GOVERNOR-GENERAL: ROLES, POWERS, AND ACCOUNTABILITY PLEAWA WACE Revision Seminar

GOVERNOR-GENERAL DILEMMA! Get into teams of 3: Former PM Malcolm Turnbull Attorney General Christian Porter Former GG Peter Cosgrove

GOVERNOR-GENERAL DILEMMA! August 2018: Peter Dutton is preparing to challenge Turnbull for Liberal Party leadership. Turnbull asserted that he would advise GG not to appoint Dutton as PM, as there were s44 doubts about his eligibility to hold office. Is Turnbull correct? What would be your advice as Attorney General? What would be your response as GG, if Turnbull had given you this advice? As GG, what would you have done is Dutton had won the leadership? What would you have said to Dutton?

CURRENT GOVERNOR-GENERAL General David Hurley Appointed 1 July 2019 Former Chief of Defence Force Former Governor of NSW Enjoys boxing

WHY HAVE A GOVERNOR-GENERAL? Carries out monarch’s functions as Head of State on their behalf.

APPOINTMENT Convention: on advice of PM Oath of Allegiance and Oath of Office No term length specified Salary set by Parliament and cannot be changed during term.

REMOVAL ‘During the Queen’s pleasure’ Convention: on advice of PM Can resign No GG has been dismissed!

Constitutional Ceremonial Community ROLES

CONSTITUTIONAL ROLES WRITE DOWN AS MANY AS YOU CAN!

CONSTITUTIONAL ROLES WRITE DOWN AS MANY AS YOU CAN! Dissolving parliament and issuing writes for new elections (ss57, 5)

CONSTITUTIONAL ROLES WRITE DOWN AS MANY AS YOU CAN! Dissolving parliament and issuing writes for new elections (ss57, 5) Royal Assent (s58)

CONSTITUTIONAL ROLES WRITE DOWN AS MANY AS YOU CAN! Dissolving parliament and issuing writes for new elections (ss57, 5) Royal Assent (s58) Appointment of ministers (s64)

CONSTITUTIONAL ROLES WRITE DOWN AS MANY AS YOU CAN! Dissolving parliament and issuing writes for new elections (ss57, 5) Royal Assent (s58) Appointment of ministers (s64) Commander in Chief (s68)

CONSTITUTIONAL ROLES WRITE DOWN AS MANY AS YOU CAN! Dissolving parliament and issuing writes for new elections (ss57, 5) Royal Assent (s58) Appointment of ministers (s64) Commander in Chief (s68) Appointment of judges (s72)

CEREMONIAL ROLES WRITE DOWN AS MANY AS YOU CAN!

CEREMONIAL ROLES WRITE DOWN AS MANY AS YOU CAN! Opening parliament

CEREMONIAL ROLES WRITE DOWN AS MANY AS YOU CAN! Opening parliament Swearing in ministers

CEREMONIAL ROLES WRITE DOWN AS MANY AS YOU CAN! Opening parliament Swearing in ministers Receiving credentials of foreign diplomats

CEREMONIAL ROLES WRITE DOWN AS MANY AS YOU CAN! Opening parliament Swearing in ministers Receiving credentials of foreign diplomats Reviewing military parades

CEREMONIAL ROLES WRITE DOWN AS MANY AS YOU CAN! Opening parliament Swearing in ministers Receiving credentials of foreign diplomats Reviewing military parades Receiving and entertaining foreign heads of state and heads of government

COMMUNITY ROLES WRITE DOWN AS MANY AS YOU CAN!

COMMUNITY ROLES WRITE DOWN AS MANY AS YOU CAN! Presenting awards

COMMUNITY ROLES WRITE DOWN AS MANY AS YOU CAN! Presenting awards Attending functions

COMMUNITY ROLES WRITE DOWN AS MANY AS YOU CAN! Presenting awards Attending functions Citizenship ceremonies

CONSTITUTIONAL POWERS Executive powers Legislative powers Other powers S61: Executive power S28: dissolving House of Reps (R) S68: Commander in Chief (E) S62: appoints ExCo S57: double dissolution (R) S72: appoints judges (E) S63: act on advice of ExCo S58: Royal Assent (E) S64: appoints Ministers (R)

EXPRESS POWERS Powers ‘expressed’ on behalf of parliament GG doesn’t have discretion to exercise these powers Convention that GG exercises them in accordance with ministerial advice = RESPONSIBLE GOVERNMENT! S68: command of defence forces S72: appointment of judges

RESERVE POWERS USUALLY exercised on ministerial advice, but: In certain situations, can be exercised without, or CONTRARY to ministerial advice. Scope of powers is uncertain. WHY? Not written down – governed by convention!

RESERVE POWERS Power to appoint a PM if an election results in a hung parliament. Power to dismiss a PM when House has passed No Confidence motion. Power to appoint a new PM if they have confidence of House. Power to refuse to dissolve House contrary to ministerial or PM advice. EXAMPLES

RESERVE POWERS Refusing PM’s request for double dissolution (never been exercised) Refusing Royal Assent Dismissing PM and appointing new PM if govt unable to obtain supply. Why controversial? DISPUTED/CONTROVERSIAL EXAMPLES

PM can advise dismissal of GG ACCOUNTABILITY OF Gg GG can dismiss PM PM can advise dismissal of GG

ACCOUNTABILITY OF gg Through appointment Through tenure and removal Through the people

ACCOUNTABILITY OF gg - APPOINTMENT Appointed by Queen. On advice of PM. Perhaps choosing the right person is a good accountability mechanism?

ACCOUNTABILITY OF gg – TENURE AND REMOVAL ‘During the Queen’s pleasure’. Convention: 5 years. Removal: Queen. BUT: Queen ruled this out in 1975. Leaves removal up to PM; has never happened (purely a convention).

ACCOUNTABILITY OF gg – court of public opinion Has perhaps been most effective. Media and public scrutiny following Kerr’s dismissal of Whitlam. Media and public scrutiny following revelations of Hollingworth’s cover-ups.

ANOTHER WAY OF THINKING ABOUT ACCOUNTABILITY… Formal mechanisms Informal mechanisms Technical mechanisms Appointment Choosing good candidate Annual report Oath of office Resignation (requested or otherwise) Budget Removal (convention) Public opinion

SOME FINAL THOUGHTS – no easy answers! Independence = accountability difficulties (think of judges) Is internal accountability the best? Relying on character and judgement of incumbent to exercise powers in a manner that is consistent with a liberal democracy. Wouldn’t be good enough for anyone else! (e.g. parliament and executive). BUT: is this the trade-off for having a truly independent office that isn’t subject to political influence?

SOME FINAL THOUGHTS – no easy answers! ‘The absence of a power to discipline or remove for incompetence is an inevitable price that a society pays for ensuring the independence of an office.’ If a GG could be disciplined on the grounds of incompetence, it would be a very difficult and subjective standard to apply. Could be used as a pretext for removing a GG that the government doesn’t like.

SOME FINAL THOUGHTS – no easy answers! ALSO: disagreement about appropriate use of GG’s reserve powers! Some (Whitlam) argue that GG must only act on advice of PM, and not use reserve powers against that advice. Others argue that GG must use reserve powers to reinforce democratic conventions that govt must retain confidence of the parliament, and therefore the people.

SOME FINAL THOUGHTS – no easy answers! It’s difficult to hold someone accountable for their use of powers, when those powers are not written down!