Curiously ill-defined-the role of the head of state

The role of the head of state under the Westminster system of responsible government is curiously ill-defined, whether the powers are those of the Queen or those of her representatives-governors-general, governors or lieutenant-governors-in the countries, states and provinces we are considering. The problem is not with the ceremonial functions, which Bagehot described as the discharge of the dignified role of the monarch. It is certainly useful to have someone other than the head of government to perform the occasionally interesting, sometimes spectacular, but usually politically trivial duties which fall to a head of state. Many find it curious to see the president of the United States, who combines the roles of head of government and head of state, performing routine ceremonial duties when there are urgent political problems awaiting his attention.

Canada, Australia and New Zealand have two heads of state, the Queen as the symbolic head of state and the Governor-General as the constitutional head of state. When the Queen visited Australia in 1954 Prime Minister Menzies wanted the Queen to take part in some of the formal processes of government, but the Constitution left no role for the Queen, all the relevant powers remaining with the Governor-General, despite the presence of the Queen. Menzies had to arrange for the passage of a special act to give the Queen the power, during her visit, to exercise some of the Governor-General’s powers.

It is the political powers of the constitutional head of state which are in question. The 1926 Imperial Conference agreed that in all essential respects the relations between a Governor-General and his ministers were the same as between the King and his ministers in the UK. But what are these relations? Britain of course has no constitution set out in a single document, nor do nine of the ten Canadian provinces, but even where there is a single constitutional document the powers of the head of state are not clearly defined. It is generally agreed that the head of state has some discretionary ‘reserve’ powers, but what these powers are, and when they should be exercised, is a fertile field for academic debate. One authority has stated that ‘amongst the text-writers on the subject of constitutional conventions those interested will usually be able to find support for (or against) almost any proposition.’[43]

In the written constitutions, there is generally some statement that the ‘Executive Government and Authority’ is vested in the Queen, to be exercised by the Governor-General (or Governor) on her behalf. This is a pre-Bagehot picture, a curious survivor, with no modern relevance. There are references to Privy (or Executive) Councils to ‘aid and advise’ the Governor-General or Governor or Lieutenant-Governor, but no mention of a Cabinet, or of a prime minister[44] or premier.

One might think that a possible way of determining which of the powers of the head of state are to be used at his discretion might be to look at the wording of the various constitutions. Where there is a reference such as ‘the Governor-General in Council’ having certain powers, it is clear that the Governor-General is acting on the advice, that is to say decisions, of the Privy (or Executive) Council, that is to say the Cabinet. In all the written constitutions, though, there are certain powers which appear to be given exclusively to the Governor-General or Governor. The authors of an authoritative work on the Australian Constitution have pointed out that the distinction between these two classes of powers and functions is historical and technical, rather than practical or substantial. The particular powers and functions vested in the Governor-General belong to that part of the executive authority which was originally vested in the Crown at common law, and is not at present controlled by statute. They are called the prerogatives of the Crown.

In the Canadian Constitution the Governor-General has exclusive power to choose and remove the members of the Privy Council, to summon and dissolve the House of Commons, to appoint senators and judges, to approve or reject bills passed by the Parliament, and to decide whether or not to approve expenditure proposals of the Parliament. No one suggests that the Governor-General should use, at his discretion, all of these powers, but there is general agreement that he may have to use some of them, his ‘reserve’ powers. The questions are what these reserve powers are, and when they should be used. The situation is no different in the United Kingdom and the Canadian provinces, which have no constitutions in a single document, for the reserve powers are governed by convention not by statute law.

The areas where a head of state might have to make a personal decision cover approval of proposed laws and the use of the delegated law-making authority; the summoning and dissolution of parliament; and the appointment and dismissal of a prime minister. In what circumstances would the head of state, in order to maintain the working of responsible government, have to take action without or even against the advice of the prime minister or Cabinet?

Approval of legislation

The parliament, the law-making body, consists of the head of state and the houses of parliament. The head of state may approve or reject any law, but in practice the power to reject is never used. The head of state may indeed return a bill to the house in which it originated with a recommendation for amendment, but this is not done on his own initiative but on the advice of the Attorney-General to correct an error in a bill which became evident after it had passed both houses. This has been done in Australia fourteen times since federation, but it has not been done in recent times. It has not been done in New Zealand since 1949, and the power was abolished in 1986.

There is also a provision in Canada and Australia for the Governor-General to reserve a bill for the Queen’s assent. This originated when the dominions were not fully independent, and a Governor-General was regarded as the representative of the British government, with the responsibility for ensuring that the ‘colonies’ did not pass any act which would damage British interests. It was not until 1926 that the Imperial Conference declared that the Governor-General ‘is not the representative or agent of His Majesty’s Government in Great Britain, or of any Department of that Government.’ British High Commissioners (that is, ambassadors) were first appointed to Canada in 1928, Australia in 1936, and New Zealand in 1941. Reservations for royal assent has fallen into disuse, except for occasional ceremonial matters. The last Australian bill to be so reserved was the Royal Style and Titles Act 1975. In New Zealand a 1947 amendment made such reservations clearly anachronistic.

In the Canadian provinces the lieutenant-governors are officially appointed by the Governor-General, but the prime minister makes the decision. The lieutenant-governors are federal officers, and are expected to watch the interests of the federal government. They can reserve bills for consideration by the Governor-General, who would of course act on the advice of the federal government. By the Constitution Act of 1867 the federal government can veto such bills within a year of their passage. Seventy bills have been reserved by lieutenant-governors since 1867, the last being in 1961. Lieutenant-governors have also used their power, on their own initiatives, to refuse assent to bills. This has been done to 27 bills since 1867. The last occasion was in Prince Edward Island in 1945, over prohibition.

In Australia the federal government has no power over state legislation, for the governors are in no way responsible to the federal government. The premier, not the government, chooses who is to be governor, and the Queen makes the appointment on the premier’s advice. The governors do have the same power as the Canadian lieutenant-governors to refuse assent to bills, on their own initiative, but it has never been done in modern times.

It may seem strange that the head of state should give his assent to a bill or delegated instrument that he considers objectionable or possibly illegal, but in practice he has no option, though he may ask the Attorney-General for formal legal advice on a bill, and he should be satisfied that the correct procedures had been followed. Otherwise, in Bagehot’s words, he may encourage or warn, but in the legislative field the head of state is a rubber stamp wielded by the government, though in the Canadian provinces the stamp may be seized by Ottawa. There is one exception to the control of the rubber stamp by the government. If a private member’s bill is passed against the wishes of the government-this would be unusual, for such a bill would involve either a ‘free’ vote, or government party cross voting, or a minority government-the head of state should nevertheless give assent. Such a bill could of course not have been passed if it involved expenditure.

Dissolution of parliament

The second area where the head of state might have discretion is in the dissolution of parliament. Most dissolutions occur on the recommendation of a prime minister or premier, who has a secure majority in the House but who wishes to have an election at a politically advantageous time. Such dissolutions often make substantial cuts in the term of parliament, as has already been discussed, but the head of state invariably accepts the advice. He may feel that the reasons given by the prime minister for an early election are patently spurious, but he keeps his feelings to himself. If a parliament ever does move to a fixed term, the change will have to be initiated by the parliament itself. It will not be done by the head of state using his reserve powers.

Nevertheless a prime minister does not have unlimited power to demand elections. As former British Prime Minister Asquith said in 1923: ‘the notion that a Ministry which cannot command a majority in the House of Commons ... is invested with the right to demand a dissolution ... is subversive of constitutional usage.’ This view was supported by another former British prime minister, Clement Attlee, who wrote in 1952 that: ‘the monarch has the right to grant or refuse a prime minister’s request for a dissolution of parliament.’ The most authoritative version was given in a letter written to the Times on 2 May 1950 by the King’s private secretary, Sir Alan Lascelles, using the pseudonym ‘Serex’. Lascelles wrote that:

No wise sovereign ... will deny a dissolution to his prime minister unless he was satisfied that: (1) the existing parliament was still vital, viable and capable of doing its job; (2) a general election would be detrimental to the national economy; (3) he could rely on finding another prime minister who could carry out his government for a reasonable period, with a working majority in the House of Commons.

A former Governor-General of New Zealand made a useful distinction:

A prime minister without a majority in the House has lost the authority to insist that his advice should be accepted. A prime minister with a majority could threaten to resign if his advice is not accepted, knowing there is no alternative government for the Governor-General to call on. A prime minister without a majority cannot exercise that kind of pressure.[45]

This rule would cover the case when a government loses the confidence of the lower house. The defeated prime minister has the right to ask for a dissolution, but no right to demand one. A head of state would consider rejecting a defeated prime minister’s request for a dissolution only if he thought that an alternative government could be formed by someone else. If that person-nearly always the leader of the opposition-fails to gain the confidence of the lower house, the head of state might try again, but if no one can form a government then there is no alternative to an election. It would be best to reappoint the original prime minister, permitting him to have whatever advantage that office gives during an election campaign. After all, he had been right about the need for a dissolution, and the head of state’s judgement had been wrong; and those other leaders who had tried and failed to form governments which had the confidence of the lower house had, by accepting the appointment, implicitly agreed that the House should not be dissolved.

There has never been such a case in the UK or New Zealand, but there is no real doubt about the power of the head of state to refuse a request for a dissolution on these grounds. In the 1924 Westminster Parliament there were three roughly equal parties. Ramsay MacDonald, the Labour leader, was appointed prime minister and survived for eight months before being defeated and asking for a dissolution. This was granted, but King George V had previously asked the leaders of the Conservative and Liberal parties whether, if MacDonald were defeated, either of them, or both in coalition, would be willing to form a government. Both had said no, so MacDonald was granted his dissolution.

In 1926 the Canadian Governor-General, Lord Byng, refused the request for a dissolution by Prime Minister Mackenzie King, who had lost the confidence of the House of Commons, and commissioned the leader of the opposition (Meighen, Conservative) to form a government. Meighen had great problems, because at that time newly appointed ministers had to resign their seats and contest by-elections, and such resignations would have cost him his majority. The requirement for a newly appointed minister to resign and face a by-election originated in the reign of Queen Anne. The requirement was abolished in Canada in 1931. In Britain an amendment was passed to eliminate the requirement for such resignations during the first nine months of a new administration, and in 1926 the requirement was completely abolished.

Meighen met the problem by appointing a large number of acting ministers, but had to face a by-election himself. Meighen’s Government survived an initial motion of no confidence, but collapsed after facing the Commons for only three days, losing a division on a motion of censure by one vote, with Meighen watching helplessly from the gallery. Byng granted Meighen a dissolution, but Mackenzie King’s Liberals won the election.

Byng cannot be criticised for verifying whether an alternative government could be formed, and as Meighen did in fact form a government which possessed the confidence of the House it was reasonable to grant him a dissolution when he was defeated, as it was then clear that no one could form an acceptable government in the existing House. Nevertheless the events left a great deal of bitterness among the Liberals, and since 1926 there have been no refusals of requests for dissolutions in Canada, either federally or in the provinces. Since confederation there had been three refusals of requests for dissolutions in the provinces, but there had been none since 1903.

In Australia there are three precedents for refusals of requested dissolutions in the Commonwealth (in 1904, 1905 and 1908) and no fewer than sixteen in the states. No one can reasonably doubt that the power is there.

Of course if there is no prospect of a new government being formed which could have the confidence of the lower house, the prime minister’s request clearly should be granted. This occurred in the United Kingdom with Callaghan in 1979 and in Canada with Clark in the same year.

The rule that a prime minister who has lost the confidence of the lower house has lost the authority to insist that his advice be accepted would also cover the problem of a prime minister losing an election and then asking for a dissolution and a new election without first facing the House. This has never actually happened, though there was talk of it in Tasmania after the 1989 election, when the Liberal government lost its majority, and the balance of power was held by five Green Independents. A bizarre series of events followed, later the subject of a royal commission. There was an offer of a bribe of one hundred thousand dollars, and possibly the Speakership, to a newly elected Labor MP to change sides; an advertising campaign, secretly funded by the Liberal Party, to demand a new election; and legal opinions given to Premier Gray that the Governor should order a new election if the premier asked for one after being defeated in the Assembly.[46] The Governor, fortified by an opinion by a former Chief Justice of the High Court, made it quite clear that he would not agree to a dissolution unless it was impossible to form a government which possessed the confidence of the lower house. He insisted that the Leader of the Labor opposition, who was seeking to be appointed premier, should produce clear evidence of his ability to form a government. This was done, in the form of a written agreement with the Greens, and the Labor Party was in power, though burdened by its formal coalition with the Greens.

A somewhat similar problem arises if a prime minister attempts to obtain a dissolution while a motion of censure is actually being debated, as Mackenzie King tried to do in Canada in 1926. Such a request should clearly be rejected, for to accept it would permit a government to escape the judgement of the lower house, to which it is responsible.

A more difficult problem would arise if parliament were not meeting, and the prime minister, having apparently lost the confidence of the government party but not yet having been deposed, asked for a dissolution. This nearly occurred in Queensland in 1987, when the premier, Sir Joh Bjelke-Petersen, faced with a party revolt, threatened to call a snap election and take the party down with him. In the event he did not use this ploy. The sensible thing for the Governor to have done, if faced with this situation, would have been to insist on the premier’s leadership being confirmed by his party before agreeing to the dissolution, but there are no precedents for such action, and the Governor would have been in a very embarrassing position if the party had confirmed the premier’s leadership.

The Australian Commonwealth has a peculiar problem with regard to double dissolutions-that is, simultaneous dissolutions of both houses. If a bill which has been passed by the Representatives is rejected by the Senate or passed with amendments to which the Representatives will not agree, or if the Senate fails to pass the bill, and after an interval of three months the House of Representatives passes the bill again, either in the same form or incorporating Senate amendments, and the Senate again rejects or fails to pass the bill or makes unacceptable amendments, both houses may be dissolved by the Governor-General if so requested by the prime minister. The Governor-General would have to satisfy himself that the constitutional conditions have been met, and there is plenty of scope for argument about the meaning of ‘interval of three months’ and ‘fails to pass’. A former Chief Justice, Sir Samuel Griffith, also claimed that, for the Governor-General to grant a double dissolution, the deadlocked bill must be of such public importance that it should be immediately referred to the voters, or that there was a practical deadlock which could be ended only by a dissolution. The Governor-General thus has much to consider, though in fact the prime minister’s advice has been accepted on all six occasions that a double dissolution has been requested.

As has been already discussed, the modern use of a double dissolution generally has nothing to do with legislative deadlocks, and everything to do with permitting the prime minister to hold a simultaneous election for the Senate and House of Representatives at a time of his choosing. A curious example of this occurred in 1975 when the Senate was refusing to pass the budget unless Prime Minister Whitlam agreed to an election, which Whitlam refused to do. With supply running out, Governor-General Sir John Kerr dismissed Whitlam and commissioned the leader of the opposition, Malcolm Fraser, as prime minister on condition that he would obtain supply and ask for a double dissolution on the grounds that a number of non-budget bills had met the deadlock requirements. The double dissolution was curious because, with the change of government, there was no longer a true deadlock. The new government certainly did not want to have the deadlocked bills passed, but it was important that the Senate should be dissolved with the Representatives, for the inevitable anger over the Whitlam dismissal would have been greatly magnified if the Senate had forced the Representatives to the polls while remaining itself immune.

The question of supply is sometimes crucial in a head of state’s decision on a dissolution request. The head of state must be satisfied that supply will be available for the period from the dissolution of parliament until the new parliament could vote further supply. This is never a problem when a prime minister in control of the lower house asks for an election, for he would certainly have made adequate supply arrangements. A difficulty might arise when a government loses the confidence of the lower house towards the end of the period for which supply has been granted and no alternative government can be formed. In practice, once it is obvious that a dissolution is inevitable, none of the parliaments has made any difficulty about granting the necessary supply. The 1975 double dissolution in Australia might have broken the pattern, for it is most unlikely that the Representatives would have voted supply for the minority Fraser Government, but as things were handled the Representatives had no chance to vote again on the appropriations they had granted the Whitlam Government.

The Canadian Parliament is the only one where supply is never a dissolution issue, because the Financial Administration Act permits the government to issue special supply warrants without the approval of the Parliament. This is the only valuable use of this iniquitous provision, which undermines one of the crucial features of responsible government.

Although it is clear that a head of state has the power to refuse a dissolution asked for by the prime minister, it is another matter for a head of state to dissolve a parliament without a formal request from a prime minister. It is a clear convention that he should not do so. In the words of Sir Samuel Griffith, ‘he cannot act except on the advice of his ministers.’ But is this immutable? To order a dissolution which is opposed by the prime minister is not on the same level as refusing a prime minister’s request for a dissolution, for the ministry would not accept responsibility for the decision, and this is fundamental to responsible government. Even Sir John Kerr manoeuvred so that he had prime ministerial support-albeit of a new prime minister-for dissolution. Yet what Kerr wanted was for the Parliament to vote supply to the government so as to avoid administrative and social chaos, and he thought that a dissolution was the only way to achieve this. He could have used his power to dissolve the Parliament without dismissing the prime minister. This would have been traumatic, but no more so than what he actually did, and it would have ensured that during the election campaign the majority party in the Representatives would have been the government.

A similar problem might arise if a prime minister who had lost the confidence of the lower house refused to resign or recommend an election, and there was no possibility of an alternative government. The neatest solution might be not the dismissal of the prime minister but the dissolution of parliament. Yet it is most unlikely that any head of state would take such dramatic action, for convention is clearly against it. It has been regarded as an essential component of constitutional practice that the head of state should always have a ministry which is prepared to take responsibility for such a decision. But a convention is, after all, only an accepted precedent which is obeyed because of the political difficulties which would arise if it were not. For a head of state, in certain rare circumstances, to order a dissolution on his own initiative might be the lesser of alternative difficulties, but it would be a very radical step.

Various authorities have suggested actions by the head of state which would certainly be no longer acceptable. ‘A dissolution is allowable’, wrote Dicey, ‘or necessary, wherever the wishes of the legislature are, or may fairly be presumed to be, different from the wishes of the nation.’[47] Anson agreed that ‘the prerogative might conceivably be a resource where a Ministry and House of Commons were alike out of harmony with the country and were unwilling to admit the fact’[48] and Forsey thought a forced dissolution was justifiable ‘to protect the Constitution or to ensure that major changes in the economic structure of society shall take place only by the deliberate will of the people.’[49] But how is the head of state to assess the wishes of the nation? Does he use by-election results, or public opinion polls? Both are notoriously uncertain predictors of the results of general elections, and for the head of state to make a misjudgement on such a dramatic and crucial issue would be devastating for his position. It is an inappropriate power to give to a head of state, because it would in practice be impossible to exercise. The last time there was a forced dissolution was in the Canadian province of New Brunswick in 1865.

Appointment of a prime minister

The head of state still has the power of appointment and dismissal of the prime minister. Appointments usually do not cause much difficulty. Any political party which is a contender for government will have an elected leader, and if that party gained an absolute majority at an election, it is inevitable that he (or she) would become (or remain) prime minister. A formal coalition, such as the Liberal and National parties in Australia, would also have a clear leader. Problems may arise when, after an election, no party or formal coalition has a majority in the lower house. There may also be problems when a prime minister’s request for a dissolution is refused, or when a prime minister is deposed in a party coup, or when the prime minister of a minority government retires. There are precedents for dealing with all these situations, but they have not hardened into conventions, and the head of state has to exercise considerable judgement in assessing the political situation.

If a prime minister loses his majority at an election, he is entitled to remain in office and face the lower house, if he wishes. This should be done promptly. (What the head of state should do if the prime minister delays asking for the summoning of parliament is a separate issue.) It is usual, if another party or formal coalition is numerically stronger than his, for a prime minister to resign and for the head of state to commission the leader of the strongest party or formal coalition to form a government. If that leader does not have an absolute majority, there must be an early meeting of the lower house to allow it to make the final decision. There are no absolute rules, for the outcome may depend on the attitude of minor parties and Independents. Under certain circumstances the leader of a minor party might be appointed prime minister, with the support of one of the major parties. This was the situation in the state of Victoria in the decade after the Second World War, when there were several minority Country Party governments, supported at different times by different major parties.

If a prime minister is deposed in a party coup, his replacement will be nominated by the same body that deposed him. The only possible problem would occur with a coalition government, when the leader of the minor party might be more acceptable to the coalition as prime minister than the new leader of the major partner. The decision might require delicate soundings by the head of state. The only modern example is the resignation of the Australian Prime Minister Robert Menzies in 1941, when he had lost the support of his Cabinet. The Governor-General commissioned as his replacement the leader of the Country Party, the junior partner in the coalition. There was no real problem for the Governor-General, for the Country Party leader had been elected as leader of the coalition at a joint meeting of the two coalition parties.

If a prime minister retires when he is head of a minority or marginal government, the government party or parties will nominate his successor. The head of state, whatever his assessment of the prospects of survival of the new leader, has really no option but to appoint him as prime minister. The only recent example is the resignation of Harold Wilson in March 1976, at almost the precise moment when Labour became a minority government. It took three weeks for the cumbersome Labour Party election machinery to produce his successor, but there was never any doubt that whoever it was-it was James Callaghan-would become prime minister.

Dismissal of a prime minister

The dismissal of a prime minister is rare. Normally a prime minister, faced with a situation where he clearly should go, will resign. Nevertheless there have been, and no doubt there will be in the future, occasions where a prime minister has refused to take the proper action. In these circumstances the head of state may have to intervene and dismiss the prime minister in order to preserve responsible government. The need for intervention could arise in several ways: by a prime minister who has clearly lost the confidence of the lower house, or of his party, refusing to resign or recommend a dissolution; a prime minister unable to obtain supply from the parliament; a prime minister who has probably lost his majority as a result of an election refusing either to resign or to ask for the summoning of parliament; or a prime minister acting illegally.

There have been no examples of a prime minister losing the confidence of the lower house or of his party and refusing to resign, though Queensland Premier Bjelke-Petersen was showing ominous signs just before his resignation in 1987. Australian Prime Minister Gough Whitlam was dismissed in 1975 when he could not obtain supply from the Parliament unless he agreed to call an election, which he refused to do. It could be said that Canadian Prime Minister Clark in 1979 unreasonably delayed the summoning of Parliament, and that the Governor-General should have told him to ask for the summoning of Parliament or else to resign in favour of someone who would make such a request. The only modern example of the dismissal of a prime minister or premier for acting illegally occurred in New South Wales in 1932, when the Governor dismissed the premier (Jack Lang) for refusing to withdraw a circular which the Governor claimed was directing public servants to break the law. An unanswered question is whether it was proper for the Governor, rather than the courts, to make a decision that a particular action was illegal.

The problem was studied by the 1988 Australian Constitutional Commission. An advisory committee recommended that the Governor-General should be able to:

dismiss the prime minister for persisting in grossly unlawful or illegal conduct, including a serious breach of the Constitution, where the High Court has declared the matter to be justiciable and the conduct to be unlawful, illegal or a breach of the Constitution, or when the High Court has declared the matter is not justiciable, and the Governor-General believes that there is no other method available to prevent the prime minister or the government engaging in such conduct.[50]

This view was not accepted by the members of the Constitutional Commission, of which one of the members was former Prime Minister Whitlam, who understandably had strong views about the dismissal of prime ministers. The Commission thought that the matter should be left to the House of Representatives-in effect, except during a minority government, to the government party caucus. But is this good enough? It is quite likely that the Labor Party caucus in New South Wales would have continued to support Jack Lang even if he had been convicted, particularly as Lang would undoubtedly have portrayed any conviction as being the result of his defence of the people of New South Wales against the tyrannical Commonwealth. The Constitutional Commission endeavoured to deal with the possibility of an inactive lower house by pointing out that a prime minister actually in jail would have problems. If his sentence of imprisonment was for more than a year he would, under the Australian Constitution, cease to be an MP. Even if his sentence was for less than a year, if he were in jail he would not be able to attend sittings of Parliament, and would eventually cease to be an MP unless given leave by the House of Representatives. Ceasing to be an MP would not legally prevent him from continuing as prime minister or premier in fifteen of the twenty parliaments, but it would in the Australian Federal Parliament.

The scenarios painted by the Constitutional Commission are so bizarre, and the solution they propose so unreliable in the crisis atmosphere that would inevitably surround such charges against a prime minister or premier, that they emphasise the importance of having the dismissal powers of the head of state clearly defined, on the lines of the proposal of the Constitutional Commission’s advisory committee.

Summoning of parliament

The other area where it might appear that some heads of state might sometimes use their reserve powers is in the summoning of parliament after an election. Of course if the prime minister or premier refused to ask for the summoning of parliament within the statutory time he would be breaking the law, with consequences already discussed, but only in Australia federally and in two of the states and in New Zealand are there constitutional requirements for the parliaments to meet within a given time after an election: within 30 days of the day appointed for the return of the writs in Australia, six weeks in New Zealand. Of the six states, only New South Wales and Tasmania have statutory requirements for the parliaments to meet within a specified time after the return of the writs. In the other states the premier has a free hand, though there is a requirement that there should not be more than twelve months between sessions of the Assembly and the Council, and of course the parliament must meet before supply runs out.

In the UK the Parliament traditionally meets promptly after an election, it being the custom for the date of meeting of the new Parliament to be fixed in the proclamation which dissolves the old one. The voting system is the simple one of first-past-the-post, so the writs are returned promptly after an election. Since 1945 the average interval between polling day and the first meeting of the new Parliament has been about three weeks.

The problem area is Canada, where there is no statutory requirement for the federal Parliament to meet within a given time after an election, and the government can give itself supply without the approval of Parliament. There is a constitutional requirement that there should not be more than twelve months between the end of one sitting of Parliament and the beginning of the next, but nevertheless there can be a substantial gap between an election and the meeting of the new Parliament, during which a government which no longer has a majority in the lower house can continue to govern.

The provinces are also covered by the provision in the Canadian Constitution which requires that ‘there shall be a sitting of parliament in each Legislature at least once every twelve months’, but some of the provinces have amplified this. Nova Scotia has passed an act requiring two sittings per calendar year, and in Nova Scotia the rules of the Legislative Assembly require that the Speaker must be elected within 44 days of polling day. There can be other pressures, too, for in Newfoundland and Labrador, for instance, newly elected members are not paid their indemnities and sessional allowances until they take their oaths or affirmations of office.

How long is a reasonable time between the election and the first meeting of the new federal Parliament is a matter which must concern the Canadian Governor-General. If the prime minister does not ask for the summoning of Parliament, the Governor-General has a real problem, for the prime minister is not breaking any law provided it is not yet twelve months since the end of the last sitting of the Parliament. Yet the prime minister is clearly flouting the principles of responsible government if he refuses to face the lower house after he has lost his majority. There is no evidence that any Governor-General has threatened dismissal for such behaviour, even after the Canadian election of 1979, when a minority Progressive Conservative government under Joe Clark continued in office for almost four months without facing the House of Commons, sustaining itself with special warrants worth more than thirteen billion dollars. Rather than facing a Governor-General with an almost impossible decision, it would be better for the Canadian Constitution to be amended to require the Parliament to meet within a brief prescribed period after an election.

Codification of the head of state’s powers

It must be clear that the head of state has to have substantial discretionary ‘reserve’ powers, and that the appropriate use of these powers, though always politically difficult, is essential for the proper working of responsible government. There have been many suggestions that the powers should be codified and either placed in the Constitution or, for the countries and provinces without formal constitutions, passed by an act of parliament. Dr Evatt, in his 1936 book The King and his Dominion Governors, argued cogently for the reserve powers to be codified and the interpretation of these rules to be carried out by some judicial or arbitral tribunal.

There are however problems with implementing this approach. In New Zealand the powers of the Governor-General could be defined by an act of parliament, as it could be for the powers of the Queen in the United Kingdom. In New Zealand a very incomplete list of the powers of the Governor-General was produced, and in 1983 was incorporated in the Royal Letters Patent, the Queen’s instructions to the Governor-General. It was enacted by the Constitution Act in 1986. The instructions were incomplete in that they did not cover key issues such as the power of appointment or dismissal of a prime minister, or refusal of a prime minister’s advice to dissolve Parliament. In Canada and Australia the constitutions would have to be amended, and such amendments are notoriously difficult to pass. In Canada the formula for amending the Constitution varies with the subject matter. On the question of the office of the Governor-General, any amendment would have to be approved by the federal Parliament and all the provincial assemblies. In Australia proposed constitutional amendments are put in a referendum, which to be carried must be passed by a majority of those voting in at least four of the six states and by an overall majority. In Australia, particularly, where constitutional amendments are made by referendum, it would be difficult to persuade voters to approve a list of powers for the Governor-General which would seem to many to be undemocratic, particularly as politicians and academics would undoubtedly be haggling over the detailed wording and the desirability of particular powers.

There is a further problem in Australia, the legacy of the events of 1975. The bitterness over the dismissal of Whitlam by Governor-General Sir John Kerr still continues, and it seems inconceivable that the Liberal and Labor parties could reach agreement in the near future on the Governor-General’s powers of dismissal of a prime minister, and if one of the major parties opposes a referendum it has no chance of passing. Since federation there have been 44 constitutional amendments put to the voters and only eight have succeeded.

This party divisiveness over a fundamental question concerning the powers of the head of state caused the republicans to take a very conservative approach in the 1999 referendum. The powers of the proposed president were left unchanged from those of the Governor-General, in the archaic form incorporated in the Constitution.

It seems that the only way to eliminate the inter party division in Australia over the dismissal power of the head of state would be to adopt fixed terms for the House of Representatives, which is of course highly desirable for other reasons, as has already been argued. There is no way the Senate would refuse to pass supply as a means of forcing an election if there could not be an election.

Appointment and dismissal of the head of state

There is one other aspect of the position of the head of state which would benefit from clarification. Except in the UK, the head of state is effectively appointed by the prime minister (or by the premier in the case of the Australian states),[51] has no security of tenure, and can probably be removed by the prime minister or premier at any time. The reason for the final uncertainty is that, although the prime minister or premier recommends the head of state, the latter is formally appointed by the Queen as her representative. In modern times she has never failed to appoint the person nominated, but it cannot be certain that the Queen, faced with a request for an immediate change of Governor-General during a political crisis such as occurred in Australia in 1975, would not at the very least ask for further information and might even delay the change until the crisis was over.

Nevertheless the possibility of dismissal by the prime minister must weigh with the Governor-General, and was certainly a factor in the much-criticised behaviour of Sir John Kerr in not giving any hint to Prime Minister Whitlam that he was considering his dismissal before he actually dismissed him.

Yet it is surely absurd that a prime minister, appointed by and dismissible by a Governor-General, is able effectively to dismiss that Governor-General. It remains necessary because of the possibility that a Governor-General might start to use some of the enormous powers he is given under the Constitution, but which he is not expected to use on his own initiative. If a Governor-General were out of control like this, dismissal would be the only practical solution. That was the reason that, in the 1999 republican referendum, it was proposed that the prime minister should have power of immediate dismissal of the president. It is worth noting that in none of the other republics in the world does the head of government have the power to dismiss the head of state.

The problem would of course disappear if the powers of the head of state were codified, and it would then be possible for governors-general and governors to have fixed terms of office, say five years, which could be cut short only by death, resignation or an address to the Queen jointly by both houses of parliament. The present situation is very untidy and potentially disruptive.

The question of the method of appointment of governors-general and governors is also worth reviewing. They are the representatives of the Queen, accepted by her as a person the citizens of the country or state concerned would like to see as her representative. It is far from clear that the prime minister or premier of the day is the best person to select a Governor-General or Governor, or indeed why he or she should be involved at all.

This matter came to a head during the 1999 republican referendum in Australia. It was clearly unacceptable that the president should be appointed solely by the prime minister, and the convention came up with the idea that anyone could be nominated for the post. A committee would examine the nominations, and from their short-list the prime minister, after discussions with the leader of the opposition, would put forward a single name to a joint sitting of the two houses of parliament. The nomination would have to be seconded by the leader of the opposition and agreed by a two-thirds majority of the joint sitting.

This proposal was one of the reasons for the failure of the referendum, for it was clear that a majority of voters would prefer a nationwide election for the presidency. Because a president would have little direct political power, it was thought that political parties would not be inclined to put up their own candidates in such an election, particularly if it were organised so that the election of the president had to be held on a date on which no other elections were held. It was claimed that the candidates would usually be distinguished citizens, and that voters would seek to reward distinction and service. It would be important to have the candidate’s acceptance of the nomination. One would not want to have a repetition of General Sherman’s statement that ‘I will not run if nominated [for US president], and will not serve if elected.’

Of course the defeat of the republican referendum has deferred further consideration of this particular problem in Australia. But if it were thought that it was inappropriate for the prime minister to have sole personal responsibility for the selection of the president-as it clearly was, by an overwhelming majority-why do not the same arguments apply to the selection of governors-general and governors? After all, the president was intended to have identical powers to those of the Governor-General.

It would be very desirable for prime ministers and premiers to try out various methods of involving the community in the selection of the name of the person who would be proposed to the Queen to be her representative, but it is most unlikely to happen, for prime ministers and premiers like the power of patronage the present arrangements give them, and could always defend their position by pointing out how much money they were saving by not having elections.

Another advantage which would follow such a trial is that it would ease the transition to a republic in Canada, Australia and New Zealand. Though no doubt some distance off, such a transition is eventually inevitable, though it may be difficult to achieve in Canada, where a constitutional amendment to change the position of the Crown would require unanimous agreement between the federal government and the provinces, which would be very difficult to achieve. Moreover a trial of an electoral system for the position of Governor-General would require a prime minister who was a passionate supporter of a republic, and such prime ministers are hard to find.

None of this applies to the United Kingdom, where the head of state is hereditary and likely to remain so, or to the Canadian provinces, where the lieutenant-governors are appointed by the federal government, and are expected to represent its interests.

Conclusions

It is obvious that the head of state must have substantial discretionary ‘reserve’ powers in order to make responsible government work. He must be able to refuse a request for the dissolution of parliament under certain circumstances, and in some of the parliaments have the power to order the summoning of parliament. He must also have discretion in the appointment and dismissal of a prime minister or premier. Unfortunately the extent of these powers has never been agreed, much less codified, and the result has been bitter disputes such as those involving Governor-General Byng in Canada in 1926, Governor Game in New South Wales in 1932, and Governor-General Kerr in Australia in 1975.

The codification of the powers of the head of state would not be difficult. The codification should cover the circumstances in which a head of state is entitled to make personal decisions, and when he is obliged to act on ministerial advice, and how any disputes over the use of powers would be adjudicated. But it is one thing to codify the powers of the head of state, another to have them incorporated in the Constitution. In Australia the scars of the 1975 dismissal of Prime Minister Whitlam are so deep that it would not be possible to reach agreement on the powers of the head of state unless there were preliminary steps taken to eliminate the possibility of the Senate again blocking supply in order to force an election. A fixed term for the House of Representatives is the obvious way of achieving this.

The method of appointment, the term of office, and the procedure for removal of a Governor-General or Governor are very unsatisfactory, and badly need clarification.

It is inevitable that Canada, Australia and New Zealand will eventually become republics, but the change seems some time away. It seems that the only option with any chance of general acceptance is the minimalist one, with an elected president taking over the role of the Governor-General.

There is no doubt that the transition to such a republic would be greatly eased if the powers of the head of state had been codified and an electoral system for that office given a public trial. Opponents of a republic could console themselves with the thought that clarification of these matters is highly desirable whether or not Australia becomes a republic.

Back to top


Facebook LinkedIn Twitter Add | Email Print