Background Documents

2. STATE GOVERNORS

2.1 The Queen and the States

2.2 The Position of Governor

2.3 What Do State Consitutions Say?

2.4 The Australia Acts

2.5 The Australian Constitution

2.6 The Crown and the Territories

2.1 The Queen and the States

Australia is a constitutional monarchy. The Monarch is the person who is the Monarch in the United Kingdom. The present Monarch is Queen Elizabeth II. All executive power in relation to Australia comes either from the Monarch or from statute (which includes, for this purpose, the Commonwealth of Australia Constitution Act 1900). The Queen or the Governor also is a constituent part of the Commonwealth Parliament and all State Parliaments. South Australia is a possible exception, in the sense that the South Australian Parliament is defined to mean the Legislative Council and House of Assembly of South Australia. Nevertheless, laws passed by the Parliament continue to be presented to the Governor for the royal assent.

Before Australia achieved independence, the Crown was assumed to be "indivisible". During the twentieth century, a new approach was needed for countries, including Australia, which had become independent but which continued to accept the Monarch as Head of State. In 1953, a reference to the Queen as "Queen of Australia" was included within the Queen’s official style and titles. From 1973, the following became the only royal style and title of the Queen when acting in relation to Australia:

There is only one "Queen of Australia". Australia is a federation, however, in which legislative, executive and judicial power are divided between the Commonwealth and the States. For many purposes therefore it is necessary to distinguish between the Crown acting in different capacities within Australia. The accepted way of making this distinction is to refer to, for example, "the Crown in right of the Commonwealth", "the Crown in right of Queensland’, "the Crown in right of South Australia" etc. Each of these "emanations’ of the Crown is a separate entity, for legal purposes.

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2.2 The Position of Governor

For obvious practical reasons, the Monarch has always been represented in Australia by Governors and also, after federation, by a Governor-General. The representatives originally were akin to delegates, acting under "Letters Patent" and "Instructions" from the Crown. This was one means by which the British government could influence Australian policy, where the interests of the Empire as a whole were concerned.

Gradually, however, as Australia achieved independence, the status of the representatives of the Crown changed as well. This was recognised for the Governor-General in 1926 when the Imperial Conference said that:

The equivalent shift in the position of State Governor was not formally recognised until 1986, by the Australia Acts (see below, 2.4). The effect of these changes, however, was to make both the Governor-General and the Governors the de facto Heads of State, within their jurisdictions. While three States (Western Australia, South Australia, Tasmania) still have Letters Patent, they deal with largely formal matters. In the other three States, these formalities are included in the Constitutions themselves.

In practice, the only powers now exercised by the Queen are to appoint and dismiss the Governor-General or a State Governor on the advice of the Prime Minister or the relevant State Premier. If the Queen personally were present in Australia or in a particular State, she might exercise specific powers or functions as well. In doing so, once again, she would act on the advice of the Prime Minister or Premier concerned.

A Governor is appointed by the Queen, on the advice of the State Premier. The Queen would remove a Governor, on the advice of the Premier, as well. Governors are appointed "during the Queen’s pleasure" and therefore, officially, for an unlimited term. It is generally understood that a term will last five years, however. After that, the appointment will be renewed or another appointment made.

There are also people who can fill the role of Governor, if the Governor is not available.

• A Lieutenant Governor is appointed by the Queen, on the advice of the Premier. The Lieutenant Governor acts as Governor if there is a vacancy in the position or if the Governor is acting as Governor-General, is absent or is incapacitated.

• An Administrator acts as Governor in the same circumstances, if a Lieutenant-Governor is unable to do so. The Administrator is usually the Chief Justice of the State, or the next most senior judge.

• A Deputy Governor may be appointed by the Governor on the advice of the Premier, for limited periods of time. In practice, the Lieutenant Governor or Administrator usually are appointed to the position of Deputy Governor.

The Governor takes two oaths or affirmations before or immediately after taking office.

• In the oath of allegiance, the Governor swears or affirms "to be faithful and bear true allegiance to her Majesty and her Majesty’s heirs and successors according to law".

• In the oath of office, the Governor swears or affirms to "well and truly to serve her Majesty and her Majesty’s heirs and successors in the particular office and to do right to all manner of people after the laws and usages of the State, without fear or favour, affection or ill-will".

A "constitutional" monarchy is one in which the Monarch acts on the advice of an elected government in all or most cases. One effect of independence was to change the source of advice to the Queen and her representatives in Australia from the British government to the relevant Australian government. The requirement for the Crown to act on advice is based principally on unwritten practice, or convention. Depending on the power concerned, advice may be given to the Governor by:

• The Premier (for example, in relation to the appointment and dismissal of Ministers, the appointment of a deputy, the dissolution of the Parliament, in calling meetings of the Executive Council)

• The Executive Council. This is the body in which advice normally is given to the Governor. All current Ministers are Members of the Executive Council. Usually between 2-4 Ministers attend meetings, in addition to the Governor. The Executive Council is not a deliberative body and the Governor is expected to accept the advice. Equally, however, it is accepted that a Governor is entitled to be informed, to encourage and to warn. The significance of this consultative function varies with different Governors and different Governments.

The circumstances in which a Governor may act without or contrary to advice are described as the "reserve powers". Generally, these assist to secure the key rules of the system of responsible government and in particular the rule that a Government holds office because it has the confidence of the Parliament. Powers that may, depending on the circumstances, be exercised without or contrary to advice are:

• To invite a Premier to form a government, following an election, especially where no single party or coalition has a majority of seats.

• To refuse to dissolve the Lower House of a Parliament, thus bringing on an election, where a Premier has lost the confidence of the House.

• To dismiss a Premier who has lost the confidence of the Lower House of the Parliament and refuses to resign or is unable to secure an election.

• To dismiss a Premier who cannot secure funds to carry on the business or government, or perhaps, a Premier who is acting unlawfully.

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2.3 What Do State Constitutions Say?

All State Constitutions recognise both the Queen and the Governor. While there are some minor differences between States, these references generally fall into the following categories:

• Recognition of the Queen or the Governor as a constituent part of the Parliament.

• Recognition of the Governor as a representative of the Monarch.

• Provisions for establishing the office of Governor, Lieutenant Governor etc.

• Creation of an Executive Council to advise the Governor.

• The conferral of particular powers on the Governor: for example, the powers to call together, prorogue or to dissolve the Lower House of Parliament; to fix the times and place for sessions of the Parliament; to appoint Ministers; to recommend an appropriation of funds by the Parliament.

• A requirement for royal assent to Bills passed by the two Houses of the Parliament, usually by the Governor in the name of the Queen.

• Provision for an oath of allegiance to be made to the Queen.

• Passing references to the Queen or the Crown. For example, a Constitution may disqualify a person from election as a Member of Parliament if he or she holds "an office of profit under the Crown".

As a generalisation, State Constitutions tend not to make any statement about the source of executive power and who has authority to exercise it.

Historically, executive power came from the Crown and was assumed to flow to Governors from the Monarch. Now, the most explicit statement about executive power comes from section 7 of the Australia Acts: "…all powers and functions of Her Majesty in respect of a State are exercisable only by the Governor of the State". These legal technicalities aside, in practice, the position in the States is the same as for the Commonwealth. A great deal of executive power is vested in the Governor and others by legislation passed by State Parliament. "Inherent" executive power derives originally from the Monarch, but is exercisable by the Governor, in accordance with the Australia Acts. The Governor in turn exercises all of these powers consistently with (largely) unwritten conventions that require the Governor, in most cases, to act on advice.

In each State, the provisions referring to the Crown, including the Governor, are entrenched in some way or other:

• In Queensland and Western Australia, a referendum is required to change provisions that:

• In New South Wales and, in more limited circumstances in South Australia, some entrenched provisions contain references royal assent to legislation. Some commentators have queried whether these provisions necessarily entrench the monarchy, so as to require a referendum if the State decides to move towards a republic. While there is room for argument on the point, the provisions assume the existence of the monarchy, and caution suggests that a referendum would be needed.

• In Victoria, both the position of the Queen as a constituent element of the Parliament and the position of the Governor holding office during the Queen’s pleasure are entrenched. The entrenching procedure, however, is not a referendum but the need for absolute majorities to be secured in each House of the Parliament at certain stages in the reading of the amending Bill.

• In Tasmania, a section that refers to the Governor in the context of regulating the term of the House of Assembly can be changed only by a two-thirds vote in the Assembly. The Tasmanian Constitution does not expressly state that the Queen's representative is the Governor, although it implies it. Nor is the entrenching provision itself entrenched, in this case.

Part 1.3 noted that there is some doubt about the capacity of a State to provide special procedures for the enactment of legislation other than Bills dealing with the "constitution, powers and procedures of the legislature". Even on the most limited view of the State’s power to entrench, however, the provisions of a State Constitution making the Queen or a Governor part of the Parliament would fall within it, attracting the need to satisfy the relevant constitution alteration procedures.

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2.4 the Australia Acts

The Australia Acts 1986 made it clear that the United Kingdom could no longer legislate for Australia, as follows:

The other main purpose of the Acts was to remove the residual traces of colonial status that still affected the States. As part of this exercise, the Australia Acts clarified the position of Governor, in a manner intended to make it roughly equivalent within the State to the position of Governor-General in the Commonwealth sphere. Section 7 of the Australia Acts says:

"(1) Her Majesty’s representative in each State shall be the Governor.

2. Subject to subsections (3) and (4) below, all powers and functions of Her Majesty in respect of a State are exercisable only by the Governor of the State.
3. Subsection (2) above does not apply in relation to the power to appoint, and the power to terminate the appointment of, the Governor of a State.
4. While Her Majesty is personally present in a State, Her Majesty is not precluded from exercising any of Her powers and functions in respect of the State that are the subject of subsection (2) above.
5. The advice to Her Majesty in relation to the exercise of the powers and functions of Her Majesty in respect of a Sate shall be tendered by the Premier of the State."

There is a question whether section 7 of the Australia Acts also entrenches the Monarchy so that, if the States were to break their links with the Crown, the section would need to be changed. While there are good arguments on both sides, most commentators accept that the section should be changed in a move to a republic, in the interests of both the clarity and the certainty of the law.

Section 15 of the Australia Acts sets out the way in which they can be altered in the future. Arguably, there are two different mechanisms:

• Section 15(1) provides that the Acts may be repealed or amended by an Act of the Parliament of the Commonwealth passed at the request or with the concurrence of the Parliaments of all the States.

• Section 15(3) indirectly recognises the possibility that an alteration to the Commonwealth Constitution under section 128 might confer powers on the Commonwealth Parliament to alter the Australia Acts. The rather tortuous wording of section 15(3) has raised a question about whether the Acts can be amended in this way. Nevertheless, if a referendum were passed to confer power on the Commonwealth Parliament to change the Australia Acts, it would be surprising if it were found to be ineffective.

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2.5 The Australian Constitution

State Governors also play a role under the Australian Constitution.

Some sections expressly refer to State Governors. Typically, these concern the Senate. The sections in this category are:

• Section 7 confers power on a State Governor to certify to the Governor-General the names of Senators chosen for the State.

• Section 12 confers power on State Governors to issue writs for Senate elections.

• Section 15 gives State Governors a limited role in filling casual Senate vacancies.

• Section 21 requires the Governor-General to notify the relevant State Governor about a vacancy in the Senate.

The powers of State Governors under the Australian Constitution are exercised on the advice of the State Premier. Under co-operative arrangements between the Commonwealth and the States, in practice, the power to issue writs for Senate elections is exercised in a way that suits the Commonwealth's election time-table.

The Australian Constitution authorises the appointment of an Administrator (section 2) and Deputies (section 126) to act when the Governor-General is unable to do so. The Constitution does not specify who will fill these positions. In practice, however:

• The most senior available State Governor acts as Administrator under section 2.

• The Governor of either New South Wales or Victoria acts as a Deputy under section 126, on the grounds of convenience.

These references to State Governors in the Australian Constitution do not necessarily entrench the position of Governor as it presently exists. Section 110 defines the term Governor very flexibly to:

Nevertheless, the functions conferred on State Governors under the Australian Constitution are relevant to any consideration of changes that might be made to the office of Governor.

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2.6 The Crown and the Territories

Again, the position of the Territories is different.

The Northern Territory (Self-Government) Act 1978 establishes the Northern Territory as a body politic under the Crown. The Act also creates an office of "Administrator". An Administrator differs from a State Governor:

• An Administrator is appointed by the Governor-General and holds office during the pleasure of the Governor-General.

• While the Administrator generally acts on the advice of Territory Ministers in some matters an Administrator can act on the advice of Commonwealth Ministers.

• An Administrator is appointed and may be dismissed by the Governor-General, acting on the advice of the Commonwealth Government.

The Australian Capital Territory (Self-Government) Act 1988 also creates the ACT as a body politic under the Crown.

Unlike the Northern Territory, however, there is no position equivalent to the position of Governor in the ACT. The powers normally exercised by a State Governor are conferred on others. For example:

• The Chief Minister and the Ministers for the ACT can be dismissed by a vote of no-confidence of the Legislative Assembly.

• There are some residual powers in the Commonwealth Ministers and the Governor-General.

• In particular, the Governor-General may dissolve the ACT Legislative Assembly and appoint a commissioner if, in the Governor-General’s opinion, the Assembly is incapable of effectively performing its functions or is conducting its affairs in a grossly improper manner.

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