The death of the Queen and Morrison’s multiple ministries should have, but have not, made us question precisely what is the role of the monarchy and the Governor-General in the Australian polity.
The black-dress, black-tie and hushed-tone telecasts; the multi-page special newspaper wrap arounds; and the on-the ground displays of gold braid, medals and mo(u)rning coats, have clouded the essential questions: What do they do? What are they supposed to do?
The less the Queen did politically, the more she was admired. The more Charles projected himself as a climate-concerned conservationist the more dangerous he seemed to present himself to traditional monarchists. Yet, scratch a monarchist and they will argue without any evidence that somehow the Crown can protect the people if democracy goes off the rails.
In Australia, the role of the unelected Governor-General has now come full circle. Since the unelected Governor-General dismissed the Labor Prime Minister in 1975, the post has been reviled by Labor and the left, and lauded by the conservatives as some kind of deity that could protect Australia from, in their eyes, a dangerous (even if elected) socialist and economic vandal, such as Gough Whitlam.
So, come the time that a conservative Prime Minister does a massive power grab by appointing himself to half a dozen ministries to which others have already been appointed, what does Labor do? It blindly says that, no matter what, the Governor-General should follow the advice (read direction) of the Prime Minister of the day. And the conservatives agreed. The 1975 history forbad Labor from invoking the vice-regal deity and suggesting that the Governor-General should have prevented the Morrison power grab.
If the Governor-General is to blindly follow whatever the Prime Minister says, why bother with a Governor-General? If, on the other hand, the Governor-General has some power in the polity to not blindly follow that advice (read direction) how dangerous and undemocratic is it to have an unelected, unaccountable official wielding that power. Either way, we would be better off without the position of Governor-General.
We must go to the fundamental questions: what do monarchs and governors-general do? In Australia, we should for the moment put the monarchy aside and drill down on the Governor-General.
Essentially there are only three things within the polity that a Governor-General does: call elections; call on someone to form a government or remove a government; and sign bills into law.
Let’s take them one by one and show how they can be removed.
Usually the Prime Minister advises (in fact directs) the Governor-General to call an election. But at least on one occasion the Governor-General, Sir Ninian Stephen, did not immediately take the direction, instead demanding (in 1983) that Prime Minister Malcolm Fraser give him more detail as to whether the conditions for a double dissolution had been met.
The delay changed Australian history. In the time it took Fraser to get the details, Labor had changed leaders from Bill Hayden to Bob Hawke.
The way to remove this discretion would be to fix election dates. In the ACT elections are held on the third Saturday in October every four years.
The federal electoral law provides that federal elections must be on a Saturday, why not make it, say, the first Saturday in December every three years. It could be done with legislation and then latter enshrined in the Constitution, when its obvious benefits have been demonstrated as they have been in the ACT for 34 years.
The second role is calling on someone to form a government (or be Prime Minister) after an election or remove a government during its term. The former has been uncontentious for nearly all of Australia’s history, because one or other party nearly always gets a majority. But those days look like ending soon, with the possibility of no clear winners. That would give the unelected Governor-General a discretionary role.
The way to remove it is to look again at the ACT which has no equivalent to the Governor-General or the states’ governors.
In the ACT the parliament meets after the election and the first two items of business must be the election of a Speaker and a Chief Minister. In short, the people’s representatives chose the Prime Minister not some unelected person whose power derives ultimately from the divine right of kings.
The ACT has had minority governments for nearly all of the 34 years of self-government, and the process has worked seamlessly. If a Chief Minister resigns or the parliament votes against them, the next order of business must be to elect a new Chief Minister.
Only the elected parliament can remove a prime minister.
As to signing bills into law, it can be done by the Prime Minister. It is done by the Chief Minister in the ACT. Even if the Chief Minister is in minority and the parliament passes a law opposed by the Government, the Chief Minister would still sign it into law. Not to do so would invite a no-confidence motion.
Once the discretionary role of Governor-General in the polity is removed and handed to the elected parliament, the ceremonial role becomes meaningless.
A lot of this can be done by legislation. As an initial step, the present Government would get enough support to legislate for at least some form of parliamentary ratification of the Prime Minister’s choice for Governor-General, clearing the way for the removal of the English monarchy from the apex of our constitutional arrangements.
But with the present onslaught of pomp and ceremony it might take several years for people to come to their senses so that Australia can join the ranks of the other 42 republics in the 56-member Commonwealth of Nations.
With Queen Elizabeth II’s passing, the Bahamas Prime Minister has announced that his nation will have a referendum to become a republic. And Jamaica looks like following soon after. It would not be a good look if the only Commonwealth nations left as monarchies were the majority-white ones: Canada, Australia and New Zealand.
This article first appeared in The Canberra Times and other Australian media on 20 September 2022 and regular columnist.
Crispin Hull BA, LLB (Hons) | Property Convenor | ANU School of Legal Practice Lawyer of the Supreme Court of the ACT, on the Register of Practitioners kept by the High Court of Australia
