Overview <!IMG SRC="bluedot.gif" WIDTH=200 HEIGHT=10 alt=""> Title Introduction Framework Origins Advantages The Amendments <!IMG SRC="bluedot.gif" WIDTH=200 HEIGHT=10 alt=""> 20 References Section 126 Section 59 Section 60 Section 61 Section 2 Section 4 The States All Amendments The Election <!IMG SRC="bluedot.gif" WIDTH=200 HEIGHT=10 alt=""> Why Elect Apolitical Electoral Law Timing Independence <!IMG SRC="bluedot.gif" WIDTH=200 HEIGHT=10 alt=""> Introduction The Two Roles Costs v Benefits Free Speech Other Issues <!IMG SRC="bluedot.gif" WIDTH=500 HEIGHT=10 alt=""> Referendum One Royal Link Honorary Vice Pres Spectrum of Powers Questions More Questions Conclusion
Appointment of Governor General
In November 1975, an Australian government was dismissed by the Governor General. Although the constitution was amended to eliminate one of the causes of the dismissal – the long-winded Senate Casual Vacancies provisions in section 15, the fundamental issue of whether the Prime Minister can dismiss the Governor General before the Governor General can dismiss the Prime Minister, remains a dubious part of our political system.
This uncertainly affected the actions of both Governor General Sir John Kerr and Prime Minister Gough Whitlam during the 1975 crisis. Although the Prime Minister denied he seriously contemplated advising dismissal, the Governor General was so wary of this possibility he acted without warning. Neither of these two experienced men thought it wise to reveal their strategies to each other, resulting in one greatly surprising the other.
No republican model can afford not to give this issue the most careful consideration and the McGarvie Model provides a most sophisticated response, worthy of emulation.
Presently the Queen, on the advice of the Prime Minister, appoints the Governor General. The Queen’s power to appoint is provided by the existing section 2, however the obligation to follow the advice is a convention of British law. The Prime Minister can advise the Queen to dismiss the Governor General at any time and for any reason. The Queen is bound by the same convention to act promptly.
The new section 2 includes the provisions of the existing section plus the existing convention, with the Honorary President assuming the role of the Queen. Furthermore, rather than acting upon advice, the Honorary President accepts a nomination.
The McGarvie solution provides for a delay of up to one fortnight, after which penalties apply to senior members of the appointing authority. The solution under this model is an indefinite delay, with a possibility of dismissing the Honorary President through the Parliament under sub-section 60(iii). It is the author’s opinion that in any crisis involving dismissal of the Governor General, a fortnight would feel as long as forever.
Both models have the similar result that some discretion is available to the appointing authority and if the dismissal is contentious, the Governor General has the advantage.
A draft of section 2 reads as follows:
This would be the only section of the constitution to mention the Prime Minister, so mention is made of the most senior minister, connecting the section to established constitutional actors if the Prime Minister is absent or perhaps no longer exists.
The important minimalist features of the model are upheld as the Prime Minister retains the right to choose the next Governor General of Australia. Note that the Honorary President has no opportunity to make the choice or alter the choice of the Prime Minister.
The operative words, which imply the Honorary President the opportunity to delay the appointment process, are "After" and "may". During that period, the Prime Minister may either insist that the nomination proceed, retract the nomination or nominate another person. The existing mechanism is likely to work the same way, so the only change is that one unwritten convention becomes a clear instruction in the constitution.