Today marks the 70th anniversary of Her Majesty The Queen’s accession to the Throne. Although not a time of celebration for the Queen as it also marks the anniversary of the death of her beloved father King George VI, this milestone will be celebrated across the Commonwealth with much fanfare in June. Every jubilee and significant royal event brings about questions regarding the monarchy’s future in Australia and other Commonwealth realms, including Canada and New Zealand. While it is important to have such discussions about the political structure of our country, there are other constitutional issues regarding the functionality of our governance which should be addressed more urgently.
A beginner’s guide to the constitutional basis for monarchy in Australia
Before discussing the merits of monarchy, it is important to understand the role of the Queen in Australia. This is often misunderstood and misconstrued in the media and requires an analysis of both the Australian Constitution and Westminster conventions. Like most modern constitutional monarchies, the monarch holds a largely ceremonial position, with political decisions mostly left to elected officials (i.e. the Prime Minister and the Cabinet). Nevertheless, the Queen still formally holds important legislative and executive powers.
As stipulated in Section 1 of the Commonwealth of Australia Constitution Act 1900 (UK) (‘the Constitution’):
The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called “The Parliament,” or “The Parliament of the Commonwealth”.
Pursuant to Section 2 of the Constitution, powers extended to the Queen under the Constitution are to be exercised by the Governor-General, whom she appoints generally on the recommendation of the Australian Government.
The sovereign’s main legislative powers relate to the Governor-General granting royal assent (in the Queen’s name) to legislation that has passed both houses of parliament. Failure to grant such royal assent means the legislation will not become law. A little known provision is that the Queen can disallow royal assent exercised by the Governor-General within one year of it being granted. Royal assent has never been refused by the sovereign in Australia and it is unlikely to happen unless the Parliament passes legislation that is undemocratic or unconstitutional.
Executive power is conferred on the Queen, as exercised by the Governor-General, under Section 61. Chapter II denotes the specifics of executive power but this includes the appointment of the Federal Executive Council and command of naval and military forces. These provisions mean the sovereign has the ultimate power to appoint the Prime Minister and all other ministers while also being the Commander-in-chief of the Australian armed forces
Lastly, the Queen also has powers with respect to the Judicature pursuant to Chapter III. These are restricted to the Governor-General-in-Council appointing federal judges and extremely limited jurisdiction for appeals to the Queen-in-Council from the High Court.
These provisions only relate to the Queen’s powers under the Federal Constitution and with respect to Australia as-a-whole. There are further powers which are granted under state constitutions which are similar and exercised by governors whom she appoints. This is because many aspects of the Australian Constitution were based on colonial constitutions and frameworks.
On a textual reading of the Constitution, the Queen and the Governor-General are quite powerful figures. There is no reference to a Prime Minister, they can block legislation for no reason, and technically they can appoint any member of the Australian Parliament as a minister. Yet, these powers are tempered by Westminster conventions along with the need to ensure the public will is respected and upheld. This cannot be achieved by begrudging the advice of the Prime Minister and the ministers.
Note from the author: This is a basic overview of constitutional monarchy in Australia. For more information on the Australian system of government, please visit this link.
Westminster conventions and limits on the sovereign
Westminster conventions and the Constitution have points of conflict. This is mainly due to the Australian Constitution incorporating elements of the British Westminster system, the American federal system, and with our Constitution also being written. This system has come to be known as Washminster and functions in contrast to the British political system in which parliamentary sovereignty is solely vested in the British Parliament and the constitution is unwritten. Such conflict has led to Westminster conventions being referred to by Professor Gordon Reid as “conventions of the Constitution”. As outlined by Professor Reid in 1977:
It is well known that Australia’s written Constitution is silent on many important aspects of government. It says nothing about the Prime Minister, the Cabinet, responsible government, ministerial responsibility, electing a government, dismissing a government, parliamentary control, what is to be done if the Senate refuses to pass an appropriation Bill (or a supply Bill), and so on. In reality this void is filled-in by well established practice, methods, habits, maxims, usages, many of them of long-standing, which were inherited from colonial Parliaments, which in turn inherited them from Westminster. It is these practices, methods and usages which tend to be referred to, albeit vaguely, as ‘conventions of the Constitution’.
Professor Reid’s explanation came in the wake of the 11 November 1975 dismissal of Gough Whitlam by Governor-General Sir John Kerr. While debate still surrounds the morality and right of Sir John to sack a prime minister with the confidence of the lower house, it demonstrated the precedence of the Constitution as a written document over the traditions of Westminster parliaments. Namely, the Governor-General had the power to dismiss the prime minister who could not pass a supply/money bill through the Australian Parliament. This was confirmed by the Chief Justice of the High Court, Sir Garfield Barwick, who wrote in his letter of advice to Sir John prior to the Whitlam dismissal:
Two relevant Constitutional consequences flow from the structure of the Parliament. First, the Senate has constitutional power to refuse to pass a money bill; it has power to refuse supply to the Government of the day. Secondly, a Prime Minister who cannot ensure supply to the Crown, including funds for carrying on the ordinary services of Government, must either advise a general election (of a kind which the constitutional situation may then allow) or resign. If, being unable to secure supply, he refuses to take either course, Your Excellency has constitutional authority to withdraw his Commission as Prime Minister.
Overall, Westminster conventions relating to the power of the Queen as exercised by the Governor-General are not completely consistentcognisant with our Washminster system. While Westminster conventions stipulate that a prime minister needs the confidence of only the lower house, the Australian system means they need to be able to pass money/supply bills through both houses, arguably extending this confidence to the Senate in terms of such legislation. As foreseen by J.W. Hackett at the 1891 Constitutional Convention, this means that there will be “either responsible government kill[ing] federation or federation kill[ing] responsible government”.
Note from the author: For any reader interested in learning more about the Westminster system, it is suggested you read Walter Bagehot’s ‘The English Constitution’.
Republican movement – Is it a distraction from other constitutional issues?
The republican movement in Australia has one simple goal – replacing the Queen with an Australian Head of State. This author posits that their motives merely detract from larger constitutional issues which are more urgent and require the focus of constitutional scholars, bureaucrats and our elected officials.
The Constitution was a product of Constitutional Conventions in 1891 and then in 1897/1898. Since then, we have experienced multiple impracticalities and operational issues with the Constitution. In recent history, never has this been more true than with federal-state relations during the COVID-19 pandemic, with federal and state governments beleaguered by ambiguities in their powers. Originally designed to be a decentralised country with most powers held by the states, we have progressively shifted to a more centralised model due to changes in our nation’s financial structure along with successive High Court cases and other circumstances that would require their own article.
For those who have not read the Constitution, it arguably does not precisely reflect current federal-state relations, with ambiguities remaining around the scope of some powers held by the Commonwealth Parliament. The pandemic has also brought about a potential for a rebalancing of legislative powers, necessitating a debate regarding control of internal borders and coordination amongst the states in times of national emergencies. Such debates were called for prior to the pandemic with a need to discuss the powers our federal parliament is delegated and those that should be held by the states.
As mentioned above, there is also no reference to the Prime Minister and a literalist reading of the Constitution could mean we set aside all Westminster conventions and have a more politically active Governor-General who acts as both Head of Government and Head of State. While this is highly unlikely to happen due to Westminster convention being strongly followed and the potential for public outrage, on text it remains a possibility.
Having a constitutional monarch as the head of state does not harm the function of our country nor does it mean we are not a completely independent country, a matter clarified through the Australia Act 1986 (Cth). What brings detriment and confusion to our governance is outdated and ambiguous provisions which history has proven create uncertainty. Instead of organisations, institutions, and even a potential federal government spending hundreds of millions of dollars on a constitutional convention relating to the future of the constitutional monarchy and a lengthy referendum campaign, it should instead invest in strengthening and modernising other parts of the Constitution that are in need of amendment.
Note from the author: To further understand pre-Federation constitutional conventions, it is suggested you visit the records of the delegate debates at this link.
A time to reflect and commemorate
It is unimaginable to be in the same job for 70 years, let alone a job you had no say in choosing and which was sprung on you after the death of a beloved parent. During her reign The Queen has shown grace and majesty in all her engagements. Although ceremonial and independent of partisan politics, Her Majesty has overseen the transformation of the British Empire into the Commonwealth of Nations and taken a major role in holding together the family of former British colonies. While her reign has not been without personal controversies, Her Majesty remains a uniting figure and symbol of certainty during such unpredictable times.
This milestone also underscores the stabilising force of constitutional monarchy in comparison to other models of government. With the world more split due to growing partisan divide in politics and the rise of populist movements, it is comforting to know that the monarch is devoid of active political participation and must remain neutral. Raised to not interfere in politics, this means they can act as an impartial mediator in times of crises and can serve to unite a country which may be fragmented through major differences of belief. This is evident with the Queen reigning through 15 prime ministers in Australia (16 governments due to Kevin Rudd serving twice), 12 in Canada (13 governments due to Pierre Trudeau serving twice), 16 in New Zealand (17 governments due to Keith Holyoake serving twice), and 14 in the UK (15 governments due to Harold Wilson serving twice). The current political crisis in the UK known as Partygate underscores the importance of the sovereign acting as a stabilising force while there is dismay between elected officials. While politicians come and go, the sovereign remains to steady the ship.
As stated above, Her Majesty’s reign has not been perfect. There is no such thing as a perfect or controversy-free leader. Those individuals who think that is possible are living in a fantasy land. Even so, the Queen has modernised and reinforced the institution of monarchy for the next generation by allowing it to meet changing public expectations. While powerful absolute monarchies are reminiscent of a bygone era associated with the violence of Henry VIII and the divinity of Louis XIV, constitutional monarchies bring together tradition and stability.
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Disclaimer: The author wishes to note that this is a basic overview of the Australian Constitution and system of government. For additional reading, please refer to the following:
- Jeffrey Archer and Graham Maddox – ‘The 1975 constitutional crisis in Australia’
- Mark Cooray – The Australian Constitution & The Future
- Hugh Vincent Emy – The Politics of Australian Democracy: fundamentals in dispute
- Jeffrey Goldsworthy and Lisa Burton Crawford – ‘Constitutionalism’ in The Oxford Handbook of the Australian Constitution
- Harry Evans – ‘Constitutionalism, Bicameralism, and the Control of Power’
- Yee-Fui Ng – ‘Political Constitutionalism: Individual Responsibility and Collective Restraint’
