I kept away from the Hollingworth issue, but I enjoyed the Monday Message Board discussion on a possible replacement so much I started thinking a bit about it. The main argument against an elected President, as far as I can see, is that Australian democracy is built on the premise of Prime Ministerial dictatorship (similarly with discussions about ‘mandates’ and the Senate).
If you accept this argument, it seems that the best Governor-General is the one who does least, and therefore that the best option is to leave the position vacant, with a stand-in to do the necessary attendance at Parliamentary openings and so on.
An even better solution, and one which would surely appeal to John Howard, is for the PM to appoint himself as GG. This would resolve the 1975 problem once and for all, while making any challenge to the monarchy that much more difficult. There may be constitutional obstacles, but they’re not obvious to me. After all, the office of PM doesn’t appear in the Constitution, so it can’t be ruled out explicitly.
Update Glenn Milne gives a cogent exposition of the theory that the GG should be a clone of the PM.
John Quiggin 
Let us be completely pro-USA and adopt their system after all it is one of the few where there exists a seperation of powers!
Who would trust howard,Keating etal with all that power?
John, I appreciate you were joking, but just in case anyone might actually take it seriously, here are a few points:
Section 4 of the Constitution prohibits the G-G from receiving any other Commonwealth salary while G-G, so at the very least Howard would have to give up his prime ministerial and MHR salary. Since these are statutory entitlements, he couldn’t easily give them up in a legally binding way without legislation, which would be highly unlikely to pass the Senate.
The nature of the G-G’s role (sacking governments, resolving deadlocks, dissolving both houses etc) is fundamentally inconsistent with the proposition that the G-G and PM could constitutionally be the same person. Thus there is an unavoidable constitutional implication forbidding appointment of the PM as G-G.
Part of this inconsistency relates to the separation of powers doctrine implicit on Australia’s Constitution, albeit that the separation is incomplete because of the hybrid nature of the document, which incorporates parliamentary responsible government as well as separation of powers. Nevertheless, and subject to the fact that there can’t be a complete separation between the legislature and executive because ministers must be MPs (section 64), the separation of powers implication would preclude the G-G (as the principal embodiment of the executive arm of government) from being a MP.
The fact that the Constitution doesn’t explicitly state that the PM can’t be G-G doesn’t mean it’s constitutionally permissible. Many central constitutional concepts are implicit, including separation of powers, rule of law, all the conventions and so on. The US Constitution spells out rather more than Australia’s does, but even it is fairly strongly reliant on implications drawn from the constitutional text. It would be difficult to imagine a clearer-cut implication than the proposition that the PM can’t be G-G, which is no doubt one of the reasons why no-one has ever seriously suggested the idea.
Ken, I left the irony alerts off, but thanks for putting them back in for me.
As a matter of interest, supposing the salary issue could be got around, how would a constitutional challenge against such an appointment proceed, and who would have standing to bring it?
John,
I suspect that the Queen would make it very clear that she disapproved strongly of such advice and would make sure the appointment didn’t happen. However, assuming Howard nevertheless insisted, there IS a very real question as to whether the question would be justiciable, or regarded by the High Court as too political for judicial resolution. Assuming it was held to be justiciable, I expect that the leader of the opposition, or pretty much any serving MP, would have standing, because all would be specially affected (the general test for standing). The plaintiff/prosecutor would seek a range of usual public law remedies, including injunction, declaration, prohibition and certiorari. As I suggested, standing, remedies and procedure aren’t the unclear areas. It’s whether the High Court would regard such a question as justiciable at all. However, I suspect they WOULD treat it as justiciable, because it’s such a fundamental issue going to the heart of the constitutional system, and not really one where there is room for difference of reasonable opinion (which is the most common basis for non-justiciability).
Would you be able to get around it like this:
The parliament consists of the House of Reps, the Senate, and the Crown/GG. The PM couldn’t be both a member of the House of Reps AND the Crown – that would be vesting the Crown in the House of Reps.
He could still nominate himself for the GG, but he would have to resign from the House of Reps.
So by convention that would mean he would no longer be eligible to be PM.
And as for going with the US system, I think the US Supreme Court is evidence that the seperation of powers is something of a mirage there also.
Sorry, I chopped something out of the earlier post:
Given that the HC would seem to have a fairly clear basis for declaring the appointment unconstitutional, to whom would the HC apply the injunction/etc.?
Would the injunction:
a: prevent the PM from giving that advice
b: prevent the Queen following that advice
or
c: declare the order illegal and hence prevent the PM acting on the Queen’s order?
Mark,
The first of your 2 comments suggests that it is only convention that requires the PM to be a member of Parliament. In fact section 64 of the Constitution requires all ministers to be MPs. Since the PM is one of the ministers, his resignation from Parliament would also entail ceasing to be PM. It would certainly be possible for John Howard to give up being PM and instead become G-G (i.e. give up the most powerful political office in the land in favour of one with almost no power), but I can’t see him doing it somehow.
As for remedies, injunction would be used to restrain actions not yet performed, so it would depend how far the process had got. The principal remedies would be declaration and certiorari. It really isn’t sensible to take this analysis any further, because the events are never likely to happen.
Mark says:
as for going with the US system, I think the US Supreme Court is evidence that the seperation of powers is something of a mirage there also.
This would come as a surprise to the Republican Nixon and the Democrat Clinton, both of whom found the seperated power of Congress a handful.
I agree with Pr Q, making the PM the GG would disclose the real state of power relations between the two offices.
The “real” head of state is the head of the government ministry – the PM.
Making the PM the GG would in fact give constitutional recognition to the office of PM,
which, bizarrely, it currently lacks.
It would also make the head of state post an office subject to democratic election.
We would avoid the flawed, French-style Republican model of having to create a seperate, presidential, executive branch of govermment.
We could keep the Westminster system of subordinating the executive to the legislature.
Why do people care about the identity of the GG?
Everone knows that, apart from one isolated and never to be repeated incident, the GG is purely ceremonial.
The trouble with so much political discourse is that it is concerned with cultural forms and symbols – politics as theatre.
The QUeen should be given dual citizenship to give the monarch’s office an Australian identity.
Alternatively, if one is serious about Presidential Republic, we ought to federate with the US – that is de facto happening anyway.
Ken
The ACT does not have a Governor or an Administrator (unlike the NT). Who then calls on the Chief Minister to form a government, dissolve Parliament and generally do all that vice regal shit ?
Jack,
I don’t really think that was the point JQ was making. If he was, it is a remarkably silly one. The fact that a dismissal event has only occurred once in a century doesn’t mean that the G-G’s function of ensuring the preservation of democracy is unimportant. In fact it’s a crucial and central role. Impeachment of a US President has also been very uncommon. In any democratic system, but especially a Westminster one where the boundaries between legislature and executive are blurred, there needs to be someone who can dismiss a government which is clinging to office despite losing the confidence of Parliament; governing illegally in a way that can’t easily and quickly be dealt with by a court; or which can’t obtain supply from the Senate. Otherwise there’s nothing to prevent the emergence of an elected dictatorship.
It would, of course, be possible to have a system where the Queen performed these functions (as Tim Dunlop suggests in a response to JQ’s post), but this too would require constitutional change and therefore a referendum. The people certainly won’t vote to give real power to a foreign monarch (and the G-G does exercise real power, albeit infrequently). The failure of the 1999 referendum didn’t mean Australians support the monarchy; polls both before and after showed (and still show) around 80% of Australians think we should be a republic).
The real choices are between:
(a) a minimalist appointed Head of State, which failed at the last referendum and would fail again, even if the serious deficiencies of the model (excessively empowering the PM) were fixed;
(b) a popularly elected Head of State, which would require the office’s powers to be tightly defined and subject to some degree of High Court review to ensure legality;
(c) making legislation automatic (ie no need for Head of State assent), and vesting the powers of dismissal and appointment of governments in (say) the Chief Justice. I only list this option because it is sometimes mentioned by bloggers. It’s a dumb, dangerous and undemocratic option, because it would create an excessively powerful Chief Justice. He would not only be the person who appoints and sacks governments, but also the principal judge of the court that would rule on the legality of his own actions. I guess you could disqualify him from sitting on any such case, but it’s still a messy and undesirable option which unbalances the system by politicisng (and therefore delegitimising) the High Court and giving one part of the system (the Chief Justice) excessive power. As such it clearly breaches Lockean liberal principles of constitutional design.
We can’t avoid having someone to fulfil the Head of State role, and option (b) is the only politically viable one in my view.
Dave,
The dismissal etc function is performed by the G=G under the ACT Self-Government Act (see section 16). Some of the functions performed by the G-G under the Commonwealth Constitution (eg consenting to laws) occur automatically because of the way they’re defined in that Act, and there would be scope for this under the Commonwealth constituion as well (as my previous comment suggested). However, you can’t avoid designating some person who dismisses governments.
Is there any reason, beyond Labor party loyalty or dislike for Fraser, to regard 1975 as a “problem” rather than a “feature”?
My money’s still on Baroness Thatcher.
Thanks Ken.
Now, what about the local government model? Local government councillors are elected by The People and then get together and elect a Mayor, who functions as both head of state and head of government.
Why can’t we have that model for the Federal Government?
I know that local governments are, by law, ultimately ruled by state governments, who can dismiss an unworkable council, but then the Federal Government is ultimately ruled, by law, by the Constitution. It wouldn’t take too much imagination to come up with a mechanism to dissolve Parliament automatically and start the process afresh — say if the Government loses a vote of confidence in the reps.
Governments thus would be appointed by the Parliament (or at least the reps part of the Parliament). Nothing undemocratic about that. In fact, strengthening the Parliament against the executive is an excellent idea in itself.
You’d probably have to abolish the power of the Senate to withhold supply. If a government is appointed by the reps, you couldn’t have the senate stopping it from governing by not letting it have any money. Strengthening the reps against the unrepresentative swill in the senate is also a good idea in itself.
BTW, what the hell’s happened to your site? Has ASIO shut you down?
This is an area that is crawling with confusion and unexamined assumptions. I have studied it (see the constitutional material linked via my site), and I just want to bring a number of issues out, stating them without the supporting material:-
– The monarch does not hold any “office of monarch”. The nature of the position is different from an office. It’s wishful thinking to treat it that way, and it would leave a whole lot of unresolved consequential changes if one just went ahead on that basis regardless – some of which really, really matter.
– The ironic situation of holding reinforcing offices is actually real. Many if not most dictatorships used a multiplicity of roles being held by one single person or clique. That particular one goes back at least to Augustus Caesar, and no doubt the Greeks had done it too. For modern examples, study “continuismo” in Latin America. See also how Alves Reis planned on buying his way out of counterfeiting charges by buying out the only Portuguese institution that could lawfully launch proceedings. Oh, for this very reason the monarch always DOES hold certain offices – things like being colonel in chief of this or that regiment. It’s carefully formally disconnected so no “just change the officeholder” stuff can work.
– The main objection to an elected president is NOT as stated; that is an objection as between forms of presidency. The full set of objections includes objections that apply to any sort of republic – that formulation omits any of those from consideration. It’s amazing what you can do with selective editing and agenda control, even when you are not doing it consciously and deliberately.
– Many people understand “no constitutional problem” to mean “constitutional law presents no obstacle”. Actually, constitutional matters are at the join between law and force. It is all too easy to forget that ou are looking at the underpinnings that give effect to law in the first place. Some things plain don’t work any more than paying bills by cheque works when the bill is one owed to a bank. That is, there is a common assumption “of course it works – it’s the law”. But such arguments weaken or even fail when you apply them to the foundations of constitutions themselves. (It’s a complex thing, and just here I won’t go into what really happens for reasons of space; but see above about the non-coincidence of being colonel of regiments, i.e. resources of force.)
Go Minimalist Lotto
A few years ago, I penned the following in disgusted amusement; events have subsequently added to my disgust and amusement; [No-one would publish this, so I’m trying the Quiggin Files ,which I truly enjoy]
Dear Sir,
Successive Australian governments of different political persuasions have presided over the erosion of Australian sovereignty. Nation States everywhere have lost control of their currencies – once a defining characteristic of sovereignty (just ask presidents Mahatir or Soeharto) . Europeans have kept many of their monarchs but have grabbed the name of one of our national icons, the EMU, to symbolise their pooled sovereignty. Australians show some grasp of this symbol-substance split, if only by the amounts of money they gamble each week. Some of them oppose the inherited succession of the monarchy but each week they bet large sums on the basis of blood lines, – horses, dogs, sheep, pigeons and even frogs. We do, however, get quite touchy about continuities in human heritability, the issue of appointment, succession and our symbols of national sovereignty.
So why not ‘capitalise’ on our dilemmas and strengths? If some don’t want to elect directly a head of state, and some don’t want to punt on a blood-line, let’s do what we do best, let’s chook raffle the whole thing.
Think about it. Many people, (even some lawyers), claim we can specify the job description, right down to those (unspecifiably) ‘reserve’ powers. It looks like a simple job of contracting out with suitable accountability mechanisms. Of course that’s baloney but there is a certain ecumenical appeal. If you are a citizen, live most of the time in Oz, and are registered on the electoral roll, then your numbered name is in the hat until you take it out. No compulsory voting, just watch the balls in the air on TV, the night they draw the REALLY big one. The draw goes on until someone who gets lucky says “OK, I’ll have a go”. It’s a specifically minimalist position so we’ve ruled out anything substantial by way of power, the incumbent gets sponsorship in the form of The House, the car, a secretary, mobile phone and an email address. Titles are no problem, call them ‘Skipper’, or ‘Spinner’, (or just change the GeeGee’s title to ‘Pres’), whatever The People think is a fair thing. The chosen one has to create their own actual authority of course, its all a bit like modern parenthood.
Meanwhile, if you look closely, many folk have lost confidence in the sovereignty of our present ‘hard’ currency, they have taken assets ‘offshore’ (even changed their citizenship, though they remain ‘Aussies at heart’) others are stuck with getting a buck from somewhere and so we have invented black and white economies for that. A few are building different forms of social exchange, some forms are humane, communal, imaginative and constructive, while some (ask about the M.A.I). are just the opposite.
But let’s not bother with these tricky ‘elite’ problems, let’s be Real Australians and “Go Minimalist Lotto”, go.
Frank Hicks
February 1998
Edited by site owner
In the UK the “dismisser of last resort” function held by our GG does not exist as part of the Queen’s constitutional power, yet they manage alright.
In reality, in the westminster system, all you need for effective executive government is the confidence of the legislature. Law, & the legitimacy of the ministry, is what the lower house says it is.
If the PM goes batty or on the nose, you have cabinet government/caucus to get rid of him.
This happens all the time in Australia and life goes on. Who needs legislative impeachment or HoS reserve powers for such an eventuality?
The French/US system of seperated powers is designed to give the head of state military-imperial leverage over parliament. This suited their revolutionary origins and imperialist destiny.
But it also laid up a store of problems for them. It is in France & the US where heads of state go mad, have habilitation problems with the legislature and generally hang around in a painful manner long after they are needed.
The UK didn’t need to give their modern HoS seperate large powers to get them an empire, they had already acquired one absent mindedly.
The obsession with the identity/choice/powers of the GG is one of the great political red herrings of our time. It is the substitution of symbolic for real political action, rather as obsessive housework is a surrogate for creative activity. Most Australians, quite sensibly, could not care less.
Our cultural elites would be taken more seriously if they tackled serious problems eg death.
In keeping with my policy of attempting to maintain civilised discussion, I’ve deleted a passage in Jack’s comment which gave offence to another participant in the discussion and some subsequent exchanges that failed to resolve the problem.
Normal debate will, I hope, now be restored.
JS started a post with ‘In the UK the “dismisser of last resort” function held by our GG does not exist as part of the Queen’s constitutional power…’
Unfortunately for the rest of his argument, this is plain wrong. What is more, the existence of “last resort” powers has had material consequences in the past, notably George V’s role in getting Lloyd George to get his act together over an Irish treaty. What may have misled JS is the fact that the British Constitution is unwritten; he wouldn’t necessarily have seen any explicit statement that the monarch can do such things.
It turns out per PM Lawrence, Ken was right and I was wrong. Fancy that! Apparently the UK monarch is legislatively & conventionally authorised to do what she likes, her powers are not formally specified by a written consitution, they are governed by ancient convention and legislation (Act Of Settlement) which allow her a lot more leeway than our consitution. This would include dismissing an incoherent or malefatoring government:
According to the Guardian:
The Queen is head of state
In Britain this is a symbolic role entirely separate from party politics. She does appoint the government and technically could refuse to approve the election winner, but there is no modern precedent for this.
Royal prerogatives
Any actions of the government that are not specifically permitted by law or by judicial ruling get their legitimacy from the Crown. This is known as the royal prerogative. Royal prerogatives are not powers exercised by the Queen, but powers exercised by government for which the authority of the crown provides legitimacy.
This covers such acts as:
– declaration of war,
– appointment of ministers;
– making of treaties.
Ordinary powers
There is no legal obstacle preventing the monarch from taking on the functions of a host of ministers. She could, if she chose, take on the role of First Lord of the Admiralty, Lord Chancellor, the Chancellor of the Exchequer, or even First Lord of the Treasury – in other words, the Prime Minister.
Parliament
The Queen has the power to invite a Member of Parliament to form a government. Dissolving Parliament on the Prime Minister’s advice is determined by convention. The Queen has the power to give or withhold assent to bills passed by Parliament and technically could refuse to approve a bill; in fact she has never exercised the power to refuse to sign a bill. It is also in her power to dismiss ministers and governments.
Emergencies
In emergency circumstances, such as strikes, mass civil disorder or if a government is acting in a way that threatens to undermine the constitution, the Queen is empowered under the royal prerogative to assume a central and leading role.
I still think that the days of monarchs wading into live political issues like Irish politics, are long gone. They would soon be forced to abdicate. But in a genuine constitutional crisis, such as occurred in Australia 1975, there appears to be no formal constitutional or legislative inhibition to the Crown stepping in and dismissing a ministry, so my “No Dismisser of the Last Resort” statement was false.
In the UK, where the Lex is silent,
the Rex reigns supreme.
Sadly again, JS is still misdirecting himself with this: “I still think that the days of monarchs wading into live political issues like Irish politics, are long gone…”
No, what is happening is more like a dormant volcano. As, when and if a situation like the Irish treaty recurs, the potential of the monarchical role appears again. The only question is whether those crises are long gone – not whether the latent powers are long gone, for they are not.
I believe that these things come nearer the surface more often in Belgian politics these days. Certainly the role of the King of the Belgians was active in 1940, and I have heard that there is far more deadlock breaking going on behind the scenes there even today, what with the ethnic issues there.
GG=HRH
John Quiggin wryly suggests that the Prime Minister could take over the role of governor general. Seems like a good…