Do we need a Governor or Administrator in the ACT? Monarchist Professor David Flint thinks so. He argues that governors-general, governors and administrators (Viceroys) are not mere rubber stamps, but provide an important constitutional function.
He thinks the Governor-General could double up as the ACT’s Administrator and do less ceremonial work around Australia so he or she could attend to important ACT constitutional duties.
Flint’s argument has got some difficulties.
To turn the monarchists’ slogan around, the ACT system is fixed, there is no need to break it.
If the role of Governor contains important constitutional duties, that must mean an exercise of power of one sort or another. In a democracy, those who exercise power should either be elected or should be accountable to those who are elected according to stated parameters.
The trouble with monarchy is that the monarch asserts power through what the monarch asserts to be divine right. True, in modern constitutional monarchies, the monarch (or the monarch’s representative in the form of a Governor-General) agrees not to assert day-to-day power but to give it to elected representatives. Nonetheless, some reserve “divine-right” power remains. It is uncodified. Convention determines when it arises, but there is nothing to say how it is to be exercised or provide redress if it is mishandled.
This reserve power arises immediately after an election when no party has a clear majority; when a Prime Minister seeks an early election; when a Prime Minister refuses to advise the calling of an election when the Parliament’s term is up; and when the Prime Minister acts unlawfully.
In these circumstances in Australia an unelected representative of the Queen can exercise power. And has done so in past.
The ACT has a system that does not require an administrator. It has functioned for 14 years without one despite turbulent political upheavals, minority governments, votes of no-confidence and politicians who in the early days were at best immature and at worst manic for power. If the ACT system could deal with those situations without a Viceroy, other states and territories and the Commonwealth could as well.
The ACT does not require a Viceroy because nearly all of the so-called reserve powers are removed by making them self-executable. It was done quite cleverly in the Act Self-Government Act – an Act of the federal Parliament.
The reserve power about whether a Governor should call an early election is removed because the ACT has fixed terms. We know elections are held on the third Saturday in October every third year. End of story.
The reserve power about who to call upon to be Chief Minister and form a government is removed, too. The Chief Minister is not appointed by a Governor or Governor-General. Quite properly the Chief Minister is elected on the floor of the Parliament by the people’s representatives. All of the changes of government in the ACT have been done this way. After each election, the Members of Parliament meet. The first meeting is chaired by the Chief Justice who conducts an election for the Speaker. The Speaker then conducts an election for Chief Minister. It is completely democratic.
With the present state of the parties around the country it seems obvious that the Viceroy just picks the obvious winner in a two-horse race and there is no reserve power. It might not always be this way. In the early days of the Federation it was often a three horse race: Protectionist, Free Trade and Labor. No-one had a majority. It happened in Tasmania in the 1980s when the Greens were the third horse. Who knows, they might become the third horse federally some time in the future.
If a Parliament is hung after an election, should the Viceroy take the advice of the Prime Minister now in minority as to whether to call another election, allow the Prime Minister to continue in minority or hand over to someone else from the Prime Minister’s party, the other major party or even to the leader of the minor party? That decision would be more democratically taken on the floor of the newly elected Parliament. It happens in the ACT. It works.
The reserve power on what to do after a motion of no-confidence is also self-executing in the ACT because the Assembly elects a new Chief Minister – the Viceroy is not needed to appoint one. It could be made tighter by requiring any valid no-confidence motion to name the new Chief or Prime Minister, but that is by the by.
As to the Viceroy’s power to sign into law Bills passed by the Parliament, that task is done in the ACT by the Chief Minister. Chief Ministers have always signed them into law, even if the Chief Minister’s party voted against them on the floor of the House. Failure to sign a Bill into law would invite the same majority which voted for the law to vote against the Chief Minister.
True, there is a bit in the Self-Government Act allowing the Governor-General (read – Federal Minister) to dissolve an unworkable Assembly. But it is unnecessary.
The reason the self-executing method was used in the ACT was not out of any democratic sentiment, but because the Federal Government at the time was only giving the ACT self-government to save money and move the blame for the cuts. So why spend money on a superfluous Governor?
As for the ceremonial front, the Chief Minister has done a perfectly adequate job (as the Prime Minister could do, and has done, federally).
As to the reserve power to act against a Prime Minister who acts unlawfully, the courts are a better determiner of unlawfulness than a Viceroy who might have no training in the law – a former archbishop, for example.
Flint made a reference to the Bruce Stadium and spending money without parliamentary approval, suggesting it would not have happened if there had been a Viceroy in the ACT. Simplistic stuff. Indeed, at the Estimates Committee recently the present Government admitted ambiguity in the Financial Management Act (FMA). The Auditor had reported that, “It was determined that previously the C[entral] F[inance] U[nit] was possibly not fully compliant with the FMA in relation to the Territory banking account”.
Independent Helen Cross asked, “What’s it about? Who broke the law? Who was possibly not compliant? Because you’re either compliant or you’re not, right?
Treasurer Ted Quinlan said, “No. That’s why we have courts, and civil actions, and lots and lots of judges and all that sort of thing. They wrestle with these issues. . . . It was ever only a matter of process, wasn’t it? It was never a matter of spent money we shouldn’t have.”
Opposition Leader Brendan Smyth thought that if it was good enough to force Kate Carnell to resign as Chief Minister over a matter of process over the same ambiguous law that Quinlan should resign, too.
Quinlan said that both he and the Auditor rejected the comparison. But given the ambiguity in the Act, “If there’s a presumption of innocence in all of this then everybody’s innocent.’’
The historic admission aside, if an Auditor, an Estimates Committee and two successive governments find ambiguity in this sort of thing, no Viceroy will be able to get across the detail of huge number of governmental transactions. They are matters for the courts (as Quinlan rightly says) or the floor of the House. That is what democracy and the rule of law are for and why they should underpin the system, without any help from someone approved (however notionally or indirectly) by someone in London who got her job by hereditary and divine right.
And, incidentally, I bet that when the Queen changed the Letters Patent for the Australian Governor-General in the Hollingworth affair she would not have done so without some British official or Minister giving it the nod or providing an opinion to the Palace in some form or other. It’s demeaning. We want a democracy based on the sovereignty of the people – fewer Viceroys, not more.