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Reserving power in a Westminster system

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Australian republican model that replaces the Queen with periodically elected Australians, while keeping the Governor-General, would be an improvement on the Westminster system, writes Robert Vose.

by Robert Vose

In theory, there are three branches of republican government and they should ideally be kept independent of each other: the three branches are the Executive, the Legislative and the Judiciary. The republic of the United States was designed so that these three branches of government are independent of each other, and this independence acts as a check and balance on the power of government.

The Westminster system does not live up to this ideal. In a Westminster system, there is no independence between the Executive and the Legislative. The Executive and the Legislative are merged in a Westminster system because the Prime Minister and Cabinet control both the Executive and the Legislative in practice. The power of the Executive is formally exercised through the Crown and is held by the monarch, but convention has it that the monarch can only act on the advice of the Prime Minister.

The reserve powers are an important part of our political system. The reserve powers should be held by an independent agent who is not the head of state nor the head of government. The reserve powers come into play in those unusual circumstances when a Prime Minister fails in their duty as either the leader of the Executive or as leader of the Legislative — and yet tries to continue in the role of Prime Minister. They are applicable whenever the Prime Minister or Premier no longer legitimately commands both the Parliament or the Government. In a Westminster system of Government the Prime Minister or Premier must be in command of both the Legislative (Lower House) and the Executive (Government) by definition.

There are two notable precedents in Australia when the reserve powers were exercised. In 1975, Gough Whitlam lost control of Parliament (the Legislative). In 1932, Jack Lang acted potentially illegally as Premier (the Executive) by hoarding state money in Sydney Town Hall during the Great Depression.

If a Prime Minster or Premier loses the confidence of Parliament, they can no longer continue with legitimacy in their role as head of government. In such a case, a Governor-General or state Governor can decide whether or not to accept the advice of the Prime Minister or Premier. As a hypothetical example, if a Prime Minister who has just lost a leadership ballot with their political party was to go straight to the Governor-General and ask her to call a general election before the new Prime Minister could be swornin – in an attempt to retain control over their party and the parliament – the Governor-General could exercise the reserve powers and refuse to act on the advice of that ousted Prime Minister. This is an example of an exercise of the reserve powers.

Former Governor General John Kerr with the man who appointed him and he later dismissed, Gough Whitlam.

The reserve powers are an integral part of the Westminster system because of the lack of independence between the Executive and the Legislative. The agent holding the reserve powers should also be sufficiently independent of the Executive and the Legislative (as well as the Judiciary) so that they are free enough to exercise the reserve powers in a constitutional crisis. The Governor-General and state Governors are suitably independent as the Representative of the monarch, appointed on the advice of the Prime Minster or Premier. This is another check and balance on government, necessitated to correct an inherent weakness of the Westminster system. The system evolved over time, but the reserve powers held by the Governor-General could reasonably be defended on theoretical grounds.

A Copernican republic would see us replace the Queen with a periodically elected Australian as our head of state, while retaining the Governor-General who would hold the reserve powers. I believe it would be a serious mistake to do as the ARM proposes and merge the Queen with the Governor-General into the one role of the head of state in an Australian republic.

The Governor-General and state Governors are much more than local representatives of the monarch and head of state for Australia, Queen Elizabeth II. They carry out the many formal functions of the head of state on behalf of the Queen, such as providing royal assent to legislation, swearing in ministers, dissolving and opening parliament, etc. They also hold the reserve powers independently of the Prime Minister as head of government and the Queen as head of state. These reserve powers are an essential component of our Westminster system of government, as they address the inherent weakness of Westminster systems of the lack of  independence between the Executive and the Legislative.

When designing a framework and models for an Australian republic, we can aim to replace the Queen with periodically elected Australians, while keeping the Governor-General. This would keep the reserve powers at arms-length from an elected head of state. A Copernican framework for an Australian republic would, therefore, actually be an improvement on the Westminster system.

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