The Golden Silence Of The Governor General
Greg Craven*
INTRODUCTION
It perhaps will come as no surprise that this
paper presents a relatively conservative view of the
role of the Governor General. That view is formed
against three background assumptions.
The first is that Australia will remain a monarchy in the near to mid-term, and that the role of the
Governor General must be considered in this context.
The second is that, nevertheless, Australia is moving leisurely towards becoming a republic, and presumably will eventually
arrive at that point, though within no particular
time frame. The third assumption is that even when
Australia does become a republic, it will enjoy substantially similar constitutional
arrangements to those subsisting under the existing
monarchy. By this is meant, chiefly, that the executive
apparatus of the Commonwealth will continue to operate
within a framework of parliamentary democracy, embodying
a symbolic Head of State – however chosen - and a
politically powerful head of government.
It is, of course, inevitable that there will
be development in any constitutional office, and from
this inevitability the office of Governor General
is not immune. Indeed, it is a commonplace that the
office already has evolved, along with that of the
State governors, away from any role as a representative
of the British Government within the local administration,
to comprising a true representative of the monarch
within the Commonwealth.
Beyond this, the recent republican debate
has itself provoked intense discussion of the role
of the Governor General as a surrogate Australian
head of state. This notion of the Governor-General as
a “Head of State” manqué involves in a nebulous but
real way recognizing the office as something more
than just the “representative” of the Queen. Of course, so long as Australia remains
a monarchy, the Governor General can never be more
than a surrogate, but even a surrogate head of state
is more than a mere monarchical proxy.
Indeed, in the context of the republican debate,
the office of Governor General has somewhat paradoxically
assumed a whole new significance. Far from being dismissed
as a soon to be discarded colonial relic, the Governor
General now demands considerable respect as the President-in-waiting.
Under the 1999 referendum proposal, the incumbent
would have been transmogrified into a republican President, and under almost any plausible proposal,
the office of Governor-General will be the immediate
ancestor of that of President. There thus can be no
real surprise that the office is the subject of renewed
current interest, of which the symposium is merely
one example.
Within this proto-republican climate of interest
and discussion, it is highly likely that the office
will continue to expand, if only psychologically.
The tendency of more recent incumbents to enter important
and controversial public debates will operate to the
same effect. All this being said, much of the debate
concerning the role of the Governor General has been
relatively shallow. Thus, as it touches upon the issue
of an expanded role for the Governor General, this
debate tends to turn upon the approval of the particular
commentator for the persona of the particular incumbent,
or the support of the commentator for the views expressed
by that incumbent. We often seem to support an enhanced
role for Governors General whose views we like, but
are deeply suspicious of such a role being conferred
on Governors-General we mistrust.
Clearly, this is wrong, and indeed unprincipled.
In discussing the future directions of the office
of Governor General, it is crucially necessary to
consider the development of that office in light of
its own fundamental functions, not the character of
its incumbent, and to ask whether or not any envisaged
role is consistent with those functions. With this
stricture in mind, the general approach of this paper
will be to argue that, while it is probable and to
some extent desirable that the office of Governor
General undergo some further development, this expansion
should be relatively modest.
THE
OFFICE OF GOVERNOR GENERAL - PRACTICAL
The office of Governor General under the Australian
Constitution is too often considered in a somewhat
unilluminating way. There are two common approaches
here. The first is to list faithfully all the legal
functions of Governor General under the Constitution:
assenting to laws, setting the times for sessions of Parliament, acting as commander in chief and so forth. This provides a necessary, but hardly
a complete or insightful account of the office. The
second approach is simply to state that the Governor
General is the representative of the Queen, but without
any elaboration of exactly what this opaque formula
might involve. The latter always has been a strong
tendency, but it may now be that in these seeming
Ides of the republic we are even less inclined to
explore what is involved in being “Her Majesty’s representative”.
The protracted eve of a republic hardly seems
a propitious time to tease out the meaning of the
Governor-General’s representative role by reference
to the role played by the Queen in the United Kingdom.
Yet if the Governor-General is indeed the representative
of the Queen in Australia, it would seem intuitively
correct to suggest that his role in this country has
some analogy with that of the Queen in the United
Kingdom. Into this murky pond of monarchical metaphysics
we are understandably reluctant to wade. Anyone wanting
to ponder the more mystic depths of the office of
Governor-General would be more likely to consult Dicey
or Bagheot than the Commonwealth Government website.
Nevertheless, it is a central argument of
this paper that in thinking about the developing role
of the Governor General, we do need to enter this
nebulous area of monarchical representation, and to
appreciate that this will involve talking not merely
about the legal and constitutional role of the Governor
General, but his symbolic role. After all, the monarchy
is quintessentially a creature of symbol, and the
office of Governor General, as a matter of origin
and present reality, equally is a creature of the
monarchy. In seeking to understand the role and its
potential expansions, we need to understand not only
its legal, but its symbolic dimensions.
Even as an avowed republican, one has to admit
that this involves thinking seriously about the nature
of the constitutional monarchy in Australia, as mediated
by the Governor General. It even involves wondering
whether there might not be some significant advantages
in our monarchical constitutional arrangements, and
how those advantages might be affected or preserved
through a change of Australia’s constitutional status
into a particular form of republic This is a somewhat
ethereal debate, but one that has to take place if
one is seriously to consider the future of the office
of Governor General.
THE
OFFICE OF GOVERNOR GENERAL - MYSTICAL
What is attempted here is a consideration
of the office of Governor General, not as an amalgam
of the relevant sections of the Constitution, but
as a broad surrogate of the British monarchy. Unavoidably,
therefore, we are contemplating here some of the higher
constitutional functions of that monarchy as expressed
in an Australian idiom. This can be regarded as elevated
constitutional theory or eccentric constitutional
necromancy according to taste and perspective.
The starting point in this consideration is
to note that one of the basic and perennial problems
of constitutional design is the separation of power
from legitimacy. By way of very loose definition,
“power” in this context means the capacity to command
and direct, to ordain outcomes, quite independently
of whatever feelings – positive or negative - the
populace at large might have towards the repository
of that capacity. Classically, Prime Ministers and
ministers are creatures of power.
Legitimacy is entirely more nebulous. It involves
no particular claim to capacity or potency, but an
entitlement to respect, to deference, to esteem and
even in particular circumstances, to affection. The
chief point about these two commodities is that while
each in its own context is admirable, the combination
traditionally is regarded as being deadly.
The straightforward reason for this is that
when power and legitimacy reside in the same organ,
one is confronted with a figure or institution that
possesses practical political potency, but which also
is a natural object of respect, deference and adulation:
or in simple terms, something with the capacity to
do what it likes, and to be loved for doing it. The
parable outcomes usually pointed to as illustrating
the explosive potential of this constitutional nitro-glycerine
are Bonapartism or fascism, or perhaps more prosaically,
the spectacle of American Presidents who enjoy ex
officio not only practical power but the trappings
of national glory.
The notion of legitimacy is not one much used
in Australia, where we ordinarily are more interested
in separating one cohesive power – executive, legislative
or judicial – from the other. Yet, legitimacy, the
entitlement to public respect, is an important and
potentially extraordinarily valuable commodity within
any constitutional order, and one that may be used
for good or ill. Fundamentally, a politician who takes
an atrocious decision, but whose actions are then
routinely debated, reviled and loathed, will be a
very different creature from a politician who takes
a similar decision in an atmosphere where the population
is programmed to accord his or her actions respect
and deference.
Crucially, it has been a major feature of
the Australian and the British constitutional monarchies
that they have operated with some success to promote
a practical separation between legitimacy and power.
Notably, under these monarchies, powerful politicians
and especially the institutionally powerful Prime
Minister, while fully entitled to the exercise of
their political prerogatives, enjoy minimal legitimacy.
As mere politicians, little institutional respect
attaches to their person or their office, and there
is only the most limited psychology of automatic popular
deference towards their doings. In fact, listening
to them being routinely booed at major sporting events,
one suspects rather the opposite.
Rather, the chief repository of legitimacy
(if any) in these systems has tended to be the Crown,
represented in the United Kingdom by the Queen, and
in Australia by the Governor General. These organs,
by way of contrast to the parliamentary executive,
have no independent power whatsoever, and certainly
no serious political base. Yet in the case of the
Queen in the United Kingdom, at least while the monarchy
is functioning relatively well, the person-institution
enjoys considerable respect, deference and even affection.
It was this sort of legitimacy that used to be a source
of international comfort during the reign of Margaret
Thatcher, when apocryphal tales would circulate of
Her Majesty failing to invite her imperial Prime Minister
to sit in her presence.
An analogous position applies in Australia.
One hardly can pretend that the Governor General enjoys
quite the same prestige as the British monarch, and
he or she in theory enjoys rather more constitutional
power, but the position is fundamentally similar
on the point of legitimacy. The Governor General classically
is a figure of dignity and respect, operating in the
full knowledge - his own, and that of others - that
he has no degree of political power. Yet he enjoys
the deference and respect due to what is acknowledged
to be an office above and beyond politics. This legitimacy
accorded to the office of Governor General is, of
course, most easily detected during the office of
strongly respected Governors General such as Hasluck,
Cowen, Stephen, Deane and, to all appearances now,
Jeffery.
Historically, the basic effect of all this
has been a marked contribution towards the substantial
divorce between power and legitimacy. Put simply,
while we may fear and obey our Prime Ministers, we
do not feel ourselves to be under any obligation to
love and respect them, and while we occasionally may
take our politician-hating a little too far, this is a fundamentally healthy state
of affairs. Another way of putting it would be to
say that our constitutional arrangements inhibit political
functionaries from too successfully identifying themselves
with the State and its interests. A fundamental prop
of this is that basic legitimacy within our system
is vested in a politically powerless, politically
unattached symbolic office, that of Governor General.
There is a further important consequence of
these arrangements. Precisely because they promote
the existence of an apolitical figure of national
respect, the office of Governor General provides a
natural point of apolitical identification for all
Australians on issues of national concern. It is precisely
because the Governor General is not in politics, and
politics is not in the Governor General, that Australians
can identify with that office. Crucially, because
the Governor General enjoys no political dimension
and no political power, he or she is not the source
of division inevitably encountered in political figures.
This is what might be referred to as the “unity dimension”
of the office so often advanced by commentators and
incumbents.
EVOLUTION
OF THE OFFICE – CONSISTENCY WITH FUNCTION
The most obvious mooted expansion of the office
of Governor General involves a widening of the Governor
General’s public role, most specifically through him
or her speaking more broadly on more controversial
topics. This has been the subject of considerable
recent debate.
Traditionally, Governor Generals are thought
to confine their utterances to relatively uncontroversial
subjects. A change may be detected during the time
of Sir Zelman Cowan, who famously remarked that it
was the role of the Governor General to interpret
the nation to itself. It is not entirely clear what
this nostrum involves, but it at least to some extent
posits that the Governor General should take part
in the public debate of the day, and perhaps that
he or she should be a sort of public moral force in
Australia. Certainly, this was the role adopted by
Sir William Deane, who entered into a number of fields
of public controversy, most notably that relating
to reconciliation with aboriginal people.
In assessing the appropriateness of these
sallies, it is not a question of whether one likes
a particular Governor General or their comments. The
real question is how consistent this expanded idea
of the Governor General’s office is with its fundamental
role as a repository of apolitical legitimacy, as
outlined earlier in this paper.
It is, of course, quite clear that the mere
fact that the Governor General is required to act
as an apolitical depository of legitimacy will not
prevent him or her from talking on a wide variety
of subjects, including those which are of significant
national importance. This particularly will be the
case where the comments thus made are relatively general
in nature: for example, the need for education, for
respect for the law, to live in harmony with one’s
neighbours regardless of issues of race, and so forth.
Nevertheless, serious difficulties may be encountered
in relation to the traditional role of the Governor
General where an incumbent strays into topics of real
political controversy. Some few areas of concern may
be noted.
First, it is obvious that the legitimacy of
the Governor General and his or her status as a figure
of national unity depend critically upon the incumbent
of that office maintaining an apolitical character.
As soon as the Governor General becomes “political”
he or she will lose that character, and become, in
effect, merely another politician. Importantly, this
will be relatively easy to do. Public statements on
controversial topics upon which there are at least
two strongly held views within the community inevitably
will polarize views of the Governor General concerned.
As already has been noted, there is a tendency
in this context to judge the propriety of a public
intervention by a Governor General simply on the basis
of whether one agrees or disagrees with his or her
statements. This is quite wrong. Whether or not an
intervention is appropriate depends not upon whether
one agrees with a statement, but whether or not such
a statement is essentially political, and therefore
inconsistent with the discharge of the office. The
true test here is to ask, if one finds a controversial
statement by a Governor General to be congenial, whether
one would have supported the Governor-General’s right
to make an exactly opposite statement on the same
subject. In this sense, the question with Sir William
Deane was not whether he was substantively correct
about reconciliation – he was – but whether this was
a suitable subject for intervention by a Governor-General,
the ultimate test of which would be whether we would
have been comfortable had his comments been negative,
rather than positive.
A second difficulty that arises when a Governor
General moves determinedly into a field of public
controversy is the potential for serious conflict
with the political arm, as represented by the parliamentary
executive. There are two potential consequences of
an excessively active Governor Genera in this connection.
The first and most obvious is the prospect of on-going,
destabilising warfare with the Prime Minister and
his or her government on the grounds of a major policy
dispute. This would be highly undesirable in terms
of the logic of the office of Governor General.
A less obvious, but arguably more problematic
development might be that, were Prime Ministers to
believe that Governors General unavoidably were to
be viewed as garrulous fonts of political comment,
they necessarily would appoint congenial and attractive
Governors General to support the relevant government
positions. This would be particularly dangerous, as
what effectively would be involved would be attempts
by government to exploit the previously apolitical
nature of the office of Governor General by appointing
incumbents who could propound government policy with
seeming objectivity. The object would be for the political
arm to harness the legitimacy of the Governor General.
Thirdly, once a Governor General has become
“active”, there is no obvious, logical stopping point.
There seems to be something of a current notion that
there is a defined category of uplifting topics –
such as reconciliation or multiculturalism – upon
which Governors General may safely talk, which are
divided by a heavy black line from other, less safe
areas. This is highly implausible. Once a Governor
General has embarked upon a program of inspired speech-making,
there is no obvious reason why he or she might not
stray into every disputed area of policy from health
and education to national security and immigration.
In this context, we sometimes are inclined
to underestimate ‘talking’ as a power. A Governor General has very few independent
powers, but even on the most conservative analysis,
he or she can talk. Moreover, as we have seen, when
Governors General talk, they traditionally speak with
an authority born of apolitical legitimacy. A highly
active Governor General delivering an on-going critique
of the policies of an uncongenial government would
have a potentially devastating effect upon that government,
soluble only by the extraordinarily politically (and
constitutionally) unpalatable course of dismissal.
This was one of the spectres that worried opponents
of direct election at the 1998 Constitutional Convention:
what did one do once a popular, directly elected President
had denounced the Government?
One also needs to consider in this context
the corrosive effect of a free-speaking viceroy upon
the whole range of conventions of the Constitution.
A Governor General who talks freely and controversially
inevitably must be psychologically and temperamentally
more likely to act freely and controversially. It
would be difficult to quarantine the conventions of
the office of Governor General from a more fluid approach
to the public execution of the office.
An important connected factor here is that,
if one is a republican (or at least a conservative
republican), one is going to be wary of any extravagant
interpretation of the office of Governor General in
the years leading up to what hopefully will be an
Australian republic. In other words, if one wishes
to maintain the conventions of the Australian Constitution
intact under a republic, a major part of that exercise
will be translating the office of Governor General
intact into a republican Constitution. In turn, a
necessary part of this will be trying to keep that
office within reasonable bounds, so that its interaction
with those conventions will be assured. This particularly
would be a matter of special importance for anyone
contemplating some form of symbolic Presidency filled
by way of direct election.
Despite these considerations, there is a somewhat
romantic view that in a world of increasing Prime
Ministerial domination, any added check and balance
is welcome, even if it consists of a barn-storming
Governor General. There are, however, a number of
factors that make an expanded office of the Governor
General of very limited use in this connection. The
first is that the power of appointment to the office
rests with a single member of the executive, the Prime
Minister. As we have seen, this power could be used
just as easily to put in office a Governor General
whose inspired speech-making is designed to reinforce
the position of the Prime Minister rather than to
control it.
Secondly, because the office is by definition
individual in character, unlike a multi-party upper
house or a multi-judge bench, it necessarily is highly
idiosyncratic in its operation as a check upon power.
Thirdly, it is clear that Governors General come from,
and will in the future likely come from an exceptionally
narrow background of experience: one effect of the
Hollingworth experience probably will be to set us
firmly on a long road of Judges and Generals. The
members of neither of these two categories of eminent
citizen are particularly equipped to engage in a wide
range of public policy debate. Fourthly, Governors
General will be largely unaccountable for any horrors
perpetrated in the name of a wider approach to their
office, again unless the Prime Minister secures their
dismissal by the Queen, a politically unlikely and
fraught position.
Finally, if one really did desire that the
Governor General engage in extensive social commentary,
it needs to be remembered that he or she will have
neither the staff nor the resources to adequately
ground such a role, and this deficiency is unlikely
to be supplied by a jealous Prime Minister, unless
cooperative results were assured. One interesting
insight into the office during the final months of
the incumbency of Dr Peter Hollingworth, was to observe
just how inadequate and bad the advice to the Governor
General must have been to produce such a series of
predictably catastrophic outcomes.
The conclusion therefore must be that if one
wishes to maintain the office of Governor General
as one that assists in the quarantining of legitimacy
from political office, and as one that embodies a
subfusc focus of apolitical unity, there is very little
room for a Governor General to act as a statesperson.
On balance, if the nation really wants itself interpreted
to itself, it probably would be better investing in
mass psychiatric analysis than in an adventurous surrogate
head of state.
THE GOVERNOR GENERAL AND CEREMONIAL EVENTS
There is one further aspect of the office
of Governor General on which this paper should touch,
and this also is relevant to the relationship between
legitimacy and power within our system. Here, however,
the analysis is considerably more supportive of extending,
or at least defending the role of Governor General.
Recently, there has been serious public unease
at the prospect of Prime Ministers undertaking great
ceremonial functions of state that previously had
been discharged by the Governor General. This practice
appears to have begun in earnest around the mid-1980s
during the Hawke Government, but since that time,
all Prime Ministers seem to have been equally guilty
of elbowing the Governor General from centre stage.
Most recently, for example, we have seen Prime Minister
Howard presiding over the Bali remembrance ceremonies,
and more prosaically, over the opening of the World
Cup rugby.
We usually analyse such occasions as cases
of political, and perhaps constitutional bad manners,
but not much more. The reality is that they are considerably
more serious, for reasons which hark back to the division
between legitimacy and power under our constitutional
arrangements.
What effectively is involved in these Prime
Ministerial ceremonial hijacks is a deliberate attempt
by politicians to break through the legitimacy-power
divide. In essence, the politician who attempts to
capture some ceremonial moment of national importance
is also attempting to attach to themselves some element
of public legitimacy, and to strengthen the degree
of identification between themselves and the State.
By so doing, they enhance their personal and political
prestige, and to some extent succeed in elevating
themselves above the political brawl and their opponents.
It was, of course, one of the great traditional
advantages of the office of Governor General that
where an event was one of deep national, rather than
merely political importance, it was performed by the
apolitical Governor General as a national focus. The
Bali memorial service is a perfect example of such
an event that properly belongs within the province
of Australia’s surrogate head of state. Similar reasoning
would apply to ceremonies marking the completion of
great state projects that were not the work of any
one government, but true national achievements.
The very positive effect of this traditional
understanding was to limit any identification between
a politician as a repository of power with the profound
interests, achievements or griefs of the nation. When
captured by political figures, these types of ceremonial
events are dangerous for precisely these reasons,
and they should be returned firmly to the hands of
the Governor General in the Commonwealth sphere, and
the Governors in the State sphere.
CONCLUSION
Essentially, the argument of this paper has
been that the office of Governor General, in addition
to its specific constitutional functions, does have
a high constitutional purpose. Fundamentally, that
purpose is to facilitate a separation between legitimacy
and power within our constitutional system, so preventing
a close identification between politicians and the
State itself and its interests. This purpose is not
easily consistent with an adventurous understanding
of the office of Governor-General. It also is enormously
important that, as Australia contemplates its future
as a republic, this purpose be translated intact to
any future office of President.
