PART III: FROM STIRLING TO SANDERSON. HOW HAS GOVERNORSHIP EVOLVED?
THE FORMATIVE YEARS OF THE SWAN RIVER COLONY
Although the British Colonial office oversaw the early Governors, it is imperative to note that they were the supreme authority within the colony, and clearly wielded far more formal political power than today. The Governor’s were also primarily responsible to the British Government, and not the colonies which they were appointed to Govern. Governor Stirling took office as the Lieutenant Governor of the colony of Western Australia following a letter from the Colonial Office dated 30 December, 1828. (His commission as Commander-in-chief of the colony and Governor was not forthcoming until 4 March, 1831). One of the foremost duties of the newly appointed Lieutenant Governor was the establishment of the Executive and Legislative Councils. Both consisted of the same members, or Crown nominees, presided over by the Governor. The Executive Council was established under Stirling’s commission, and sat for the first time on the 6 February, 1832. The Legislative Council was established by a British Order-in-Council in order to make “all necessary laws and to constitute all necessary courts for the peace, order and good government of the settlement”. In spite of the establishment of such legislative bodies, the members of the Executive and Legislative Councils proved ineffective in terms of scrutinising and giving due consideration to legislation, as they routinely obeyed the will of the authoritative Head of State. In fact. the only imposed restraint upon the otherwise boundless authority of the Governor was the Colonial Secretary of State in London. A quote by De Garis in Stannage A New History of Western Australia crystallises the early role of the early colonial Governor:
“For… forty years Western Australia was a crown colony ruled by Governors who were primarily responsible to the British Government…. After the first two-and-a-half years the Governor had to work with and through a small Legislative Council but the members of this body were subject to his authority… The politics of the day therefore revolved around the Governor and his officials rather than around elections, parties or cabinets”.
The political power of the Governor was markedly diminished by the emergence of the Premier following the attainment of self Government in 1890. At this stage the legislative authority of the State was relinquished to the office of the Premier, and the bicameral parliament under responsible government was established. The result was a marked reining in of the power of the Governor, most notably in terms of legislative function which until then had been tremendous within the State.
THE AUSTRALIA ACTS
The Australia Acts are basically two Acts passed by every Parliament within Australia and the Parliament of the United Kingdom in 1986, which severed the constitutional and political ‘apron-strings’, or the influence which was exercised over Australia by Britain. The precise definition or ‘title’ of the Australia Acts is:
“An Act to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation”. (Australia Act 1986 No. 142 of 1985- Long Title).
The Australia Acts are important pieces of legislation in terms of the political relationship between Australia and Britain. They severed the legislative power of the British government in Australia and severed the judicial links of Australia to the Privy Council (making the Australian High Court the highest court in the land). Because the Australia Acts altered the political relationship between Australia and Britain, the role of the Governor was accordingly influenced. Section 7 of the Australia Acts deals with ‘the powers and functions of her Majesty and Governors in respect of States’. As mentioned earlier, the Governor is no longer appointed by the Sovereign on the advice of the British Parliament, but on the advice of the Premier. Thus the Australia Acts formalised the process by which States appoint their own Governors. Moreover, they provided that he or she is no longer required to act upon the advice of, or answer to the Parliament of the United Kingdom. Now the Governor acts on the advice of the Premier and Ministers (unless the Reserve Powers are invoked). The contemporary office is now, in short, a matter for Western Australia and not the United Kingdom. The Australia Acts did not diminish the powers of the Governor. The role of the contemporary Governor has been affected to the extent that he or she are no longer overseen by Britain, but is under the jurisdiction of Western Australian bodies at the pleasure of the British Head of State.
THE REPUBLICAN DEBATE
Primarily, the question which requires attention under this heading is whether the recent push towards a complete severance of ties between Britain threatens the office of the Governor, or whether it is reasonable to assume that the Governor’s role and powers will still be a necessary facet of a republican framework, albeit under a different name. The notion of eradicating ties with Britain in favour of a republican system of government is by no means new. Indeed, John Dunmore Lang first put forward the idea in the 1850s, which soon faded following the granting of self-Government. Notwithstanding this fact, the late 20th century revival of the idea of Australian republicanism will be the central focus of this section.
If Australia becomes a republic, what are the connotations for the Governor’s office? Arguably it might be that if Australia opts to renounce the remaining ties with Britain and elect an Australian Head of State, then the Governor’s role will become obsolete, as there will not be an overarching monarch as the Australian Head of State for the Vice-Regal office to represent. It is reasonable, however, to assume that even a nation with a democratically elected Australian Head of State would swiftly discover the need for an individual to adopt the characteristics of the Governor, and indeed this popular assumption seems to demonstrate a lack of public awareness vis-à-vis the Governor’s role in terms of being, for example, the head of the Executive, and as a political figure who is both tremendously influential and unbiased in character.
There are indeed many implications which would arise as a result of Western Australia’s decision to embrace republicanism, which would in turn impinge on the role of the Governor. Before progressing, however, one must remember that if the Commonwealth made the decision to become a republic there is no certainty that the individual States and territories would also opt for such change. Put another way, the Commonwealth would not be prevented to become a republic even if one, or indeed more States decided to remain committed to the current system of constitutional monarchy. Irrespective of the outcome of the Commonwealth referendum on the republican issue, an independent State referendum would need to be carried out in order to legitimate the conversion of Western Australia to republican status. As Greg Craven asserts, “the real issue, therefore, is whether Western Australia could be obliged to become a republic”.
However, if Western Australia were to vote to become a republic (and the Act of Secession ratified) several key constitutional amendments would need to be made to the Western Australian Constitution Act 1889, the subsequent Amendment Act 1899 and relevant State law. This paper will treat those which are relevant to the issue of the Western Australian Head of State. The Head of State in the ‘republic of Western Australia’ would be comparable to the office of the Governor, and would essentially replace this current position. However, in selecting a Head of State, it is necessary to consider a suitable authority in which to vest the entitlements and prerogatives now exercised by the contemporary Governor. It would be unwise indeed to vest for example the Reserve Powers in a parliamentary official who would potentially be biased by party affiliations. At this stage, the two most viable options for replacing the Governor are; either the Commonwealth Head of State simultaneously acts as Western Australian Head of State, or a Head of State is chosen who independently of the Commonwealth. The latter appears the more workable of the two options in terms of the maintenance of Western Australia’s sovereign status and is closest to the present system which maintains the balance of responsible democratic government.
Arguably the most significant hurdle encountered in looking to reform the Head of State in Western Australia is that of popular election. As has been discussed earlier, the Governor, except in extraordinary circumstances acts on the advice of the Premier and Ministers. The influence which the Ministers exert in relation to the Governor’s office is tied to responsible government, in as much as the Premier and the Ministers are popularly elected, while the Governor is appointed. If a popularly elected republican Head of State were to carry out the current role of the Governor, then public involvement in his or her appointment would undermine the current system of responsible and representative Government now in place, and would increase the likelihood of political volatility, particularly between the Head of the State and the Premier. This is particularly the case considering that it is proposed that the powers of the republican Head of State in Western Australia would mirror those of the current Head of State, the Governor, except rather than relying on constitutional convention, would be formally worked into the State Constitution.
Reliance upon convention which is currently in place would not sufficiently check and rein in the powers of the Head of State. Moreover, if the Head of State was elected by the public it would seem, in the author’s opinion, that by not formally documenting his or her powers could be politically catastrophic.
During a recent conference looking at the issue of republicanism within the Australian States and territories, a majority held that the most appropriate model of republicanism was deemed to be one in which:
o A position similar to that of the Governor should be retained, along with the title
o The powers of the Governor should not be changed
o The Governor should be appointed by a two-thirds majority of both Houses of State Parliament
o Removal of the Governor should be the prerogative of the Premier, subject to the support (two-thirds majority) of the Lower House (failure of which means a vote of no confidence).
It is reasonable to conclude that in the event of Western Australia becoming a republic the Governor’s role as Western Australia’s Head of State would change in name only. The republican Head of State would exercise the same powers and have the same responsibilities as the Governor under the current system of Government, however all mention of the Queen and her representative the Governor would be deleted from the State Constitution. Even if the role was carried out under a different title, it is naïve to assume that the powers of the contemporary Governor would cease to be important in a republican framework.
DeGaris in Stannage (ed.) ‘A New History of Western Australia’ (Perth: UWA Press, 1981), p298.