Reserve Powers of the Governor-General
Posted by sapidblog on 11 September, 2010
It is quite possible during this period of a hung parliament that the Governor-General Ms Quentin Bryce might be required to exercise her reserve power. So what are they? A reserve power is a power that can be used by the head of state without involvement of another branch of government (but usually only in exceptional circumstances). The reserve power is part of the unwritten conventions that serve to flesh-out the bare bones of the written constitution. Since they are conventions, and not codified in law, the effect is through public opinion rather than through legal processes. However, use of reserve power outside of the conventions would usually precipitate a constitutional crisis as happened in Australia in 1975.
In Australia, the reserve powers of the Governor-General include:
- the power to appoint a Prime Minister
- the power to dismiss a Prime Minister (and therefore the government)
- the power to dissolve the House of Representatives
- the power to dissolve both houses of Parliament (a double dissolution)
Peter Gerangelos argued in The Australian on Friday that these particular powers are not merely conventions but are specifically vested in the Governor-General by the Constitution and would be Judicially enforceable. Following the processes of suggested by Peter Gerangelos in that article, so far the current Governor-General has followed her constitutional role assiduously by accepting the advice of the Caretaker Prime Minister and commissioning a ALP minority government. Now that the ministry and cabinet have been decided they can be duly sworn into office.
The test for Australia’s new minority government will occur on the floor of the House of Representative when it sits later in the month. If the government loses a no-confidence motion then the Prime Minister must either resign or advise the Governor-General to dissolve parliament. If the Prime Minister takes neither course of action then the Governor-General can exercise the reserve power of dismissal, which will result in a fresh election in due course.
Another test for the Governor-General will occur if, like the Harper minority Conservative government in Canada in 2008-9, the Prime Minister seeks to prorogue Parliament rather than face a no-confidence motion on the floor of the House. Proroguing of Parliament is another reserve power of the Governor-General which places the Parliament into a caretaker mode where no new-business can be enacted. In the Westminster System, a Parliament can remain prorogued for up to a year before a new election must be called.
The Governor-General of Canada, Michaëlle Jean, on 4 December 2008 prorogued the Canadian Parliament on advice from Prime Minister Stephen Harper in order to avoid a likely no-confidence motion. The prorogation lasted until 26 January, 2009 after which the opposition from the other minority parties dissolved and a confidence vote, with support from the Liberal Party, passed a few days later. A second prorogation of the Canadian Parliament occurred on 30 December 2009 until after the 2010 Winter Olympics on 3 March 2010, caused international criticism for being undemocratic.
A further possibility for a constitutional crisis in Australia, in the coming months, arises from a hostile Senate blocking bills from the minority House. An obstructionist Senate was the basis for the previous constitutional crisis in 1975. Senator Steve Fielding, who holds the balance of power in the Senate has threatened to side with the Coalition to block everything for the next 10 months until, as it seems likely, his term expires 1 July 2011. More recently, he has moved away from this obstructionist stance but the minority Labor government still needs support from Steve Fielding, Nick Xenophon and the Greens in order to pass legislation through the Senate until the Greens gain the balance of power in July next year.
As well, history teaches us to expect the unexpected. So the Governor-General Ms Quentin Bryce should be prepared to drop all of her engagements and travel plans, at a moments notice, in order to accommodate a constitutional crisis, or two, any time over the next few years.
