The Devil is in the Detail: The Reserve Powers under the Australian Choice Model
Dane Luo
18.02.2022
Last month, the Australian Republic Movement (ARM) published the Australian Choice Model – a model for a Australian republic where the Head of State would be elected by the Australian people every five years from a pool of candidates nominated by the Commonwealth, state and territory Parliaments.
Whilst polls show that a majority of Australians (54%) support a republic, the 1999 republic referendum failed because Australians who favoured a directly-elected Head of State voted against a ‘minimalist’ model where the Head of State would be chosen by Parliament. Naturally, the Australian Choice Model’s method of choosing the Head of State generated significant discussion in the media (for example here, here and here). However, an area that did not receive much discussion was the model’s proposed codification and reduction of the reserve powers given to the elected Head of State compared with those currently possessed by the Governor-General. This post will first briefly set out this proposal, before exploring three reserve powers that would appear to be extinguished if the Australian Choice Model is adopted at a referendum under s 128 of the Constitution.
The Governor-General’s reserve powers
Under Australia’s current constitutional framework, the Governor-General exercises their constitutional powers on the advice of the Prime Minister and other government Ministers. Section 64 of the Constitution requires that Ministers must become a Member of Parliament within three months of their appointment. They are thus accountable to the Parliament because of the fundamental constitutional principle of responsible government, which ensures that the powers vested in the Governor-General are exercised by the people through their representatives in Parliament.
However, there are a limited range of circumstances where the Governor-General may refuse to act on ministerial advice or even act without advice. Professor Anne Twomey has explained that these so-called ‘reserve powers’ are used by the Governor-General as a last resort against governmental actions in breach of fundamental constitutional principles, such as representative government and the rule of law (at ch 1). Whilst the role of Governor-General is often seen as a ceremonial role, their ability to use reserve powers to support fundamental constitutional principles have made them a symbolic ‘guardian of the Constitution’.
The problem with the reserve powers is their uncertainty and vagueness because they are largely unwritten and nowhere authoritatively codified. Previous attempts to completely codify the reserve powers have proved elusive because no code can predict every possible situation and codification might make the exercise of such powers justiciable in the courts.
Reserve powers under the Australian Choice Model
The Australian Choice Model proposes to amend s 63 of the Constitution to provide that all powers vested in the Head of State shall be exercised on ministerial advice unless ‘otherwise expressly provided.’ The intention and likely effect is that the Governor-General’s reserve powers are extinguished unless they can be found in the Constitution’s text.
It then expressly proposes that the Head of State shall not act on ministerial advice when summoning the House of Representatives to determine confidence (a new s 5(iii)), dissolving the House of Representatives when the confidence of the House of Representatives is indeterminate for at least seven consecutive days (a new s 5(ii)(a)), or when terminating a Prime Minister’s appointment (a new s 70A(iv)). The power to appoint the Prime Minister appears to be not on ministerial advice but instead on the Head of State’s belief as to who is most likely to be able to form a Government which will command the confidence of the House of Representatives (a new s 70A(ii).
The ARM makes clear that the proposal to codify the reserve powers and restrict them to these limited circumstances is intended to prevent the Head of State having ‘“king-like” executive powers or a governing presidency like the United States.’ They explain that the role of the Head of State should only have ‘limited powers to safeguard and maintain the constitutional order and resolve political gridlock.’
The effect of this proposed codification, however, is that some reserve powers will be extinguished at the Commonwealth level (although they would remain at the state and territory level, assuming no change to the roles of Governors and Administrators).
Dismissal of Prime Minister for plain illegality
The most significant — and by far, most controversial — existing reserve power is the power to dismiss the Prime Minister. The Australian Choice Model appears to provide for this reserve power in the new s 70A as follows:
(iv) The Prime Minister shall hold office, subject to this Constitution, until the Prime Minister dies, resigns, or the Head of State terminates the Prime Minister’s appointment. The Head of State does not act in Council or on ministerial advice when terminating a Prime Minister’s appointment.
(v) The Head of State shall not terminate the appointment of a Prime Minister who holds the confidence of the House of Representatives.
Although the provision in sub-s (v) sounds conventional at first glance, it appears on closer inspection to extinguish an existing reserve power recognised by the 1988 Constitutional Commission (at vol 1 page 326) and other commentators that the Governor-General may dismiss a Prime Minister who commands the confidence of the lower House if they engage in persistent and serious illegality. This power arises because of a clash between the principle of responsible government on the one hand and the rule of law – that the government must act in accordance with law – on the other hand.
The dismissal of a Premier by a Vice-Regal officer occurred at the state level in Australia in 1932 when the NSW Governor, Sir Philip Game, dismissed Premier Jack Lang (see Anne Twomey, ‘The Dismissal of the Lang Government’ in George Winterton (ed), State Constitutional Landmarks (Federation Press, 2006) at 129–60). After the federal government took over NSW’s financial obligations when the state government defaulted in 1931, the Commonwealth sought to recoup this money. It did this by passing laws to allow it to claim the money from state bank accounts. However, in order to avoid repaying the Commonwealth, Lang directed that funds be removed from state bank accounts and deposited it in the state Treasury to operate on a cash basis. Lang also directed the state public service not to deposit state taxes in banks.
The Commonwealth, relying on Financial Agreements Enforcement Act 1932 (Cth), issued a notice requiring the state public service to deposit payments of state taxes into a federal government bank account at the Commonwealth Bank. This law was upheld by the High Court in New South Wales v Commonwealth (1931) 46 CLR 155. Under s 109 of the Constitution, a valid federal law prevails over an inconsistent state law. In defiance of the federal direction, Lang issued a further direction requiring the public service not to deposit taxes in banks.
Facing a high risk of public violence, Game warned Lang that he must abide by the law or resign (at 208–10). When Lang refused to resign or explain the legality of his actions, Game dismissed Lang from office. The Lang dismissal is an example of where an Australian Vice-Regal officer has dismissed a head of government for engaging in illegal acts even though they still commanded a majority in the lower House of Parliament.
The Australian Choice Model would extinguish the Governor-General’s current reserve power to dismiss governments who engage in unconstitutional or illegal acts, provided the government continues to possess majority support in the House of Representatives. It may be argued that removing this reserve power is consistent with the separation of powers because issues of legality should be left to the courts. However, it must be remembered that recourse to the courts is not always available. Professor Winterton considered that dismissal could occur where the contravention is not justiciable, such as illegal spending without parliamentary appropriation (at 46–7). In other circumstances, there may be no plaintiff with standing, no adequate remedy, or waiting for court proceedings to conclude would involve obstruction or delay. In some situations, the very urgency of the matter, particularly where there is plain illegality, demands a swift response – one that only the Governor-General or Head of State could provide.
Although use of this power is extremely rare in practice, the mere existence of this reserve power acts as a deterrent against unlawful behaviour by a government. It reminds ministers, when tendering advice or going about their day-to-day functions, to be conscious that they are acting within the law at all times. Thus, removal of the risk of dismissal of a government that holds a large majority in the House of Representatives might embolden it to ignore the law.
Refusal to prorogue Parliament for no confidence
Another reserve power of the Governor-General is the power to refuse ministerial advice to prorogue the Parliament. Under s 5 of the Constitution, the Governor-General can prorogue the Parliament. Prorogation suspends all parliamentary sittings and wipes everything off the parliamentary agenda.
Constitutional scholars, including Professor Twomey, have recognised that a Governor-General or Governor can refuse to follow advice to prorogue Parliament if the government is seeking to avoid a vote of no-confidence that is likely to succeed. This is because such action is contrary to the principle of responsible government in circumstances where Ministers are seeking to continue governing when they have likely ceased being responsible.
In 1899, NSW Premier Sir George Reid’s minority government lost the confidence of the lower House because Labor withdrew its support. When faced with a likely defeat on a no-confidence motion, Reid advised the Governor, Earl Beauchamp, to prorogue Parliament. Beauchamp refused because he believed it was a ‘trick’ to gain a political party advantage (at 386). Ultimately Reid’s government was defeated on the floor of the House and Reid resigned as Premier.
More recently, former Prime Minister Malcolm Turnbull wrote in his autobiography (at 554–5) that former Governor-General, Sir Peter Cosgrove, had informed him that he would refuse advice to prorogue Parliament whilst by-elections for dual citizen MPs were being held. Although Turnbull never ended up giving advice to prorogue, a prorogation would have been especially helpful because, when Coalition MPs Barnaby Joyce and John Alexander were facing by-elections, the government had 73 votes (excluding the non-voting Speaker) while Labor and crossbenchers together had 74 votes. In those circumstances, Turnbull’s government was in a very vulnerable position in that he needed at least one crossbencher to vote with the government (or two crossbenchers to abstain) on every occasion to avoid defeat on motions that the Opposition opposed.
Under the Australian Choice Model, the proposed wording would not give the Head of State any reserve power to reject ministerial advice to prorogue the Parliament. Indeed, s 5 of the Constitution would be amended to state that it is the ‘Head of State in Council’ (that is, the Head of State acting on the advice of the Federal Executive Council, which is the body of ministers) that may prorogue the Parliament. A decision of the Head of State in Council would likely be analogous to a proclamation made by the current Governor-General in Council, which the High Court has explained is ‘no more than a rubber stamp’ (FAI Insurances v Winneke at 396–7) and merely a ‘formal legal act which gives effect to the advice tendered to the Crown by the Ministers of the Crown’ (Communist Party Case at 179). Therefore, it would become possible that a future rogue government could use this extraordinary power to shut down Parliament to avoid facing embarrassing parliamentary inquiries or no-confidence votes. Use of the power in this way would be antithetical to parliamentary democracy.
However, it could be argued that this effect may be mitigated by the express powers in the Australian Choice Model to summon or dissolve the House of Representatives without ministerial advice. Even if the Head of State cannot reject advice to prorogue Parliament tendered by a Prime Minister who appears to have lost confidence, they may either cut short that prorogation by summoning Parliament to determine confidence (new s 5(iii)) or dissolve the House of Representatives on the basis that confidence is indeterminate for at least seven consecutive days (new s 5(ii)(a)).
On one view, the consequence of this framework is that the Head of State may be perceived as more ‘activist’. Generally, rejection of ministerial advice by the Governor-General is kept confidential (at 109–10) so exercises of the reserve power not to follow advice to prorogue Parliament may never publicly be known. In contrast, a prorogation closely followed by either the summoning of Parliament or dissolution against the wishes of the government would be perceived as a Head of State contradicting the Prime Minister. Depending on the circumstances, it may generate public discussion about whether the Head of State acted in a partisan or inappropriate manner and could significantly undermine public confidence in their political neutrality.
On another view, the sheer political damage and embarrassment for both the Head of State and Prime Minister from such a public controversy may itself deter the government from formally advising prorogation in the first place. The Head of State could make a credible threat of summoning Parliament or dissolving the House of Representatives as a means to effectively warn against proroguing Parliament where there is an impending vote of no-confidence. On this view, there would be no material effect of extinguishing the reserve power.
Caretaker conventions
Governors-General have also occasionally exercised a reserve power to prevent a breach of the ‘caretaker conventions’. Caretaker conventions generally arise immediately before and after a general election when the Parliament is dissolved and the new government has not yet been formed. Former Governor-General, Bill Hayden, explained in his autobiography (at 525) that, during the caretaker period, a Governor-General may refuse to act on advice or defer acting on important and irrevocable decisions. This view has been supported by scholars Anne Tiernan and Jennifer Menzies (at 10) and is arguably because Ministers are not responsible to Parliament in that period of time.
In 1969, former Governor-General, Sir Paul Hasluck, refused to sign an Executive Council Minute approving a US defence science base in Australia. This was because acting on the advice, which was given 12 days before the 1969 election, would breach the caretaker conventions. Instead, Hasluck delayed acting and only signed the papers after the Coalition won the election and wished to proceed.
The Australian Choice Model contains no express wording that grants reserve powers to the Head of State to prevent breaches of the caretaker conventions. By removing the power to police such breaches from the Head of State, this fragile convention may be weakened because the only enforcement would rest with the Prime Minister.
Conclusion
Whilst some exercises of the reserve power, such as the Whitlam dismissal in 1975, have generated considerable public debate, keeping these powers ‘in reserve’ for the day when they must be used ensures that the Governor-General or Head of State is the last line of defence to protect fundamental constitutional principles.
The latest proposal for a republic would codify and reduce those reserve powers. Whether that is desirable is a matter for the Australian people. On one view, it could be argued that curtailing and codifying the reserve powers is necessary to balance out the increased claim to govern that an elected Head of State would have, as compared to an appointed Governor-General, over a Prime Minister chosen by their own party. But, before the public votes on the Australian Choice Model, they should be made aware of what could be a major change that may well have a lasting impact on the functioning of our delicate constitutional system and shift the dynamics between Prime Minister and Governor-General or Head of State.
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Dane Luo is a Bachelor of Commerce (Honours) / Bachelor of Laws (Honours) student at the University of Sydney. In 2021, he worked at the NSW Crown Solicitor’s Office and won the NSW Law Society’s Sir Anthony Mason Constitutional Law Essay Competition. He wishes to thank two anonymous reviewers. The views expressed are his own.
Suggested citation: Dane Luo, ‘The Devil is in the Detail: The Reserve Powers under the Australian Choice Model’ on AUSPUBLAW (18 February 2022) <https://www.auspublaw.org/blog/2022/02/2022/02/the-devil-is-in-the-detail-the-reserve-powers-under-the-australian-choice-model>