The calls for the resignation of Governor-General Peter Hollingworth and his determination – backed by Prime Minister John Howard — to stay put reveal a great weakness in the Australian Constitution.
There is no defined mechanism for the removal of the Governor-General. The Governor-General’s tenure of office is one of the least defined in Australia. It is merely “”during the Queen’s pleasure”.
When Hollingworth said he had a five-year term with four and half years to serve, he was wrong. There is no term for a Governor-General.
“”The Queen’s pleasure” (or King’s pleasure) has meant different things over time. Originally it meant whatever the king decided. In the early years of the 20th century in Australia it meant whatever the king decided on the advice of his British ministers. In other words what the British Government wanted happened. They appointed Upper Class Poms for the job of Australian Governor-General.
The brawl over the appointment of a Governor-General in 1931 changed this. The Labor Prime Minister, James Scullin, wanted an Australian — Chief Justice Isaac Isaacs. The British did not like this idea, but Scullin and Isaacs prevailed. It is now accepted that “”the Queen’s pleasure” in the Constitution means whatever the Australian Prime Minister advises, on his (or her) own, irrespective of what Cabinet colleagues might like. No other Australian would get near Buckingham Palace to arrange the formalities. So the appointment and continuance in office of the Governor-General is in the hands of one man — the Prime Minister of Australia.
In the present case, Hollingworth is Prime Minister John Howard’s appointment. The pair of them can tough it out. There is no court or parliamentary process to which a Governor-General is answerable.
Everything comes down to Howard’s assessment, listening or not listening to whomever he wants, until presumably he makes a political decision that Hollingworth is costing Howard more votes by staying at Yarralumla than by being told by Howard (via Buckingham Palace) that the Queen is no longer pleased to have him as Governor-General.
It is a lot of power in one man’s hands – it is power that devolved directly from the absolute power of the monarch in days gone by — a power held by an asserted divine right.
Compare that with the United States. The Founding Fathers of the United States were antagonistic to royal power. So when they drafted their Constitution they were at great pains to ensure that the document left no vestige of royal power. In its place was a system of separation of powers and a system of checks and balances. The three arms of government could check and balance each other.
In the US, the President can veto legislation passed by Congress – but the veto can be overturned by the two-thirds majority. Also the Supreme Court can test the validity of legislation passed by Congress. The President appoints judges and Cabinet members, but Congress must ratify the appointments. And, more importantly, Congress can remove any of the judges or the President by impeachment on grounds of “treason, bribery, or other high crimes and misdemeanours”.
Any member of the House of Representatives can move for the impeachment of a judge or the President. The House by a simple majority can indict the President for trial. The Senate then tries the President, requiring a two-thirds majority to remove him. There is a process for removing the Head of State, starting with any member of the House of Representatives.
In Australia, our Constitution has no such thing.
Sure, the US provisions raise the question, What are high crimes and misdemeanours? But there is at least a process and procedure where that question can be debated – as it was in the case of President Bill Clinton. And the view put in 1970 by Gerald Ford (later president) that “an impeachable offence is whatever a majority of the House of Representatives considers it to be at a given moment in history” has been rejected – so it is not just a numbers game based on party politics.
True, the Governor-General is not the same as the President of the United States. Our Constitution gives the Governor-General sweeping Executive powers, but they are exercised on the advice of the elected Prime Minister.
Nonetheless, the legacy of royalty runs through the Constitution and too much is left to convention. There is a presumption that the Crown can do no wrong, so it was wrongly assumed there was no need to insert a provision laying down a process under which the Governor-General would be accountable for misdeeds and under which he could show his innocence.
Similarly, there is no process or procedure for the removing a Prime Minister. We accept that the Prime Minister who loses his or her majority on the floor of the House loses office irrespective of behaviour – that is giving voice to the people’s representatives. But the 1975 dismissal left too many unanswered procedural questions. Opposition Leader Malcolm Fraser said he denied Supply because of “”reprehensible circumstances” – but it was only his judgment.
In all, too much power is held by the Prime Minister and Governor-General to appoint and dismiss each other and the ground rules (if there are any) are too vague.
In the case of Hollingworth, many people are voicing dissatisfaction at the lack of accountability. There is a Senate inquiry – but it has no power, unlike Parliament’s power under the Constitution to remove miscreant High Court judges or unlike the processes in the US.
At present, we have to rely on the Prime Minister’s judgment as to whether Hollingworth stays or goes. That judgment is bound to be dominated by Howard’s political assessment on how it will affect his (or his party’s) chances of re-election – not on the merits of the case. He seems to make assessments that way.
It is hard to imagine that it would come down to “”a race to the telephone to Buckingham Palace” to see who could sack whom first, but the fact that that has been mooted in the past shows the deficiencies in our Constitution which could be removed by more formal process of appointing and removing of the head of state.
Meanwhile, those who feel the Governor-General should be accountable or should have a formal opportunity to show there is no cause for him to step down can only scream in frustration.