On saving the governor-general, part II

(If you haven’t done so, you should start by reading part I, here.)

Prime minister Anthony Albanese is pressing ahead with an inquiry into his predecessor’s secret appointment of himself to multiple ministries, although its precise form is yet to be announced. There’s a general expectation, however, that it will not extend to any serious interrogation of the role of the governor-general, David Hurley.

From the government’s point of view, of course, having a governor-general who simply does what he’s told and doesn’t question the advice he receives would not be a bad thing. The problem is that we do not know whether Hurley actually fits this description, and it seems likely that the inquiry will leave us none the wiser.

But if the governor-general just rubber stamps whatever is put in front of him, it’s not at all obvious why we need the position at all. Several observers have drawn just that conclusion; Paul Bongiorno, for example, interprets the affair as “providing further evidence that a Governor-General is no longer fit for purpose.”

In the development of what we know as parliamentary government, which began in England in the seventeenth century, a crucial element was the gradual whittling down of the independent powers of the monarch – a process that was not yet complete when Australia’s constitution was enacted in 1900. Ultimately it became established that the monarch’s relations with their ministers must be guided by law and convention, and not influenced by the monarch’s political preferences.

At the same time, the relationship between Britain and its former colonies was changing. Early governors-general were genuine viceroys, there at least in part to implement the instructions of the British government. But in 1926 an imperial conference set down that Britain and Australia (and the other “dominions”, as they were called) were “equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs.”

It followed as a consequence that

the Governor-General of a Dominion is the representative of the Crown, holding in all essential respects the same position in relation to the administration of public affairs in the Dominion as is held by His Majesty the King in Great Britain, and that he is not the representative or agent of His Majesty’s Government in Great Britain or of any Department of that Government.

Relying on that declaration, Labor prime minister James Scullin in 1930 insisted on the appointment of an Australian, Isaac Isaacs, as governor-general instead of a British aristocrat. The non-Labor parties criticised this presumption and refused to follow suit until 1965, when Robert Menzies appointed Lord Casey, who had previously been his foreign minister. Since then, all governors-general have been Australians – mostly politicians, judges or military officers.

But a governor-general isn’t really in quite the same position as a British monarch. The queen has security of tenure; in a case of potential conflict with her prime minister she can afford to let them know what she is thinking without having to worry about being sacked. On the other hand, a governor-general is expendable in way that the monarch is not: a governor-general who screws up can resign or be dismissed, and the dynasty carries on.

So Australia’s biggest constitutional crisis, in 1975, turned in large part on the governor-general’s perceived need to act quickly and secretly. Fueled by their (understandable) anger with John Kerr’s decision, Labor partisans took the view that the governor-general should have no real discretion at all: that they must follow the advice of their prime minister in all things, as long as the government maintains a majority in the House of Representatives.

Even leaving aside the hazards lurking in that qualifying clause (for example, what if the government tries to prorogue parliament to prevent a no confidence motion being moved, as Boris Johnson did?), the secret ministries affair shows why this view is problematic. A prime minister whose decisions about ministerial appointments can’t be challenged has ceased to be a Westminster-style head of government and become something rather different, a holder of concentrated power more like a South African president.

But the affair also shows the irrelevance of the other remedy proposed by Labor partisans, namely a move to an Australian republic. Both the governor-general’s powers and his choice of whether or not to use them are substantially independent of the fact that he is the monarch’s representative. It’s possible that Hurley reported to the queen on the secret ministries (although it strikes me as fairly unlikely), but even the most avid conspiracy theorists are hard pressed to explain what difference that could have made.

We could, of course, take the opportunity of a move to a republic to codify the governor-general’s powers, perhaps modifying them in some way. But we wouldn’t have to: the 1999 republic proposal didn’t, and many successful republics leave the practical extent of those powers to be determined by convention. And if we do want to go down the road of codification we could do it now, by legislation or by constitutional amendment. Moving to a republic is neither a necessary nor a sufficient condition.

Monarchy vs republic is an important symbolic issue, but it has little practical impact. Even the problem of the governor-general’s insecurity of tenure could be remedied without changing their status as the monarch’s representative: a simple constitutional amendment could provide for a fixed term appointment, subject to removal on an address by both houses of parliament (as in the case of judges).

Our problem, though, is that we are not used to serious constitutional debate. Ignorance about basic features of our system is widespread, even among participants, and many people are committed to a party line without thinking through its implications. Political disputes of a generation or two back turn out not to be very good guides to current practice.

Perhaps the secret ministries affair will lead to more questions being asked about just how things are supposed to work. But don’t hold your breath.

2 thoughts on “On saving the governor-general, part II

  1. Speaking of judges, you had that Australian Baby Boomer commentator Anne Summers complain about the successful 1977 referendum that means federal judges have to retire at 70.

    I find the notion of “ageism” problematic when it comes to positions of power over others such as the judiciary.

    You only have to look at the USA where several defendents have suffered because the morals and views of mature age and elderly judges are coloured and distorted by their old age.

    Some defendents have been sent to death row because of this problem, too.

    Like

    1. That’s a difficult one. I do think there’s a good reason to have a retirement age for judges that doesn’t apply to other jobs, namely that judges (rightly) can’t be dismissed except in the most serious of cases. But the fixed retirement age is still a very blunt instrument. Perhaps long fixed terms (say 15 years or so) would work better.

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