The Reserve Powers of the Governor-General
Law and Bills Digest Group
23 January 1998
The Reserve Powers of the Governor-General
The Constitution provides the Governor-General with a number of express
powers such as the command of the defence forces and the power to appoint
judges to the High Court.(1) These seemingly far-reaching powers are in
practice tempered by the convention that the Governor-General exercises
them in accordance with Ministerial advice ('the principle of responsible
government'). However, there are powers that the Governor-General may,
in some situations, exercise without Ministerial advice or even contrary
to Ministerial advice. These 'discretionary powers' are known as the reserve
The scope of the reserve powers is uncertain and their use has proven
contentious. This is in part because the Australian model of government
relies on unwritten rules or 'conventions' to flesh out the 'bare bones'
of the Constitution. It is thus (by convention) accepted that there must
be an office of Prime Minister and a Cabinet even though their existence
is not constitutionally mandated.(2) Likewise, not all the powers of the
Governor-General are codified in the written Constitution and many of
them are similarly constrained by such unwritten rules. A further complication
is the difficulty of determining when mere custom and practice attains
the status of a convention.
That said, it is generally accepted that the reserve powers of the Governor-General
- the power to appoint a Prime Minister if an election results in a
- the power to dismiss a Prime Minister in circumstances where the House
of Representatives has passed a 'No Confidence' motion against the Prime
- the power to refuse to dissolve the House of Representatives contrary
to Ministerial advice. The refusal by a Governor-General to dissolve
House on Ministerial advice has been the most frequently used of the
reserved powers in Australia.(3)
The more 'doubtful' reserve powers that arguably may also be held by
the Governor-General are:
- the power to refuse a double dissolution (although this has not been
exercised in Australia on any of the six occasions when a double dissolution
of Parliament has been requested)(4)
- the power to withhold assent to Bills that Parliament has passed and
contrary to Ministerial advice (i.e. the power of veto)
- the independent discretion to select a new Prime Minister in circumstances
where the outgoing Prime Minister resigns after a defeat in the House
of Representatives. It is argued that there is a convention which fetters
the use of the Governor-General's power such that he or she is obliged
to follow the advice of the resigning Prime Minister as to the suitable
replacement. (The contrary argument is that such a convention would
mean the demise of the reserve power leaving no independent discretion
to act in the face of unlawful or clearly erroneous advice. On this
view, the reserve power exists to allow the Governor-General discretion
to reject advice of the resigning Prime Minister not given in good faith),(5)
- the power to dismiss a Prime Minister in circumstances where the Government
cannot obtain supply and the Prime Minister refuses to resign or to
call an election.
The Use of the Reserve Power in 1975
The action by the Governor-General Sir John Kerr in 1975 to dismiss then
Prime Minister Whitlam (who retained the confidence of the lower House
but was unable to obtain supply from the upper House) is Australia's most
famous example of the exercise of reserve power. Opinion is divided as
to whether or not it was an appropriate use of the power and as to how
and when the power was exercised. Proponents of the arguments in favour
say that a Government must be able to secure supply and so in that sense
must retain the confidence in both houses necessary to achieve this. Therefore,
they argued, failure to obtain supply was an expression of a loss of confidence
in the Government and should have resulted in the Government's resignation.
Those opposed to this view argue that it has never been a requirement
for a Government to enjoy the confidence of both houses and that acceptance
of the Kerr/Barwick view would undermine responsible government and would
automatically call into question the legitimacy of any government without
a Senate majority.
What Difference Would A Republic Make?
The Governor-General, as the Queen's Representative, is regarded as above
party politics and so has a duty to remain impartial. In the event that
the Constitution were amended to provide that a Head of State undertake
the duties currently performed by the Queen and the Governor-General,
thought would need to be given to whether or not the reserve powers of
that person should be the same as the Governor-General and/or whether
they need to be spelled out in the Constitution. The arguments in favour
of specifying the Head of State's powers are that it would clarify the
scope of the reserve powers and arguments about whether or not a particular
constitutional convention existed would be avoided.
The arguments against codification are that express delimitation of the
powers is almost impossible to achieve as, from a practical perspective,
it would be extremely difficult to spell out the existing reserve powers
given that there is considerable disagreement about what they are and
where their limits lie. A further argument against codification is that
the powers would have to be drafted in a very specific way foreseeing
all crises. A general statement of powers would not suffice as, in the
first crisis, there would be arguments about how broad the power was and
how it could be interpreted. Another argument against codification is
that it might result in a variation of the existing balance of powers
such that either the Governor-General (or Head of State in a revised constitution)
has significantly more or significantly less power than now or Parliament
has more or less power.
The appropriate scope of the express and the reserve/implied powers of
the Governor-General will also be influenced by the manner of election
or appointment of the Head of State. Concerns over selecting the Head
by popular election would arguably be diminished if that person were to
perform a more limited or largely ceremonial role.
The Australian Constitution does not specify what the Governor-General's
reserve powers are and it is likely that they are not capable of exhaustive
definition. Nevertheless, if Australia moves to a Republic, it is crucial
that the question of the reserve powers of the Head of State be addressed.
It must be recognised that in doing so proponents of change may also need
to re-examine other constitutional provisions such as those dealing with
relations between the House of Representatives and the Senate.
- Sections 68 and 72 of the Constitution respectively. Other powers
include the power under section 61 to exercise the executive power of
the Commonwealth (e.g. to declare war or make peace).
- An Australian Republic: the options-the appendices, Report
of the Republic Advisory Committee, AGPS, Canberra, 1993, p. 246.
- The reserve power was exercised on three occasions between 1904 and
1909. The first time 8 months into Parliament's term, in August 1904,
Governor General Lord Northcote refused a request to dissolve of the
House of Representatives. The second instance, in June 1905, saw Deakin
replace Reid as Prime Minister and form a Government that went full
term. The third instance, in June 1909, was more controversial in that
a 'newly formed' coalition was able to form government despite not having
faced the electorate as a coalition. See Evatt and Forsey on the
Reserve Powers, Legal Books, Sydney, 1990, pp. 50-54 and A. R. Browning,
House of Representatives Practice, 2nd ed., AGPS,
Canberra, 1989, p. 11.
- The Republic Advisory Committee, op. cit., p. 269.
- Ibid., pp. 255-256.