The place of the Governor in the Constitution

Australia’s head of state is the Queen of Australia. She is legally distinct from but physically identical to the Queen of the United Kingdom. The Queen of Australia is represented by different people in the different polities of Australia – the Governor-General at the Commonwealth level, Governors in the six states, and an Administrator in the Northern Territory.

The Queen opening NSW Parliament 1954
[Courtesy of NSW Parliament Archives]

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APPOINTMENT AND REMOVAL OF GOVERNORS
Australia’s Governors were the first officials appointed. Initially they ran the colonies autocratically, but with the advent of representative, and then responsible government, their power diminished. From the 1890’s Australian colonial governments were usually consulted regarding the appointment of Governors, or at least informed in advance of their appointment effectively giving them the power of veto but it was considered inappropriate for the office to be held by anyone other than a British aristocrat.

The colonies were part of the Empire and therefore having a British aristocrat as Governor was part of this belonging to the Empire. From Federation til the present the role of the Governors, and who is appointed, have changed as Australia has become politically and judicially independent.

Lieutenant-General Sir John Northcott, the first Australian born Governor, was appointed in New South Wales in 1946. From that time until the enactment of the Australia Act 1986, State Governors were chosen by the State Government, although the appointment was formally recommended to the monarch by the British Secretary of State for Dominion, and later Commonwealth, Affairs. Since the Australia Act (1986), Governors are appointed by the monarch on the advice of the State Premier. The Premier’s formal nomination is presumably preceded by informal consultation with the Queen.

In New South Wales, the office of the State Governor is constituted by legislation. The office is also recognised by section 7 of the Australia Act which provides that the Queen’s representative in each State shall be the Governor, who shall exercise all her powers in respect of the State, except the powers to appoint and remove the Governor. There is no insistence that there shall be a Governor in each state or that the Queen shall be Head of the State, section 7 cannot be regarded as entrenching either the monarchy or the position of State Governor. Governor is also defined as including “any person for the time being administering the government of the State.”

New South Wales’ Governors hold office “during Her Majesty’s pleasure” meaning that the Queen can terminate their tenure of office legally at any time. The only provisions referring specifically to removal of Governors are section 7 (3) of the Australia Acts which vests the power in the Queen. The Queen’s powers to appoint and dismiss Governors would be governed by the usual conventions hence the queen would be obliged to follow the advice given by the Premier as stated in section 7(5) of the Australia Act. She would expect to be consulted prior and have time to consider and possibly seek the Governor’s response to any allegations.

POWERS OF THE GOVERNOR
According to the Australia Act 1986 section 7 “all powers and functions” of the Queen in respect of the State expect the powers to appoint and dismiss the Governor “are exercisable only by the Governor” except when the Queen is personally present in the State. The Governor is the Queen’s representative in the State. State Governors, according to the Australia Act section 7 occupy a constitutional position essentially analogous to that of the Governor-General in the Commonwealth. State Governors are not subject to instructions from the Queen in regard to the exercise of their powers.

REFERENCE:
Lee, H.P. and Winterton, G., (eds), 1992, Australian Constitutional Perspectives Sydney, Law Book Company

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