Powers and functions of the Governor-General
Bagehot described the Crown’s role in England in the following classic statement:
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.
In Australia, for all practical purposes, it is the Constitution which determines the nature and the exercise of the Governor-General’s powers and functions. In essence these powers can be divided into three groups—prerogative, legislative and executive.
Although since Federation it has been an established principle that the Governor-General in exercising the powers and functions of the office should only do so with the advice of his or her Ministers of State, the principle has not always been followed. This principle of responsible government is discussed further in the Chapter on ‘House, Government and Opposition’. The Constitution provides definite and limited powers, although in some cases the ways in which these powers may be exercised is not specified. The identification and range of prerogative powers are somewhat uncertain and have on occasions resulted in varying degrees of political and public controversy.
Quick and Garran defines prerogative powers as:
…matters connected with the Royal prerogative (that body of powers, rights, and privileges, belonging to the Crown at common law, such as the prerogative of mercy), or to authority vested in the Crown by Imperial statute law, other than the law creating the Constitution of the Commonwealth. Some of these powers and functions are of a formal character; some of them are purely ceremonial; others import the exercise of sovereign authority in matters of Imperial interests.
To some extent this definition may be regarded as redundant or superfluous in modern times. However, the fact that the Constitution states, in some of its provisions, that the Governor-General may perform certain acts without any explicit qualification, while other provisions state that the Governor-General shall act ‘in Council’, suggests an element of discretion in exercising certain functions—that is, those in the first category. Quick and Garran states:
The first group includes powers which properly or historically belong to the prerogatives of the Crown, and survive as parts of the prerogative; hence they are vested in the Governor-General, as the Queen’s representative. The second group includes powers either of purely statutory origin or which have, by statute or custom, been detached from the prerogative; and they can, therefore, without any constitutional impropriety, be declared to be vested in the Governor-General in Council. But all those powers which involve the performance of executive acts, whether parts of the prerogative or the creatures of statute, will, in accordance with constitutional practice, as developed by the system known as responsible government, be performed by the Governor-General, by and with the advice of the Federal Executive Council …parliamentary government has well established the principle that the Crown can perform no executive act, except on the advice of some minister responsible to Parliament. Hence the power nominally placed in the hands of the Governor-General is really granted to the people through their representatives in Parliament. Whilst, therefore, in this Constitution some executive powers are, in technical phraseology, and in accordance with venerable customs, vested in the Governor-General, and others in the Governor-General in Council, they are all substantially in pari materia, on the same footing, and, in the ultimate resort, can only be exercised according to the will of the people.
Modern references relating to the prerogative or discretionary powers of the Governor-General clarify this view in the interests of perspective. Sir Paul Hasluck made the following observations in a lecture given during his term as Governor-General:
The duties of the Governor-General are of various kinds. Some are laid on him by the Constitution, some by the Letters Patent and his Commission. Others are placed on him by Acts of the Commonwealth Parliament. Others come to him by conventions established in past centuries in Great Britain or by practices and customs that have developed in Australia.
All of these duties have a common characteristic. The Governor-General is not placed in a position where he can run the Parliament, run the Courts or run any of the instrumentalities of government; but he occupies a position where he can help ensure that those who conduct the affairs of the nation do so strictly in accordance with the Constitution and the laws of the Commonwealth and with due regard to the public interest. So long as the Crown has the powers which our Constitution now gives to it, and so long as the Governor-General exercises them, Parliament will work in the way the Constitution requires, the Executive will remain responsible to Parliament, the Courts will be independent, the public service will serve the nation within the limits of the law and the armed services will be subject to civil authority.
The dissolution of Parliament is an example of one of the matters in which the Constitution requires the Governor-General to act on his own. In most matters, the power is exercised by the Governor-General-in-Council, that is with the advice of the Federal Executive Council (in everyday language, with the advice of the Ministers meeting in Council).
The Governor-General acts on advice, whether he is acting in his own name or as Governor-General-in-Council. He has the responsibility to weigh and evaluate the advice and has the opportunity of discussion with his advisers. It would be precipitate and probably out of keeping with the nature of his office for him to reject advice outright but he is under no compulsion to accept it unquestioningly. He has a responsibility for seeing that the system works as required by the law and conventions of the Constitution but he does not try to do the work of Ministers. For him to take part in political argument would both be overstepping the boundaries of his office and lessening his own influence.
On 12 November 1975, following the dismissal of Prime Minister Whitlam, Speaker Scholes wrote to the Queen asking her to intervene and restore Mr Whitlam to office as Prime Minister in accordance with the expressed resolution of the House the previous day. On 17 November, the Queen’s Private Secretary, at the command of Her Majesty, replied, in part:
The Australian Constitution firmly places the prerogative powers of the Crown in the hands of the Governor-General as the representative of The Queen of Australia. The only person competent to commission an Australian Prime Minister is the Governor-General, and The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution. Her Majesty, as Queen of Australia, is watching events in Canberra with close interest and attention, but it would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act.
Other than by recording the foregoing statements and discussing the question of dissolution (see below), it is not the intention of this text to detail the various constitutional interpretations as to the Governor-General’s discretionary powers. Based on informed opinion, the exercise of discretionary power by the Governor-General can be interpreted and regarded as conditional upon the following principal factors:
- the maintenance of the independent and impartial nature of the office is paramount;
- in the view of Quick and Garran the provisions of the Constitution vesting powers in the Governor-General are best read as being exercised ‘in Council’;
- the provisions of sections 61 and 62 of the Constitution (Federal Executive Council to advise the Governor-General in the government of the Commonwealth) are of significance and are interpreted to circumscribe discretions available to the Governor-General;
- the Statute of Westminster diminished to some extent the prerogative powers of the Crown in Australia;
- the reality that so many areas of power are directly or indirectly provided for in the Constitution;
- where discretions are available they are generally governed by constitutional conventions established over time as to how they may be exercised; and
- it is either a constitutional fact or an established constitutional convention that the Governor-General acts on the advice of Ministers in all but exceptional circumstances.
The act of dissolution puts to an end at the same time the duration of the House of Representatives and ipso facto the term of the Parliament. This alone means that the question of dissolution and how the power of dissolution is exercised is of considerable parliamentary importance because of the degree of uncertainty as to when and on what grounds dissolution may occur.
The critical provision of the Constitution, in so far as its intention is concerned, is found in the words of section 28 ‘Every House of Representatives shall continue for three years from the first meeting of the House, and no longer’ to which is added the proviso ‘but may be sooner dissolved by the Governor-General’. The actual source of the Governor-General’s power to dissolve is found in section 5, the effect and relevant words of which are that ‘The Governor-General may …by Proclamation or otherwise …dissolve the House of Representatives’.
While the Constitution vests in the Governor-General the power to dissolve the House, the criteria for taking this action are not prescribed and, therefore, they are matters generally governed by constitutional convention. In a real sense the exercise of the Crown’s power of dissolution is central to an understanding of prerogative powers and the nature of constitutional conventions.
As described earlier in this chapter, while it is the prerogative of the Crown to dissolve the House of Representatives, the exercise of the power is subject to the constitutional convention that it does so only on the advice and approval of a Minister of State, in practice the Prime Minister, directly responsible to the House of Representatives. The granting of dissolution is an executive act, the ministerial responsibility for which can be easily established.
The nature of the power to dissolve and some of the historical principles, according to which the discretion is exercised, are illustrated by the following authoritative statements:
Of the legal power of the Crown in this matter there is of course no question. Throughout the Commonwealth…the King or his representative may, in law, grant, refuse or force dissolution of the Lower House of the Legislature…In legal theory the discretion of the Crown is absolute (though of course any action requires the consent of some Minister), but the actual exercise of the power is everywhere regulated by conventions.
If a situation arises, however, in which it is proposed that the House be dissolved sooner than the end of its three-year term, the Governor-General has to reassure himself on other matters. This is an area for argument among constitutional lawyers and political historians and is a matter where the conventions and not the text of the Constitution are the chief guide. It is the function of the Prime Minister to advise that the House be dissolved. The most recent practices in Australia support the convention that he will make his proposal formally in writing supported by a written case in favour of the dissolution. It is open to the Governor-General to obtain advice on the constitutional question from other quarters—perhaps from the Chief Justice, the Attorney-General or eminent counsel—and then… a solemn responsibility rests on [the Governor-General] to make a judgment on whether a dissolution is needed to serve the purposes of good government by giving to the electorate the duty of resolving a situation which Parliament cannot resolve for itself.
The right to dissolve the House of Representatives is reserved to the Crown. This is one of the few prerogatives which may be exercised by the Queen’s representative, according to his discretion as a constitutional ruler, and if necessary, a dissolution may be refused to responsible ministers for the time being.
It is clear that it is incumbent on the Prime Minister to establish sufficient grounds for the need for dissolution, particularly when the House is not near the end of its three year term. The Governor-General makes a judgment on the sufficiency of the grounds. It is in this situation where it is generally recognised that the Governor-General may exercise a discretion not to accept the advice given.
Table 1.1 Early dissolutions of the House of Representatives
Dissolution date (a)
26 March 1917
6th: 2 years 5 months 19 days
To synchronise election of the House with election for half the Senate and to gain a mandate from the people prior to the forthcoming Imperial War Conference (H.R. Deb. (6.3.1917) 10,993–11,000).
3 November 1919
7th: 2 years 4 months 21 days
Not given to House
16 September 1929
11th: 7 months 11 days
The House amended the Maritime Industries Bill against the wishes of the Government. The effect of the amendment was that the bill should not be brought into operation until submitted to a referendum or an election. Prime Minister Bruce based his advice on the following: ‘The Constitution makes no provision for a referendum of this description, and the Commonwealth Parliament has no power to pass effective legislation for the holding of such a referendum. The Government is, however, prepared to accept the other alternative—namely a general election’ (H.R. Deb. (12.9.1929) 873–4; correspondence read to House).
27 November 1931
12th: 2 years 8 days
The Government was defeated on a formal motion for the adjournment of the House. The Governor-General took into consideration ‘the strength and relation of various parties in the House of Representatives and the probability in any case of an early election being necessary’ (H.R. Deb. (26.11.1931) 1926–7; correspondence read to House).
7 August 1934
13th: 2 years 5 months 22 days
Not given to House.
4 November 1955
21st: 1 year 3 months 1 day
To synchronise elections of the House with elections for half the Senate; the need to avoid conflict with State election campaigns mid-way through the ensuing year; the impracticability of elections in January or February; authority (mandate) to deal with economic problems (H.R. Deb. (26.10.1955) 1895–6; Sir John Kerr, Matters for Judgment, pp. 153, 412).
1 November 1963
24th: 1 year 8 months 13 days
Prime Minister Menzies referred to the fact that the Government had gone close to defeat on five occasions; the need to obtain a mandate on policies concerning North West Cape radio station, the defence of Malaysia and the proposed southern hemisphere nuclear free zone (H.R. Deb. (15.10.1963) 1790–5).
10 November 1977
30th: 1 year 8 months 25 days
To synchronise House election with election for half the Senate; to provide an opportunity to end election speculation and the resulting uncertainty and to enable the Government to seek from the people an expression of their will; to conform with the pattern of elections taking place in the latter months of a calendar year (H.R. Deb. (27.10.1977) 2476–7; Kerr, pp. 403–15; Dissolution of the House of Representatives by His Excellency the Governor-General on 10 November 1977, PP 16 (1979)).
26 October 1984
33rd: 1 year 6 months 6 days
To synchronise elections for the House with election for half the Senate; claimed business community concerns that if there were to be an election in the spring it should be held as early as possible ending electioneering atmosphere etc., and to avoid two of seven Senators to be elected (because of the enlargement of Parliament) being elected without knowledge of when they might take their seats (as the two additional Senators for each State would not take their seats until the new and enlarged House had been elected and met) (H.R. Deb. (8.10.1984) 1818–1820; correspondence tabled 9.10.84, VP 1983–84/954).
31 August 1998
38th: 2 years 4 months 1 day
Not given to House.
19 July 2010
42nd: 2 years 5 months 7 days
Not given to House.
(a) A dissolution of the House of Representatives is counted here as ‘early’ if the dissolution occurs six months or more before the date the House of Representatives is scheduled to expire by effluxion of time. The table does not include simultaneous dissolutions of both Houses granted by the Governor-General under s. 57 of the Constitution (see Ch. on ‘Disagreements between the Houses’).
(b) The reasons stated in the table may not be the only reasons advised or upon which dissolution was exclusively granted. On four occasions reasons, if any, were not given to the House—for example, the House may not have been sitting at the time.
The grounds on which the Governor-General has accepted advice to dissolve the House of Representatives have not always been made public. It is reasonable to presume that no special reasons may be given to the Governor-General, or indeed are necessary, for a dissolution of the House if the House is near the end of its three year term.
As far as is known, the majority of dissolutions have taken place in circumstances which presented no special features. Where necessary, it is a normal feature for the Governor-General to grant a dissolution on the condition and assurance that adequate provision, that is, parliamentary appropriation, is made for the Administration in all its branches to be carried on until the new Parliament meets.
The precedents in Table 1.1 represent those ‘early’ dissolutions where the grounds, available from the public record, were sufficient for the Governor-General to grant a request for a dissolution. A feature of the precedents is that in 1917, 1955, 1977 and 1984 the grounds given included a perceived need to synchronise the election of the House of Representatives with a periodic election for half the Senate.
New Government commissioned without dissolution
Advice to dissolve not accepted
The Governor-General is known to have refused to accept advice to grant a dissolution on three occasions:
- August 1904. The 2nd Parliament had been in existence for less than six months. On 12 August 1904 the Watson Government was defeated on an important vote in the House. On the sitting day following the defeat, Mr Watson informed the House that following the vote he had offered the Governor-General ‘certain advice’ which was not accepted. He had thereupon tendered the resignation of himself and his colleagues which the Governor-General accepted. Mr Reid was commissioned by the Governor-General to form a new Government.
- July 1905. The 2nd Parliament had been in existence for less than 16 months. On 30 June 1905 the Reid Government was defeated on an amendment to the Address in Reply. At the next sitting Mr Reid informed the House that he had requested the Governor-General to dissolve the House. The advice was not accepted and the Government resigned. Mr Deakin was commissioned by the Governor-General to form a new Government.
- June 1909. The 3rd Parliament had been in existence for over two years and three months. On 27 May 1909 the Fisher Government was defeated on a motion to adjourn debate on the Address in Reply. Mr Fisher subsequently informed the House that he had advised the Governor-General to dissolve the House and the Governor-General on 1 June refused the advice and accepted Mr Fisher’s resignation. Mr Deakin was commissioned by the Governor-General to form a new Government. In 1914 Mr Fisher, as Prime Minister, tabled the reasons for his 1909 application for a dissolution.
The advice of Prime Minister Fisher in the 1909 case consisted of a lengthy Cabinet minute which contained the following summary of reasons:
Your Advisers venture to submit, after careful perusal of the principles laid down by Todd and other writers on Constitutional Law, and by leading British statesmen, and the precedents established in the British Parliament and followed throughout the self-governing Dominions and States, that a dissolution may properly be had recourse to under any of the following circumstances:
When there is good reason to believe that the people earnestly desire that the policy of the Government shall be given effect to.
- When a vote of ‘no confidence’, or what amounts to such, is carried against a Government which has not already appealed to the country.
- When there is reasonable ground to believe that an adverse vote against the Government does not represent the opinions and wishes of the country, and would be reversed by a new Parliament.
- When the existing Parliament was elected under the auspices of the opponents of the Government.
- When the majority against a Government is so small as to make it improbable that a strong Government can be formed from the Opposition.
- When the majority against the Government is composed of members elected to oppose each other on measures of first importance, and in particular upon those submitted by the Government.
- When the elements composing the majority are so incongruous as to make it improbable that their fusion will be permanent.
The advice went on to state that ‘All these conditions, any one of which is held to justify a dissolution, unite in the present instance.’ According to Crisp ‘The Governor-General was unmoved by considerations beyond ‘‘the parliamentary situation’’ ’. Evatt offers the view that ‘certainly the action of the Governor-General proceeded upon a principle which was not out of accord with what had until then been accepted as Australian practice, although the discretion may not have been wisely exercised’.
No advice to dissolve
On 10 January 1918, following the defeat of a national referendum relating to compulsory military service overseas, Prime Minister Hughes informed the House that the Government had considered it its duty to resign unconditionally and to offer no advice to the Governor-General. A memorandum from the Governor-General setting out his views was tabled in the House:
On the 8th of January the Prime Minister waited on the Governor-General and tendered to him his resignation. In doing so Mr. Hughes offered no advice as to who should be asked to form an Administration. The Governor-General considered that it was his paramount duty (a) to make provision for carrying on the business of the country in accordance with the principles of parliamentary government, (b) to avoid a situation arising which must lead to a further appeal to the country within twelve months of an election resulting in the return of two Houses of similar political complexion, which are still working in unison. The Governor-General was also of the opinion that in granting a commission for the formation of a new Administration his choice must be determined solely by the parliamentary situation. Any other course would be a departure from constitutional practice, and an infringement of the rights of Parliament. In the absence of such parliamentary indications as are given by a defeat of the Government in Parliament, the Governor-General endeavoured to ascertain what the situation was by seeking information from representatives of all sections of the House with a view to determining where the majority lay, and what prospects there were of forming an alternative Government.
As a result of these interviews, in which the knowledge and views of all those he consulted were most freely and generously placed at his service, the Governor-General was of the opinion that the majority of the National Party was likely to retain its cohesion, and that therefore a Government having the promise of stability could only be formed from that section of the House. Investigations failed to elicit proof of sufficient strength in any other quarter. It also became clear to him that the leader in the National Party, who had the best prospect of securing unity among his followers and of therefore being able to form a Government having those elements of permanence so essential to the conduct of affairs during war, was the Right Honourable W. M. Hughes, whom the Governor-General therefore commissioned to form an Administration.
A further case which requires brief mention is that of Prime Minister Fadden who resigned following a defeat in the House on 3 October 1941. According to Crisp the Prime Minister ‘apparently relieved the Governor-General from determining the issue involved in the request of a defeated Prime Minister by advising him, not a dissolution, but sending for the Leader of the Opposition, Curtin’.
Functions in relation to the Parliament
The functions of the Governor-General in relation to the legislature are discussed in more detail elsewhere in the appropriate parts of the text. In summary the Governor-General’s constitutional duties (excluding functions of purely Senate application) are:
- appointing the times for the holding of sessions of Parliament (s. 5);
- proroguing and dissolving Parliament (s. 5);
- issuing writs for general elections of the House (in terms of the Constitution, exercised ‘in Council’) (s. 32);
- issuing writs for by-elections in the absence of the Speaker (in terms of the Constitution, exercised ‘in Council’) (s. 33);
- recommending the appropriation of revenue or money (s. 56);
- dissolving both Houses simultaneously (s. 57);
- convening a joint sitting of both Houses (s. 57);
- assenting to bills, withholding assent or reserving bills for the Queen’s assent (s. 58);
- recommending to the originating House amendments in proposed laws (s. 58); and
- submitting to electors proposed laws to alter the Constitution in cases where the two Houses cannot agree (s. 128).
The Crown in its relations with the legislature is characterised by formality, ceremony and tradition. For example, tradition dictates that the Sovereign should not enter the House of Representatives. Traditionally the Mace is not taken into the presence of the Crown.
It is the practice of the House to agree to a condolence motion on the death of a former Governor-General, but on recent occasions the House has not usually followed the former practice of suspending the sitting until a later hour as a mark of respect. In the case of the death of a Governor-General in office the sitting of the House has been adjourned as a mark of respect. An Address to the Queen has been agreed to on the death of a former Governor-General who was a member of the Royal Family, and references have been made to the death of a Governor-General’s close relative.
During debate in the House no Member may use the name of the Queen, the Governor-General (or a State Governor) disrespectfully, or for the purpose of influencing the House in its deliberations. The practice of the House is that, unless the discussion is based upon a substantive motion which admits of a distinct vote of the House, reflections (opprobrious references) must not be cast in debate concerning the conduct of the Sovereign or the Governor-General, including a Governor-General designate. It is acceptable for a Minister to be questioned, without criticism or reflection on conduct, regarding matters relating to the public duties for which the Governor-General is responsible. (For more detail and related rulings see Chapters on ‘Control and conduct of debate’ and ‘Questions’.)
On 2 March 1950 a question was directed to Speaker Cameron concerning a newspaper article alleging that during the formal presentation of the Address in Reply to the Governor-General’s Speech, the Speaker showed discourtesy to the Governor-General. Speaker Cameron said:
I am prepared to leave the judgment of my conduct at Government House to the honourable members who accompanied me there.
Later, Speaker Cameron made a further statement to the House stating certain facts concerning the personal relationship between himself and the Governor-General. In view of this relationship, the Speaker had decided, on the presentation of the Address, to:
…treat His Excellency with the strict formality and respect due to his high office, and remove myself from his presence as soon as my duties had been discharged.
In a previous ruling Speaker Cameron stated that ‘the name of the Governor-General must not be brought into debate either in praise or in blame’. Several Members required the Speaker to rule on this previous ruling in the light of his statement as to his conduct at Government House. Speaker Cameron replied that in his statement he had:
…made a statement of fact. I have made no attack upon His Excellency. I have simply stated the facts of certain transactions between us, and if the House considers that a reflection has been made on the Governor-General it has its remedy.
Dissent from the Speaker’s ruling was moved and negatived after debate. Two sitting days later, the Leader of the Opposition moved that, in view of the Speaker’s statement, the House ‘is of opinion that Mr Speaker merits its censure’. The motion was negatived.
Functions in relation to the Executive Government
The executive power of the Commonwealth is vested in the Queen, and is exercisable by the Governor-General as the Queen’s representative, the Queen’s role being essentially one of name only. Section 61 of the Constitution states two principal elements of executive power which the Governor-General exercises, namely, the execution and maintenance of the Constitution, and the execution and maintenance of the laws passed (by the Parliament) in accordance with the Constitution.
The Constitution, however, immediately provides that in the government of the Commonwealth, the Governor-General is advised by a Federal Executive Council, effecting the concept of responsible government. The Governor-General therefore does not perform executive acts alone but ‘in Council’, that is, acting with the advice of the Federal Executive Council. The practical effect of this is, as stated in Quick and Garran:
- …that the Executive power is placed in the hands of a Parliamentary Committee, called the Cabinet, and the real head of the Executive is not the Queen but the Chairman of the Cabinet, or in other words the Prime Minister.
Where the Constitution prescribes that the Governor-General (without reference to ‘in Council’) may perform certain acts, it can be said that these acts are also performed in practice with the advice of the Federal Executive Council in all but exceptional circumstances.
As Head of the Executive Government, in pursuance of the broad scope of power contained in section 61, the constitutional functions of the Governor-General, excluding those of historical interest, are summarised as follows:
- choosing, summoning and dismissing Members of the Federal Executive Council (s. 62);
- establishing Departments of State and appointing (or dismissing) officers to administer Departments of State (these officers are Members of the Federal Executive Council and known as Ministers of State) (s. 64);
- directing, in the absence of parliamentary provision, what offices shall be held by Ministers of State (s. 65);
- appointing and removing other officers of the Executive Government (other than Ministers of State or as otherwise provided by delegation or as prescribed by legislation) (s. 67); and
- acting as Commander-in-Chief of the naval and military forces (s. 68).
Functions in relation to the Judiciary
The judicial power of the Commonwealth is vested in the High Court of Australia, and such other federal courts that the Parliament creates or other courts it invests with federal jurisdiction.
The judiciary is the third element of government in the tripartite division of Commonwealth powers. The Governor-General is specifically included as a constituent part of the legislative and executive organs of power but is not part of the judiciary. While the legislature and the Executive Government have common elements which tend to fuse their respective roles, the judiciary is essentially independent. Nevertheless in terms of its composition it has a relationship to the executive branch (the Governor-General in Council) and is answerable in certain circumstances to the Parliament. The Governor-General in Council appoints justices of the High Court, and of other federal courts created by Parliament. Justices may only be removed by the Governor-General in Council on an address from both Houses praying for such removal on the ground of proved misbehaviour or incapacity.
See also ‘The Courts and the Parliament’ 23 page 18.