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The research paper should be on the topic of your choosing, and can be any topic other than the one you wrote the summary on. It should show your understanding of the topic in context.  “ Australian constitutional law and theory” 

Appointment and Salary

The role played by Governor General in Australia is complex, as well as demanding. The main features of the role have been described in this work. The office of Gov. Gen. has been set up by   Commonwealth Constitution in 1901. The Queen appoints the Gov. Gen. on the basis of the advice given by the PM. After receiving the commission, oath of allegiance is taken by the Governor General and a proclamation assuming office is issued. 

The appointment of Gov. Gen. is at the pleasure of The Queen. This means that it is for an unspecified term. However in practice, it is expected that the appointment is going to be for nearly 5 years subject on certain occasions to certain extension. Gov. Gen.’s salary is set by a Parliamentary Act which is passed at the start of each office term. It cannot be changed during the appointment of the person as the Gov. Gen.  The role and the powers enjoyed by the Governor General are derived from the Constitution. The Letters Patent (21 August, 2008) from The Queen also prescribes certain provisions related with the Governor General. There are a number of sections of the Constitution where the role and the powers of Governor General have been expressed. For example, it is provided by section 2  that the Gov. Gen., who has been selected by The Queen will be considered the delegate of Her Majesty in Commonwealth. He may use, during the pleasure of the Queen all the powers as the Queen as her Majesty has assigned.

Another significant provision in this regard is present in section 61 of the Constitution where it has been provided that the Commonwealth’s executive power lies with the Queen and such power is exercised by the Gov. Gen., acting on the advice given by the Prime Minister of Australia. Regarding the powers of the Governor General, the then Commonwealth solicitors general gave the below mentioned legal opinion. According to him the Constitution binds the Crown. The Constitution provides that the executive power has to be exercised by the Governor General even if it is vested in the Queen. What can be exercise is the original executive power, or in other words, the thing that is vested in the Queen as a result of section 61. It can be exercised by the representative of the Queen, not her delegate. The words used in section 2 and also in section 61 does not have a contemporary parallel in this regard.

Therefore, it can be stated that the Commonwealth Constitution does not describe the powers enjoyed by the Gov. Gen. but it prescribes these powers. While using these with the authority of the Commonwealth, according to the deep-rooted constitutional convention, the Gov. Gen. acts according to the recommendations of the Ministers who are accountable towards the Parliament. Such advice is mainly given through the Federal Executive Council. The Gov. Gen. presides over the meetings of the Council that have to be attended by at least two members. However, there are certain powers that, under certain circumstances, may be exercised by the Governor General without or contrary to the advice given by the Ministers. These powers are known as the reserve powers. Even if the reserve powers have not been codified yet, but generally it is agreed that they include at least:

  • The power to appoint Prime Minister in case the election has resulted in hung Parliament.
  • The power to dismiss a Prime Minister, if he or she had lost the confidence of the Parliament.
  • The power to dismiss a Prime Minister or the Minister when such person has acted unlawfully; and
  • The power to refuse dissolving the House of Representatives. Even if a request has been made by the Prime Minister.

Role and Powers under the Constitution

Apart from it, the Gov. Gen. plays a supervisory role for the purpose of overseeing that the procedures of Federal Executive Council are taking place legitimately and frequently.

In this way, it can be stated that essentially the role of the Gov. Gen. is to safeguard the Constitution and to assist the working of the Government and Commonwealth Parliament. For instance, before providing assent to legislation, the Gov. Gen., should be contented that it has been passed by both houses of parliament and the certification essential from Attorney General was received. According to section 68 of Constitution, the Gov. Gen. is also the Commander-in-Chief of the defense forces of Australia even if in practice, the Governor General only acts according to these advice of the concerned ministers of the government. The responsibility regarding the defense policy of Australia is on the Minister for Defense.

The day-to-day administration as well as the functioning of the services has been given under the command of the Chief of Defense force and the relevant officers. However, the Governor General, acting through the Executive Council:

  • Appoints the chief of Defense force and also the chiefs of three armed services;
  • Commissions officers in the Australian Army, Royal Australian Navy and the Royal Australian Air Force.

However, it needs to be noted that even if vast powers have been provided on the Governor General, still there are several conventions that regulate the exercise of these powers. According to these conventions, it is required that the Governor General should exercise his powers on the basis of the demise given by the ministers. However, according to the conventions, there are certain powers that may be exercised by the Gov Gen. on the basis of his or her own discretion and without taking advice or even acting against the advice of the ministers. Rather misleadingly, these powers have been referred to as reserve powers as they have been designed to make sure that the authority of the Parliament and the executive operate according to the principles of representative democracy and responsible government or to make sure that the ministry is accountable to the Parliament and that the final preeminence of the will of the electorate prevails.

In this way, an essential check is provided by the reserve powers against the abuse of power that may take place by the Parliament or by the Executive. In case of Australia, due to Constitution provisions protecting the representative democracy and restricting the authority of the Parliament to amend the Constitution, as well as the well-established place of the High Court, it is improbable that there will be a requirement to invoke the reserve powers against Parliament, however, they fill a real requirement regarding the Executive.

There are certain reserve powers of the Governor General regarding which there is no dispute. However, the scope or the existence of some others is still controversial. The unanticipated political crisis, which appears to require for the use of reserve powers occasionally results in problems that have not been encountered before. In such a case the Gov. Gen. is required to act as umpire in the game, where unanticipated circumstances arise that are not covered by the usually acceptable rules. In the same way, the governors in the States also have reserve power even if some of the States, the position has been affected by amendment to the Constitution.

Exercise of Powers and Reserve Powers

The Constitution of Australia is outstanding for the time for which it has endured. The constancy of the community governed by it is also due to the checks and balances provided by it. The presence of this authority is also a check. As mentioned above, it is also an essential one. The reason is that it allows finding satisfactory democratic resolution of the question regarding which it is not possible to arrive at political accord, especially when the political tempers are running high. In case Australia wants to turn into a republic, it would be required that the results should also be provided to the President. But the conventions related with the reserve powers would not be essentially relevant in case of a republic due to the reason that they have been developed in a constitutional monarchy and has been exercised by the Monarch or her representatives. Therefore it is not very easy to determine how they can be applied in case of a republic. The reason is that it will be hard to codify them as various powers are controversial. Similarly, all of them are subject to change as the situation related with the constitution evolves. In any case, most probably, it would be impractical to arrive at agreement regarding the substance of the code.

It may be argued by the enthusiasts of a republic that the authority given to the Prime Minister to produce an instant removal without cause is similar as in this present position. It has also been stated that in all the cases the Queen will always act on the advice given by the PM to remove the Governor General. However, a grave flaw is present in this argument. First of all, it is not beyond the controversy that the Queen is going to act on such advice if it appears that there is no valid cause to remove the Governor General. More significant is the fact that the Queen is not under an obligation to act on such advice as it may take some time to consider the matter. Therefore, the Queen may need advice to be given to Her Majesty in writing. The events that took place in pop on New Guinea imply that it is essential to give advice in writing.

In this way, the Commonwealth Constitution provides for several other powers for the Gov. Gen. that needs to be exercised as a part of the machinery of the government. However, so far the majority of the powers and duties of the Governor General have been imposed by statute or in other words, the Acts of the Parliament of Australia. Nearly every Act of the Parliament empowers the Gov. Gen. perform certain executive function, for example issuing proclamations, to issue regulations ought to make and terminate appointments for public office. However in all these responsibilities, the Gov. Gen. is obliged to act according to the advice given by the Ministers in the Executive Council.

In the end, it can be said that the Governor General is not under a compulsion to accept the advice of the ministers unquestioningly. It is the responsibility of the Governor General to see if the system works as prescribed by the law and the constitutional conventions. But at the same time, the Governor General should not seek to do the work of the ministers. If the Governor General to takes part in political argument it would amount to going beyond the limitations of the office and also to decreasing the influence of office. The Governor General Ken himself ask questions regarding the right to know the reasons behind, draw attention to words relevant considerations. In order to make sure that they have been taken into account and satisfy himself that the proposal expresses the single mind of his advisers, but he should not himself, while infecting the outcome of the discussion, need to be careful that he should not be an advocate of any partisan cause. While doing so, the Governor General has two main interests. These are the stability of the government and the regard for total and non-partisan general interests of the people, as well as the country.

Aitken, G & Orr, R 2001, Sawer’s The Australian Constitution, 3rd ed, Australian Government Solicitor, Canberra

Downing, S 1997, The Reserve Powers of the Governor-General, Research Note 25, 1997-98 Parliament of Australia, Parliamentary Library.

Evans, H (ed.) 2001, Odgers’ Australian Senate Practice, 11th ed, Department of the Senate, Canberra

Green, G S M 2006, Governors, democracy and the rule of law, Constitutional Law and Policy Review, Vol 9 No 1 May 2006

Harris, I C (ed.) 2005, House of Representatives Practice, 5th ed, Department of the House of Representatives, Canberra

Hasluck, P M C 1979, The Office of Governor-General, 1st ed, Melbourne University Press, Melbourne

Hazell, M 2008, The Role of the Governor-General: An Address by Mr Malcolm Hazell CVO, Official Secretary to the Governor-General, 14 June, Wagga Wagga

Smith, D I 2005, Head of State – the Governor-General, the Monarchy, the Republic and the Dismissal, 1st ed, Macleay Press, Sydney.

Twomey, A 2006, The Chameleon Crown – The Queen and her Australian Governors, 1st ed, The Federation Press, Sydney

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