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Strange powers

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The Australian Constitution is a vexing document for those who read it to learn about how we are governed. A literal reading will simply not yield a clear picture of our system. David Donovan explains.

FOR EXAMPLE, s.61: “The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative....”

Then, in s.62: “There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General…and shall hold office during his pleasure.”

In s.69 some Executive powers are listed, including communications and defence. The Governor-General (G-G) is also specifically declared to be Commander-in-Chief of the naval and military services (s.68).

So, reading this, the Queen is supreme, the G-G is a mighty viceroy and the Cabinet is a toothless gaggle of advisors. The Prime Minister (PM) is nowhere to be found.

However, in practice the G-G does not exercise his express powers. By the so-called convention of ‘responsible government’, these powers, and others, are applied, in reality, by the Cabinet.

Sir John Kerr: Australias most controversial Governor General

Conversely, although the G-G has express powers he doesn't exercise because of some unwritten rules, he has some fairly limited powers ('reserve powers') he does. But this time the powers themselves are unwritten and complicated, rather, by the fact no-one is entirely sure what they are.

The Parliament House website describes the situation:

“The scope of the reserve powers is uncertain and their use has proven contentious. This is in part because the Australian model of government relies on unwritten rules or 'conventions' to flesh out the 'bare bones' of the Constitution. It is thus (by convention) accepted that there must be an office of PM and a Cabinet even though their existence is not constitutionally mandated. Likewise, not all the powers of the G-G are codified in the written Constitution and many of them are similarly constrained by such unwritten rules. A further complication is the difficulty of determining when mere custom and practice attains the status of a convention.”

The reserve powers are generally seen as the powers to appoint a PM in a hung Parliament; dismiss a PM after a successful 'No Confidence' motion; and the (most frequently used) power to refuse to dissolve the House of Reps contrary to Ministerial advice.

More doubtful are the powers to refuse a double dissolution; veto Bills Parliament has passed; use discretion to select a new PM when the outgoing PM resigns after a defeat in the House of Reps; and to dismiss a PM in circumstances where the Government cannot obtain supply and the PM refuses to resign or to call an election (the controversial Kerr power).

Thus, the Constitution is hazy: what it says is not always what it means, and what it has been held to mean, it may not even say.

The advent of a republic may be seen to offer a long overdue opportunity to properly reflect practice by codifying the G-G’s reserve powers.

But more importantly, the facts of this article make a mockery of a tired argument often used to deter Australians from making that final break from feudalism. That is, that altering the Constitution would somehow result in uncertainty, panic, chaos and anarchy. The Constitution is self-evidently an imprecise document that has flourished merely by being interpreted with common sense,  and quite considerable creativity, by our legislature and jurists. Uncertainty exists, yet the land is ever institutionally stable.

Common sense, creativity, stability and restraint are keystones of the national character. And that, rather than our Constitution, is the real reason why we enjoy one of the oldest and most secure democracies in the world. To think that our greatest legal and legislative minds could not, or would not, swiftly place a sensible and fair interpretation on any amendment to our Constitution flies in the face of history, facts and reason. Claiming Australia would lose stability by changing the Constitution – a largely unwritten document – insults us all and mocks our intelligence, for it is totally and transparently untrue.  
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