The Queen’s Role in the Appointment and Dismissal of the Governor General

Professor Anne Twomey is Professor of Constitutional Law at the University of Sydney. She is the author of (most recently) The Veiled Sceptre – Reserve Powers of Heads of State in Westminster Systems (CUP, 2018). In discussions of the Whitlam Government’s dismissal by Governor General Sir John Kerr in 1975, there is rarely any consideration given to the Queen’s powers in such a crisis. Anne Twomey asks, “Does the Queen have a reserve power to refuse advice to dismiss a Governor-General?”  In her view, the Queen does not have a positive power to dismiss a Governor-General, but she does have a negative power to refuse advice to dismiss a Governor-General. Anne Twomey addressed The Sydney Institute on Monday 6 August 2018 to consider cases where the Queen’s role in the dismissal of governors general was decisive.

THE QUEEN’S ROLE IN THE APPOINTMENT AND DISMISSAL OF GOVERNORS-GENERAL

ANNE TWOMEY

The Queen’s powers with respect to Australia are limited.  Most constitutional powers, such as the power to summon or dissolve Parliament or to appoint or dismiss the Prime Minister or Premier, are allocated to the Governor-General or Governor.  The Queen’s involvement largely concerns the appointment and removal of the Governor-General and State Governors.  In this, she ordinarily acts upon ministerial advice.

But when the advice is illegal, inappropriate or given for the purpose of preventing the exercise of a reserve power or maintaining in office a Prime Minister who has lost the confidence of Parliament, does the Queen herself have a reserve power to refuse to act?  What can she do?

The change in the source of advice to the Sovereign

Until the Crown became divisible, around 1930, the King was advised and protected by British ministers when it came to the appointment and recall of Governors and Governors-General.  The King’s personal views had a strong influence on British ministerial advice, and the King’s representatives in far-flung parts of the globe tended to be men who were personally known to him.

This changed in 1926 when the Balfour Declaration recognised the equality of status of the Dominions and the United Kingdom, and in 1930 when the Imperial Conference confirmed that Governors-General were no longer Imperial Officers and were appointed upon the advice of the Prime Minister of the country concerned.

Hence, we saw the struggle between Scullin and the King over the appointment of Isaac Isaacs as Governor-General of Australia.  The King’s primary objection, apart from Isaacs being old and Australian, was that the King did not know him, so he could hardly be the King’s personal representative in Australia.

The King’s Private Secretary, Lord Stamfordham, in discussing the King’s eventual capitulation to Scullin’s persistent advice, observed that His Majesty still regarded himself as “within his rights to refuse Mr Scullin’s demand”.  But the King was aware of how easy it was to light the flame of agitation “by an ill-disposed minority – especially when, as in this case, constituted of Trades Unions, Communists and the Irish, not of the highest class”.  Hence royal perceptions of the class inferiority of Australians helped to establish the precedent that the King acted upon the advice of his Dominion Ministers when appointing the Governor-General of the Dominion.

The dispute over the Governor-General of Ireland

More interesting, however, was the controversy concerning the Governor-General of Ireland in 1932.  The Irish leader, Eamon de Valera, wanted to remove the office of Governor-General by gradually stripping it of status and relevance. Various slights were visited upon the Governor-General, James McNeill, by ministers. The Governor-General demanded an apology.  De Valera expressed regret regarding some instances but refused to apologise. This was all recorded in bitter correspondence. The Governor-General threatened to make the correspondence public unless he received an apology.  Irish ministers thought that he was not mad enough to carry out this threat and expressly advised him not to do so.  The Governor-General defied his ministers and the correspondence was published in The Times in July 1932.

De Valera advised the King to dismiss the Governor-General with effect from 1 October.  The King’s Private Secretary decided to “play for time” by replying that as the submission was of an “unprecedented character”, the King would require further information and discussions.

After long negotiations, efforts were made by the Palace to encourage McNeill to resign, to avoid a precedent of dismissal for political reasons. But McNeill saw resignation as an admission of fault and refused to go. As a last resort, the King personally instructed McNeill to resign. McNeill’s reward was to have lunch with the King and Queen. The announcement said that the Governor-General had ”relinquished” his office.  This was because McNeill objected to the term “resignation” and the King objected to the term “dismissal”.  The “relinquishment” precedent was one that would be used in the future to remove recalcitrant vice-regal officers.

The next problem was filling the post. De Valera initially proposed that the Chief Justice fill the duties without the appointment of a new Governor-General. This was to make it easier to get rid of the office in the future.  But the Chief Justice refused to take the required oath of allegiance to the King, destroying this plan. The King sought legal advice as to whether he could reject the advice of De Valera about whom to appoint, as he did not want to be forced into appointing “some rebel or murderer”.  He was told that if he was not satisfied that the person was suitable to be Governor-General, or if he was being advised to act unconstitutionally, then he could reject that advice, but that there would be political consequences.

De Valera then recommended his own appointment as Governor-General, while continuing to hold the office of (effective) Prime Minister. The King’s Private Secretary simply refused to put such advice before the King, arguing that it was pointless because the King had no power to act in such an unconstitutional manner.  As time passed, the situation became politically acute for De Valera. Without a Governor-General, none of his bills could receive assent, including the budget.  Like the Whitlam Government in 1975, De Valera faced running out of money.

In late November 1932, he advised the King to appoint as Governor-General a shopkeeper from a small town, Donal Buckley, who was prepared to take the oath and confine the role of Governor-General to doing paperwork from his own home.  Buckley had been involved in the Easter uprising of 1916, killing a number of people in the fighting.  So, the King could justifiably have classed him as both a rebel and a murderer. But everyone was so exhausted by the dispute by this stage that the appointment was made and Buckley was sworn in by the same Chief Justice who refused to take the oath himself.

This Irish dispute set the scene for later ones. Playing for time, seeking further information, asking for legal advice, assessing suitability, refusing to act unconstitutionally and much “to-ing and fro-ing” all became features of later controversies.

Appointment of the Governor-General

In practice, a degree of control over the suitability of appointments was exercised through the established procedure that the monarch is first advised informally, through the Private Secretary, and that only once informal approval is given is formal ministerial advice conveyed.  If there is an objection at the informal stage, it is rare for a government to insist upon its choice, as there is a strong social pressure upon politicians not to force the Queen to do something she does not wish to do.  By this means, the Queen can still say that she has never refused to act upon formal government advice, but at the same time can effectively cause that advice to be withdrawn or altered.

For example, in 1958 the Palace and the British Government managed to prevent the Premier of Tasmania, Robert Cosgrove, nominating himself to be Governor after his retirement as Premier.  It did so by pointing to the undesirability and impropriety of a person who had only just left active local politics being appointed to the office of Governor.  John Gorton also said that he had been “warned off” from advising the appointment of a particular person as Governor-General in 1968.

A particular problem arises if a Prime Minister advises the appointment of a Governor-General during the caretaker period before or after a general election.  When this has occurred, the Palace has usually either encouraged the Prime Minister to obtain the support of the Leader of the Opposition, as occurred in Canada in 1935, or delayed taking any action until after the election was determined, as occurred in South Australia in 1968.  This is consistent with the (contested) proposition that there is a reserve power to refuse to act as advised when to do so would be a serious breach of the caretaker conventions.

On one occasion, however, a new Governor-General of Tuvalu was appointed during the caretaker period in 1993 upon the advice of a Prime Minister who had failed to obtain the confidence of Parliament.  After the election, the new Prime Minister sought the removal of the Governor-General on the ground that his appointment occurred on the advice of a person who did not hold the confidence of the Parliament.  On this occasion, the Palace acted swiftly (within six days) in agreeing to his removal, perhaps in recognition that the initial appointment was inappropriate and ought to have been delayed until the result of the election was known.

Removal of the Governor-General

The removal of a Governor-General is almost always controversial.  Most books say it has only happened two or three times.  In fact, the issue has arisen far more often and it is worth exploring some of these occasions to understand the issues at play and how they have been dealt with by the Palace.

Pakistan

The first controversy of this kind faced by the Queen occurred in Pakistan in 1953.  The Governor-General, Sir Ghulam Mohammed, dismissed the Prime Minister, Khawaja Nazimuddin. Nazimuddin, himself a former Governor-General, claimed that the Governor-General had no power to dismiss him and that he therefore remained the valid Prime Minister of Pakistan.  He then sought to contact the Queen to request her to dismiss the Governor-General.

The Governor-General was prepared for this contingency, however, and had secured the cutting of the overseas telephone and telegraph lines. The British High Commissioner also refused to convey Nazimuddin’s message to the Queen.  The British Government, and presumably the Queen, took the view that as Nazimuddin had been dismissed, he was not entitled to advise her in any case.

Most interesting was the advice the British Government sent to its High Commissioner in Pakistan about the ability of a Prime Minister to advise the Queen to dismiss the Governor-General.  It said:

If a Prime Minister in Office were to ask The Queen to dismiss the Governor-General, Her Majesty before acceding to such an unusual request would presumably require to have full information of the circumstances which had led to it.  This was the course adopted in 1932 when de Valera made a submission to The King advising His Majesty to terminate the appointment of the Governor-General of the Irish Free State…  No doubt also The Queen would wish to have the Governor-General’s own account though we should assume that he would in any case have reported to Her Majesty the action which he had taken and the reasons for it.  If the request were pressed it would in the last resort be necessary for The Queen to accept the advice of Ministers but they could not expect Her Majesty to agree to dismissal of her personal representative without complete information on every aspect of the matter.

Ceylon

In 1962, after a failed coup attempt in Ceylon, the Prime Minister became concerned that the Governor-General of Ceylon, Sir Oliver Goonetilleke, would be used by future coup-plotters as an alternative figure-head and putative leader. This caused her to seek his dismissal.

This time the Palace proved more helpful, perhaps because it was being advised by a Prime Minister who was still clearly in office. It advised that Sir Oliver’s term had expired in 1960 and had not formally been renewed.  Although Governors-General serve at the Queen’s pleasure, in practice they are given a fixed term and the Queen has to approve any extensions.  If no action is taken to renew the term, the Governor-General can be replaced simply by the appointment of a new Governor-General, as the new commission automatically terminates the existing one.  The Palace suggested that this was a better alternative to formal dismissal. The Prime Minister jumped at this option, advised the appointment of a new Governor-General and denied that she had ever sought to dismiss the Governor-General.

This became known as the Goonetilleke precedent and was used on numerous occasions to politely remove Governors-General without apparent dismissal.  When a similar issue arose in St Kitts decades later, the Legal Adviser to the Foreign Office observed: “… it is always convenient if an expiring frog falls off his log without having to be pushed”.

Western Nigeria

Later that same year, the issue of dismissal of a government and removal of a Governor arose again, this time in Western Nigeria. In the midst of a partisan political dispute, the Governor dismissed the Premier, Chief Akintola. Akintola claimed his dismissal was unlawful and advised the Queen to dismiss the Governor. Cunningly, to avoid the Pakistani phone issue, he sent his daughter to London with a letter seeking the Governor’s dismissal. British diplomats took the view that the letter was back-dated and the advice was given after the Premier had been dismissed, rather than before, as the date on the letter suggested. If he was no longer Premier, then the Queen could not be advised by him.

The problem here was that Akintola challenged his dismissal in the courts.  The Supreme Court of Nigeria held that Akintola had not been validly dismissed and remained the valid Premier.  He was therefore the Queen’s adviser so she should act upon his advice. But the decision went on appeal to the Privy Council.  What if it found differently?  Whose advice should the Queen act upon when the question of who is Prime Minister is tied up in the courts for a year or more?  A similar dilemma arose in Papua New Guinea in 2011 when there were two purported prime ministers and a conflict between the courts and parliament over who was the rightful one. This is one reason why making such matters justiciable is not a good idea.

In the case of Western Nigeria, the Queen eventually did act on Akintola’s advice and removed the Governor. The Privy Council then advised the Queen to overturn the Nigerian Supreme Court’s decision. It concluded that as Akintola had been validly dismissed, his rival, Adegbenro was the valid Premier.

Just before this decision was handed down by the Privy Council, Adegbenro wrote to the Queen asking her to dismiss the new Governor and reinstate the old one.  But by then, it was Akintola who had majority support in the Legislature.  If the Queen acted on Adegbenro’s advice, it was likely that he would soon be subject to a vote of no confidence, and Akintola would again become Premier and reverse it. The Commonwealth Relations Office advised that the best course was to treat the letter “with masterly inactivity”.

The matter was instead resolved by the Western Nigerian Constitution being amended with retrospective effect to ensure that Akintola had never been validly dismissed to begin with. The Queen ignored Adegbenro’s advice and the new Governor stayed office.  Akintola’s victory was not long lived.  He was later killed in a military coup.

Rhodesia and Fiji

Another case of the dismissal of a government and uncertainty as to who could advise the Queen arose in Rhodesia in 1965 after the Smith Government’s unilateral declaration of independence. Exactly 10 years before the dismissal of the Whitlam Government, on 11 November 1965, the Smith Government was dismissed by the Governor of Rhodesia, Sir Humphrey Gibbs.  Smith, unlike Whitlam, retained effective control of the country and continued to govern.

He advised the Queen to replace Gibbs with his own candidate, but the Queen refused to receive Smith’s advice as he was no longer legally her Prime Minister. The poor Governor continued to raise and lower the flag every day, issuing ineffective orders, as his electricity and water were cut off and he became isolated.  Eventually, four years later, after Rhodesia had voted in a referendum to become a republic, Gibbs was permitted by the Queen to resign and she exercised a reserve power to relinquish her own role with respect to Rhodesia.

The Queen also exercised a similar power in relation to Fiji in 1987. After a coup by Colonel Rabuka, the Queen strongly supported the Governor-General and regarded him as the sole repository of executive power in Fiji. But following a second coup and after the Governor-General agreed that the Queen should be asked to amend the Constitution of Fiji in a manner that favoured indigenous Fijians over Indo-Fijians, the Queen’s Private Secretary imposed strong pressure on the Governor-General to resign, telling him that to remain in office would embarrass the Queen.  His resignation letter was written for him by the British High Commissioner, and once he was induced to sign it, the Palace announced that this terminated the Queen’s role as head of state of Fiji.  This termination of her own role was an exercise of a reserve power because the Queen was not acting on ministerial advice in doing so.

Sierra Leone

In contrast, when a coup occurred in Sierra Leone in 1967, the Queen agreed to receive advice directly from the coup leaders, sidelining the Governor-General, Sir Henry Lightfoot Boston, who was also pressured to resign.  His resignation letter was also written for him by British officials.  It purported to transfer executive power to the coup leaders. But Sir Henry was made of firmer stuff and refused to sign it.  He was then sent, compulsorily, on leave to London. When he visited the Queen, the Court Circular said that he was being received by the Queen “upon relinquishing his appointment of Governor-General of Sierra Leone”.  Sir Henry flatly denied this, telling the press that he was still Governor-General and intended to return at the end of his leave.  But this was not to be.  Although a later coup resulted in an invitation for him to return as Governor-General, he was too ill and died shortly afterwards.

St Lucia

In the absence of coups and revolutions, the primary reasons for seeking the dismissal of a Governor-General were that he or she was regarded as a rival, or obstructive, or that it was a plum position that the Prime Minister wanted filled by someone of his or her own party.

In St Lucia in 1979 there was a classic Kirribilli-style pact between a new Prime Minister and his ambitious deputy.  The Prime Minister would govern for six months and then take the role of Governor-General, allowing the Deputy to take over as Prime Minister.  This involved securing the removal of the existing Governor-General, a former Chief Justice of the West Indies.  As with most such pacts, the Prime Minister later decided that he no longer wished to proceed, but a majority of the Cabinet was controlled by his Deputy and voted for the Governor to be removed on his 70^th birthday in October 1979.

The Prime Minister wrote to the Queen advising her of this on 3 September.  He later recorded that “this advice was not approved”.  It is not clear precisely what happened, as all the primary documents have been redacted by the British, but this may be a case where ministerial advice to remove a Governor-General, when it was done solely for political reasons, was refused.

After further protracted negotiations, however, the Queen apparently agreed in principle to the Governor-General’s removal by the end of December, but sought to achieve it by inducing his resignation instead.  This time the Governor-General agreed to resign, but on his own terms in February 1980. Cabinet rejected this and advice was again sent to the Queen saying that the Governor-General had to be gone by the end of October, either on leave before his retirement, or be dismissed by that date.  More delays from the Palace ensued. Finally, in mid-December the Queen approved of the Governor-General’s retirement in February the following year and of his replacement by a third person, Boswell Williams.

At this point, the power struggle changed because the Deputy Prime Minister regarded the proposed new Governor-General as a supporter of the Prime Minister and therefore a dangerous opponent. The existing Governor-General was then asked to withdraw his resignation, which he agreed to do.  Curiously, the Palace now stepped in and said that it could not accept the withdrawal of the resignation without the agreement of the Cabinet.  The Cabinet split five all on the issue, so the Palace said that the decision could not be reversed.  The Governor-General was required to resign, and Williams was appointed as the new Governor-General.

Not long afterwards the government collapsed. This was because, quite topically, it was caught up in a scandal concerning the disqualification of Members of Parliament and an attempt to reverse it by enacting retrospective legislation to prevent their disqualification and ratify their misuse of travel expenses. There were massive demonstrations on the streets calling for the resignation of the government and it fell.  After another temporary government collapsed, an election was called, and a new government formed. In October 1982, it insisted that the Governor-General advise the Queen that he intended to “relinquish” his office in December 1982.  Williams refused to do so, arguing that this amounted to discrimination on political grounds which breached his constitutional rights and was therefore illegal. The Queen was advised to dismiss him.  The Opposition Leader wrote to the Queen arguing that she would be “acting unconstitutionally” if she acceded to advice to remove the Governor-General.

We don’t know what action the Queen took to get advice on her legal position. But we do know that this time the Queen did act, and the Governor-General was removed with effect from 12 December. The former Governor-General was reappointed to the office he had previously been removed from.

During these various controversies one British official noted that the Government of St Lucia should be reminded that “Governors-General are not, by hallowed tradition, just political shuttle-cocks”.

St Kitts

Around the same time, on another Caribbean Island, the Governor of St Kitts, Probyn Inniss, was removed. In this case there had been a court decision that all bills and proclamations had to refer to “St Kitts, Nevis and Anguilla”, to be valid, until the Constitution was amended, even though the island of Anguilla had now been politically separated from the polity of St Kitts.  While this decision was on appeal, the Governor of St Kitts refused to assent to bills or sign proclamations unless they also referred to Anguilla.  So here the reserve power in play was the refusal of royal assent.

The Governor consulted with the Chief Justice and they both agreed that the rule of law trumps the convention that the Governor acts on ministerial advice. The Premier sought the Governor’s dismissal, as he was making the government dysfunctional.  Pressure was brought on the Governor to resign but he refused to do so. He sought natural justice and claimed he was upholding the law.

While St Kitts was self-governing, it had not yet been granted independence, so the British Government still advised the Queen concerning it. British officials agreed that the Governor should have the right to explain himself, even if this resulted in delay.  The Foreign Office’s Legal Adviser said that Governors should not be “booted out” except on grounds of “proved misconduct or on the necessity to keep the constitutional machine working”.  It was on the second ground that the Governor was eventually booted.  While the British Government was sympathetic to the rule of law argument, it considered the point in this case to be a mere technicality which did not affect the rights or interests of anyone.  The Legal Adviser concluded as follows:

No public officer is expected or required to perform an illegal act but where the responsible Ministers repeatedly advise a Governor to perform his functions in a particular way, and he will not, either he or they must resign.

British officials decided to wait for the appeal to be heard before acting.  They changed their tune, however, when the Governor unwisely asked for a copy of an article concerning the dismissal of the Whitlam Government in 1975. In the face of a risk that the Governor would dismiss the St Kitts government on the grounds of illegality, the Governor himself was removed.

According to one source, the Governor found out of his dismissal when handed his marching orders by a British marine who landed in a navy helicopter on the Governor’s manicured lawn amidst the swaying palms.  Unfortunately, the primary documents do not bear out this picturesque story. Instead, it was a long drawn out process which took months to finalise.

Tuvalu

Most interesting was the conflict in Tuvalu in 2013. The government lost its majority but refused to reconvene Parliament, so that there could be no vote of no confidence in it. The Governor-General eventually exercised a reserve power, twice, to summon Parliament so that it could vote on the issue of confidence.

The Prime Minister wrote to the Queen, advising her to dismiss the Governor-General for acting contrary to ministerial advice. The Governor-General, not having heard from the Queen, took the view that he was still in office and dismissed the Prime Minister.

Parliament was recalled.  It voted no confidence in the government and elected a new Prime Minister. The Queen appears to have taken no action on the advice to her, as it was overtaken by events. It showed that in a race to the Palace, the Governor-General wins, because he or she can give immediate effect to the dismissal of a Prime Minister, whereas a Prime Minister can only advise the dismissal of the Governor-General and has to wait somewhere between a week and months for it to be given effect.

The Queen’s reserve powers

Does the Queen have a reserve power to refuse advice to dismiss a Governor-General?  The general consensus amongst scholars is that while she does not have a positive power to dismiss a Governor-General, she does have a negative power to refuse advice to dismiss a Governor-General, particularly if that advice is improperly given, such as when it is for the purpose of preventing the Governor-General from validly exercising a reserve power.

However, it is also accepted that in practice such a reserve power is usually not able to be exercised.  If the Prime Minister retains majority support in Parliament and the relationship with the Governor-General has become unworkable, affecting the running of the government, then the Governor-General has to go.

Has the Queen ever used such a reserve power?  It is hard to verify it. The St Lucia example shows that in at least one case such advice was “not approved”, although the Governor-General eventually “resigned”. The main difficulty in knowing is that such matters are kept highly confidential and laws are in place to prevent access to such information.

One possible example was when Sir Joh Bjelke-Petersen lost the support and leadership of his party in 1987.  We know that he did contact the Queen, but not what he told her. He may have advised her to dismiss the Governor. Perhaps she told Sir Joh that it would not be appropriate for her to act until parliament was recalled, and only then if it voted confidence in him.  But in the absence of records of what was said, we cannot know.  There may well be other examples which are hidden behind the solid gold curtains of royal secrecy.

In practice, the Queen’s exercise of a reserve power in this field is usually wrapped up in the cover of delay.  By delaying action, the Queen can let local political forces play out so that the Prime Minister falls if he or she no longer has the support of Parliament, as occurred in Tuvalu and Queensland.

In summary

In summary, we know at least the following about the dismissal of Governors-General.

1. Legality in both the appointment and removal of the Governor-General is important. The Queen is not obliged to act in a manner that breaches statutes or the Constitution.
2. Formal advice to remove a Governor-General must be by way of signed letter, normally delivered by a high ranking official. A telephone call is not enough.  In 1991 when the PNG Government sought the dismissal of the Governor-General, the Cabinet Secretary was despatched with the letter.  When the Victorian Government sought the removal of the Governor in 1985, the Deputy Premier carried the letter to London.
3. The Palace will seek detailed information regarding the reasons for dismissal and will usually seek a response from the Governor-General, as a matter of natural justice.
4. The process will take at the minimum around six days, but usually weeks or months to complete. It is not instant.
5. While the process is underway, the Governor-General retains the power to dismiss the Prime Minister, if there is valid cause to do so, although some Governors-General would regard themselves as constrained from doing so. This was certainly the view taken by both Sir John Kerr and Sir Paul Hasluck – that if advice was given for their dismissal it operated to freeze the exercise of their own powers.  This is a problematic view, as the point of delay is to allow the matter to be dealt with locally.  It would mean that only the Queen could resolve the controversy, heightening the political pressure on her.  In my view, the approach of the Tuvalu Governor-General was better.  By summoning Parliament and letting it resolve the matter, he took a course that was consistent with representative democracy and resolved the issue quickly and effectively without the Queen’s involvement.  No doubt she is grateful to him.