Governors: Do they they have a future?
THE WEEKEND AUSTRALIAN
20 January,1996, Page 26
by Mike Steketee

AFTER swearing in a new crop of ministers following the election of the Carr Government last March, the NSW Governor, Rear-Admiral Peter Sinclair, felt compelled to address them to tell them they were his "advisers". It's nice to know where you stand when you start a new job. But it is not quite what ministers, still shaking off the frustrations of the impotence of Opposition, had in mind.

Bob Carr, the person who is really running the show in NSW, this week took the opportunity of the appointment of a new governor, former Justice Gordon Samuels, to send a signal. By moving the governor out of the stately mansion on 5 hectares of gardens overlooking the Harbour, allowing Samuels to keep his job as chairman of the NSW Law Reform Commission and cutting back on the governor's social agenda, he is bringing the position into line with what he sees as the reality of late 20th century life. That is, a desire for less pomp and ceremony and a gradual loosening of the ties with Britain and the colonial traditions.

The outrage which greeted his announcement suggests that many people are frightened by even this largely symbolic downgrading of the vice-regal position because they see it as a shield between them and the politicians. It is a commentary on how far the distrust of politicians has gone that a substantial number of people feel safer under an unelected official with dictatorial powers than under a government accountable to them through the ballot box. This is despite the fact that the governor is appointed by the Premier and can be dismissed by him through the simple device of a request to Buckingham Palace.

Sinclair was right in his homily to ministers: technically, nothing much has changed in NSW or the other States since the days when governors actually ran them as British colonies and lived the life of the Raj. It is just that there are certain practicalities, like democracy and national identity, which mean that the vice-regal job has evolved into something quite different.

For example, Bills passed by Parliament cannot become law in Australia until they are given assent by the governor-general or a governor in the case of the States. But the last time assent to legislation was withheld was in Britain by Queen Anne in the early 18th century.

That is not to say that monarchs and vice-regal representatives do not take their jobs seriously. They do ask questions about the legislation, regulations and appointments that come before them and satisfy themselves that they abide by the law. This is normally done in the spirit of the description of the monarch's role used by the British constitutionalist Walter Bagehot - the right to be consulted, to advise and to warn.

In other words, they serve as a backstop, their absolute authority at its most effective by not being used. Once it is, as it was in Sir John Kerr's dismissal of the Whitlam Government in 1975, controversy breaks out about the legitimacy of the office.

Winterton, who was a member of Malcolm Turnbull's Republican Advisory Committee, has suggested a constitutional accord on a republic between the Commonwealth and the States. In a 1994 speech, he said such an agreement would enhance the prospects of success at referendums, avoid the anomaly of some States remaining monarchies and reduce the likelihood of legal challenges.

But it would require the Commonwealth to make concessions to the States, such as reform of federal-State financial relations through a constitutionally guaranteed entitlement by the States to a fixed share of Commonwealth revenue. This particular reform will not take place as long as Keating remains Prime Minister, since he objected to such a proposal when Bob Hawke discussed it with the premiers in 1991 and has ruled it out ever since. But a fixed State share of revenue is part of Howard's policies.

Winterton suggested that, ideally, Aboriginal reconciliation also should be included as part of a tripartite accord between the Commonwealth, the States and Territories, and Aborigines and Torres Strait Islanders. "Such an accord would represent a most propitious foundation for the new republic and, incidentally, ought to satisfy some critics of `minimalism' who yearn for more substantial constitutional reform," he said.

The Keating Government's approach has been to maximise the chance of achieving a republic by minimising the degree of change. But at some point, Keating will have to take account of the States' role and their ability to stymie the process.

In the meantime, Carr's announcement has given all Australian governments food for thought about the manner in which they would like to keep their future heads of State. To the extent that the positions have a symbolic role, that of representing Australians to themselves, as it has been put, it arguably does not need to be repeated seven times over.

As the Turnbull Committee put it in its report in 1993: ". . . any move to a republic would provide a natural point for engaging in a reexamination of the 'style' of Australia's head of State . . . governors-general and governors have, after all, been representatives of British monarchs and the style of those offices was developed in a time when their occupants were British aristocrats who were expected to maintain a lavish lifestyle in keeping with their social status and that of the monarch.

"It might be asked, for example, whether a republican head of State should occupy two official residences, attended by domestic servants, or whether, by changing some elements, the office could present a more egalitarian image."

At the same time, governors and governors-general seldom have taken kindly to being regarded as a rubber stamp, although this is how Premiers and Prime Ministers would prefer them to behave. But despite public apprehensions, none of Carr's actions this week affects the very extensive powers of the governor.

When he takes up the job, Samuels will be able to dismiss Carr, refuse his request for an election or in other circumstances, insist on an election and commission another Premier.

Carr also was using his announcement for symbolic effect. He was pointing the way to a republic, when the colonial, monarchical traditions will become part of our history but otherwise irrelevant. Carr has floated the idea in the past of doing away with the governor's position entirely under a republic. This probably would mean the substantive functions would be fulfilled by the Chief Justice, who as lieutenant-governor already deputises for the governor.

The reaction this week suggests that this may be too ambitious a goal. But all States are considering their response to a republic for the simple reason that they are required to. One of the most important, and most overlooked, aspects of the republican debate is that the States have a major role to play.

Australia in effect is not one but seven constitutional monarchies. Each State has a direct link with the Queen through their governors, unlike Canada, for example, where the lieutenant-governors of the provinces are subordinate to the governor-general and not appointed formally by the Queen. That means that Australians have to make a decision about their constitutional future on two levels - the national and the State.

In theory, Australia could decide to become a republic but the States remain monarchies. In practice, that is improbable as well as incongruous. There is one qualification to the constitutional autonomy of the States: under section 128 of the Commonwealth Constitution, a bloody-minded federal government could use a national referendum to impose a republic at the State level, even if voters in that State had not agreed. It hardly needs saying that it would be a brave government which took such a step.

Paul Keating already has ruled it out in his announcement last June of the Government's preferred position on the republic, which would result in a national referendum during the next term of government. It would be up to each State to decide how in future they would appoint their respective heads of State, he said.

With the Carr Government holding a one-seat majority, it is possible that he could play the arbiter's role in a hung Parliament, as could his counterparts in Queensland, Mrs Leneen Forde, in the wake of the Mundingburra by-election in two weeks, and in Tasmania, Sir Guy Green, after the February 24 election in which the Greens probably will hold the balance of power.

This is Carr's defence against the attacks of traditionalists: why get so upset about losing some ceremony and social occasions when nothing has changed in substance? But it is a position weakened by his agreement to Samuels's retaining his job at the Law Reform Commission.

George Winterton, professor of law at the University of NSW, points out that it is the governor, through Executive Council, who formally appoints the chair at the Commission and can dismiss him - that is, Samuels himself. While the situation is unlikely to arise, even the potential for a conflict of interest would have been better avoided.

"It is reasonable to expect that if the Australian people opt for an Australian head of State, the States would follow suit," he added. "But the question would be for each State to decide."

The requirements for changing State Constitutions vary between the States and there are differences among constitutional experts about what the provisions mean but it is likely that each State would hold their own referendum on whether to break the link with the Crown.

It would seem to make sense to hold this on the same day as the national referendum. What happens if a national referendum is passed by a national majority, as well as the required majority of voters in four of the six States, but one or more of the States vote against a republic at the State level? Probably, the Queen would refuse to recognise a monarchy below the national jurisdiction.

But that is not the end of the matter. In practice, the Keating Government, or any other federal government which promotes a republic, will need to have the States on side for a national referendum to be carried. This brings home the magnitude of the task which still faces republicans.

The experience in Australia of referendums is that they fail if any of the major parties oppose them. Keating has dragged the federal Coalition to the point where Howard has committed to supporting a republic if that is the consensus of the national convention which he is proposing. But the republic still could be sunk if Howard did not impose his will on his State branches, as well - branches which pride themselves on their independence. It would be surprising if the West Australian Liberals or the Queensland Nationals, for example, fell silently into line on this issue.