Constitutional Conventions

A convention is not a law, but merely an accepted way of doing something.

For example, the Australian Constitution, in its original form, makes no mention of the Prime Minister, the Cabinet, or political parties. These are amongst the most significent conventions.

Specifically:

• Governor-General

  Section 2 of the Constitution says: "A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth..."

  In practice, the Governor-General is chosen by the Prime Minister of the day, possibly in conjunction with Cabinet. In the early years of the Federation, the Governor-General was appointed from Britain. In the early 1930s, Prime Minister James Scullin visited London in order to apply pressure on the British government to allow the appointment of Sir Isaac Isaacs as Governor-General. Isaacs eventually became the first Australian to hold the position. Since the 1960s, all Governors-General have been Australians.

• Parliamentary Sessions

  Section 5 of the Constitution says: "The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives."

  In practice, the government of the day decides when Parliament will sit. These are intensely political decisions made by the Prime Minister and the most senior members of the government and its advisers.

• Terms of Parliament

  Section 28 of the Constitution says: "Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be soon dissolved by the Governor-General."

  This section is interpreted literally in the sense that no House of Representatives may continue for longer than three years. However, the earlier dissolution of the House is not decided by the Governor-General, but by the Prime Minister of the day.

  Officially, the Prime Minister calls upon the Governor-General to "request" a dissolution, although there are historical incidents of Governors-General rejecting or querying this advice.

  There were three occasions between 1901-10 when such requests were rejected by the Governor-General. In 1983, the Governor-General, Sir Ninian Stephen, sent the Prime Minister, Malcolm Fraser, away with instructions to provide detailed argument in support of his request for a double dissolution of the Parliament.

• Executive Government Conventions

  Chapter 2 of the Constitution (Sections 61-70) sets out how the Government of Australia shall operate. It makes no mention of the Cabinet, political parties or the Prime Minister:

  • Section 61 states: "The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth."

    In practice, it is the Cabinet, led by the Prime Minister, which performs this task.

  • Section 62 states: "There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure."

    In practice, the Governor-General, acting on the advice of the leader of the majority party in the House of Representatives, summons members of the majority party and swears them in as ministers. The Executive Council operates in accordance with the Constitution, but the Governor-General always acts on the advice of his ministers.

  • Section 64 states: "The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth."

    In practice, the Prime Minister is the person who leads the party with a majority in the House of Representatives. The ministers are chosen by the Prime Minister who advises the Governor-General of the names and portfolios to be allocated to them.

    It was this section of the Constitution that the Governor-General used to dismiss the Whitlam Government in 1975. This is the only instance in Federal political history of the Governor-General exercising the so-called Reserve Powers in this way.

  • Section 68 states: "The command-in-chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen's representative."

    In practice, the Prime Minister and the Defence Minister are in charge of the armed services. It is unlikely that the armed services would accept orders from the Governor-General if they were not also Government orders.

• Appointment of High Court Justices

  Section 72 states: "The Justices of the High Court and of the other courts created by the Parliament.. shall be appointed by the Governor-General in Council."

  In practice, judges are appointed by the Cabinet. The Governor-General simply rubberstamps the decision at a meeting of the Executive Council. There is no known instance of the Governor-General attempting to influence these decisions.