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27 March 2022

As a constitutional monarchy and a parliamentary democracy, it is difficult to determine whether the Crown, Governor-General, or Prime Minister is the head of state of Australia, both in theory and in practice. The relationship between these three figures is important to understand for any discussion of the Executive branch of the Australian government, as the relationship between the Prime Minister and Governor-General is reflective of the relationship between the various Ministers and the Governor-General. In addition, the scope of the powers of the Crown determines the scope of the Governor-General’s powers, and thus their influence over the other members of the Executive.

Section 61 of the Constitution names the Crown, which when the Constitution was written was Queen Victoria, as possessing the executive power, which the Crown then grants to the Governor-General, to act in the monarch’s place. This is similar to the relationship between the Crown and Governor-General regarding the legislature, as explored in Australian Government #2. In theory, the Crown is therefore the head of state, as the Governor-General is merely the “Queen’s representative,” according to Section 61, exercising the executive powers on behalf of the Crown. In 1973, the Labor government under Prime Minister Gough Whitlam passed the Royal Style and Titles Act 1973 (Cth), which granted Queen Elizabeth the title “Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth.” Although that title refers to the Queen being the sovereign monarch of other countries, it does not specifically mention the UK, because the Statute of Westminster Act 1942 (Cth) recognised Australia as independent from the UK, and therefore it was necessary to also recognise the sovereign independently. Gough Whitlam is a person to whom we will be returning regularly in discussions about the relationship between the Prime Minister and Governor-General.

As a side note, in Australian Government #2, I referred to Section 60 of the Constitution as allowing some laws to be reserved or the royal assent of the Crown, rather than the Governor-General. As the Royal Styles and Titles Act 1973 (Cth) affected the Queen personally, that bill was reserved for Queen Elizabeth to assent to, under Section 60, which is much less common than the Governor-General giving assent.

In previous articles I have referred to the notion of ‘constitutional conventions.’ This is a phrase with two meanings. The first of these is a series of conferences in the 1890s, during which the Constitution was written. The second, and more important, meaning is an unwritten rule or custom that has developed about the Constitution. The Constitution only contains 10 sections dedicated to the Executive branch, so many conventions have developed around Chapter II of the Constitution. Arguably the most important of these is the position of Prime Minister. The position of Prime Minister is not mentioned in the Constitution, despite being the leader of the executive government. This is a position that Australia inherited from the UK. In Australian Government #5, I discussed the matter of ‘supply,’ which refers to bills for spending money. The Governor-General appoints the leader of the party that forms government, and can pass supply bills, to be the Prime Minister.

Sections 62 and 63 create a Federal Executive Council, which will be covered in a later article. For the purposes of this article, the Federal Executive Council is led by the Prime Minister, and consists of members of the Prime Minister’s party. The Governor-General in Council is thus the Governor-General acting on the advice of the Federal Executive Council. Although this is referred to only as advice in the Constitution, convention dictates that the Governor-General will follow this advice.

The ability of the Governor-General to appoint the Prime Minister, but the convention that the Governor-General has to follow the advice of the Prime Minister, has led to much discussion about which one of the two is really in charge of Australia in practice. As mentioned in Australian Government #2, the Governor-General can withhold royal assent to bills passed by the government, but the convention is that this never happens. The power of convention that binds the Governor-General to follow the wishes of the elected government under the Prime Minister would likely lead to the conclusion that the Prime Minister is the head of government in practice. However, this debate is not settled, because in 1975 the Governor-General broke convention.

In 1975, after a series of disasters for Gough Whitlam’s government, which did not have control over the Senate, the Governor-General dismissed the Prime Minister from office. If the Governor-General can appoint the Prime Minister, it logically follows that the Governor-General can also dismiss the Prime Minister. The circumstances surrounding this dismissal deserve their own article to fully unpack this event. In brief, the Liberal/Country Party coalition, the predecessor to the LNP, refused to pass supply bills, leading to a double dissolution election in 1974, which I explored in Australian Government #4. The Coalition and Labor both held 29 seats, and the Coalition was able to work with the 2 crossbenchers to block supply bills in the Senate. This meant that the double dissolution did not fix the problem. So on 11 November 1975, Governor-General John Kerr agreed to dismiss Gough Whitlam and appoint Malcolm Fraser, the leader of the Liberal Party, as Prime Minister, if Fraser agreed to pass the supply bills, which he did. Fraser immediately advised Kerr to call another double dissolution election, which the Coalition won. Not only was Fraser not from the same party as Whitlam, but his party also was not the majority government in the House of Representatives. But because conventions aren’t law, Governor-General Kerr did nothing illegal. This has set the precedent that the Governor-General can break convention, and overrule the Prime Minister, meaning that the discussion about whether the Governor-General or Prime Minister is the head of state in practice remains unresolved.

As a final thought, just as the Governor-General appoints the Prime Minister, so too does the Prime Minister have a say in who the Governor-General is. According to convention, although the Crown appoints the Governor-General, this appointment is done on the advice of the Prime Minister. This convention was recognised at the 1930 Imperial Conference, where it was recognised that the Crown “should act on the advice of His Majesty’s ministers in the Dominion concerned.”1 This convention was established because King George V refused to accept the advice Prime Minister James Scullin to appoint Sir Isaac Isaacs, then-Chief Justice of the High Court of Australia, as Governor-General.2 As the Governor-General can appoint and dismiss the Prime Minister, and the Prime Minister can advise on appointing the Governor-General, Blackshield and Williams Australian Constitutional Law and Theory – Commentary and Materials, one of my main references for this series, suggests that “the monarch would be similarly bound to act on the advice of the Prime Minister on any question relating to the dismissal of a Governor-General.”3 However, this has not yet been tested in practice.

As this is the first article in my introduction to the Executive branch of the Australian government, I felt that it would be necessary to address the relationship between the Crown, Governor-General, and Prime Minister, even though the debate about who is really the head of state hasn’t been fully settled yet. It is also important to remember the weight attached to constitutional conventions, and that these are rarely broken. The dismissal of Gough Whitlam will be revisited shortly after the end of the introduction to the three branches of the government. In the next two articles, I will look at what ‘the Crown’ means and the role that the Governor-General plays in the Australian government, before returning to the Prime Minister and the Federal Executive Council.

References:

  1. Williams, G, Brennan, S & Lynch, A 2018, Blackshield and Williams Australian Constitutional Law and Theory – Commentary and Materials, 7th edn, The Federation Press, Alexandria, NSW, p. 436.
  2. Ibid.
  3. Ibid.
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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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