Sack the Governor-General

From Sydney Morning Herald (I’m sure they won’t mind)

The strict political neutrality of Australia’s Governor-General is a crucially important democratic principle, but one whose mention usually elicits a combination of boredom and baffled incomprehension from most people. 

It’s an important principle because, although the Governor-General is appointed rather than elected (and therefore not accountable to the people in any meaningful sense), our Constitution on its face seems to vest just about all political executive power in the Governor-General.  Indeed the Prime Minister and Cabinet are not even mentioned in the Constitution!  The Governor-General’s almost purely ceremonial role is “secured” by unwritten conventions requiring her to act only on the “advice” of her Ministers except in a tiny handful of extreme and very rare “reserve powers” situations.

However, because these constitutional conventions are unwritten, they can and do evolve over time.  For example, it wasn’t until well after 1975 that it came to be fairly widely though still not universally accepted that the Governor-General could in some circumstances properly dismiss an elected government which was unable to get a supply bill through the Senate for an extended period of time. 

Since the limits of the Governor-General’s role are largely defined by a set of unwritten rules that evolve over time, any significant moves by a Governor-General to carve out a more prominent and powerful role for herself should at the very least be viewed with profound suspicion.

There have been occasional instances over the last 20 years where Governors-General arguably breached the principle of political neutrality.  For example, various comments about Aboriginal reconciliation and the Stolen Generations by Sir William Deane attracted Coalition ire at the time.  Nothing Deane said actually contradicted official Coalition policy as far as I know, but his remarks certainly ran counter to John Howard’s personal inclinations and his desire to appropriate the Culture Wars to party politics through rhetoric about the “black armband” view and “practical reconciliation”.  Deane’s utterances were at least arguably breaches of strict political neutrality.

So too a 2003 statement by Howard appointee  Major-General Michael Jeffery which appeared to advocate pre-emptive military interventions. Labor at the time had distinct reservations about any such policy, and specifically opposed the Australian intervention in Iraq.  Thus Jeffery’s statement was a fairly clear breach of political neutrality.

However, both these examples pale into insignificance by comparison with the antics of current Governor-General Quentin Bryce since her recent appointment. 

Her announced intention to campaign in favour of Australia’s bid for membership of the UN Security Council on a forthcoming tour of Africa is a blatant breach of neutrality.  The Coalition expressly opposes it, as Julie Bishop repeated this morning and conservative pundits like Janet Albrechtsen are already fulminating.  And with good reason.  What concessions will Australia be forced to make to third world countries, especially in Africa, to secure their support for the Security Council bid?  Will our government see the need to kowtow to third world hatred of Israel, for example? Or vote in favour of UN Resolution 62/154, on “combating defamation of religions”, an extraordinarily Orwellian Islamic-inspired gambit that Christopher Hitchens discusses in today’s Oz? One can certainly see why the Coalition is opposing the bid but, even for those who regard such concerns as fanciful or confected, the central fact remains that the Security Council bid is strongly opposed by one of Australia’s two major political parties. Accordingly, it’s totally improper for the Governor-General to make public pronouncements about it, let alone campaign actively in support of it in meetings with foreign governments. 

Moreover, this is not the only example of Bryce exceeding the accepted boundaries of the Governor-General’s role in her short time in office.  She also recently demanded and received security briefings from the head of the defence forces, Air Chief Marshall, Angus Houston, head of the Department of Foreign Affairs, Michael L’Estrange and the Treasury Secretary, Dr Ken Henry at her official Canberra residence, Yarralumla, not to mention summoning State governors and the NT Administrator for talks.  Keep in mind that the Governor-General has no legitimate decision-making role in relation to any such matters.  She would normally be briefed by Ministers on policy issues, essentially as a matter of courtesy (and through her formal role as titular head of the Executive Council), but as far as I know there is no precedent for the Governor-General receiving her own policy briefings from top public servants and military chiefs.  Moreover, the Governor-General has even less of a role in relation to State Governors.  They are appointed (and dismissed) by the Queen on the advice of their respective State governments, and again are required to act on the advice of those State governments.  What possible purpose could be served by meetings between the Governor-General and State Governors?  It seems as if Bryce is attempting to carve out a role for herself as Australian “uber-governor”, along with a more influential and public role on policy issues.

Presumably Bryce’s actions are being taken with Rudd government approval.  Certainly her contentious diplomatic jaunt through Africa is expressly supported by Foreign Minister Stephen Smith:

“When the Governor-General is travelling in foreign countries, of course from time to time, as appropriate, she will make statements that reflect government policy,” he told ABC TV’s Insiders program.

“Australian government policy is that we want to make a substantial engagement with Africa. We see that as being very importantly in our economic and social and foreign policy interests and we reflect our commitment to multilateralism by running for the Security Council. And she will make that point appropriately when she meets with the African leadership.”

Rudd and Smith would be well advised to keep in mind the events of 1975 in assessing the dangers of colluding with Bryce in creating an over-mighty office of Governor-General. Then again, perhaps it’s a Machiavellian/Ruddite strategy to advance the Republican agenda: once the office of Governor-General is irretrievably politicised most people will more readily see the wisdom of an elected and accountable Republican Head of State.  Of course, the problem with that theory is that it seems very unlikely that Rudd is any keener than any previous Australian Prime Minister to embrace the idea of an elected President.

It’s all very strange. However, one thing’s for sure. If I was the Liberal leader one of my first actions on winning government (still, admittedly, an unlikely event at the next election) would be to visit Ms Bryce at Yarralumla and inform her that I would be advising the Queen to dismiss her unless she resigned immediately.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Ken Lovell
Ken Lovell
12 years ago

Yes it is strange. One assumes she is acting on the advice of the government, and that the relevant department heads and service chiefs get advance approval from their relevant ministers, otherwise they would simply decline to attend. The get-together of state governors is however truly perplexing. Nevertheless I am reluctant to believe anything on the unsupported word of Glenn Milne and hope we might get some better information soon.

I’m not sure that campaigning for a UN Security Council seat is wrong. As head of state a GG may sometimes have to act in connection with government decisions that the opposition finds fault with. For example, if the Liberals were to oppose a formal visit by a foreign head of state should the GG therefore decline to meet and greet? I don’t think so. Similarly if the GG is asked to go on an official visit to (say) Iran as part of a government initiative to improve relations, and this is opposed by the Libs, I don’t believe the GG should refuse to go. Your criticisms here are directed at the government’s decision, not the role of the GG.

Gaby
Gaby(@gaby)
12 years ago

Sorry, Ken, I could not disagree more. Leaving aside whether the UN campaign is good thing, and if the issue is constitutional than the virtue of getting a UNSC seat is not relevant, the GG is doing what the government has advised her to do. What you propose actually turns the system on its head.

Your proposal would give the opposition a veto over the actions of he governor-general. Australia, through the cabinet, has decided to seek the seat. The cabinet has advised the governor-general to implement the decision. I am not aware:

(1) of any constitutional convention by which the opposition can veto advice the government gives the head of state (by way, presumably, of a declaration of contentiousness) or

(2) of any discretion in the office of governor-general by which the governor-general can reject contentious advice at the behest of the opposition.

You are turning the constitution upside down. Governors-general have regularly travelled on state visits since 1974. Governors-general, like the queen, have regularly received briefings from the public service and the armed forces. Hasluck endorsed both practices in his The Office of Governor-General. The meeting of governors is a novelty, but hardly amounts to a threat to the constitution. If the other dangerous Bryce novelties have been followed since Hasluck’s time then they are not actually novelties. All we have is Glenn Milne starting a storm in a teacup and on his record that is not a novelty at all.

I think we should all take a deep breath and have a nice cup of tea and a lie down.

Ken Lovell
Ken Lovell
12 years ago

Ken what about the Iran state visit example? Assume the opposition is actually calling for diplomatic relations to be broken off while the government is determined to improve them – should the GG agree to make a state visit? I would have said clearly “Yes”. In fact I don’t see how she would have any effective choice unless she wants to resign, even if the opposition tries to make it the most bitterly partisan issue in history. The UN case is a fairly close parallel I suggest but on a more modest scale.

Tony Harris
Tony Harris(@tony-harris)
12 years ago

Her appointment was bad news from the start. She appears to belong to a kind of ALP Queensland mafia and she clearly has the kind of progressive left “born to rule” mentality which gives her permission to foist politically correct views on the popualation at large, for their own good of course.

Because the conservative/liberal side of politics is to short of ideas and intellectual capacity it is fortunate that we have people like Ken who are essentially from the other side of politics (I think) but are still capable of a adopting a disinterested stance on matters of principle.

It is characteristic of the times that the term “disinterested” has largely fallen out of use or is assumed to mean “uninterested”.

You lose the word and then you lose the idea.

John Quiggin
John Quiggin
12 years ago

I agree with Alan and Ken L.

Can the GG campaigning for an Australian seat on the Security Council be seen as contentious in terms of domestic politics? Is the Opposition opposed to this goal ? (I’m sure they would secretly like it to fail, but that’s a different matter).

On the bigger question, there may be some incremental politicisation going on, but the choice here was made by Jeffrey and the Howard government. They killed off the idea of neutrality. Now that the precedent has been established, you can’t go back. Bryce hasn’t been anywhere near as partisan as Jeffrey, but the vigour with which she has been targeted from day one makes it clear that she is (correctly) viewed as being aligned with the government that appointed her.

The only long run solution is the general principle that the holders of political offices should be elected to those offices. Rudd may not like the idea, but I imagine he realises its inevitability.

Gaby
Gaby(@gaby)
12 years ago

To quote Hasluck:

I would also ask occasionally for the permanent head of one of the departments to call but, in protection of the public servant, would inform his Minister beforehand both of my wish to see his permanent head and the reason for doing so. As I saw it the function of the public servant was only to give information to the Governor-General and not to proffer advice except perhaps on matters of procedure or practicability. For example on several occasions, with the prior agreement of the Attorney-General, I received much valuable assistance from the Secretary of the Attorney-General’s Department. He did not advise me what to do but examined what I proposed to do and made comments on the way in which it could be done, or perhaps suggested changes in the text of a draft document or indicated points on which I might need further advice. He never presumed to be my adviser and knew that I left the way open for him to take up any further points with the Attorney-General. I believe a Governor-General has to be very careful to maintain the position of his Ministers as his advisers in the strict sense of the term. The public servants can help him a great deal in his examination of the advice given to him but should not themselves be allowed to advise. If they have any doubts or disputation about the advice given they should settle that with their own Ministers.

I wold not swear to it but I think as ancient a source as Bagehot wrote that the sovereign has the right to kept informed of all public business because otherwise the right to be consulted, to encourage and to warn are meaningless. Certainly that’s always been the operating principle in Australian government,

The answer to your state visits question is a touch more complex. The constitution does not distinguish contentious policies from other policies or contentious diplomatic visits from other diplomatic visits. A constitution that authorised the governor-general make those distinctions would transfer the control of foreign relations from the government to the governor-general.

A minister always goes along to handle any government-to-government issues. The host governments are not suddenly going to imagine that Bryce is about to pull a Hindenburg.

Gaby
Gaby(@gaby)
12 years ago

Explain what you mean by ‘at least to a limited extent’.

You are deliberately fudging the meaning of contentious. The only way for the governor-general to be above politics is for the governor-general not to distinguish advice according to whether it is contentious or non-contentious. Indeed the governor-general is not to distinguish device at all except, possibly, according to its lawfulness.

Getting really, really antique here (and may you burn in hell for all eternity for making me defend monarchy) it is ministers, not the governor-general who are responsible for the advice to the governor-general. As Sr Ninian Stephen said:

In Britain itself the position of the Crown by the end of the 19th century was described by Alpheus Todd, writing in 1894, as follows:

“it is in the highest degree unwarrantable to assume that any exception exists to the operation of the constitutional rule that requires that the Ministers of the Crown should be held responsible for the performance, by the Sovereign, of all acts of state”.>/blockquote>

It was bad enough when you were trying to make the governor-general an independent judge of the advice given to her. Now you’re trying to make her directly responsible for her acts of state. And that, Ken, is in the highest degree unwarrantable.

I thought I had answered your examples by stating the general principle. I say it would have been proper (that is not the same as wise) for Howard to use the governor-general to lobby foreign governments. It would have been improper for Jeffrey to reject the advice of his prime minister. It would be proper (still not the sae as wise) for Rudd to advise Bruce to go lobby on carbon issues or on the pressing need to revert to the Julian calendar. It would be improper for Bryce to reject the advice of her prime minister. The wisdom or filly of Howard’s and Rudd’s advice would be a matter for parliament, not the governor-general. Keeping the office above politics (not just contentious politics) is the duty of the prime minister not the governor-general.

I did not state my question to you as clearly as I could. What is your authority for the proposition that the constitution distinguishes contentious and non-contentious advice?

I say contentiousness is not an exception to the rule that ministers answer for the performance by the governor-general of all acts of state. Anything else would strike directly at responsible government by making an appointed official who does not answer to the parliament an independent organ of state.

Gaby
Gaby(@gaby)
12 years ago

Ken could you clean up my blockquoting? The ebarrassing typos can speak for themselves.

Ken Lovell
Ken Lovell
12 years ago

Ken my response is that it would be neither proper nor sensible but the blame would rest with the prime minister, not with the governor general. However I don’t accept that asking the GG to lobby for a particular outcome in a narrowly defined short-term discussion is in the same category as asking her to lobby for Australia’s representation in an international forum. I’m open to argument on the matter but as Alan suggests it seems a typical News Ltd outrage du jour.

John Quiggin
John Quiggin
12 years ago

Google finds this from Turnbull

LO: Lets talk abut this trip, two reasons he is going. One – to lobby for Australia to become a member of the UN Security Council? Is that a good thing? Would you like to see that?

MT: Well it depends at what price it comes. If it costs an enormous amount of money – and that is every indication that it is going to do that in terms of setting up embassies in countries that our national interest would suggest we don’t need to. If it comes at a very high price, that’s a question. And also it depends what concessions we’ve got to make in order to get on to the Security Council. Because it would only be a temporary seat. There’s only a handful of permanent members of the security council, so it’s a question – would it be better for Australia to be on the Security Council than not? Yes, but at what price and that is the question.

Emphasis added.

Geoff Honnor
Geoff Honnor(@geoff-honnor)
12 years ago

Good post. Strictly, the GG has no role outside Australia at all. She is the Sovereign’s Vicereine in Australia. Outside Australia, the Australian Sovereign is sovereign.

In practice, the GG’s of NZ, Canada and especially Australia have increasingly become “virtual Head of States” in the last 20 years when o’seas GG representation has become standard, but as far as I’m aware, no-one has ever asked us whether we’re OK with this. I found Bill Deane’s theatrical sobbing (albeit he possibly had a lot to sob about given his lucrative career at the Bar defending creative accountancy) on my behalf in Switzerland as irritating as Zelman’s Cowen’s weird and slightly unsettling aspiration to “reflect me back to myself” wherever he was. Michael Jeffrey when Governor of WA thought it appropriate to emote about the iniquities of the Sydney Gay and Lesbian Mardi Gras, his experience of which was presumably confined to commanding the SAS.

IMO, the late Princess of Wales has a great deal to answer for in flicking the switch to permanent public life soap opera.

The Australian HofS as far as I’m concerned should exercise her warning and persuasive powers in domestic Ministerial contexts only. I do not want her lobbying any o’seas government with the overt aim of securing Australian government partisan political advantage, on my behalf.

She is unelected and unaccountable and I do not require, nor do I agree, that she should act as though she were.

In our system it’s the people’s representatives in parliament assembled who exercise power and I would prefer that it remain so.

Further, I do not require that s/he should become continually tearful particularly when it involves choral renditions of “I still call Australia Home” or appalling interpretations of Cohen’s “Hallelujah.”

We will inevitably become a republic when QEII passes and a good thing too.
In the meantime Ms Bryce should do the honourable thing and model her behaviour on the Queen’s example. If Ms Bryce finds this too constraining given her demonstrated propensity for mawkish sentimentality, haute couture and political advocacy she should step aside.

I acknowledge that the Queen is a rather dour and correct elderly lady with a resolutely stiff upper lip and a propensity for shooting game but them’s the breaks. I live in hope that the first Australian Head of State might be similarly endowed but I’m bound to be disappointed for it will almost certainly be Bert Newton and his toupe, Ms Bryce having gone on to head whatever division of the UN it is that requires soignee, a slim elegance and the sort of captivating “catch in the throat” signature note that no national ceremony should be without.

Gaby
Gaby(@gaby)
12 years ago

Ken

If you are going to tell me I am misusing a word than you need to show how. Craven is clearly addressing speeches and comments by the governor-general in her own right, rather than on the advice of the government. His article is relevant to the controversies about Dean and Jeffery, not the present governor-general.

You still have not established or even addressed why and how contentiousness somehow carves out an exception to the principe that it is ministers, not the governor-general who are responsible for the performance of acts of state by the governor-general.

Geoff,

There was once an idea that governors-general should stay home. In reality governors-general have been out and about since Hasluck’s time and the idea there is no external role for governors-general is about as current as the indivisibility of the crown. Governors-general do for their own countries what Elizabeth II does for Britain.

John Quiggin
John Quiggin
12 years ago

Ken, it’s now an established convention that the GG can comment on matters of direct political contention in Australia, including matters that are the subject of active political debate between the parties. As your post shows, the last three GGs have all done so, with Jeffreys the clearest example. At no time has there been significant criticism of this, except from those who disagree with the substantive political position being put forward. The people who complained about Deane rallied to the defence of Jeffrey, and most of Jeffrey’s critics have been silent or favorable wrt Bryce.

In this context, it seems a bit precious to complain about marginal issues like the subject of this post, especially since, as Geoff says, the same sort of thing has been done for at least 20 years.

In practice, the current attacks on Bryce merely serve to cement the new convention that the GG is the political representative of the party that appointed them, and therefore a legitimate target for political attack. The GG should expect to be attacked by the opposing side of politics and hope to be defended by their own side.

Gaby
Gaby(@gaby)
12 years ago

This is getting silly. The Interpreter Ma href=”http://www.lowyinterpreter.org/post/2009/03/The-bizarre-contortions-of-Quentin-Bryce’s-critics.aspx”>captured the reality of the situation a lot better than I can.

In a world of nation-states, heads of state are, well, heads of states. They represent their people to themselves and to the wider world and generally perform their state duties with dignity, warmth and style. At home, they should be gracious hosts to other heads of state and government, and courteous visitors when they themselves travel abroad.

Could there possibly be a country where the politics of a major party, or gaggle of pundits, could become so bizarrely contorted as to attack their head of state for representing the national interest when s/he travels abroad? Not for nothing is Australia sometimes referred to as Oz.

No-one in Australia or anywhere else is in danger of believing that Bryce speaks with some special vicegeral authority or that she represents anything except the government’s view of the national interest. Craven’s point draws more from his historically erratic views of institutions than the consensus of the constitution.

It is perfectly true that there are circumstances where governors-general have the right to reject advice. No-one in this thread has contested that so it is not immediately clear why you seek to establish it. What you need to show is some authority for the proposition that making a state visit is an example of advice that should be rejected.

With the greatest possible respect, Ken, you are arguing an exception to the principle of ministerial responsibility. Whenever anyone asks you to show some relevant authority for your contentiousness exception to ministerial responsibility you produce something that is either not relevant or not an authority.

jimparker
jimparker(@jimparker)
12 years ago

Y’all going about this issue the wrong way.

How much does it cost to own and operate a GG and their support infrastructure these days? I’m guessing at least five million annually in payroll and basic operating costs.

Now imagine that money invested instead in Australia’s digital screen industry. We’d get a state of the art CGI head of state, running off a basic ribbon snipping and award-presenting template and easily empathetically and physically customised for different audiences. And to satisfy the traditionalists there can be a public yearly ceremony of handing over the new quantum encrypted GG programing codes to QE2, Chuck 3, the IMF, Google, Emdenol and other planetary overlords.

rog
rog
12 years ago

I think that when she was appointed the GG clearly described her function as both an upholder of the traditions of the office and as a “quiet activist.”

John Duval
John Duval
10 years ago

Ken Parish wrote:

“The Governor-General’s almost purely ceremonial role is “secured” by unwritten conventions requiring her to act only on the “advice” of her Ministers except in a tiny handful of extreme and very rare “reserve powers” situations.

However, because these constitutional conventions are unwritten, they can and do evolve over time. For example, it wasn’t until well after 1975 that it came to be fairly widely though still not universally accepted that the Governor-General could in some circumstances properly dismiss an elected government which was unable to get a supply bill through the Senate for an extended period of time.”

What a load of garbage.

Sections 57 and 58 of the Constitution state unequivocally that the GG can dissolve parliament in the event of an impasse in the Senate (57) and can veto any bill which is passed through both houses (58);

So you don’t know what you are talking about. Either that of you are embarking on a misinformation campaign in order to water down the power of the GG in the minds of those who oppose you.

Nice try, but won’t work with people who can read (the Constitution).