Here’s an Idea: Elect the Governor-General

WHEN the Australian framers began to write the Constitution, they invariably agreed that the legal-institutional framework should be under the Crown. And yet this did not necessarily commit them to having a Governor-General indirectly appointed by the Prime Minister.^[10]  According to Sydney University Law School’s Professor Helen Irving, the original debate over appointment of the Head of State (that is, remember, the Governor-General) did not occur in the context of republicanism but instead of representative government. “That Australia would hold allegiance to the British monarchy was never in doubt, but that did not mean that the Governor-General could not be elected”, she argues.^[11]

The idea of electing the Australian Head of State was first raised at the National Australasian Convention in Sydney in 1891. There, 45 representatives from seven colonies (including New Zealand) came together to embed into a written constitution the principles of federation they had agreed upon at the Federation Conference in Melbourne one year earlier.^[12] One of the three representatives at the Convention, Sir George Grey (right) of New Zealand, at the age of 79 was the oldest delegate. Previously, he had been appointed as the Governor of South Australia, and then the Governor of New Zealand, in 1845. Then he was elected to Parliament in New Zealand, becoming that nation’s Prime Minister in 1877. Grey proposed that the section about the selection of the Governor-General should read as follows:

There shall be a governor-general who shall be her Majesty’s representative in the Commonwealth.^[13]

This proposal left open the means of selecting the Head of State. Moving this amendment, he argued that this would allow for the possibility of the Governor-General being popularly elected. It was essential, according to him, “that every officer should be elected by the people of Australia. The electors should be free to choose their governor-general”.^[14] Above all, Grey deemed “unjust” for Australians to support the office of Governor-General without the opportunity to choose the incumbent.

The first response to this proposal came from James Munro, who was Victoria’s Premier. Since the Governor-General was supposed to represent the monarch, Munro reasoned that “the only way in which we can have Her Majesty’s present is through her representative, and if her representative is to be elected by us, and not by herself, he will not be her representative, but ours”.^[15] Grey, however, was not convinced by the argument. He replied that the Queen would not, in fact, appoint the Governor-General. Instead, parliamentary ministers were those who would make the decision by ‘advising’ the Queen as to whom would have to be appointed. “To my mind, to subject the people of this new federation to a rule of this kind is to degrade, and not to ennoble; is to lower them in their own estimation’, he said.^[16] Grey thus finished his argument with the following rhetorical question:

I say that you should rather allow the people to give the advice [as to who should be appointed the Governor-General]. Why cannot the united people of Australia be capable of choosing a man, and advising the Queen as beneficially as a person who knows nothing about us?^[17]

In other words, Grey believed the choice by the electors of the highest Commonwealth officer should be essentially democratic.^[18] Charles Kingston (left), soon to be the Premier of South Australia, was quite sympathetic to the idea. He even went further, proposing that all the Governors of all colonies should be elected by the relevant electorates.^[19] Sir Samuel Griffith, the Premier of Queensland, who later became the nation’s first Chief Justice, to a great extent was equally sympathetic to the idea. Eventually, however, Griffith preferred to believe that “the government of England would ascertain and exercise proper care to deliver what was acceptable to the Australian people; and when the people of Australia were of the opinion that an Australian should be elected, this course would be followed”.^[20]

The issue of directly electing the Australian Head of State re-emerged at the Second Australasian Federal Convention, in 1897. At that time Grey was at the age 85 and no longer able to attend the gathering. Edmund Barton, who later served as the nation’s first Prime Minister, reminded the delegates that ‘there are some who are in favour of the election of the Governor-General by our people’.^[21]  I am aware that it is said that the election of the Governor-General by the people is quite compatible with the relations which exist between us and the mother country”, he noted.

Ultimately, Barton decided to not support the idea of an elected Head of State on the grounds that “it would mean the sundering of the strong, and perhaps almost the last bond that exists between us and the mother-country”.^[22] Frederick Holder, South Australian delegate, disagreed. He argued that framing the Constitution ‘under the Crown’ of necessity did not bind it as to the manner in which the Head of State should be chosen. “The mere appointment by the Crown of the Governor-General is not a real bond”, he said.^[23]

That long ago debate remains of interest, as it reveals the appointment of the Governor-General was not treated as a forgone conclusion. As noted by Professor Irving:

While supporters of direct election might now regret that Grey’s original motion was not taken more seriously, they cannot fail to recognise the logic in the argument that, as ‘the Queen’s representative’, the Governor-General could not at the same time be the Australian people’s representative.

This argument — as some of the dictum in the Conventions, debate indirectly acknowledged — only held so long as the Governor-General was the Queen’s representative and even more so, so long as this meant, in practice, that the Governor-General was the representative of the Crown or more precisely, of the British government.^[24]

Of course, the above description of the Governor-General as the representative of the British government no longer reflects the reality of Australia’s constitutional order. Until 1926, when the Statute of Westminster recognised Australia, Canada, the Irish Free State, Newfoundland, New Zealand and South Africa were equal, not subordinate, to Britain, the Governor-General had to report directly to the British Colonial Secretary. Subsequently it was determined that imperial legislation would no longer apply in the self-governing British colonies. Initially the Governor-General was to report directly to the monarch, although, at the present, while nothing prevents her from reporting informally to the King, the incumbent no longer truly gives an account of her decisions to the monarch. So, who does the Australian Head of State actually represent? As Professor Irving correctly points out,

If it is the people, or the nation as a whole, the original opposition no longer stands. Indeed, the logic of the opposition to direct election in the 1890s suggests that he should now be chosen by the people. It might be replied that the Governor-General is no longer a representative at all. If so, his historical role as a representative (indeed his job-description as one, in section 2 of the Constitution) has been changed. If he is no longer a representative of any description, what then is he? Opponents of direct election today are perfectly entitled to answer that he should be nothing more than a ribbon-cutter or medal-giver. But we know that this is not an accurate description of either his duties or his constitutional powers, let alone his ‘reserved powers’.^[25]

One possible solution to solve this lack of legitimacy is to have the Head of State chosen by the people. Naturally, this would require a constitutional reform. Under section 128 of the Constitution, however, the people have no right to initiate constitutional amendments of their own choosing. According to Professor Martyn Webb, the late emeritus professor at the University of Western Australia, “this means that any further hope of peaceful change rests entirely with Parliament and the willingness of the government of the day to put forward a proposal which takes into account the already well-known preference of the people for a directly elected head of state”.^[26]

As can be seen, any constitutional reform is extremely difficult. Besides, as many would argue, many Australians remain unconcerned about the excessive dangers of concentrating too much power in the hands of a few parliamentarians. Andrew Murray, senator for Western Australia from 1996 to 2008, noted that “the worship of authoritarian leadership … is strong in Australia”. ^[27]  As he points out, this accounts for those who knowingly vote for measures that increase the power of government and its leaders.[28] One plausible explanation for such an authoritarian culture in Australia, wrote Professor Martyn Webb,

is that the continuance of Australia’s colonial past, rooted as it was in the foundations laid by its London-appointed autocratic governors helped create an authoritarian constitutional culture in which democracy is merely the means to secure and to exercise in the same autocratic way the powers of long-dead governors. There can be little doubt that having exchanged one governing class for another, the new class is holding on to its powers, patronage and privileges with just as much tenacity as did the old moneyed class.^[29]

The Prime Minister’s recent appointment of a political activist as the new Governor-General surely makes one deeply sceptical as to the current political system’s ability to promote accountability. Moreover, one wonders how much accountability is in evidence now that even a former “vaccine commander” and a chief health adviser are appointed the governors of Western Australia and Queensland respectively. So, it is entirely delusional to expect the Head of State will ever exercise the power to veto legislation that violates fundamental legal rights. This is so not only because the person in charge as the Head of State is chosen by the dominant political class but also because such a person does not have democratic legitimacy to do so. Under the present conditions, writes University of Western Australia social sciences professor Campbell Sharman,

Australia has a Head of State which is low in political legitimacy, but has all the powers bequeathed to it by the British monarchical tradition. The low legitimacy is in part a result of the lack of popular involvement in the choice of the Governor-General.^[30]

There is indeed little doubt in my mind that the ongoing decline of freedom and the rule of law in Australia is partly due to a considerable lack of separation of powers and checks and balances as per our present constitutional framework.

At its best, the election of Australian Heads of State by the electorate would represent the triumph of democracy and the common people over those elitists who hold them in contempt, and over those who want to rule them by fear, manipulation and unchecked power. This reform would give the Head of State democratic power to veto unpopular or oppressive legislation that violate our fundamental rights and freedoms.

Sir Anthony Mason, a former Australian Chief Justice, once stated that, in our constitutional order, “ultimate sovereignty” should “reside in the Australian people”.[31] To make this a reality, a constitutional reform to allow the people to elect their Head of State would have as its foundation stone this very principle of popular sovereignty and the truth contained in the Charter of Bakery Hill, proclaimed in Ballarat in 1854: “The people are the only legitimate source of all political power”.[32]   

Augusto Zimmermann is Professor and Head of Law at Sheridan Institute of Higher Education. He is a former Associate Dean, Research, at Murdoch Law School. During his time at Murdoch, Dr Zimmermann was awarded the University’s Vice Chancellor’s Award for Excellence in Research in 2012. He is also a former Commissioner with the Law Reform Commission of Western Australia (2012-2017). Dr Zimmermann is the author/co-author of numerous academic articles and books, including ‘Foundations of the Australian Legal System: History, Theory and Practice’ (LexisNexis, 2023) and ‘Western Legal Theory: History Concepts and Perspectives’ (LexisNexis, 2013)

[1] Andrew Bolt, ‘Rise and Rise of the Queen of the Quota’, Herald Sun, Melbourne/Vic, 4 April 2024, p 23.

[2] Ibid.

[3] Janet Albrechtsen, ‘Cushy Job for the Wokest Woman’, The Australian, 3 April 2024.

[4] Ibid.

[5] Advance Statement on the appointment of former Labor staffer and Voice activist Samantha Mostyn to the role of Governor-General, Advance, X (former Twitter), at https://twitter.com/FairAusADV

[6] Ibid.

[7] Western Australia v Commonwealth (1975) 134 CLR 201 (‘First Territorial Senators Case’) and Victoria v Commonwealth (1975) 134 CLR 81 (‘PMA Case’).

[8] Gabriël A Moens and John Trone, The Constitution of the Commonwealth of Australia Annotated (LexisNexis, 8^th ed, 2012) 252.

[9] Kirmani v Captain Cook Cruises Pty Ltd (No 2) (1985) 159 CLR 461.

[10] Helen Irving, ‘“They Will Choose Well, They Will Choose Wisely”: The Idea of Direct Election of the Governor-General in Australia in the 1890s’ in Andrew Murray (ed), Trusting the People: An Elected President for An Australian Republic (Optima Press, 2001) 36.

[11] Andrew Murray, ‘Introduction’ in Andrew Murray (ed), Trusting the People: An Elected President for An Australian Republic (Optima Press, 2001) 11.

[12] Irving (n 7)

[13] Ibid 38.

[14] Ibid.

[15] Official Report of the National Australasian Convention Debates (Legal Books, 1986) 565. Quoted from Irving (n 96) 40.

[16] Ibid 40.

[17] Convention Debates, 566. Quoted from Irving (n 7) 41.

[18] Irving (n 7) 40.

[19] Ibid 42.

[20] Ibid.

[21] Official Report of the National Australasian Convention Debates, Adelaide 1897 (Legal Books, 1986) 23.

[22] Ibid.

[23] Irving (n 7) 48.

[24] Ibid 50.

[25] Ibid 51.

[26] Martyn Webb, ‘When No Means No: The Failure of the Australian November 1999 Republican Referendum and Its Roots in the Constitutional Convention of 1998’, in: Andrew Murray (ed.), Trusting the People: An Elected President For An Australian Republic (Optima Press, 2001) 154

[27] Andrew Murray, ‘Introduction’, in: Andrew Murray (ed.), Trusting the People: An Elected President For An Australian Republic (Optima Press, 2001) 22.

[28] Ibid.

[29] Webb (n 26) 152.

[30] Campbell Sharman, ‘Over Powered and Under Legitimized: Redesigning the Australian Head of State’, in: Andrew Murray (ed.), Trusting the People: An Elected President For An Australian Republic (Optima Press, 2001) 176.

[31] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 137-8 (Mason CJ).

[32] John Molony, ‘Eureka and the Prerogative of the People’, Parliament of Australia, Papers on Parliament No. 42, December 2004, at https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/pops/pop42/molony