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10 April 2022

The Governor-General has perhaps the most confusing and difficult to understand role in the Australian government’s Executive branch. As the representative of the British Crown, the Governor-General can exercise all the powers of the Crown, with the executive power vested in the Crown in Section 61 of the Constitution. This is similar to the authority given to the Governor-General in Section 2. The powers conveyed to each Governor-General are found in the Letters Patent Relating to the Office of Governor-General of the Commonwealth of Australia, which is issued by the Crown for each new Governor-General. Many of the Section 61 powers are exercised on the advice of the Prime Minister and other ministers in the Executive. Although the word ‘advice’ usually means that the Governor-General is bound to follow the instructions that they are given, the ability of Governor-General John Kerr to dismiss Prime Minister Gough Whitlam set a precedent that these powers are more than just theoretical.

The powers of the Governor-General that we have discussed so far are the summoning, proroguing, and dissolving Parliament (Section 5); double dissolution elections and joint sessions of Parliament (Section 57); giving royal assent to bills, thus making them laws (Section 58); and appointing the Prime Minister (Section 64).

The requirement for the Governor-General to act on the advice of the Prime Minister and other ministers is found in Section 63, which defines the Governor-General in Council as “the Governor-General acting with the advice of the Federal Executive Council.” Under Section 62, the Federal Executive Council is to advise the Governor-General in all matters pertaining to the governing of Australia. The members of the Federal Executive Council are to be appointed by the Governor-General, and in Section 64 the members of the Federal Executive Council are to be the ministers of the government. The Governor-General is limited in who they can appoint to the Federal Executive Council, because Section 64 requires that they be members of Parliament, either as members of the House of Representatives or as senators.

Section 67 grants the Governor-General in Council the authority to appoint and dismiss public servants in the Executive, except where the Governor-General in Council has delegated that authority to some other person or body, or Parliament has legislated that power away from the Governor-General.

The Governor-General is also the commander-in-chief of the Australian Defence Force, according to Section 68. This is a largely ceremonial role, with actual command delegated to the military, and held by the Chief of the Defence Force. However, as commander-in-chief, the Governor-General attends military functions and parades, including Anzac Day.

The Governor-General possesses some ‘reserve powers’ that do not require the Governor-General to act on the advice they have been given. In fact, they can even act against the advice that they have been given. These reserve powers, which are discretionary powers held by the Governor-General, include appointing the Prime Minister, dismissing a Prime Minister who loses a vote of no confidence but refuses to resign as a result of it, and potentially also dismissing the Prime Minister in other circumstances, as seen with the dismissal of Gough Whitlam. The Governor-General can also dismiss governments that have breached a ‘fundamental constitutional provision,’ provided that the government cannot be taken to court for it, although this is only theoretical, as it has not happened in Australia’s history.

Perhaps the best way to conclude this discussion on the complicated role of the Governor-General is by considering a statement made by Justice Wilson in FAI Insurances Ltd v Winneke (1982) 151 CLR 342, at 401, seven years after the Governor-General had dismissed Gough Whitlam:

“He [the Governor-General] may be described as a rubber stamp, in the sense that his executive acts are based, and necessarily based, on the advice that he is given. But his responsibility is to administer the executive government, and to do so with integrity, discretion, and a complete absence of political partiality. [Walter] Bagehot’s famous observation, that “the sovereign has, under a constitutional monarchy such as ours, three rights – the right to be consulted, the right to encourage, [and] the right to warn” … is still good law and good constitutional practice.”

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Stuart Jeffery, aka LibertyDownUnder, is the founder of the Australian Liberty Network. He is also the host of the Gumtree of Liberty and Gumtree of Liberty Live podcasts, and is editor of the Liberty Review. Stuart is currently studying a Bachelor of Laws and Bachelor of Arts, majoring in international relations, at the University of Southern Queensland.

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