Flat White

A different take on Reserve Powers

24 June 2022

4:00 AM

24 June 2022

4:00 AM

Although Peter O’Brien’s recent Spectator Australia article defending Sir John Kerr’s dismissal of the Whitlam government was essentially directed at the literary assassination of the Governor-General by Paul Kelly and Troy Bramston, it did manage to capture the Australian sentiment surrounding the November 1975 dismissal event.

While there were many factual matters to be considered to understand if the dismissal was justified, generally speaking, the public had been kept abreast of most of the relevant facts by local media who were happy to employ the wisdom of experts from different sides if only to reassure the people of their impartiality.

While Sir John would provide his version of the facts and the law within two years, the public were obliged at the time to depend on the brief opinion of Chief Justice Sir Garfield Barwick that all was well.

It was about another five years before Barwick provided his full report and there we discover that he did not agree with Kerr as to the source of his power to dismiss. That disagreement may appear superficial to some, but it goes to show just how difficult the constitutionality question of Kerr’s actions is.

Australia is governed by a Constitution which is the highest law of the land authorised directly by the citizens who reserve the right to change it. It circumscribes, with some detail, both how a government will work and specifies the limited powers it can govern with. I can say with some authority that at no time during the constitutional convention was it agreed that the Governor-General would have powers, whether reserve or statutory. 

In fact, the Convention denied that the Governor-General could act at all without ministerial advice. Yet, Sir John claimed to have them. Little wonder then that the piece chose to highlight the indeterminacy of the lawfulness of Kerr’s actions when he refers to the Kelly and Bramston’s attack:

They claim, variously, that the powers he invoked do not exist, or that they have become defunct, or that yes, they do exist but should never be used, or that yes, they exist but Kerr misused them. 

Unfortunately, the question as to whether the Governor-General’s reserve powers actually existed is left open. The author’s purpose is not to answer difficult questions of law, but to allow them to be considered by others:

The only thing that has been done to death is the reputation of Sir John Kerr and, with it, the prospect of any balanced consideration of the Reserve Powers of the Crown in Australia.

However, by referring to these powers as the ‘Reserve Powers of the Crown’ O’Brien follows Kerr’s characterisation of them as being royal powers, prerogative by nature. And this is contradicted by the later opinion of retired Chief Justice, Sir Garfield Barwick, who stated very clearly in his book:

All the Governor-General’s powers under the Constitution are statutory in nature: none are derivative or prerogative powers.

He subsequently explained that while it is convenient to refer to them as a ‘reserve power’ meaning kept in reserve, they are statutory, from the Constitution.


The previous piece is not concerned with whether they are royal or statutory powers, so much as to ensure that they continue.

I hope to help rehabilitate the status of the Reserve Powers, because I do not believe they are an anachronism but rather an important feature of our governance. 

The mistake repeated in various forms by such commentary is the lack of distinction between facts and law. In this case, while the author questions Kelly and Bramston’s knowledge of the legal status of the reserve powers, he proceeds by assuming the law exists and purports to act as Kerr’s self-appointed defence counsel: ‘A criminal trial in which one side presents the prosecution case and then the other side … is called upon to present the “self-justification” case.’

But surely this has missed the point?

Kerr published his justification in 1977 and in that he explained what he considered the law to be. A little later, Barwick published his version and contradicted Kerr, although he did agree that the powers were there to be used.

The more political question is whether those powers are consistent with the democratic principle on which the Commonwealth rests. Underneath Kerr’s dilemma is a simple issue: If powers to dismiss a government democratically elected do not exist, then Kerr acted illegally.

A retired High Court Justice mistakenly thought that Fraser’s victory at the subsequent election vindicated Kerr’s action. When it was pointed out that voting for an illegal act does not make it legal, he had to agree.

The reserve powers doctrine was introduced to Australia by HV Evatt’s book, The King and His Dominion Governors, first published in 1936. Most Australian lawyers, including Kerr, Barwick, Mason, Whitlam, and Menzies, obtained their knowledge of the reserve powers from Evatt’s book; Kerr even helped to proofread an early draft.

The book documents examples of various governors dismissing governments, but we are confronted with the difficulty of interpreting constitutional documents drafted in England to reflect a constitutional practice of a monarch without power doing what she is advised to do, with the words: ‘The Governor may appoint…’ and ‘The Governor shall issue…’

When read literally, a governor appears to possess personal powers.

Except, they weren’t intended to be read literally. Those documents were drafted decades after England had assumed a democratic mantle, with the government responsible to the House of Commons. Throughout her reign, Queen Victoria only ever acted on the advice of her ministers, a practice taught her by the statesman, Lord Melbourne.

Even after concluding in his book that the existence of the reserve powers is not clear, Evatt points out that because the powers are legally vested in a governor, ‘No question of its breach or abuse can arise.’ He merely points to the clause where he has the power.

This very question arose during the first session of the 1897 Constitutional Convention when NSW Premier Reid pointed out that a Governor-General might think he actually held the power personally unless the Constitution states that he always acts on ministerial advice.

No one disagreed when Edmund Barton explained that the Governor-General, like the Crown, no longer possesses any personal powers. He always acts only on ministerial advice.

That explanation marks the difference between responsible government under an absolute monarchy and one in a liberal democracy with a monarch.

If Australian people knew a little bit more about the differences between monarchy, liberal democracy, and tyranny, they might be less likely to give away what they currently have when the republic snake-oil salesmen try to sell referendums to them as reforms.

They can discover all they need to know in my peer-reviewed book on the topic, Australia’s American Constitution and the Dismissal. It is available on Amazon.

 

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