Governor-General by a mere telephone call to Buckingham Palace. The text of the Committee's report stated that its members thought that, if the Prime Minister advised the Queen to dismiss the Governor-General, it was highly improbable that should would act without taking time to consult, to consider the matter fully and perhaps to seek the written advice of the Prime Minister. In that context reference was made by the Committee to the provision contained in the Letters Patent of the 14th February, 1986 of the Governor of Queensland. As I have said, those Letters Patent are now no longer in effect but the relevant provision is repeated in the Office of Governor Act (s.3(2)(B)) which states that the appointment of a governor "may be terminated only by instrument under Her Majesty's Sign Manual taking effect upon publication thereof in the Government Gazette or at a later time specified in the instrument in that behalf. The Committee then went on to say that if "such a provision were included in the Letters Patent of the Governor-General it would not take from the Prime Minister his power to advise the Queen to dismiss the Governor-General nor her ultimate duty to act on that advice. It should, however, counter the misunderstanding evident in numerous discussions of the 1975 crisis that the Queen would have been obliged to dismiss the Governor-General immediately upon receiving the Prime Minister's advice that his appointment should be terminated". So, in Queensland the requirements of the Queen's signature and publication in the Gazette appear to make impossible a request to Her Majesty for the instant dismissal of the Governor in order to prevent him from carrying out his constitutional responsibilities.
A significant section (s.53) of the Constitution Act, inserted in 1977, specifies that a bill which expressly or impliedly provides for the abolition or alteration in the office of Governor shall not be presented for assent unless it has first been approved by a referendum, and further, that referendum section itself cannot be altered unless first approved by referendum. So, since it is provided in the Constitution Act (s.11A) that the Queen's representative in Queensland is the Governor, this provision cannot be abolished or changed without a referendum. But whether any Parliament of the State of Queensland would be acting validly and constitutionally if it purported to repeal those referendum provisions, without first holding a referendum, is an issue which I will not discuss here.
Asset to Bills
No bill passed by the Legislative Assembly becomes law until it is assented to by the Governor. In Queensland, New South Wales, Victoria and Western Australia, assent is given in the name of the Queen and in the other two States in the Governor's name. The Australia Acts expressly repealed the provision in the Constitution Act (s.11B, inserted in 1977) which required him to act in obedience to instructions conveyed to him by the Monarch for the exercise of his powers to assent, dissent or reserve for Her Majesty's pleasure bills to be passed by the Legislative Assembly. I mention that no British Monarch has refused assent to an act of Parliament since 1707. The Governor has, as does the Monarch, the power to refuse assent to bills duly passed by the Parliament, and, in this context, I mention the possibility of government advising the Governor to refuse such assent.
Prior to the passage of the Australia Acts the practice was that the Queensland Attorney-General furnished a certificate to the Governor in relation to each bill to the effect that there was no objection to the bill being assented to by the Governor and that there was no requirement to withhold assent or to reserve the bill for Her Majesty's approval. However, after the passage of those acts I requested that a certificate be issued to the Governor by the Attorney-General merely informing him that the particular bill presented with the certificate for Royal assent has been duly passed through all stages by the Legislative Assembly and that it is in order for the Governor to assent to the bill. This is now done in every case.
Executive Council
Before dealing with this aspect let me remind you of what was pointed out by Walter Bagehot in his work The English Constitution (1867), when he explained that the monarch's effective power is to be found in her celebrated rights to be consulted, to encourage and to warn. Consequently, in the exercise of his constitutional powers and responsibilities, the Governor possesses those rights in respect of ministerial advice given to him.
Bagehot's actual words aptly express the role of the Monarch, and of the Monarch's representative. He said (O.U.P.1955, p.67): "To state the matter shortly, the Sovereign has, under a constitutional monarchy such as ours, three rights - the right to be consulted, the right to encourage, the right to warn. And a king of great sense and sagacity would want no others. He would find that his having no heirs would enable him to use these with singular effect. He would say to his minister: 'The responsibility of these measures is upon you. Whatever you think best must be done. Whatever you think best shall have my full and effectual support. But you will observe that for this reason and that reason what you propose to do is bad; for this reason and that reason what you do not propose is better. I do not oppose, it is my duty not to oppose; but observe that I warn'. Supposing the King to be right, and to have what kings often have, the gift of effectual expression, he could not help moving his minister. He might not always turn his course, but he would always trouble his mind."
It is provided by the Office of Governor Act (s.6) that there shall be an Executive Council for the State consisting of the persons who immediately before the passing of the Act are Members of that Council, and persons who may at any time be members of the Council in accordance with any act in force, and such other persons as the Governor shall from time to time appoint until their membership be terminated by death, resignation or removal by the Governor. An Executive Council had been constituted in similar terms by the preceding Letters Patent. In Queensland and in, I think, every other State of Australia, every Cabinet Minister is sworn as a Member of the Executive Council, the Council is comprised solely of cabinet Ministers, and the convention is that, when such persons is no longer a minister, he or she resigns or is dismissed from the Executive Council,
The Governor is not himself a member of the Executive Council although the Act provides (s.7) that the Governor shall attend and preside at all meetings of the Council unless prevented by some good and sufficient cause and, in his absence, such member of the Council as the Governor may appoint, or in the absence of such appointee, the member of the Council taken to be the most senior of the members present shall preside. Of course, as I mention later, in the absence of the Governor, should an administrator be appointed or should the Governor appoint a deputy, such person presides at Council meetings.
In the 1925 Royal Instructions to the Governor (cl. vi), it was expressly stated that: "In the exercise of the powers and authorities vested in him the Governor shall be guided by the advice of the Executive Council, but if any case he shall see sufficient cause to dissent from the opinion of the said Council he may act in the exercise of his said powers and authorities in opposition of the Council, reporting the matter to us without delay, with the reasons for his so acting."
It is interesting that the Letters Patent of the 14th February, 1986, in revoking the 1925 instructions to the Governor, revoked that part of the instructions which was to the effect that the Governor in the execution of his powers and authorities shall be guided by the advice of the Executive Council. The 1986 Letters Patent did not repeat those words nor does the Office of Governor Act which suspended the 1986 Letters Patent. I interpose here to say that the fresh 1986 Letters Patent relating to the Governors of the States of South Australia, Western Australia, and Tasmania provide that there shall be an Executive Council to advise the Governor in the government of the State. In the case of Victoria the Letters Patent provide that there shall be an Executive Council to "advise the Governor on the occasions when the Governor is permitted or required by any statute or other instrument to act in Council. The Premier (or in his absence the Acting Premier) shall tender advice to the Governor in relation to the exercise of the other powers and functions of Governor." In New south Wales the Constitution (Amendment) Act 1987, which I have mentioned earlier, provides that there shall continue to be an Executive Council to advise the Governor in the government of the State. So far as I have been able to ascertain the States, other than New South Wales and Queensland have not as yet enacted legislation to take the place of their Letters Patent and Royal Instructions.
So, in Queensland, unlike the situation in the other States, it is not necessary expressly laid down that the Governor shall be guided by the advice of the Executive Council although it is provided (Acts Interpretation Act 1954-1985 (s.36)) that in any Act, unless the contrary intention appears, the term "Governor in Council" means "the Governor acting by and with the advice of the Executive Council". Of course, in accordance with constitutional convention, the Governor of Queensland should always act on such advice - except in the cases of the exercise of the "reserve" powers which I will consider later. The principle that the Governor acts only with the advice of Ministers is the very essence of our system of responsible government. After all, by Section 14 of the Constitution Act and by provisions contained in a large number of other Acts, it is made clear that it is the Governor in Council which gives legal authority to actions to be taken or decisions made under the Constitution Act and under the other Acts of the Parliament of Queensland. The Executive Council exists, primarily, to put into official form decisions which have been made elsewhere. It is a body which gives formal advice to the Governor by way of seeking approval of a written submission. The Executive Council is not a deliberative body or a forum for debates and the expression of varying opinions, as is the Cabinet. The Governor does not reject the advice given him by the members of the Executive Council but, in accordance with his rights to be consulted, to encourage and to warn, he may, in response to such ministerial advice, ask questions and seek further information. In doing so he must be careful that he is by no means acting in any way which shows that he favours the view, perhaps, or one or more Ministers as against the views expressed by other Ministers. I also point out that the Cabinet papers are delivered to the Governor in advance of Cabinet Meetings - just as they are circulated in advance to Ministers - so that he is able to keep in touch with Cabinet business.
Documents are placed before the Executive Council in the form of departmental minutes. These minutes constitute recommendations by the responsible Ministers that certain action be taken. Each minute is initialled prior to the meeting by all the Ministers (even though some of them may not be personally present at the meeting) indicating their acquiescence to its approval. Of course, an explanatory memorandum is attached to each minute, and the Ministers take responsibility for the advice which they give. When appointments to the many and varied statutory authorities come for approval to the Council, the relevant minute contains an explanatory memorandum indicating why the appointment needs to be made and giving information about the person recommended for such post. I find these memoranda extremely helpful and, on occasions, have taken the opportunity to discuss with Ministers the nature of the appointment. The Governor signs the departmental minute indicating formal approval of it, and he also signs the Executive Council minute.
In Queensland a practice has recently been instituted whereby the Executive Council minutes are submitted to the Governor the day before the meeting of the Executive Council so as to give him the opportunity to peruse them. Generally, the Governor does not know which Ministers will be present at a particular meeting of Executive Council, until he attends an hour or so before the meeting is due to commence in order to sign the relevant documents. A quorum of the Council consists of two Ministers exclusive of the Governor or of the member presiding.
In Queensland, the Executive Council meets weekly, generally in the Executive Building, or in a room at Parliament House when Parliament is sitting. Sometimes it meets at Government House, but this involves certain practical difficulties and inconvenience since, at present, there is no specific Executive Council room at Government House and sometimes a large number of Ministers attend. Queensland Government House is, I believe, the only State Government House which has not originally built as a Government House, although it is a very comfortable place in which to live, to receive callers, to transact the business of Government House, to hold receptions, dinners and other formal functions which are the lot of a Governor. To my knowledge it has been the general custom for the Governor of Queensland to meet with the Executive Council at the other places outside Government House which I have mentioned.
It is pleasing if a number of Ministers attend meetings of the Executive Council because it then gives the Governor the opportunity to raise, with a particular minister, any questions concerning matters submitted to the Council. Of course, the Governor is free to get in touch with any minister prior to the meeting in order to seek clarification of a recommendation made by that minister. When I have done this I have always found the Ministers to be very helpful and cooperative.
You are fully aware that the range of activity by government these days is a very broad one and the minutes presented for the approval of the Governor in Council often exceed more than a hundred a week. They include the making of proclamations and orders, regulations, appointments to statutory bodies and to senior Public Service positions and many other matters of government business.
In cases of urgency a special meeting of the Executive Council is held, usually at Government House. If the Governor is satisfied of the urgency of the matter, he will approve of the Minute, and at the next regular meeting of the Council the Governor will report to it on the business conducted at the special meeting. Prior to approving the Minute or Minutes placed before the special meeting, the Governor may well take the course of asking in some detail about the matter and why it is urgent.
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 publications 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 power 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 these has not been any legislation enacted in the other Australian State 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 (sometime 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 these 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 Australia 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 of 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 that Assembly before the expiry of the parliamentary term laid 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 who 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.
Other Functions
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 his 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 extra-territorially. 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.
Conclusion
The States of Australia are constitutional monarchies with the Queen as Head of State, but the powers which in Britain are exercised by the Queen are, in the Australian States, exercised by the Governors. The powers which the Queen has in relation to a State are: first, the power to appoint and dismiss the Governor; second, when she is personally present in a State the powers which at all other times are exercisable by the Governor; and finally the granting of Imperial Honours to citizens of the State. In all these matters the Queen acts upon advice furnished her by the State Premier. The U.K. Government plays no role in matters arising between State governments and the Queen.
The Prime Minister is not involved in nominations for Imperial Honours; and in relation both to the appointment of State Governors and the granting of Imperial Honours the Queen receives no advice from her British Ministers. No reference is made to the granting of Imperial Honours in the Australia Acts, but they are covered by arrangements which have been agreed to between the Monarch and the governments of Australia and of the States. Recommendations for the award of Imperial Honours are made by the Premier and are forwarded by him to the Governor for transmission to Her Majesty. A copy of the recommendations are sent by the Governor to the Governor-General for the information of the latter and for the purpose of coordinating awards and avoiding duplication. But it is the Premier who is the sole recommending authority. Of course, the Queen, in the case of certain awards such as the order of merit and her own personal awards of the Victorian Order, may act in her entire discretion.
In the case of some approaches to the Queen it is the practice to channel them, for administrative convenience, through the Governor-General, e.g. requests from organisations for the use of the style "Royal". The application is made to the Premier, or if made to the Governor forwarded by the latter to the Premier. If the application has the Government's support the Premier will transmit the recommendation to the Governor who will then forward it to the Governor-General for comment and transmission to Her Majesty. There are certain guidelines and it is desirable that there be implemented a consistent policy throughout Australia. Similarly, an application for the right to use Crown insignia on, say, letterheads or articles of clothing, is made to the Premier and, if supported, is then forwarded to the Governor who will send it to the Governor-General as the latter holds a delegation for approval in this regard.
The practice in Queensland and Tasmania regarding requests by associations for royal patronage is that such requests are submitted to the Governor who will forward them to the Queen's Private Secretary for consideration by Her Majesty. I believe that, in the other States, the practice is for the State Governors to submit them to the Governor-General asking the latter to forward them to the Queen. In relation to the retention of the title "Honourable" there are certain guidelines which have been approved by Her Majesty and which may vary from State to State. An application for the continued use of such title, if within the approved guidelines and recommended by the Premier, would be forwarded by him to the Governor who will then transmit it to Her Majesty for her consideration. Finally, the Governor, as the Queen's representative in the State, may make reports directly to the Queen from time to time either on a regular basis or by reason of constitutional or political changes occurring within the State.
I have not the time in this address to cover the many ceremonial and other public duties of a State Governor - the opening of parliament, the swearing in of Ministers, the receiving of calls from ambassadors and high commissioners, the holding of investitures, visits to and inspections of troops and other military formations, the opening of, or participation in, professional conferences and functions held by charitable organisations, the attendance at and the making of speeches at seminars, meetings and so on. It has always been recognised as one of his functions that a Governor should travel widely throughout the State visiting provincial cities, towns and shires and acquainting himself with the activities and problems of people in all walks of life. These are all important, and a Governor is in a position where he can communicate his knowledge and his views, not only to Ministers of State, but to a wide range of people who wield influence in the community.
Two former Governors-General, Sir Paul Hasluck and Sir Zelman Cowen, have written about these matters at some length. May I conclude by quoting some words of Sir Zelman made in an article, "The Office of Governor-General", published in the Winter 1985 issue of "Daedalus", the journal of the American Academy of Arts and Sciences, at page 127. The references by Sir Zelman to the work of the Governor-General apply equally to that of a State Governor. Sir Zelman wrote:
"It may be well to restate what I said in my farewell speech in Canberra in 1982. I said that I believed that through such work, through travel and participation in such activities, the governor-general offers encouragement and recognition to many of those Australians who may not be very powerful or visible in the course of everyday life, and to the efforts of those individuals and groups who work constructively to improve life in the nation and the community. My experience of the office was that much was demanded and expected of me and I sought to respond as best I could. Sir Paul Hasluck has said that Australians both expect and appreciate statements by a governor-general on matters of current concern at a level different from that of party-political controversy, and I was intellectually stretched and tested in the preparation for speeches, meetings, and activities. Knowledge, experience, and capacity were constantly called on and tested."
