The second part of the 2011 George Winterton Lecture by former High Court Chief Justice Sir Gerard Brennan. Here, he talks about the powers and functions of an Australian President in a Republic and flags having a Constitutional Council to review any Presidential use of the reserve powers.
[See Part 1 of the speech: 'Why a Republic?']
Australians will not assent to a Republic without understanding and agreeing to the form of government that would result from the constitutional change.
No simple change of “Queen” to “President” in the Constitution would allow a stable form of government to survive. To fashion a republican Constitution, we need to understand how the present Constitution fashions the form of government we now enjoy. I assume that we would not want to alter the structures of the Parliament or the Judiciary7[i] but we would introduce an Australian President as the principal repository of Executive power and our Head of State. There are three major issues to be addressed. First, do we wish to retain our Parliamentary system of government with a Prime Minister whose government is responsible to the Parliament and depends on the confidence of a majority of the House of Representatives? Second, what is the preferable mode of selecting a President? And, third, will the States be republican if we have a republican Commonwealth?
To respond to these issues, I see a need for a small Constitutional Council to supervise the exercise of a President’s reserve powers, an Electoral College to select a President, an amendment to s 106 to maintain the self government of the States within a republican Commonwealth and, finally, a repeal of Imperial laws including the Preamble and Covering Clauses of the Constitution Act in favour of a constitution resting on the will and authority of the Australian people. I focus on the maintenance of responsible government, not on the mode of selecting a President, as the primary issue of substance.
The powers and functions of a President
At present, the Government is responsible to the Parliament for executive decisions, even though many of the most important decisions are taken in the name of the Governor-General. The Founding Fathers recognized[ii] that responsible government rests on control of executive power by the elected government. This is effected by requiring the Governor-General to exercise executive power only on the advice of the Government in accordance with long established convention. Sir Anthony Mason has explained:9[iii]
“The principle that in general the Governor defers to, or acts upon, the advice of his Ministers … is a convention, compliance with which enables the doctrine of ministerial responsibility to come into play so that a Minister or Ministers become responsible to Parliament for the decision made by the Governor in Council, thereby contributing to the concept of responsible government.”
Informed by practical experience, former Governor Richard McGarvie observed:[iv]
“The basic constitutional convention that binds the Governor-General to exercise powers as advised by Ministers of the elected Government is the essential link between the exercise of those powers and the sovereignty of the people.”
When the Governor-General acts on advice by ministers in the elected Government, the political consequence of such action is borne by the Government which is responsible to the Parliament. The convention is sustained by a long history and by contemporary practice. But convention may not always be sufficient to control a fixed term President – whether directly elected or not. A fixed term President could not be threatened with removal, a constraint on a recalcitrant Governor-General[v]. Although it has been suggested that existing conventions should bind a President[vi], I venture to suggest that law is the preferable constraint to ensure that a President acts only on ministerial advice. But the law would have to discriminate among the powers presently exercised by the Governor-General.
These powers fall into three classes: first, the executive power of the Commonwealth which s 61 vests in the Queen to be exercised by the Governor-General[vii]; second, powers vested in the Governor-General in Council[viii]; and third, powers simply vested in the Governor-General. Convention requires that all these powers are exercised only on the appropriate governmental advice but, exceptionally, the powers vested simply in the Governor-General may be exercised without or even contrary to ministerial advice in particular circumstances and then the powers are known, somewhat loosely, as the reserve powers. Australians became familiar with the term when Prime Minister Whitlam was dismissed by the Governor-General on 11 November 1975. The major constitutional issue to be resolved if Australia should become a Republic is control of the reserve powers, a question addressed below.
The general executive power of the Commonwealth is the power needed by the Executive Government to administer the affairs of the Commonwealth. By vesting the executive power of the Commonwealth in the Queen, it was understood that the Queen’s common law prerogative powers[ix] supplied many of the powers needed for administration of the Commonwealth just as her prerogative supplied for the Executive Government of the United Kingdom many of the powers needed for the administration of the United Kingdom[x].
The royal prerogative is of ancient origin. It is a “special pre-eminence which the King hath over and above all other persons and out of the course of the common law”[xi]. It extends “to all powers, preeminences, and privileges, which the law giveth to the Crown”[xii]. In Cadia Holdings Pty Ltd v State of New South Wales[xiii], (where the issue was the classification of a mine producing gold and copper), the plurality judgment noted that the prerogative “concerns the enjoyment by the executive government of preferences, immunities and exceptions peculiar to it and denied to the citizen[xiv] or, more specifically, of an exceptional right which partakes of the nature of property.”[xv] The outer limits of the prerogative power have never been determined – historically the King’s powers waxed and waned and it is accepted that the full extent of the prerogative cannot be defined.[xvi]
The executive power conferred by s 61 includes as much of the prerogative powers of the Queen as “is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution”, to adopt the words of Mason J in Barton v The Commonwealth[xvii]. The plurality majority judgment in Cadia[xviii]
“The executive power of the Commonwealth of which said: s 61 of the Constitution speaks enables the Commonwealth to undertake executive action appropriate to its position under the Constitution and to that end includes the prerogative powers accorded the Crown by the common law.”[xix]
As the prerogative is vested in the Monarch personally, the introduction of a republic might arguably eliminate the prerogative and all the “powers, pre-eminences and privileges” carried by the prerogative[xx]. If the non-statutory executive power did not extend beyond the powers attributable to the prerogative, as George Winterton and Peter Gerangelos would hold[xxi], the introduction of a republic might arguably eliminate a major content of the executive power of the Commonwealth. However, the executive power contains more than the prerogative. It includes powers conferred by statute and certain non-prerogative capacities. In the AAP Case[xxii] Mason J held that s 61 confers on the Executive Government “power 'to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation'”. I adopted this criterion in Davis v The Commonwealth[xxiii] and, subject to certain qualifications not presently relevant, that was followed by the majority plurality judgment in Pape[xxiv]. In the same case, French CJ may have gone further. He said[xxv]:
“Section 61 is an important element of a written constitution for the government of an independent nation. While history and the common law inform its content, it is not a locked display cabinet in a constitutional museum. It is not limited to statutory powers and the prerogative. It has to be capable of serving the proper purposes of a national government.”[xxvi]
Whatever be the scope of the executive power conferred by s 61 and whatever be the content derived from the prerogative, it would be desirable to provide that the scope and content of the executive power is unchanged by a transition to a Republic, though it be vested in and be exerciseable by the President. A “no change” provision would confirm that the law affecting the exercise of the executive power developed in the cases over the last century would be applicable to the new provisions. Thus the common law conditions on the exercise of a prerogative power[xxvii] would inform the law governing the exercise of a corresponding power under a republican successor to s 61. The Executive Government’s control of the general executive power would be maintained by an express provision that the President would act, but act only, on ministerial advice. That provision would extend to the function of the Commander in Chief of the defence forces under s 68[xxviii].
In a republican Constitution, no change would be needed to the powers now vested in the Governor-General in Council[xxix]. They are expressly required[xxx] to be exercised on advice by the Executive Council and would be so exercised by a President. Apart from some obsolete provisions, these powers relate to the issuing of writs for the election of members of the House of Representatives[xxxi], the establishment of departments of State[xxxii] and the appointment and removal of Justices of the High Court and other Courts created by the Parliament[xxxiii].
Then there are powers vested in the Governor-General personally. Leaving aside some mechanical functions[xxxiv] and powers which have become obsolete, they are powers to appoint and to dismiss the Prime Minister and Ministers (sections 62 and 64), to prorogue the Parliament and to dissolve the House of Representatives (sections 5 and 28), and to dissolve both Houses of Parliament when section 57 permits a double dissolution. These are ordinarily exercised only on ministerial advice but, in particular circumstances, a Governor-General may exercise these powers without, or even contrary to, ministerial advice.
On 11 November 1975, Sir John Kerr exercised the reserve power under section 64 to dismiss Mr Whitlam and to appoint Mr Fraser as Prime Minister, then, acting on the advice of Mr Fraser, he dissolved both Houses of Parliament under section 57. The controversy which followed the dismissal demonstrates the importance of prescribing a mechanism for supervising the exercise of the reserve powers, especially if Australia adopts a republican form of government.
Sir Harry Gibbs, in a paper written for Australians for Constitutional Monarchy[xxxv], explained the need for reserve powers:
“According to the conventions, there are some powers which the Governor-General may exercise according to his own discretion, and without the advice, or even contrary to the advice, of the Ministry. These powers, which are rather misleadingly called ‘reserve powers’, are designed to ensure that the powers of the Parliament and the Executive are operated in accordance with the principles of responsible government and representative democracy, or in other words, to ensure that the Ministry is responsible to Parliament and that the ultimate supremacy of the electorate will prevail. The reserve powers provide an essential check against abuse of power by the Executive or by Parliament. In Australia,…they fill a real need in relation to the Executive.”
At present, if a Governor-General were minded to exercise a reserve power unjustifiably, the disincentive would be the risk of peremptory removal from office by the Queen on the advice of the Prime Minister. Sir John Kerr had to face that prospect on 11 November 1975 but, with the support of Sir Garfield Barwick, he attributed his authority to dismiss Mr Whitlam to a convention permitting the dismissal of a Prime Minister who could not secure supply. Professor Winterton, however, stated the convention differently, submitting that the reserve power of dismissal depended on the Prime Minister losing the confidence of the House of Representatives[xxxvi].
Despite the uncertainty and controversy that the events of November 1975 created and the conflicting views of eminent constitutionalists about the content of relevant conventions, the 1998 Constitutional Convention proposed that undefined reserve powers and relevant conventions should continue to exist[xxxvii]. Accordingly the 1999 Bill would have authorized the exercise of a reserve power by a President “in accordance with the constitutional conventions relating to the exercise of that power”[xxxviii], accepting at the same time that the conventions should be allowed to evolve[xxxix]. How would that formula have been applied to the Dismissal? In the United Kingdom, the convention is that dismissal is warranted only when the Commons (which controls supply) loses confidence in the Government[xl], but in Australia, where the Senate has ability to block supply, may the Barwick view of the convention be justified as an antipodean evolution of the United Kingdom convention? The question illustrates an objection to the proposition that reserve power can be controlled merely by reference to “constitutional conventions”. It is too uncertain to be a sufficient control on the exercise of reserve power by a President who has a fixed term in office. Judicial supervision would not be available to enforce conventions unless they were enacted as law but that would fetter their practical utility.
To quote Professor E.A. Forsey[xli]:
“To embody them in an ordinary law is to ossify them. To embody them in a Constitution is to petrify them.”
A codification of the conventions was suggested by Dr H V Evatt[xlii] and was considered by the 1993 Republic Advisory Committee[xliii], but, as Forsey points out[xliv]:
“A law covering, with precision, all the possible circumstances which might call for the exercise of even a single reserve power, let alone the lot, is surely beyond the wit of even the most learned and imaginative draftsman.”
If conventions were reduced to constitutional or statutory text, the text would be subject to judicial interpretation and enforcement would require exposure to judicial review involving inevitable delay and uncertainty. Delay and uncertainty are incompatible with the timely and effective exercise of reserve power in exceptional circumstances. Sir Harry Gibbs pointed out the dilemma[xlv]:
“If the conventions are not enforceable by the courts, the President might ignore them, even though the Constitution stated that they continued; all those considerations which obliged a Governor-General as representative of the Monarch to observe the conventions, would not exist in the case of a President. On the other hand, if the courts can enforce observance of the conventions, the resulting delay and uncertainty could be very damaging in a time of crisis.”
An exercise of a reserve power would ordinarily be required in a situation of urgency (and therefore without judicial intervention) in the event of any breach of the rule of law by the Executive Government – say, by withdrawing funds from consolidated revenue without an appropriation – or any breakdown in the operation of representative and responsible government – say, by a Prime Minister who, defeated in a no confidence vote of the House of Representatives, refused to resign or advise an election.
The problem is not to define the powers which a President may exercise, but the circumstances in which a reserve power may be exercised. It is difficult – indeed, impossible – to define in advance every eventuality which may attract an exercise of a particular power. Professor Forsey observed that the circumstances in which the reserve powers need to be exercised “are not easy to set out in detail, comprehensively and with precision. They have a disconcerting way of popping up in utterly unforeseen, even unforeseeable, guise”[xlvi]. The reason why the content of conventions is uncertain and fluctuating is that “[c]onventions are political, not legal: political in their birth, political in their growth and decay, political in their death, political in their sanctions.”[xlvii] They are valuable indicia of political situations in which the exercise of reserve power may be needed, but they cannot be exhaustive. Codification of some conventions would be acceptable if the conventions are both clearly established and their application would not be reasonably open to factual controversy that might delay and frustrate the exercise of a reserve power[xlviii]. But codification cannot exhaust all the circumstances in which a reserve power might justifiably be exercised.
George Winterton, conscious of the need for extraordinary circumstances to justify an exercise of reserve power, stated a criterion in general terms: is the exercise “absolutely necessary to preserve the rule of law and protect the operation of responsible government from abuse by the executive”[xlix]? Similar terms were used by the Executive Government Advisory Committee[l] to the Constitutional Commission – their formula being “that there is no other method available to prevent”.
A President must have authority to exercise the reserve powers flexibly and efficiently in the political milieu[li], but only when an exercise is absolutely necessary. The open textured phrase “absolutely necessary” itself needs some mechanism for supervising its application to concrete political situations. That is why I suggest the need for a small council – a Constitutional Council to review any proposed exercise of a reserve power. The Council would determine whether the President has reasonable grounds to believe that it is absolutely necessary to exercise the reserve power proposed in order to ensure compliance with the general law or the effective operation of representative and responsible government under the Constitution. The Council must be capable of speedy consultation and be constituted by persons whose competence and impartiality are not open to question. It would be composed of three members who have previously served as Governor-General or President or as Chief Justice or a Justice of the High Court or as Chief Justice of a State or a federal superior Court. Any exercise by a President of a reserve power, if approved by the Constitutional Council, would be conclusively valid and non-justiciable. Decisions by the Constitutional Council would be non-justiciable. Judicial intervention would be eliminated except in the highly unlikely event of an exercise of a reserve power which the Constitutional Council would not approve. A negative response by the Constitutional Council would warrant judicial intervention to consider whether the President had acted beyond power.
If a republican President is to exercise the same powers and functions as the Governor-General now exercises and is constitutionally constrained to exercise those powers and functions in like manner, the method of selecting a President becomes a secondary question.
[i] Any proposed reforms of the Parliament or the Judiciary should be considered on their merits, separate from the proposal for a Republic.
[ii] See, for example, the speeches of Mr Barton in the Debates of 19 April 1897, p 910.
[iii] FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 364.
[iv] Richard E McGarvie, “Democracy – choosing Australia’s republic” (Melbourne, MUP, 1999), p61.
[v] The 1999 Referendum proposal maintained governmental control of Presidential powers by conferring the power to terminate the appointment of the President on the Prime Minister, who is presently empowered to effect the termination of a Governor-General’s appointment by advising the Queen to do so. Sir Zelman Cowen, Sir Anthony Mason and I publicly acknowledged that the change would be effective to preserve responsible government even if the proposal was not ideal. The rejection in 1999 of the Prime Ministerial power to terminate excludes it from current consideration.
[vi] See para 25 below.
[vii] Professor Winterton accepted that, at least since 1926, s 61 should be read as “exercisable only by the Governor-General”: see Parliament, the Executive and the Governor-General (Melbourne, UP, 1983) p 51.
[viii] Section 63. “These are powers which the framers of the Constitution considered to be purely statutory or which had, by custom or statute, been detached from the prerogatives of the Crown”: Final Report of the Constitutional Commission (1988) vol. 1 p 342, par 5.147. But cf par 5.148.
[ix] The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (the Wooltops case) (1922) 31 CLR 421, 437, 461; The King v Hush; ex parte Devanney (1932) 48 CLR 487, 511; Johnson v Kent (1975) 132 CLR 164, 174.
[x] See per Dixon J in Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278, 304; and per Gummow, Crennan and Bell JJ in Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, 89 .
[xi] 1 Bla.Com.239 cited by Chitty “The Law of the Prerogatives of the Crown” (1820, London) p 4.
[xii] Coke on Littleton, 90b.
[xiii]  84 ALJR 588, 606;  HCA 27, par. 75.
[xiv] Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, 83 .
[xv] Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278, 320-321; Attorney-General (NSW) v Butterworth & Co (Aust) Ltd (1938) SR (NSW) 195, 246-247.
[xvi] In Burmah Oil Co (Burmah Trading) Ltd v Lord Advocate  AC 75, 99; Lord Reid observed “[i]t is not easy to discover and decide the law regarding the royal prerogative and the consequences of its exercise.” And Nourse LJ in the English Court of Appeal R v Secretary of State for the Home Department, ex p. Northumbria Police Authority (1989) QB 26, 56 observed that – “It has not at any stage in our history been practicable to identify all the prerogative powers of the Crown. It is only by a process of piecemeal decision over a period of centuries that particular powers are seen to exist or not to exist, as the case may be. From time to time a need for more exact definition arises”.
[xvii] (1974) 131 CLR 477, 498.
[xviii]  84 ALJR 588, 608;  HCA 27, par. 86.
[xix] Barton v The Commonwealth (1974) 131 CLR 477, 498; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, 61-62.
[xx] See per Dixon J in Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278, 304.
[xxi] “Parliament, the Executive, the Governor-General and the Republic: The George Winterton Thesis” in HP Lee and PA Gerangelos (eds) Constitutional Advancement in a Frozen Continent (Sydney, The Federation Press, 2009) p189.
[xxii] (1975) 134 CLR 338, 397.
[xxiii] (1988) 166 CLR 79, 93.
[xxiv] Gummow, Crennan and Bell JJ (2009) 238 CLR 1, 87.
[xxv] (2009) 238 CLR 1, 60 .
[xxvi] Note also that Hayne and Kiefel JJ (2009) 238 CLR 1, 119 held that “the ambit of the Commonwealth executive power is to be identified having regard to the whole of the constitutional structure”. The wide construction given to s 61 in Pape has been criticised: see “Pushing the Boundaries of the Executive Power – Pape, the Prerogative and Nationhood Powers” by Anne Twomey in (2010) 34 Melbourne University Law Review 313.
[xxvii] See, for example, Attorney General v De Keyser’s Royal Hotel Ltd  AC 508 and Burma Oil Co (Burma Trading) Ltd v Lord Advocate  AC 75.
[xxviii] Lane v Morrison (2009) 239 CLR 230, 249-250; and see Vol 1 p 346, par 5.175 of the Final Report of the Constitutional Commission (1988).
[xxix] Sections 32, 33, 64, 67, 70, 83 and 103.
[xxx] Section 63.
[xxxi] Sections 32 and 33.
[xxxii] Section 64.
[xxxiii] Section 72. A power to appoint members of the Inter-State Commission also requires the advice of the Federal Executive Council: s.103.
[xxxiv] See sections 7, 15, 17, 19, 21, 35, 37, 42.
[xxxv] “Reserve Powers of the Governor-General and the Provisions For Dismissal” 21 August 1995.
[xxxvi] “1975: The Dismissal of the Whitlam Government” in G Winterton and HP Lee (eds) Australian Constitutional Landmarks (Melbourne, Cambridge University Press, 2003) 229, 243–245.
[xxxvii] Final Resolutions of the Constitutional Convention, Canberra 1998 (1998) 9 Public Law Review 55, 56; See comment by Sir Harry Gibbs 21(3) UNSWLJ 882, 884.
[xxxviii] Section 59 as proposed in Schedule 1 to the Constitution to be inserted by Clause 3 of the Bill.
[xxxix] Paragraph 8 of proposed Schedule 2 to the Constitution (inserted by Clause 3 of the Bill).
[xl] See Winterton, “1975: The Dismissal of the Whitlam Government”, above n 42, 244 and New South Wales v Bardolph (1934) 52 CLR 455, 509. See also Egan v Willis (1998) 195 CLR 424, 453 and 503.
[xli] Evatt and Forsey on the Reserve Powers (Sydney, Legal Books, 1990) p.xc.
[xlii] The King and His Dominion Governors (London, Frank Cass and Co, 2nd ed 1967), 7-9, 285.
[xliii] Report Vol 1 pp 95 ff.
[xliv] Evatt and Forcey on the Reserve Powers (Sydney, Legal Books, 1990) p lxxxiii.
[xlv] “Some Thoughts on the Constitutional Convention” (1998) 21(3) UNSW Law Journal 882, 884.
[xlvi] Evatt and Forsey on the Reserve Powers, above n 50, p.lxxxiii; Professor Forsey recalled that in 1985 “an Australian Constitutional Convention [in Brisbane] recognized and declared 18 ‘principles and practices’ which ‘should be observed as Conventions in Australia’ governing the exercise of reserve powers ‘exerciseable through the Governor-General’” but then demonstrated their inadequacy in a number of practical situations.
[xlvii] Ibid, p lxxxix.
[xlviii] See G Winterton “The Resurrection of the Republic” Law and Policy Paper No. 15 (Sydney, Federation Press, 2001) p 17.
[xlix] G. Winterton (1993) 12 U Tas LR 249 at 256; The Resurrection of the Republic, above n 54.
[l] Final Report of the Constitutional Commission, vol 1, p 326 para5.66.
[li] The Canadians experience of prorogation in 2008-2009 illustrates both the importance of timing in the exercise of reserve power and the difficulty in reaching agreement on the content of relevant conventions: see http://findarticles.com/p/articles/mi_qa3683/is_201004/ai_n54369026/?tag=content;col1. For an Australian example, see G Winterton “The Constitutional Position of Australian State Governors” in Australian Constitutional Perspectives (Sydney, Law Book Co., 1992) 274, 304-335.
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