PART I: WHERE DOES THE GOVERNOR FIT?
THE GOVERNMENTAL-CONSTITUTIONAL FRAMEWORK
First and foremost, what system of government do we have? Currently Australia (and therefore Western Australia) is a constitutional monarchy. Australia’s political system operates under the Westminster System inherited from Britain. The Westminster system fuses a monarchic and a parliamentary system. Our Head of State (at the time of writing) is Her Majesty Queen Elizabeth II, who is represented by the Governor-General of Australia. In the absence of the sovereign (i.e. on a day-to-day basis) the Governor-General fulfils the role of Australian Head of State. Western Australia, like other Australian States, is similarly a constitutional monarchy, as the Queen is the formal Head of State and the Governor acts on her behalf in her absence.
In short, at a State level, the Governor represents the formal Head of State. In a parochial way this, as in the case of the Governor General, involves carrying out all the powers and responsibilities of the Queen relating to the functioning of the State in the absence of the Queen. As the Westminster system combines a monarchic and parliamentary system, States also have their own Parliaments, courts and constitutional laws and practices. The Australian Federal-State relationship was crystallised by Lieutenant General Sanderson when he told the author, “my relationship with the Governor General is the same as it ever was, in that I do not have a relationship with the Governor General.” To this extent, Australian States can be seen essentially as ‘quasi-republics’, with divided power, within the Federal system.
THE STATE CONSTITUTION
There is no single constitutional document, or State ‘rule book’ to speak of. Western Australia does not, unlike Victoria and New South Wales, have a specific ‘State Constitution’ which resembles the Commonwealth document. Despite this there is nothing which acts as a higher law within the State, defining governmental power and the structure of the State political system. It simply means that Western Australia’s constitutional law is less straightforward, being derived from a number, rather than a single document. The two primary pieces of legislation or Acts, upon which the State relies, are the Constitution Act 1889, and the subsequent Constitution Acts Amendment Act 1899.
In addition to these the State constitutional law also relies upon documents such as
o The Commonwealth of Australia Constitution Act 1900
o The Australia Acts 1986 (UK & Cwlth)
o UK statutes such as the Bill of Rights 1688
o The Supreme Court Act 1935 (WA)
o The Electoral Act 1907 (WA)
o The Electoral Distribution Act 1947 (WA)
o The Parliamentary Privileges Act 1891(WA)
Moreover, Western Australia’s constitutional laws and practices are also shaped by other sources which are ‘implied’ rather than formally documented. These include
o Constitutional convention (well established practices which are observed but not written in the Constitution)
o Westminster conventions originating from the UK, such as the Governor’s power to appoint the Premier
o Constitutional law principles as established by courts. In other words the decisions of courts regarding Constitutional questions.
Australia and its States thus operate under what is termed a ‘blended Constitution’, comprising both written constitutional law and a reliance on common law and convention. This tradition originates from Australia’s Westminster heritage. Some outstanding examples of important processes which rely on convention rather than Constitutional law include
o The Premier’s Office
o The Responsibility of Ministers to Parliament
o The Powers and structure of the cabinet, and
o The Premier’s relationship with the Governor.
An advantage of a constitution which relies upon convention is that the roles of those political actors referred to above able are to adapt to evolving circumstances rather than being rooted in antique tradition. On the other hand constitutional convention creates difficulty in terms of the public’s ability to understand the roles carried out by these figures or in pinpointing a certain aspect of their role which is not formally articulated.
SEPARATION OF POWERS
The separation of powers and the principle of responsible government are two issues which require special attention in terms of their relation to the Governor’s role. The separation of powers essentially means that in a democratic society like Australia Governmental power is shared between several institutions or branches of Government, rather than vested in one body or individual with absolute power. The three branches of Government into which power is divided are
o The Legislature: This is the body which makes the law. In Western Australia the legislature is the bicameral State Parliament, comprising the Legislative Assembly and the Legislative Council, or lower and upper houses.
o The Executive: This is basically the administrative branch of Government. It administers the legislation (laws) passed by the Legislative branch. This is where the Governor fits into the political framework, as a figure that serves to oversee the functioning of the Executive in place of the Monarch and maintain the effective democratic function of the State. The Governor appoints Ministers to serve the Crown in various departments or agencies which are under Executive control. Structurally, the Western Australian Executive incorporates the Crown, the Governor, the Executive Council, Cabinet, Ministers of the Crown and the public service. As the Premier and Cabinet Ministers are part of both the Executive and Legislative branches of Government, Western Australia is said to have a ‘fused’ system, as opposed to an absolute separation of powers as in the United States.
o The Judiciary: This is the arm of Government which is responsible for upholding the law. There is a hierarchy of courts from the local court to the Supreme Court of Western Australia. The Western Australian judiciary also encompasses various tribunals and boards of appeal, known as ‘quasi-judicial’ bodies.
Separation of powers is an important principle in terms of the function of Australia’s democratic system of Government. However arguably the most prominent feature of the Westminster system of Government is that of responsible government.
When self-Government was granted to the colony of Western Australia in 1890, a bicameral system of responsible government was put into place. The term ‘responsible government’ will for the purposes of this paper be defined as: “a system of Government practiced in Australia where the Executive arm of government (made up of the Crown and its Ministers) is responsible and accountable to the [Lower House], which is in turn accountable under the concept of representative government to the people”. Responsible government is a concept closely allied with representative government, which maintains that parliamentarians are elected by the people, and thus are supposed to uphold their interests in office. The move to embrace State political autonomy and responsible government was first timidly mooted in Western Australia in 1835, but the colony was deemed too small to justify such dramatic political change. In fact because of its relatively small size, Western Australia was late in embracing the transition from ‘gaol to self-governing community’ in 1890, while all of the other colonies had responded to calls for self-government by 1860.
The keystone of responsible government is that Ministers are responsible (i.e. answerable) to Parliament, and Parliament and the individual members are, in turn, responsible to the voting public. Therefore the people are ultimately sovereign, and parliamentarians are held to account. With the adoption of responsible government in Western Australia came the establishment of a bicameral legislature. This consisted of an elected Upper House and nominated Lower House, and the new members were sworn in on 30 December, 1890. A notable facet of responsible government is that Ministers maintain their office “at the pleasure of the Crown” (i.e. the Governor), while on the same hand the Governor is required to act in accordance with the wishes of, or on the advice of, the Premier and Ministers. Thus responsible government is a system which maintains checks and balances, thus ensuring the accountability of governmental and Executive power. The introduction of this system of government had a profound effect on the Governor’s office. This is perhaps most profoundly crystallised in the establishment of the Department of the Premier and Cabinet following Western Australia’s self-government. In 1898, the Premier’s department was established as a subsidiary of the Colonial Treasury, a move which was brought about by Frederic North, clerk of Western Australia’s first Premier, the Hon. John Forrest. In its advent, the office was chiefly designed as a secretariat for the Premier. In short, the establishment of responsible government led to the establishment of the Premier’s office, consequently removing the legislative function of the State from the hands of the Governor.
While the Governor remained a prominent figure, and the chief of the Executive branch of Government, political power became less centralised, being shared among, or perhaps relinquished to those termed by Black and Cohen “those Gentlemen whom he might select as his advisors, and in whom the legislature placed confidence”.
Greg Craven ‘Implications of a Republic for Western Australia’ (published by the Constitutional Centre of Western Australia), p1.