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60A Status of the Governor-General and Deputy Governor-General |
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Proposed Constitution |
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(1) The exercise by the Governor-General or the Deputy Governor-General of any power conferred by sections 58A(v), 58A(vii) or 59A(iv) is not justiciable.
(2) The exercise by the Governor-General or the Deputy Governor-General of any duty, right or power conferred by law pursuant to sections 58A(viii) or 59A(v) is justiciable to the extent specified in the law, or if the law does not so specify, justiciable under s.75(v).
(3) The exercise by the Governor-General or Deputy Governor-General of any duty, right or power conferred by this Constitution, other than a power referred to in subsections (1) or (2), is, on the application of any elector, justiciable before the High Court, which may, among other remedies, declare whether the duty, right or power has been, or may be, validly exercised.
(4) Parliament may make such laws as it considers appropriate concerning the costs of court applications made pursuant to this section.
(5) For the purpose of sections 51(xxxix) and 75(v), the Governor-General and Deputy Governor-General shall be regarded as officers of the Commonwealth.
(6) Otherwise, the Governor-General and Deputy Governor-General shall have the same status and immunities as a Member of the House of Representatives, but are not, and cannot become during their terms of office, members of either the House of Representatives or the Senate.
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(1) The exercise by the Governor-General or the Deputy Governor-General of any power conferred by sections 58A(v), 58A(vii) or 59A(iv) is not justiciable.
(2) The exercise by the Governor-General or the Deputy Governor-General of any duty, right or power conferred by legislation pursuant to sections 58A(viii) or 59A(v) is justiciable to the extent specified in the legislation, or if the legislation does not so specify, justiciable under s.75(v).
(3) The exercise by the Governor-General or Deputy Governor-General of any duty, right or power conferred by this Constitution, other than a power referred to in subsections (1) or (2), is, on the application of any elector, justiciable before the High Court, which may, among other remedies, declare whether the duty, right or power has been, or may be, validly exercised.
(4) Parliament may make such laws as it considers appropriate concerning the costs of court applications made pursuant to this section.
(5) For the purpose of sections 51(xxxix) and 75(v), the Governor-General and Deputy Governor-General shall be regarded as officers of the Commonwealth.
(6) Otherwise, the Governor-General and Deputy Governor-General shall have the same status and immunities as a Member of the House of Representatives, but are not, and cannot become during their terms of office, members of either the House of Representatives or the Senate. |
Drafting Notes |
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60A.1 Writing in 1901 on s.78 of the Constitution, Quick and Garran noted the traditional legal position of the Crown as follows (at p.805):
“Remedies Against the Crown. - ‘It is an ancient and fundamental principle of the English Constitution, that the king can do no wrong.’ (Broom’s maxims, p.53) One consequence of this principle is that no suit or action, even in respect of civil matters, can - apart from statute - be brought against the sovereign. “Indeed, his immunity, both from civil suit and from penal proceeding, rests on another subordinate reason also, viz., that no court can have jurisdiction over him. For all jurisdiction implies superiority of power, and proceeds from the Crown itself. But who, says Finch, shall command the king?” (Steph. Comm. ii. 480)”.
The Crown’s immunity from ordinary claims in tort or contract has been eroded by statute and High Court decisions (see for example Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471). But the Governor-General has extensive powers of governance under the Constitution and nothing makes the exercise of those powers subject to legal action. The old rule therefore continues to apply. This presumably is why the Court in Cormack v Cope; Queensland v Whitlam (1974) 3 ALR 419 said the then Governor-General was neither a necessary or proper party to the proceedings and ordered his name be struck out as a defendant (though the Court did not explain why he was not a necessary or proper party). It is generally accepted by most writers on the Constitution that the exercise of the Governor-General’s powers cannot be prevented or changed by direct legal action against the Governor-General. The extent to which they can be challenged by action against other officials implementing his or her decisions is unclear. Defenders of the present Constitution have never explained why it makes sense to grant extensive powers to the Governor-General without providing a clear and obvious mechanism to control the exercise of those powers. That is because it does not make any sense.
60A.2 Proposed section 60A ensures that all important decisions made by the Governor-General and Deputy can be challenged in court, in the following ways:
▸ Firstly, the rule that ‘the King can do no wrong’ applies only to Kings, not Heads of States or other office holders. Abolish the Crown and the immunity is abolished.
▸ Secondly, the exercise of duties and rights, and powers incidental to their exercise, will be “justiciable”, which means that they may be brought before a court for resolution. An express provision of this kind negates any suggestion which might otherwise be made that the Governor-General's acts or omissions are immune from court action.
▸ Thirdly, s.60A(5) requires the Governor-General and Deputy to be regarded as “officers of the Commonwealth” for certain purposes. Such officers may be subject to court orders requiring them to do something, or refrain from doing something, through the combined effect of proposed s.60A and s.75(v). A Governor-General who refused to carry out a duty could be required to carry it out by a High Court injunction.
▸ Fourthly, because the remedies in s.75 do not expressly include a power to make a declaration of validity or invalidity of an action, s.60A(3) does so. A Governor-General or Deputy who was denied the opportunity to preside in the House or Senate would be able to obtain an order from the High Court declaring his or her entitlement to exercise that right, with consequential orders against those preventing its exercise.
Note that although s.60A(3) applies to all constitutional powers exercised by the Governor-General, not just those introduced by the Advancing Democracy model, this does not effect much change, because the model either abolishes the Governor-General's existing powers or transfers them to Parliament or the Government.
60A.3 Where the Head of State and/or the Deputy are allocated additional powers by legislation, it is appropriate that the legislation specify the extent to which their decisions are open to review. The effect of subsection 60A(2) however is to establish a default position if any legislation fails to address the issue that the Governor-General and Deputy, as "officers" for the purposes of s.75(v), will be liable to the issue of the constitutional writs.
60A.4 The only decisions of the Governor-General and Deputy which cannot be challenged in Court will be the Governor-General's power to act in the Deputy's place - s.58A(v) - and any powers to manage the Houses of Parliament - ss.58A(vii) and 59A(iv). Note that sections 58A and 59A draw a distinction between the duties and rights in relation to Parliamentary debates on the one hand, and a power of management of each House on the other. These are separate roles - management does not include presiding over debates, and presiding over debates is not management. It is only the management powers in 58A(vii) and 59A(iv) which are exempt from court action. It will be possible for court applications to be brought against the Governor-General or Deputy in relation to a failure to chair Parliament fairly or impartially, in breach of ss.58A(i) and 59A(i). No attempt has been made to specify which remedies should apply if such an application was upheld. A declaration that a power was not properly exercised should be sufficient to prompt the Governor-General or Deputy to reverse the ruling under challenge.
60A.5 Subsection 60A(6) creates a levelling effect, bringing the Head of State down to the level of Members of Parliament. It is one of a number of changes which reflect a concern for function rather than status. Notions of superior status are inconsistent with democracy. People who hold high office, whether they are judges, Ministers or the Governor-General, should not be regarded as of higher status. They should be seen as ordinary people who, for a limited time, fulfill an important function to serve the community. They should be provided with the powers and authority necessary to discharge the function. They have no need of some special status which encourages snobbery, arrogance and abuse of power. All the Governor-General and Deputy need is similar protection against defamation and other claims which Parliamentarians already have. |
Proposed Constitution |
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(1) The exercise by the Governor-General or the Deputy Governor-General of any power conferred by sections 58A(v), 58A(vii) or 59A(iv) is not justiciable.
(2) The exercise by the Governor-General or the Deputy Governor-General of any duty, right or power conferred by law pursuant to sections 58A(viii) or 59A(v) is justiciable to the extent specified in the law, or if the law does not so specify, justiciable under s.75(v).
(3) The exercise by the Governor-General or Deputy Governor-General of any duty, right or power conferred by this Constitution, other than a power referred to in subsections (1) or (2), is, on the application of any elector, justiciable before the High Court, which may, among other remedies, declare whether the duty, right or power has been, or may be, validly exercised.
(4) Parliament may make such laws as it considers appropriate concerning the costs of court applications made pursuant to this section.
(5) For the purpose of sections 51(xxxix) and 75(v), the Governor-General and Deputy Governor-General shall be regarded as officers of the Commonwealth.
(6) Otherwise, the Governor-General and Deputy Governor-General shall have the same status and immunities as a Member of the House of Representatives, but are not, and cannot become during their terms of office, members of either the House of Representatives or the Senate.
< Previous section Next section > |
All Changes Displayed |
|
(1) The exercise by the Governor-General or the Deputy Governor-General of any power conferred by sections 58A(v), 58A(vii) or 59A(iv) is not justiciable.
(2) The exercise by the Governor-General or the Deputy Governor-General of any duty, right or power conferred by legislation pursuant to sections 58A(viii) or 59A(v) is justiciable to the extent specified in the legislation, or if the legislation does not so specify, justiciable under s.75(v).
(3) The exercise by the Governor-General or Deputy Governor-General of any duty, right or power conferred by this Constitution, other than a power referred to in subsections (1) or (2), is, on the application of any elector, justiciable before the High Court, which may, among other remedies, declare whether the duty, right or power has been, or may be, validly exercised.
(4) Parliament may make such laws as it considers appropriate concerning the costs of court applications made pursuant to this section.
(5) For the purpose of sections 51(xxxix) and 75(v), the Governor-General and Deputy Governor-General shall be regarded as officers of the Commonwealth.
(6) Otherwise, the Governor-General and Deputy Governor-General shall have the same status and immunities as a Member of the House of Representatives, but are not, and cannot become during their terms of office, members of either the House of Representatives or the Senate. |
Drafting Notes |
|
60A.1 Writing in 1901 on s.78 of the Constitution, Quick and Garran noted the traditional legal position of the Crown as follows (at p.805):
“Remedies Against the Crown. - ‘It is an ancient and fundamental principle of the English Constitution, that the king can do no wrong.’ (Broom’s maxims, p.53) One consequence of this principle is that no suit or action, even in respect of civil matters, can - apart from statute - be brought against the sovereign. “Indeed, his immunity, both from civil suit and from penal proceeding, rests on another subordinate reason also, viz., that no court can have jurisdiction over him. For all jurisdiction implies superiority of power, and proceeds from the Crown itself. But who, says Finch, shall command the king?” (Steph. Comm. ii. 480)”.
The Crown’s immunity from ordinary claims in tort or contract has been eroded by statute and High Court decisions (see for example Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471). But the Governor-General has extensive powers of governance under the Constitution and nothing makes the exercise of those powers subject to legal action. The old rule therefore continues to apply. This presumably is why the Court in Cormack v Cope; Queensland v Whitlam (1974) 3 ALR 419 said the then Governor-General was neither a necessary or proper party to the proceedings and ordered his name be struck out as a defendant (though the Court did not explain why he was not a necessary or proper party). It is generally accepted by most writers on the Constitution that the exercise of the Governor-General’s powers cannot be prevented or changed by direct legal action against the Governor-General. The extent to which they can be challenged by action against other officials implementing his or her decisions is unclear. Defenders of the present Constitution have never explained why it makes sense to grant extensive powers to the Governor-General without providing a clear and obvious mechanism to control the exercise of those powers. That is because it does not make any sense.
60A.2 Proposed section 60A ensures that all important decisions made by the Governor-General and Deputy can be challenged in court, in the following ways:
▸ Firstly, the rule that ‘the King can do no wrong’ applies only to Kings, not Heads of States or other office holders. Abolish the Crown and the immunity is abolished.
▸ Secondly, the exercise of duties and rights, and powers incidental to their exercise, will be “justiciable”, which means that they may be brought before a court for resolution. An express provision of this kind negates any suggestion which might otherwise be made that the Governor-General's acts or omissions are immune from court action.
▸ Thirdly, s.60A(5) requires the Governor-General and Deputy to be regarded as “officers of the Commonwealth” for certain purposes. Such officers may be subject to court orders requiring them to do something, or refrain from doing something, through the combined effect of proposed s.60A and s.75(v). A Governor-General who refused to carry out a duty could be required to carry it out by a High Court injunction.
▸ Fourthly, because the remedies in s.75 do not expressly include a power to make a declaration of validity or invalidity of an action, s.60A(3) does so. A Governor-General or Deputy who was denied the opportunity to preside in the House or Senate would be able to obtain an order from the High Court declaring his or her entitlement to exercise that right, with consequential orders against those preventing its exercise.
Note that although s.60A(3) applies to all constitutional powers exercised by the Governor-General, not just those introduced by the Advancing Democracy model, this does not effect much change, because the model either abolishes the Governor-General's existing powers or transfers them to Parliament or the Government.
60A.3 Where the Head of State and/or the Deputy are allocated additional powers by legislation, it is appropriate that the legislation specify the extent to which their decisions are open to review. The effect of subsection 60A(2) however is to establish a default position if any legislation fails to address the issue that the Governor-General and Deputy, as "officers" for the purposes of s.75(v), will be liable to the issue of the constitutional writs.
60A.4 The only decisions of the Governor-General and Deputy which cannot be challenged in Court will be the Governor-General's power to act in the Deputy's place - s.58A(v) - and any powers to manage the Houses of Parliament - ss.58A(vii) and 59A(iv). Note that sections 58A and 59A draw a distinction between the duties and rights in relation to Parliamentary debates on the one hand, and a power of management of each House on the other. These are separate roles - management does not include presiding over debates, and presiding over debates is not management. It is only the management powers in 58A(vii) and 59A(iv) which are exempt from court action. It will be possible for court applications to be brought against the Governor-General or Deputy in relation to a failure to chair Parliament fairly or impartially, in breach of ss.58A(i) and 59A(i). No attempt has been made to specify which remedies should apply if such an application was upheld. A declaration that a power was not properly exercised should be sufficient to prompt the Governor-General or Deputy to reverse the ruling under challenge.
60A.5 Subsection 60A(6) creates a levelling effect, bringing the Head of State down to the level of Members of Parliament. It is one of a number of changes which reflect a concern for function rather than status. Notions of superior status are inconsistent with democracy. People who hold high office, whether they are judges, Ministers or the Governor-General, should not be regarded as of higher status. They should be seen as ordinary people who, for a limited time, fulfill an important function to serve the community. They should be provided with the powers and authority necessary to discharge the function. They have no need of some special status which encourages snobbery, arrogance and abuse of power. All the Governor-General and Deputy need is similar protection against defamation and other claims which Parliamentarians already have. |
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