Editing Governor-General of Australia (section)

==Relationship with the monarch==
{{Further|Australian head of state dispute}}
[[File:Queen Elizabeth II and Quentin Bryce (2011) 2.jpg|thumb|Governor-General Quentin Bryce with Queen Elizabeth II, 2011]]

While the governor-general is the monarch's representative, as provided by section 2 of the Constitution,<ref>''Australian Constitution'' (Cth) [https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/xx2.html s 2]. "A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as her Majesty may be pleased to assign to him."</ref> the powers they exercise are solely granted by the Constitution.<ref name=":13" /> This was not always seen to be the case however, with section 2 also providing that the governor-general may exercise other powers, subject to the Constitution, that the monarch may assign them. Additionally, the initial letters patent of Queen Victoria purported to create and empower the office of governor-general, despite their assignment already in the Constitution. This was raised as early as 1901, by [[John Quick (politician)|John Quick]] and [[Robert Garran|Garran]] in their authoritative commentary of the Constitution, noting that the governor-general of Australia was distinguished from other imperial governors-general by the fact that "[t]he principal and most important of his powers and functions, legislative as well as executive, are expressly conferred on him by the terms of the Constitution itself ... not by Royal authority, but by statutory authority".<ref>{{cite book|last1=Quick|first1=John|last2=Garran|first2=Robert Randolph|title=The Annotated Constitution of the Australian Commonwealth|url=https://archive.org/details/annotatedconstit00quicuoft|location=Sydney|publisher=Angus & Robertson|year=1901|access-date=25 March 2017|archive-url=https://web.archive.org/web/20140325103029/https://archive.org/details/annotatedconstit00quicuoft|archive-date=25 March 2014|url-status=live}} [https://archive.org/details/annotatedconstit00quicuoft p 390] .</ref> This view was also held by [[Andrew Inglis Clark]], senior judge of the [[Supreme Court of Tasmania]], who with W. [[Harrison Moore]] (a contributor to the first draft of the constitution put before the 1897 Adelaide Convention and professor of law at the [[University of Melbourne]]), postulating that the [[letters patent]] and the [[royal instructions]] issued by [[Queen Victoria]] were unnecessary "or even of doubtful legality".<ref>{{cite web|url=http://www.norepublic.com.au/index.php?option=com_content&task=view&id=145&Itemid=48|title=Australians for Constitutional Monarchy|website=Australians for Constitutional Monarchy|access-date=24 August 2018|archive-url=https://web.archive.org/web/20170624190055/http://www.norepublic.com.au/index.php?option=com_content&task=view&id=145&Itemid=48|archive-date=24 June 2017|url-status=live}}</ref>

Additionally, it was also previously believed that the monarch retained certain powers, such as the power to declare war, appoint diplomatic officers and to grant [[charters of incorporation]] and as such these powers were assigned separately to the governor-general under section 2.<ref name=":13">{{Cite book |url=https://nla.gov.au/nla.obj-2016976825/view |title=Final report of the Constitutional Commission |date=1988 |isbn=0-644-06897-3 |pages=341–6 |publisher=Australian Government Pub. Service |language=en-AU |via=Trove}}</ref> However, the current interpretation of the Constitution is that all royal prerogatives are exercisable by the governor-general under section 61 and in recognition of this, the vesting of additional powers ended in 1987.<ref>{{Cite book |url=https://nla.gov.au/nla.obj-2016976825/view |title=Final report of the Constitutional Commission |date=1988 |isbn=0-644-06897-3 |page=343 |publisher=Australian Government Pub. Service |language=en-AU |via=Trove}}</ref> While separate letters-patent still exist for the governor-general, these merely provide for the appointment of administrator in the case of the governor-general's absence or incapacity and requires the governor-general to make an oath or affirmation of allegiance and one of office.<ref name=":1" />

[[Solicitor-General of Australia|Commonwealth Solicitor-General]] [[Maurice Byers]] stated in 1974: "The constitutional prescription is that executive power is exercisable by the governor-general although vested in the Queen. What is exercisable is original executive power: that is, the very thing vested in the Queen by section 61. And it is exercisable by the Queen's representative, not her delegate or agent."<ref name=norepublic/>

The 1988 Constitutional Commission report explained: "the governor-general is in no sense a delegate of the Queen. The independence of the office is highlighted by changes which have been made in recent years to the Royal Instruments relating to it".<ref>{{Cite book |url=https://nla.gov.au/nla.obj-2016976825/view |title=Final report of the Constitutional Commission |date=1988 |isbn=0-644-06897-3 |page=313 |publisher=Australian Government Pub. Service |language=en-AU |via=Trove}}</ref> The changes occurred in 1984 when Queen Victoria's letters patent and instructions were revoked and replaced with new letters patent,<ref>''Office of Governor-General of the Commonwealth of Australia – Principal – Letters Patent – 21 August 1984, Prerogative Instrument – C2004Q00670''[http://www.comlaw.gov.au/Details/C2004Q00670] {{Webarchive|url=https://web.archive.org/web/20160304063849/https://www.comlaw.gov.au/Details/C2004Q00670|date=4 March 2016}}</ref> on prime minister [[Bob Hawke]]'s advice, who stated that this would clarify the governor-general's position under the constitution.<ref>{{Cite web |url=http://www.samuelgriffith.org.au/papers/html/volume8/v8chap8.htm |title=David Smith, ''The Role of the Governor-General'' |access-date=11 February 2005 |archive-url=https://web.archive.org/web/20050312031538/http://www.samuelgriffith.org.au/papers/html/volume8/v8chap8.htm |archive-date=12 March 2005 |url-status=dead }}</ref><ref>Statement by the Prime Minister to the House of Representatives, Parliamentary Debates, Vol. H of R. 138, 24 August 1984, p. 380. The Prime Minister tabled a copy of the amended letters patent relating to the office of Governor-General, together with the text of a statement relating to the document, but for some unknown reason he did not read the statement to the House, nor did he seek leave to have it incorporated in Hansard. The statement was later issued by the Prime Minister's Press Office.[http://www.samuelgriffith.org.au/papers/html/volume8/v8chap8.htm#FOOTNOTE_24] {{Webarchive|url=https://web.archive.org/web/20050312031538/http://www.samuelgriffith.org.au/papers/html/volume8/v8chap8.htm#FOOTNOTE_24|date=12 March 2005}}</ref>

This remains the case even when the sovereign is in the country: solicitor-general [[Kenneth Bailey (Australian lawyer)|Kenneth Bailey]], prior to the first tour of Australia by its reigning monarch in 1954, explained the position by saying:<ref name="norepublic">{{cite web|url=http://www.norepublic.com.au/index.php?option=com_content&task=view&id=1217&Itemid=25|title=Australians for Constitutional Monarchy|website=Australians for Constitutional Monarchy|access-date=24 August 2018|archive-url=https://web.archive.org/web/20180408024639/http://www.norepublic.com.au/index.php?option=com_content&task=view&id=1217&Itemid=25|archive-date=8 April 2018|url-status=live}}</ref> 
{{Blockquote|text=the Constitution expressly vests in the Governor-General the power or duty to perform a number of the Crown's functions in the Legislature and the Executive Government of the Commonwealth{{spaces}}... The executive power of the Commonwealth, by section 61 of the Constitution, is declared to be vested in the Queen. It is also, in the same section, declared to be "exercisable" by the Governor-General as the Queen's representative. In the face of this provision, I feel it is difficult to contend that the Queen, even though present in Australia, may exercise in person functions of executive government which are specifically assigned by the constitution to the Governor-General.}}The monarch did not overturn the actions of governor-general Sir [[John Kerr (governor-general)|John Kerr]] in his dismissal of the prime ministership and government of Gough Whitlam during the [[1975 Australian constitutional crisis]], with the Queen's private secretary arguing that the power to commission the prime minister was "clearly placed within the jurisdiction of the governor-general, and The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution".<ref name=":2">{{Cite book |title=House of Representatives Practice |date=June 2018 |publisher=Department of the House of Representatives |isbn=978-1-74366-654-8 |editor-last=Elder |editor-first=D R |edition=7th |language=en-AU |chapter=Powers and functions of the Governor-General |editor-last2=Fowler |editor-first2=P E |chapter-url=https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/Practice7/HTML/Chapter1/Powers_and_Functions_of_the_Governor-General}}</ref> In an address to the [[Sydney Institute]], January 2007, in connection with that event, Sir [[David Smith (public servant)|David Smith]], a retired [[official secretary to the governor-general of Australia]] who had been Kerr's official secretary in 1975, described the constitution as conferring the powers and functions of Australia's head of state on the governor-general in "his own right". He stated that the governor-general was more than a representative of the sovereign, explaining: "under section 2 of the Constitution the Governor-General is the Queen's representative and exercises certain royal prerogative powers and functions; under section 61 of the Constitution the Governor-General is the holder of a quite separate and independent office created, not by the Crown, but by the Constitution, and empowered to exercise, in his own right as Governor-General{{Spaces}}... all the powers and functions of Australia's head of state".<ref name="norepublic" />