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 PART II: ‘GUARDIANS OF GOOD GOVERNANCE’: THE POWERS AND DUTIES OF THE VICE-REGAL OFFICE

 WHO IS THE WEST AUSTRALIAN GOVERNOR?

The Governor of Western Australia is our emblematic Head of State. This means that while the Monarch of the United Kingdom (currently Her Majesty Queen Elizabeth II) is our official Head of State, the Governor acts on behalf of the Sovereign in his or her absence. When the Monarch is personally in the State he or she has all the rights and powers attributed to the Governor.[16] The Governor’s role is thus referred to as a ‘Vice-Regal’ position. This term will be used throughout this paper with reference to the Governor. As well as being our Head of State in Western Australia, the Governor is also the chief of the Executive branch of government (the government which implements, oversees and administers the law passed by the legislature).

 The Governor is appointed by the Sovereign on the advice of the Premier. The dismissal of the Governor by the Sovereign is also on the advice of the Premier. The Australia Acts 1986 altered the relationship between Australia and Britain, which in turn affected the role of the Governor. British control over the Governor has now disappeared, as the Governor acts on the advice of the Premier and Western Australian Ministers, rather than paying heed to the British Government. In short, the right of the British Parliament to look over, veto or manipulate the actions of the Governor have been relinquished.[17] However, this will be covered in greater detail at a later stage. This system of appointing the Governor, which is derived from the British system, differs from, for example, the United States, where every four years a new Head of State is directly, and popularly elected. However if this were the case in Australia, one perspective may suggest that the apolitical quality, which is so central to the role, would be undermined, as the Governor would become involved in party politics.

 The First Lieutenant Governor of the colony of Western Australia was Captain Sir James Stirling, RN., who held office between the years of 1828-1838. However, Stirling’s role as Governor was quite different from the one which is performed today, primarily because of key political developments since the advent of the office. Such developments which have altered the nuances of the office from the earlier to the more contemporary Governor include the adoption of the principles of responsible government in Western Australia, the Australia Acts 1986 and the emergent debate surrounding Australia’s republican status. Clearly the evolving relationship between Britain and Australia also impinges upon the Governor’s role. Each of the aforementioned significant points in time will be awarded some considerable attention in this paper.

 It is important to recognise in any discussion of the role of the Governor, that the Vice-Regal office is unlike other notable State political positions to the extent that the Governor is not limited to performing merely political tasks. While the formal, or constitutional ‘royal prerogatives’ (the duties carried out by the Governor in place of the Monarch) are undisputedly central to the Governor’s role, it is significantly important to understand that the Governor’s office is also responsible for carrying out many key ceremonial or civic tasks on behalf of the State. The contemporary Governor performs a great many duties other than formal political responsibilities.

 WHAT AND WHERE ARE THE POWERS OF THE GOVERNOR?

The powers of the Governor are set out in the Constitution Act 1889 and the Letters Patent. The term Letters Patent means any document, or ‘constitutional letter’ affixed with the Royal emblem but not sealed. In South Australia, Tasmania, Western Australia and Victoria such documents were issued to endorse and to specify the powers of the Governor, and remain fundamental aspects of the State constitutional framework[18]. The first set of Letters Patent with regard to the Western Australian Governor was issued in 1890. This document also contained provisions relating to the appointment of Executive Council. More recently a set of Letters Patent was issued following the Australia Acts as the nature of the Governor’s office was altered in light of the severance of existing British ties. The relevant provisions relating to the role of the Governor are:

o       (Section II) There shall be a Governor of the State of Western Australia who shall be our representative in the State.

o       (Section III) The Governor shall have and may exercise all the powers and functions which belong to the office of Governor… including the power to constitute and appoint such Ministers, Judges, Magistrates, Justices of the Peace… as may be lawfully constituted or appointed by Us.

o       (Section VIII) The Governor shall preside at meetings of the Executive Council  (WA, Government Gazette, [28/02/1986]: 684). [19]

 FORMAL POWERS

The most outstanding official powers of the Governor, which were set out in the Constitution Act 1889, are:

The power to appoint Ministers, (including the Premier), Justices of the Peace, Judges and Magistrates. The appointment of most senior public service officials calls for the consent of the Governor in Council. (‘In Council’ refers to the Governor and Executive Council)

o        Fixing the place and time for the sitting of both houses of State Parliament (the Legislative Council and the Legislative Assembly)

o        When necessary, dissolving the Legislative Assembly (for instance when there is a stalemate in the political system)

o        Issuing written orders (called ‘writs’) for general elections

o        The Proroguing of the Upper and Lower Houses of Parliament (this means adjourning, or suspending parliament, usually on the advice of the Premier. Bills or motions in progress at the time of prorogation lapse, and standing parliamentary committees are not permitted to meet)[20]  

o        Overseeing, or chairing Executive Council (‘Governor in Council’)

o        Proclaiming regulations needed to make Acts of Parliament operative (nothing can become law in the State without what is termed ‘Royal Assent’, i.e. the Governor’s signature).

o        Signing treasury authorities for money used for the day-to-day running of the State (‘supply’). Moreover, the Governor must advise the Legislative Assembly (The lower house of the Western Australian Parliament) before any bill is passed regarding spending of taxpayers money.[21]  (The fact that each and every money bill which passes through Parliament requires endorsement from the Governor and parliament is another example of checks and balances within the Western Australian system)[22]

 These are the official powers and political responsibilities held by the office of the Governor. They include both the duties of the Governor ‘in Council’ and the ‘Royal Prerogatives’, the practices carried out by the Governor on behalf of the Queen, without the advice of the Executive Ministers. As was asserted earlier, however, the Governor’s powers are not at all limited to carrying out the political component of the office. Essentially, the Governor’s duties and powers can be divided in to three groups; political or constitutional responsibilities, formal ceremonial duties, and social or informal duties[23] carried out on behalf of the State.

 CIVIC AND CEREMONIAL DUTIES OF THE GOVERNOR

The role of the Governor incorporates everything from being Chief Executive Officer and Head of State, to awarding medals to Girl Guides and speaking at regional primary schools. Some of the most prominent community roles in which the Governor is involved include

o        Acting as the patron of around 200 charity organisations Statewide

o        Visiting communities and meeting people throughout Western Australia to provide a forum for discussion on matters relating to the State;

o         Extending a welcome to visiting dignitaries and other official visitors on behalf of the State;

o        Taking an active involvement in public events;

o        Opening of State Parliament at the beginning of sitting, and

o        Involvement in the selection process of candidates for Australian Honours.

 Thus it can be seen that there is much more to the Governor’s office than the political aspects. Unlike other State political roles, the Governor’s office is unique in as much as it blends politics with a myriad of other ceremonial and civic duties. However it is precisely the emphasis on the community-oriented aspects of the Governor’s position that provokes the assumption that the Governor’s position is ‘emblematic’ or symbolic, rather than being an important political figure. Later in this paper such popular allegations will be discussed and challenged.

 In terms of exercising the powers given to the Vice-Regal office, the Governor is bound by constitutional convention to act upon the advice of the Ministers, and the most senior Minister, the State Premier. The Governor, other than in ‘exceptional circumstances’ will act in accordance with the government chosen by the people. This, at least in part, relates to the fact that the government is elected, and thus its power is legitimated by popular support, whereas the Governor is appointed, thus lacking such democratic legitimacy. Having said that, however, the Governor (and the Governor General) is endowed with what are known as ‘Reserve Powers’. This means that the Head of State is authorised to make decisions without (or even contrary to) the advice of Ministers.

 THE RESERVE POWERS OF THE GOVERNOR

There are many constitutional conventions and practices which ensure that the great deal of power vested in the Governor is exercised according to the will of the elected representatives in Parliament[24]. Despite not being stated formally in the Constitution, the Governor is compelled by convention to act on the advice of the Premier and Ministers, and must act always in an entirely ‘apolitical’ way (in other words not swayed by political convictions or party politics). The only exception to this practice is if the Governor uses the ‘Reserve Powers’.

 In extraordinary circumstances, however, the Governor may exercise his or her right to act independently of the advice of the Executive Council, the Premier or any other Minister in order to resolve an impasse, conflict or other crisis in the democratic system. The exercise of the Reserve Powers is a unique aspect of the Vice-Regal offices. The Governor is the only person who holds the power to resolve such a crisis, as the office is not influenced (i.e. biased) by party politics, as well as being the political figure who maintains and facilitates the smooth operation of the democratic system.

 It must be emphasised that the Reserve Powers which are entrusted to the Vice-Regal position are not taken lightly, nor are they exercised arbitrarily. Moreover, the Governor must not use the Reserve Powers to ‘ambush’ the Premier or Government (using the Reserve Powers without due warning of an intention to do so).[25] The uses of the Reserve Powers are fiercely guarded by constitutional convention, and would only be employed as an absolute last resort during a time of, for example, political confusion, turmoil, or in the event of a political stalemate. The reasons why such powers are not used at the drop of a hat are because they can have profound effects upon the political system. The ability of the Reserve Powers to bring down a government and thus manifestly alter the political climate can be seen in Governor-General Kerr’s dismissal of the Whitlam Labor Government in 1975. This chapter in Australia’s political history is one of only two occasions where the Reserve Powers have been used. The other occasion was when Governor Game of New South Wales dismissed Premier Jack Lang in 1932, on the grounds that he had acted unlawfully.

 Some of the situations which may legitimate the implementation of the Reserve Powers include:

o        If the government of the day does not resign or advise a dissolution (an order to terminate the tenure of the government, and to necessitate an election) even when it cannot secure Supply (the money necessary for the running of the State). This was the case when the Whitlam Government was dismissed during the 1975 ‘constitutional crisis’.

o        If a dissolution was not advised or requested or the government of the day refused to resign despite not having the support of the Legislative Assembly or Lower House. (This is usually expressed in the form of a ‘no confidence motion.’)

o        If a dissolution is the advised course of action, but a replacement government may be possible.

o        If the Premier is deemed to be acting in an unlawful or criminal manner while in office, as was the case in the Lang dismissal in 1932.

 The Reserve Powers of the Governor remain a contentious issue for many, compounded by the fact that there is no constitutional modus operandi in the way in which they are exercised[26]. The questions of the source of this power to act independently of the advice of Ministers, and when it is legitimate to exercise this power within the bounds of responsible government remain difficult to answer. One particular question which has been raised in relation to the Governor’s power to act independently of the advice of Ministers is that, if such power stems from Royal prerogative, then the adoption of the Australia Acts should by definition have abolished the legitimate use of the Reserve Powers. This is the stance taken by former Governor, Sir Francis Burt, who said in 1994 that: “The source of [the Reserve] power, should it exist, must be found within the prerogatives of the Crown, and it is unclear to me how any power of that kind has survived the enactment of the Australia Acts (Cwlth.)”[27].

 APPOINTMENT AND DISMISSAL

Before the Australia Acts were enacted, the State Governors were appointed by the Monarch on the advice of the government of the United Kingdom, and were dismissed in the same fashion. Since the Australia Acts were passed in 1986, the British Government has been entirely removed from the equation and correspondence relating to the Governor in each State takes place between the Premier and the Queen. The Governor is appointed and dismissed by the Monarch on the advice of the Premier. The impact of the Australia Acts upon the role of the contemporary Governor will be explored subsequently. It is nevertheless important at this stage to understand that the existing system of appointment and dismissal of the Governor does not implicate the British Government.   

 By convention, the standard term of a State Governor is five years. However, as Vice-Regal officers are appointed ‘at the Monarch’s pleasure’, Governors may be appointed for unlimited terms, or on the other hand dismissed at any stage if the Premier deems this course of action to be appropriate. However, McGarvie notes in 1993 that no Governor has been dismissed before the end of their prescribed term in 75 years.[28] It is not unreasonable to suggest that there is a link between the fact that Premiers do not flippantly seek the accession of the Monarch to dismiss the Governor and the fact that the Governor has the power to dismiss the Premier. Indeed as both have the power to dismiss the other, this power is not exercised unless ‘entirely justified’[29]. This reciprocal dismissal power is an example of a check and balance in the Australian system of government. 

ADVISE, ENCOURAGE, AND WARN.

 “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”[30]

 One role embedded in the office of the Governor, as the Monarch’s representative is to ‘advise, encourage and to warn’. Despite being a rather elusive and ‘behind closed doors’ matter, so to speak, this section aims to determine how is it possible for the Governor to find an appropriate balance between being, on the one hand, an apolitical figure with limited legislative power and remaining an effective political participant? The role of the Governor to ‘advise encourage and warn’ will be discussed in relation to decisions made ‘in Council’ and the way in which this persuasive power is implemented to influence government policy.

 In an earlier section it was explained that one of the foremost responsibilities of a Governor is to give the ‘Royal Assent’ to Bills before they are passed.  However, unlike, for example, the President of the United States, governors within our system of government are not ‘Executive’ Heads of State. This means that the Governor has the ability to influence policy by way of ‘advising, encouraging and warning’, but cannot wield unaccounted for or independent Executive power. As has been pointed out earlier, unless exceptional circumstances arise, the Governor’s office is carried out in accordance with the will of other political participants (namely Executive Council). When the Governor is said to make a decision ‘in Council’, this means that rather than making single-handed political decisions, the matter has been brought before the Governor and Cabinet. To take an example, the contents of proposed legislation will be explained to the Governor, following which he or she may advise amendments, further question the contents, or counsel against the Bill. Thus the Governor is able to make recommendations regarding legislation, and influence proposed legislation but cannot make outright decisions, as the office does not hold such Executive power.  In this way the Governor exercises his or her power over government legislation and remains a strong and influential political figure while still remaining within the apolitical confines and framework of responsible government.

 THE GOVERNOR AS AN APOLITICAL FIGURE

 As one of the roles of the Governor is to act as the figurehead of the democratic State, it is necessary for the office to exist independently of party politics. Otherwise, the Governor as Head of State may be regarded as favouring certain groups and policies at the expense of others. To do so would clearly not, as the Constitutional Centenary Foundation assert, be in keeping with the notion that the Head of State represents, and acts on behalf of the entire State[31].

 To ensure that the office of the Governor is removed from party politics, the Governor is appointed rather than elected. There are some distinct advantages in appointing rather than electing Governors in the Westminster system. Chiefly, if the Governor was an elected political officer, then it is clear that he or she would be regarded as having a mandate, and would owe political allegiance to a political party[32]. This would undermine one of the foremost characteristics of the Vice-Regal office, to remain apolitical in office. This means that the Governor is unbiased and is not pressured by political persuasion or ‘party politics’ in making decisions and carrying out his or her office. Considering the political duties and responsibilities carried out by the Governor which have been discussed in this paper, and that the Head of State is expected to act on behalf of the entire State, it is clearly far more suitable, to have the office above or detached from party politics.

If he or she were elected in a fashion similar to other government Ministers, party politics could foreseeably infringe on the office, potentially disrupting the balance of the current system. Ss well as upholding the main tenets of responsible government, the apolitical appointment of the Head of State may be seen as somewhat reducing the likelihood of conflict within the State political system. If elected, the Governor would share the same democratic legitimacy as the Premier and other parliamentarians, increasing the possibility for complications to arise. Consider for example a situation where there was disagreement between the Premier and the elected Governor, and who would be required to resolve this dispute, or any other crisis or political impasse. It is here that the Reserve Powers hold their significance. It seems clear that the question of whether to appoint a Head of State by popular election in the event of becoming a republic is one which needs to be very carefully assessed.

 While it is not necessarily the case among the other States, it is striking to note the incidence of military officers, distinguished members of the community and former members of the judiciary appointed to the role of Governor in Western Australia. On the other hand, there is clearly not a tendency to appoint retired or former politicians to the office, as it is regarded as being more appropriate to appoint a Governor who is politically non-identified, so that the office of the Governor can be conducted without political bias. While it is true to say that it is not a uniform trend among all the Australian States, senior military officers and retired members of the judiciary have historically been a popular choice for the post of Governor in Western Australia.  This is due to the fact that they are distinguished, eminent members of society, but markedly without any strong political ties, which could potentially jeopardise the position.

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[16] COG (Commission on Government [Western Australia]) ‘Discussion Paper #15’ (Perth: 1995), p14.

[17] Jolly Read (Ed), ‘Dynamics of Government’ (published by the Constitutional Centre of Western Australia, Perth: 2000), p18.

[18] Letters Patent from ‘Founding Documents: Western Australia’ www.foundingdocs.gov.au/places/wa/wa9.htm (accessed 10/08/2002), p1.

[19] COG ‘Report No. 5’, p39.

[20] Martin ‘The Western Australian Constitution’ (Perth: CCWA), p7.

[21] For a comprehensive description of the constitutional power of the Governor, see: Jolly Read (Ed), The Dynamics of Government (pp.18/19.)

[22] Marchant ‘The Westminster Tradition in Australia’, p127.

[23] State Government from: ‘Parliaments at a Glance’ Parliament@work. From: www.parliament.curriculum.edu.au/wa.php3. (accessed 8/07/02), p2.

[24] Richard McGarvie AC ‘Governorship in Australia Today: The Role and Function of the Governor in a Parliamentary Democracy’ from www.chilli.net.au/~mcgarvie/governorship.html (accessed 15/09/2002).

[25] McGarvie ‘Governorship in Australia Today’, p9.

[26] COG ‘Report No. 5’, p40.

[27] COG ‘Report No. 5’, p40.

[28] McGarvie ‘Governorship in Australia Today’ p3.

[29] McGarvie ‘Governorship in Australia Today’ p5.

[30] Sir Walter Campbell ‘Comments on the Role of a State Governor’ www.monarchist.org.au/camp2.htm (accessed 12/10/2002) p1.

[31] ‘The Role of the Head of State’ (A fact-sheet of The Constitutional Centenary Foundation) www.centenary.org.au/fact_sheet/head_of_state/fact_202_2.html (accessed 15/09/2002), p9.

 [32] McGarvie ‘Governorship in Australia Today’, p3.