The Evolving Role of the Governor-General

George Winterton*

ORIGINAL ROLE

Of all Australia’s constitutionally-prescribed institutions of Government, the office of Governor-General has undergone the greatest adaptation since Federation. While its constitutionally-conferred powers have remained unchanged, the social and political position of the Governor-General in 2003 bears only a superficial resemblance to that of 1901. Until the 1926 Imperial Conference, the Governor-General was both the effective local Head of State and the principal representative in Australia of the British Government. [1] The Governor-General was subject to recall by the British Government but not, at least directly, by the Commonwealth Government which, therefore, lacked the power to dismiss a Governor-General whose conduct or views it found objectionable, or in order to thwart the exercise of a reserve power. The most it could do was to request the British Government to recall the Governor-General. This fate never befell a Governor-General, but NSW Governor Sir Gerald Strickland was recalled, apparently on the British Government’s own initiative, in 1917. [2] Pre-1926 Governors-General, therefore, enjoyed a security of tenure relative to the Commonwealth Government which they lost once the monarch’s power to appoint and dismiss the Governor-General [3] became exercisable on the advice of the Australian Prime Minister after the Imperial Conference of 1930. [4] This alteration in the source of advice to the monarch was intended to implement [5] the resolution of the 1926 Imperial Conference that a Dominion Governor-General should no longer represent the British Government, but was

the representative of the Crown, holding in all essential respects the same position in relation to the administration of public affairs in the Dominion as is held by … the King in Great Britain. [6]

It was, therefore ironic that, at least insofar as security of tenure was concerned, the position of Dominion Governors-General bore less resemblance to that of the King after 1926 than it had before. [7] Indeed, in the immediate aftermath of the resolution of the 1930 Imperial Conference, some feared that the Dominion Government’s power to dismiss the Governor-General (by direct advice to the monarch) had effectively destroyed the Governor-General’s reserve powers. Thus the Canadian scholar W P M Kennedy remarked that

[I]t is not too much to say that in practice no ‘reserve powers’ can exist in a Dominion, for the simple reason that a Governor-General who persisted in refusing ministerial advice would be at once recalled on the advice of his ministry given direct to the King. [8]

This, of course, did not eventuate, although Sir John Kerr’s awareness of the Prime Minister’s power to dismiss him significantly influenced his much-criticized decision to keep Mr Whitlam in the dark regarding his intentions in November 1975. [9]

During the republic debate of recent years defenders of the status quo frequently praised the present mutual dismissibility of both the Governor-General and the Prime Minister. Thus Tony Abbott remarked that ‘[i]n extremis, the Prime Minister and the Governor-General can both sack each other – which is an important check on the actions of each’. [10] However, this was no carefully constructed constitutional architecture, but rather an accident of history. It made sense for the Governor-General, as the agent of the British Government in the Dominion, to hold office ‘during the Queen’s pleasure’ [11] – in other words, at the pleasure of the British Government. This tenure also gave the Governor-General some standing in exercising a reserve power against the wishes of the Dominion Government. But the Dominion Government’s power to dismiss the Governor-General was completely inappropriate to the latter’s role as ultimate constitutional guardian empowered to exercise the reserve powers against the Dominion Government. [12] The Dominion Government’s effective power to appoint the Governor-General (through the monarch) [13] is similarly inappropriate for an officer who may consider it necessary to exercise a reserve power – including dismissal – against the Prime Minister responsible for his or her appointment. [14]

The Governor-General’s importance declined after he ceased effectively to combine the roles of Australian Head of State and British Ambassador to Australia. It had begun to decline even before 1926 as, especially after World War I, the British and Australian governments began communicating directly, no longer employing the Governor-General as their principal channel of communication, [15] which ended formally on 31 December 1927. [16] Indeed, that function of the Governor-General had been under threat ever since the appointment of an Australian High Commissioner in London (former Prime Minister Sir George Reid) in February 1910. [17] The first British High Commissioner to Australia arrived in Canberra in 1931.

POST 1926

Section 2 of the Commonwealth Constitution designates the Governor-General as the Queen’s ‘representative’. The Governor-General has often been called the Queen’s ‘personal representative’ [18] – even ‘direct personal representative’ [19] – but the Constitution does not include the adjective ‘personal’. The significance of this is that it is arguable that a ‘personal representative’ should be someone known to the Queen, [20] or at least someone with whom she feels some rapport, but this would be less important for a merely official representative, which appears to be all that the Constitution envisages.

There seems to have been some uncertainty as to the Governor-General’s role in the aftermath of its reduction in 1926. Governor-General Lord Stonehaven expressed his perception quaintly in 1929 as ‘pretending to be the King’, [21] a notion which Sir Robert Menzies still embraced more seriously as late as 1967 as ‘[carrying] … some derivative sense of Royalty’. [22] This clearly included the notion that the Governor-General and Governors should be the ‘social leader’ of the community, which Cunneen remarks became ‘pre-eminent’. [23] Indeed Richard McGarvie related that this was his (erroneous) perception of the Governorship of Victoria when he was offered the position in 1992. [24] The social role and ‘highly visible ostentation’ [25] of what has been called ‘the high colonial era’ [26] with its pomp, plumed hats and Debutantes Balls appeared increasingly outmoded and out of place in the socially egalitarian society of mid-20^th century Australia. While British Lords could carry off the role with some aplomb, Australian-born Governors-General looked increasingly ridiculous when emulating that role; even a mere top hat and morning suit had this effect on public perceptions of Sir John Kerr.

With two interludes of Labor-appointed Australians – former High Court Chief Justice Sir Isaac Isaacs (1931-36) and former NSW Premier Sir William McKell (1947-53) – all Governors-General were British until Menzies appointed Lord Casey (1965-69), after which all appointees have been Australian. [27] The most influential of these early Coalition appointees was Sir Paul Hasluck, principally because of his 1972 Queale Lecture on the office, [28] but probably also because he was the first really down-to-earth coalition appointee. (Lord Casey, being a British Lord who had served as Governor of Bengal, appeared to be a hybrid British-Australian). Indeed, Richard McGarvie called Hasluck ‘the founding architect of modern governorship in Australia’. [29]

The role of the Governor-General comprises governmental, ceremonial and community functions. [30] The first includes constitutional functions and the exercise of powers conferred by statute, which are exercisable through the Federal Executive Council. [31] ‘Constitutional’ functions include powers exercised both by the Governor-General alone and through the Federal Executive Council, and include both the reserve powers and powers exercisable only on ministerial advice. The reserve powers are essentially the powers to appoint and dismiss the Prime Minister and to refuse to dissolve the House of Representatives or both Houses pursuant to s 57 of the Constitution. [32] The non-reserve powers include the powers to summon Parliament, assent to legislation, appoint and dismiss Ministers, appoint federal judges, and act as Commander in chief of the armed forces. [33]

While noting the Governor-General’s ceremonial and community functions, [34] Hasluck stressed the Governor-General’s role in ensuring legality and regularity in government, in exercising Bagehot’s three rights – to be consulted, to encourage and to warn [35] – especially through the Federal Executive Council. [36] Subsequent viceregal representatives have taken a similar view, [37] though Hasluck’s concern to ensure compliance with the ‘customary usages of Australian Government’ [38] has been queried, [39] and his view that the Governor-General should ensure that recommended executive action is consistent with Government policy [40] has rightly been rejected. [41] This is a function better left to the Prime Minister. 

The truncated three-year term of Hasluck’s successor, Sir John Kerr, is famous for one act: his dismissal of the Whitlam Government on 11 November 1975. [42] This brought the office into unprecedented – and negative – public prominence; indeed, it was probably the first time many Australians became aware that such an office existed. With the passage of time and the ‘healing’ efforts of Kerr’s immediate successors – Sir Zelman Cowen (1977-82) and Sir Ninian Stephen (1982-89) – the office again receded from public consciousness. Nevertheless, ten years after the Dismissal, Cowen believed that the ‘visibility’ and ‘controversial’ nature of the office persisted. [43]

Apart from the occasional controversy over a viceregal speech, the office regained public prominence – this time generally positive [44] – under Sir William Deane (1996-2001). Deane brought the Governor-General’s role closer to that performed by royalty – especially, in recent times, by the Prince and Princess of Wales [45] – by using the office to accord draw attention to the plight of the ‘disadvantaged’. [46]

CEREMONIAL AND COMMUNITY ROLE

Recent commentators have highlighted the importance of ceremony to the community [47] and, consequently, the Governor-General’s symbolic role as a non-political, impartial and independent representative of the community on significant national occasions, [48] such as funerals [49] and Anzac Day commemorations. [50] Public perceptions have shaped the office, [51] and the public clearly views the Governor-General as representing the Australian people, no longer principally the Queen. Sir Paul Hasluck saw the Governor-General as a force for the social and political stability of the state [52] by acting as a ‘symbol of unity, a focus of loyalty and the expression of national identity’. [53] He regarded the Governor-General as ‘the highest single expression in the Australian Governmental structure of the idea that Australians of all parties and all walks of life belong to the same nation’. [54]

The Governor-General, Hasluck rightly maintained, should not be ‘a reformer or an innovator’; [55] such a role would be socially divisive and possibly also politically contentious. But a Governor-General, as de facto Head of State, should have some vision to determine the direction of his or her activities, the content of speeches and, in general, the image presented to the public. Sir Ninian Stephen’s oft-repeated statement of the Governor-General’s symbolic role – to ‘represent … the Australian nation to the people of Australia’ [56] – remains one of the best ‘job descriptions’ of the viceregal office. Hence the Governor-General should seek to identify and advance the fundamental idealistic values of the Australian people, such as compassion, a ‘fair go’ for all, [57] and encouragement and recognition of achievement and altruistic community service. [58]

Several factors have recently combined to give the office of Governor-General unprecedented public visibility. The activism of Sir William Deane, especially his support for the symbolic aspects of reconciliation with Australia’s indigenous peoples as contrasted with Prime Minister John Howard’s downplaying of these aspects in favour of more practical issues such as Aboriginal health and education, together with Deane’s prominent role as national mourner-in-chief brought the office a national attention it had not enjoyed since 1975 (if ‘enjoyed’ is an apt word in this context). This prominence of the office was exacerbated by the monarchists’ campaign which exaggerated the role of the Governor-General as Australia’s supposed Head of State as a means of denigrating the republic by arguing that Australia already had its own Head of State – the Governor-General – and consequently had no need for a republic. The public regard for the office was further highlighted by the recent vicissitudes of Governor-General Peter Hollingworth (2002-03). Had the public viewed the office as unimportant, the Governor-General’s perceived moral lapses would have excited less public attention. [59]  

Richard McGarvie recently remarked that ‘[t]he importance of a non-political head of state cannot be overestimated’. [60]   Apart from its governmental role as ultimate constitutional guardian, part of the symbolic value of such a Head of State is in emphasizing the constitutionally subordinate role of the powerful Prime Minister; [61] as Greg Craven has put it, to separate power from legitimacy. [62] This is clearer in the United Kingdom than in Australia; in the former there appears to be greater recognition that the Government is ‘the Queen’s Government’. In Australia Prime Ministers are wont to refer to the national Government as ‘my Government’. Prime Minister John Howard has sought to assume the functions of Head of State to a greater degree than many of his predecessors in reviewing returning troops, visiting national sites of mourning such as Bali, and intending to open the Sydney Olympic Games in 2000. Public reaction to the last of these demonstrated that the community rightly sees value in a non-partisan Head of State (presently only de facto until the advent of a republic), and opposes Prime Ministerial usurpation of the Governor-General’s role which diminishes significant national occasions by raising the suspicion that they are being exploited for partisan political ends.

CONCLUSION

The office of Governor-General has undergone greater transformation since Federation than any other constitutional institution. From its original role which combined that of local de facto Head of State with representative of the Imperial Government, the office has mutated through virtual invisibility except to the social and political elite in the years between 1926 and 1969, through the fire and extreme controversy of 1975 to the quiescence of the tenure of Cowen, Stephen and Hayden (1977-1996). The office achieved an unprecedented positive community profile in the aftermath of Sir William Deane’s tenure (1996-2001) and the republic referendum (1999). The Hollingworth controversy has probably not significantly damaged the office; any negative effect is likely to be only temporary if Governor-General Michael Jeffery’s tenure is seen as successful. But public concern over the Prime Minister’s complete control over the appointment and removal of the Governor-General, highlighted by the Hollingworth controversy, and the apparent wish for greater community involvement, especially in appointment, [63] suggests that the public favours a Head of State whose legitimacy rests on public confidence expressed directly through popular election. This can only be achieved in a republic, a polity based on popular sovereignty. The office of Governor-General is, therefore, likely in time to evolve further into a popularly elected Head of State. The nature of government is such that that step will not be its last. The office will continue to evolve, hopefully beneficially to the Australian community.