Question as in the thread title. I know there are instances when the Governor General (or the Queen, in the UK) may reject the advice of the Prime Minister, and that they are extraordinarily rare. But AFAICT there is no list of exacxtly when this can happen. Anyone?
I’m not an expert on Commonwealth constitutionalism but my understanding is that, in theory, a Governor General can reject a Prime Minister’s “recommendation” anytime. But, in practice, it isn’t done.
In the Australian context, attempts to codify the Reserve Powers of the Governor General have always failed, and even by those promoting a directly elected head of state e.g. Paul Keating, it is generally considered impractical to codify.
Instances where the GG/G acted contrary to advise are in the context of where it is not clear that the Prime Minister/Premier commanded a working majority.
You could argue Kerr did this with Whitlam in 1977 but Kerr’s position was that Whitlam could not pass the Supply Bills and hence was not in majority. Whitlam should have just sacked him and The Dismissal would never have been played out. Whitlam’s view was that the GG can only act according to the PM’s advice. But he badly misjudged his man (i.e. Kerr was appointed by Whitlam).
A previous post of a recent precedent.
What Little Nemo said, plus: the Australian GG is effectively chosen by the PM, who obviously picks someone sympathetic to the govt.
See the Whitlam dismissal for a counterexample.
One possible scenario is a Prime Minister requesting a dissolution when there has only recently been a general election. Another might be when acting on the advice would involve an illegal/unconstitutional act being committed.
A further possibility, at least in the past, is when the GG feels that the view of the government and lower house does not reflect that of the country at large.
The GG does not have capability to determine this. One of the bones of contention in 1975 The Dissmisal was Kerr seeking the advise of Justice Garfield Barwick. Barwick was the serving Justice of the High Court and hence pre-eminent authority. But he was also previously the Liberal Attorney General and had a history of significant emnity against Whitlam dating back to the 50’s. Their electorates of Parramatta and Werriwa were adjoining.
Not in the past at all. In the case of a directly elected GG/Head of State, with a personal mandate in conflict with a PM holding a parliamentary mandate, this one is hot button.
There is also the issue of delay. Sometimes, time is of the essence and a GG/G can postpone a decision until it is made moot. A potential example is (IIRC) Sir Walter Campbell’s refusal to immediately endorse some of Premier Joh Bjelke-Petersen’s demands in the last days of Bjelke-Petersen’s time in office. There was then a political stand-off that was resolved by Joh being forced to back down in a political sense.
And I agree with penultima thule that the potential for conflict between an elected head of state who thus has personal legitimacy and an elected Parliamentary PM is perhaps the greatest challenge posed by any attempt to convert parliamentary democracies into republics that retain parliamentary traditions.
I Canada a couple years ago, the GG hesitated for while before agreeing to close the current session of Commons. The reason the PM wanted to do this was that his minority government was facing a non-confidence motion which he would have lost. Finally, she agreed. Everyone said she had a valid reason for refusing. What she got for the delay was that she was not reappointed to a second term as GG; the refusal is unusual. The PM appointed an absolute idiot as GG (I knew him personally when he was principal of McGill and believe me, I know).
When it comes to the Queen in the UK - unless someone wants to correct me on this - technically she is never bound by the prime minister’s advice. On issues over which the sovereign exercises the royal prerogative, it’s technically the royal’s prerogative. The same discretion technically applies with regard to the Queen granting Royal Assent for Acts of Parliament. But by constitutional convention the sovereign never goes against the advice of her prime minister (and never refuses to grant Royal Assent to Acts of Parliament) unless there is some sort of emergency or extraordinary situation.
She’s not legally bound, but she is bound not only by convention but also by practical reality.
If the Queen refuses the Prime Minister’s advice, the PM resigns. The Queen must appoint a PM (a) who commands or can command a majority in the House of Commons, and (b) whose advice she will accept; this limits her choice. Assuming that the matter on which the Queen has rejected the PM’s advice is one to which his party is committed, any other potential PM from that party is going to tender the same advice. The leader of the opposition might give different advice, but he doesn’t command a majority in the House. So if the Queen appoints the leader of the opposition as PM he will immediately advise a dissolution, in the hope of securing a majority. Should the previously governing party be returned to power, the Queen would have no option but to invite the leader of that party to form a government, and would once again be offered the advice that she previously rejected.
In short, by unconstitutional behaviour the monarch can delay matters, and can provoke confusion and possibly even a general election. But she cannot force the PM to give her the advice she wants, and she cannot appoint a compliant PM who does not command the necessary political support.
The term for GG in Canada is typically 5 years, I just looked on Wikipedia and it’s been that way for decades. So your assumption for Michaëlle Jean’s non-reappointment is invalid.
This isn’t the first time you’ve disrespected David Johnston here. He appears to be a well educated and decorated Canadian. If you want to share personal anecdotes, feel free.
I was under the impression that the UK/Canada/Australia, etc. keeps the monarchy and the governor general around just as a matter of tradition. If they ever tried to throw their weight around and actually get involved in the political process that there would be a serious movement to get rid of them and form a republic.
Anything that involves politics, national identity, and legal issues it is always going to be more complex.
IANAL, so take this as a rough approximation.
One of the problems any constitution has is establishing itself as in some way legitimate. From whence does the rule of law come? For Oz the answer was in some ways finessed by simply tagging onto UK law. Indeed we have the curious irony that royal assent was required on the Australian constitution, and the Australia Act of 1986 was the act, passed by both UK and Oz parliaments (because it wasn’t clear exactly who had the authority) which was the first time Australian independence was codified, also required royal assent.
Even attempts at turning Oz into a republic kept the structure of the constitution pretty much identical to its existing form. Simply removing the tie back to the UK monarch as our head of state. But the GG’s role remained largely intact. The only question being the manner in which the GG was appointed, and the new name for the position.
The ties to the UK have all sorts of historical implications. One that is perhaps amusing in a wry way is the subject of royal honours. Up until the mid 80’s Australian citizens could receive the standard British honours - MBE, OBE, and most critically, knighthoods. Senior public servants, long serving politicians, and the wealthy mates of those politicians, could expect a knighthood. This is not exactly a small deal. It became Labour Party policy not to bestow UK honours, and to rather grant the newly minted Australian honours in the mid 70’s. It isn’t just the federal government that hands out honours, but the staes do to. So we had the ridiculous situation where depending upon which colour of government was in power in a given state, or in power federally, set the question of whether a knighthood was awarded, and you got to be called “Sir”. In the mid 80’s Queen Elizabeth made the very wise decision that this was ridiculous, and terminated all royal honours. But historically you can be sure that a large number of senior politicians and their mates were very keen to keep up the relationship with the UK for just this reason. It wasn’t just knighthoods. The ex prime minister Sir Robert Menzies was awarded Lord Warden of the Cinque Ports by Queen Elizabeth on his retirement. This position was held by Winston Churchill before him.
Anyway, right now we are beset with a split country. No-one really cares all that much, although there was a general feeling that once Queen Elizabeth leaves the throne and Charles becomes king, there might be a loss of interest in royalty. The current lunacy surrounding the recent wedding has rather put some of these ideas on ice. It seems a lot of people like the idea that “Wills and Kate” are “our” prince and princess. They sell a lot of women’s magazines.
On the practical legal and political front, most people recognise the need for a tie breaker and fuse in the system. The GG has the authority to make and dissolve governments, and to call elections. (We don’t have fixed elections, an election is called by the GG on advice from the Prime Minister.) After an election a member of the new parliament will try to convince the GG that he/she “has the confidence of the parliament” and thus should form a government. This is not the same as having a majority. Indeed it is in some ways defined in the negative. The hopeful PM convinces the GG that they will not fall to a “no confidence” motion in parliament. Thus minority governments are possible - such as we have now. The government exists because a number of independent members parliament have entered into an agreement that they will not vote for a no confidence motion that they have not themselves moved. The big difference between this system and the US one is that the executive authority of government is created by this process, and it can be removed just as swiftly. This system can remain just as is under a republic. However once the link to the UK monarch is broken one might argue that the GG needs to be picked with a much more clear and open mechanism. Right now the PM picks the GG. Which is interestingly circular. The PM doesn’t appoint the GG, the UK monarch does on his recommendation. Once the GG is the final point in the process, and not the proxy for the Queen, the proposals were either to have a joint sitting of the lower and upper houses of parliament to decide - thus ensuring that the GG had the confidence of pretty well all parties, or to have a separate public election for the position. It was this split of choices that sank the republic referendum. There was a clear majority in favour of a republic, but equally split between the choices. So both lost. The fact that the fools that drafted the changes decided to call the new GG’s position “president” didn’t help either. There were a remarkable number of people that thought were were getting a US style of government out of this.
No, everyone did not say she had a valid reason for refusal. In fact the issue generated considerable discussion, with many saying that the Gov Gen should only refuse to follow advice from the duly elected Prime Minister in the clearest of cases, which this was not.
And, as Leaffan has pointed out, the typical term is five years, with no reappointment. A Gov Gen can overstay while the government is deciding who will be the successor, so you occasionally get one in office for longer than five years, but none have served ten years, as the Gov Gen’s own websiteshows.