Can the Senate force the removal of a royal commissioner?

Last Monday, Dyson Heydon, the royal commissioner investigating trade union corruption, dismissed the unions’ application for him to step down on the ground of apprehended bias. The unions are yet to reveal whether they will take the case to the courts.

In the meantime, Labor says it will move a motion in the Senate this week for a message to be sent to Governor-General Sir Peter Cosgrove, requesting he dismiss Heydon.

Does the Senate normally send these sorts of messages to the governor-general? And will it lead to the governor-general removing Heydon?

How does the Senate communicate with the Governor-General?

The Senate can communicate with the Queen or Governor-General by making an “address”. This formal process for communication with the Governor-General is set out in the Senate standing orders – the rules governing Senate practice and procedure.

The standing orders require that a motion be put before the Senate in order for the Senate to make an address to the Governor-General. If the Senate passes the motion, the Senate president will formally present the address to the Governor-General at a meeting between the Governor-General, the Senate president and other senators. The president will read the address to the Governor-General, with the senator who initiated the address also being present.

An address to the Governor-General is uncommon. Aside from an address-in-reply to the Governor-General’s speech opening a new parliamentary session, an address of the Senate has not been presented to the Governor-General since 1931.

In 1931, the Senate wrote to the Governor-General requesting that the Governor-General not sign off on any regulations that the Senate had already disallowed in that same parliamentary session. The Governor-General, former High Court chief justice Sir Isaac Isaacs, wrote back to the Senate explaining that he must:

Simply adhere to the normal principle of responsible government by following the advice of ministers who are constitutionally assigned to me for the time being as my advisors.

As Isaacs explained, the Governor-General ordinarily acts on the advice of the executive – essentially the ministers of the government of the day.

What is the Governor-General’s role in establishing royal commissions?

Under the Royal Commissions Act, it is the Governor-General who has the power to establish a royal commission. Royal commissions are established by “letters patent”, a legal document signed by the monarch or Governor-General to grant some sort of right.

In the case of royal commissions, the letters patent appoint the royal commissioner and set out the terms of reference – the scope of the inquiry.

The Governor-General does not establish royal commissions on their own volition, but does so at the government’s request. This is a function of the Governor-General’s role within the Australian constitutional system. Section 61 of the Constitution vests the executive power of the Commonwealth:

… in the Queen and is exercisable by the Governor-General as the Queen’s representative.

Sections 62 and 64 of the Constitution state that the Governor-General shall be advised by the “Federal Executive Council” and that this council is made up of all the government ministers. So, in practical terms, the executive power is ordinarily exercised by the Governor-General on the advice of the ministers through cabinet.

There are rare occasions when the Governor-General will act without – or contrary to – the government’s advice. These circumstances involve the exercise of the “reserve powers”. These instances are exceptional and involve such things as the power:

• to refuse to dissolve parliament or to force its dissolution;

• to appoint a prime minister in the case of a “hung parliament”;

• to dismiss a prime minister if they have lost the confidence of the House; or (perhaps)

• to dismiss a prime minister or minister if they have acted unlawfully.

How might the Governor-General respond to a request?

Given the Governor-General usually acts on the advice of the government and its ministers, an address from the Senate is unlikely to have any effect.

Should it pass the Senate, the Governor-General will presumably receive the address, consult with government ministers through the Federal Executive Council and be advised by the government that Heydon is to remain as royal commissioner.

It seems that this is not an instance when the Governor-General would exercise the “reserve powers” and act independently of the government. This conclusion is reinforced by a royal commissioner being appointed on the advice of the government. The same principle of acting on advice would apply with regard to removal.

The effect of the Senate sending a message to the Governor-General in these circumstances is largely political. If a legal solution is sought by Labor and the unions, the only option is to take the matter to the courts.

Adam Webster does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.