Our Governor-General is more than just a ceremonial rubber stamp

There is a widespread view that the Governor-General, and the Governors, are superfluous, their role being essentially ceremonial.

One exception is admitted. They do have that ultimate power over government: instant dismissal.

There has been a quite successful attempt to taint the exercise of this power in 1975 by ad hominem attacks on Sir John Kerr. But the blame for this surely lies with the politicians who created what was a political, and not a constitutional, crisis.

Nevertheless, some of them have since blamed Sir John, the Constitution or both. Such is the tendency of political man to turpitude, to use the mot de jour (although one media commentator talked, in all seriousness, of "moral ineptitude"!)

And now, Simon Crean is doing to "turpitude" what others did to "naughty" changing its meaning through misuse.

Accusing Hollingworth of moral turpitude, as he did, was as wrong as Manning Clark's description of Lenin as "Christ-like"!

The view that the vice-regal function is that of a rubber stamp was asserted recently by federation historian and lawyer Dr Helen Irving.

Rather than "rubber stamp", she could have written "mechanical idiot".

These are the very words the Administrator of the Commonwealth, Sir Guy Green, used in 1999 to describe this theory, which he then dismissed out of hand.

The only support for this in our case law seems to be in observations from the Bench by the late Justice Lionel Murphy.

Now, the fact that the rubber-stamp theory was rejected by all of the other judges and just about anybody who has ever held a vice-regal position does not stop it being taught in many of our schools and universities without, it seems, students being told there is another view.

Surely the assessment of those who are actually doing the job ought at least to be acknowledged.

This is that the governors play an important and indeed crucial role in the day-to-day governance of this country in each of the seven capitals.

Except the ACT! Why?

Because when self-government was forced on the residents of the Territory against their will, no provision at all was made for an Administrator to act as a check and balance on the executive.

What happened was a disaster, one which Acton himself would have predicted.

The government spent and borrowed massive amounts for the Bruce Stadium without any parliamentary authorisation or supply.

If there had been a representative of the Crown, doing what governors know they have to do, this would not have happened.

The ACT needs its own Administrator. Alternatively the Governor- General, who has the power to dismiss the Assembly, could be given this role. Obviously he or she would have to reduce the ceremonial function to accommodate these duties.

But this could be an advantage. It would give some future Governor- General a reduced opportunity to be seen, rightly or wrongly, as intruding into those policy areas which are the sole prerogative of government, disguised as the "conscience of the nation".

Governors do not have mandates, and they should never assume to think they have a policy agenda.

How, then, does the Governor act as a constitutional check and balance on government?

This is done through the Executive Council, in which the ministers seek to have legal effect given to significant Cabinet decisions and their own determinations.

They do this by tendering advice to the Governor, which must be accepted, provided it appears to be lawful.

It is elementary that it is unlawful for the government to spend money without a parliamentary provision-that is, Supply.

Sir Guy says that this auditing process requires that advice be accompanied with:

1. a clear statement of precisely what it is the governor is being asked to do;
2. a reference to the source of power to take that action; and
3. particulars of any conditions which need to be satisfied before that power can be exercised; and explicit assertions by a minister stating how those conditions have been satisfied.

If any one of these requirements is not satisfied, the Governor should at least postpone his decision. If the advice is clearly unlawful or sufficient information is not given, he should reject it.

Now this is not an academic description of what should happen. It is what actually happens.

All Australians, especially our students and those seeking citizenship, are entitled to know how their Constitution works. That is their right. After all, it is one of the few Constitutions that has worked so smoothly and for so long, and is undoubtedly part of that body of laws, institutions and customs that have provided the framework which has allowed this nation to become the undoubted success that it is, and the good international citizens that we are.

Australia is not a nation that talks endlessly about liberty for the peoples of the world: it is one of the few that actually does something about it.