Australian Constitutional Law - Constitutional Monarchy

Constitutional Monarchy

Australia is a constitutional monarchy. Although the term "Head of State" is not used in the Constitution, it was intended that the Commonwealth (like the colonies) would continue to recognise the British Sovereign."The Queen" (meaning Queen Victoria, and defined to include "Her Majesty's heirs and successors in the sovereignty of the United Kingdom"), was one of the three elements of Parliament, along with the Senate and the House of Representatives (section 1). Today, the Queen of Australia has replaced the Queen of the United Kingdom within Australia's parliament, but they happen to be the same person. The Monarch is represented in Australia by an appointed Governor-General. The executive power is vested in the Governor-General "as the Queen's representative" (section 61), as is the command-in-chief of the armed forces (section 68).

The text of the Constitution assigns sweeping powers to the Governor-General, e.g., to dismiss Parliament (sections 5 and 57), to refuse assent to Bills passed by Parliament (section 58), and to appoint and dismiss government Ministers (section 64). At the time the Constitution was drafted and adopted, but it was understood that constitutional convention would limit the exercise of these powers. A governor-general, like the former Governors of the Colonies, would act only on ministerial advice except in extreme circumstances.

However, this reliance on constitutional convention, rather than the constitutional text, means the limits of the Governor-General's powers are unclear. Powers that can be exercised without or against ministerial advice are reserve powers.

They include the power to commission a Prime Minister, except that where a particular party or coalition of parties has a majority of seats in the House of Representatives and an acknowledged parliamentary leader, that person must, by convention, be chosen. They also include the power to dismiss a Prime Minister who has been subject to a vote of no confidence in the House of Representatives and who refuses to either resign or advise the calling of an election.

The reserve powers may also include the power to dismiss a Prime Minister who is engaging in persistent illegal action (Governor Sir Philip Game of New South Wales dismissed Premier Jack Lang on this ground in 1932). However, it remains controversial whether they include the power to dismiss a Prime Minister who, while retaining the confidence of the House of Representatives, is not able to get the annual supply Bill passed by the Senate, as happened during the Australian constitutional crisis of 1975; when the Governor-General acted against the advice of Ministers.

The role of the Queen is today even more circumscribed and amounts only to appointing (and, in theory, dismissing) a Governor-General on the advice of the Prime Minister, as well as performing (by invitation) certain ceremonial functions when she is personally present in Australia. See Constitutional history of Australia for further details on the development of the monarch's role in relation to Australia.

The importance of constitutional conventions in this area means that Australia cannot be said, strictly, to operate entirely under a written constitution, but has to some extent a system like the British unwritten constitution. However, it would be a mistake to exaggerate the importance of this aspect of Australia's constitutional arrangements:

• the reliance on constitutional convention is confined almost entirely to the relations between the Queen/Governor-General and the Ministers of State; and
• more completely written constitutional systems also develop binding conventions: for instance, popular election to the Electoral College of the United States, though not mandated by the United States Constitution, has probably become a binding norm.