If you’re interested in how Australia’s constitution works (and those of other Westminster systems), don’t miss a piece by Hiroya Sugita at Inside Story this week.
Sugita is interested in the problems of minority government, where a prime minister’s control of parliament is uncertain – and specifically in the fate of legislation that might be approved by parliament against the government’s wishes. Can the governor-general then veto it? Or can they sign it into law even contrary to the government’s advice?
Despite his very thorough investigation, I think Sugita gets the wrong answer to the second question. It is a bedrock principle of the Westminster system that the head of state acts only on advice. That doesn’t mean they have to accept whatever advice they are given (we’ll come to that shortly), but all of their official acts have to be countersigned by a minister who is responsible to parliament.
None of the governor-general’s powers can be exercised without such advice – they cannot, in the technical sense, act irresponsibly. The sole exception is the appointment and removal of a prime minister, and it is only a partial exception, because a prime minister can only be dismissed if there is an available alternative who is willing to take responsibility for the dismissal of their predecessor.
So, for example, in the crisis of 1975 it was sometimes suggested that, if he thought an election was necessary, the governor-general should simply have issued the writs for it himself without dismissing the Whitlam government. But this was one thing he could not due: the dissolution of parliament and the writs for an election had to be countersigned by a responsible minister.
Since Gough Whitlam was not prepared to give this advice, John Kerr (given his view of the situation) had to find a prime minister who would.
In my view it is therefore wrong for Sugita to say that “the governor-general could grant royal assent to a private member’s bill that has passed both houses of parliament against the wishes of the government.” While the governor-general could take “advice”, in the colloquial sense, from “the speaker and the clerk of the House of the Representatives,” those officers cannot take the place of constitutionally responsible ministers.
It’s true that our constitution is not explicit on these points, because when it was drafted the British government was still equivocal on whether Australia was to enjoy full responsible government in its own right, or whether the British monarch could intervene in Australian affairs on the advice of British ministers. But that question was settled by the Statute of Westminster in 1931.
If the governor-general wished to assent to a bill passed by parliament, and their ministers insisted that they should not, the governor-general would have no alternative but to request their resignation and appoint a new government that would give the desired advice – which in turn would mean an election, since the new government would not have a parliamentary majority.
In practice, of course, things might not come to this: a government confronted with such a threat might back down and decide it could live with the legislation after all. (It might also seek the replacement of the governor-general; the ability to do that is the key point in understanding the events of 1975.)
In other words, a governor-general has the legal power to reject their ministers’ advice, but the consequence of doing so, if the ministers are willing to press the point, is that the governor-general would be forced to rely on the opposition party to form a government and take responsibility for their actions, just as Kerr did in 1975.
Sugita argues that there is a
clash between the principle of responsible government, under which the governor-general must act on ministerial advice regardless of any other factors, and the principle of representative government, under which the governor-general acts on the advice of the House of Representatives rather than of a government that has suffered a legislative defeat.
But there is no power for the House of Representatives to advise the governor-general, except as to the choice of ministers. And even that power in form is only negative: parliament can force the removal of a government, but it cannot tell the governor-general who to appoint.
So the key question really is this: if parliament passes legislation that the government disapproves of, is it legitimate for the government to ask the governor-general to veto it? Or would such advice be sufficiently improper as to justify the governor-general in seeking new advisers?
No such veto has been exercised in Britain since 1708, and the chance of it ever happening in Australia seems to me to be remote. That’s mostly because there are important restrictions on the sort of legislation that parliament would be able to pass without government support.
Most importantly, section 56 of the constitution provides that no law shall appropriate revenue without a prior message from the governor-general recommending its passage. There are multiple issues (some of which Sugita discusses) concerning the exact meaning of “appropriation” in this context, but together with other provisions in the constitution and the standing orders, it creates significant roadblocks to major legislation.
Anything that crossbenchers are likely to support and that can negotiate those obstacles, is probably going to be sufficiently innocuous that the government could afford to let it through. Unless, of course, it is a government that has genuinely lost control of parliament and is trying to cling to power – in which case, advice to veto a bill would be a good opportunity for the governor-general to dispense with its services.
The World is Not Enough 
> ” sometimes suggested that, if he thought an election was necessary, the governor-general should simply have issued the writs for it himself without dismissing the Whitlam government. But this was one thing he could not d[o]…”
Which, as a matter of good policy (as opposed to established constitutional doctrine) is precisely a##[e]-backwards. Whitlam’s supporters would have been annoyed, but not incandescently angry, had he been forced to fight an unwanted early election in 1975 as sitting Prime Minister. Even today a lot of punters seem to think “well of course Whitlam’s government must have been bad, because the referee had to send them to the sin bin”.
So what happens if the election that the current Ministry doesn’t want to hold is not a debatable early dissolution (of one House or both) but the non-debatable regular election at the end of the constitutionally mandated three years? Does the GG then have to appoint the Opposition Leader to advise a regular election, even though the Government still has a majority of MHRs and has presumably secured Supply for the year? It would make more sense to enact (as, I believe, India does) that the election takes place automatically, as a self-executing process administered by a constitutionally independent Electoral Commission, rather than leave open the risk that some Bjelke-Petersen-like politician will get cunning and refuse to advise a dissolution (or delay doing so to gain some political advantage).
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Thanks Tom. Yes, as far as the politics of 1975 goes, I think you’re right. But what that shows to me is that the real problem in our constitution is the lack of any security of tenure for the governor-general. Logically, in that sort of situation, the governor-general would go to the prime minister and say “Look, I think you need to hold an election; if you’re not willing to advise one, I’ll have to dismiss you and find someone who will.” But Kerr felt that he couldn’t say that, or even hint at it, because if he had, Whitlam would have had him sacked and appointed someone more compliant.
Whitlam’s supporters often piously said that the queen would never have acted the way Kerr did, but the point is that she wouldn’t have had to: because she can’t be (easily) sacked, she can share her thoughts more openly with the prime minister.
I can’t think why a government would refuse to hold an election at the end of three years, except maybe in some sort of national security crisis. But yes, under current arrangements the government has to sign off on the writs, and if it refused to do so I guess it would have to be dismissed. (Altho after three months ministers would forfeit their positions anyway due to not being members of parliament.) A self-executing system under the Electoral Commission would not be a bad idea, but Westminster systems have traditionally been very wary of that sort of thing.
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