July 17

Head of State Under PM’s Guillotine

In 1999 Australians wisely rejected the elite’s attempts to persuade them to adopt Malcolm Turnbull’s republic.

Mr. Turnbull is now insisting that Governor-General, Sir Peter  Cosgrove, would not have appointed Peter Dutton as prime minister had he been elected leader. This cannot be seriously maintained.

This would have been a pushover if ordinary Australians had agreed to the 1999 republic. Just about anything a prime minister wanted would have been granted.

Fortunately, Australians said No to the Turnbull republic.

Mr Turnbull recently dismissed as ‘nonsense’ the considered opinion of Attorney General Christian Porter that arguments about Peter Dutton’s eligibility  to sit in parliament are not relevant in appointing a prime minister.

Mr Turnbull relied on  advice from Bret Walker SC that Mr Dutton was ineligible. But advice sought by Mr Porter from the Solicitor General was that the “better view” was that he was in fact  eligible. However, the advice warned that it was impossible to state  the position with certainty and there was some risk the High Court would rule he was ineligible. 

The allegation against Mr Dutton was that he  had, through a family trust , an “indirect pecuniary interest” in an agreement with the federal government relating to subsidies paid to a child-care centre owned by his wife. It was argued  that  as a result he was ineligible to sit under section 44(v) of the Constitution. (Before he nominated for the 2019 election, he formally renounced any interest in the trust so that this is no longer a live issue.)

The fundamental point Mr. Turnbull overlooks is that questions about eligibility are not and never  were issues for the Governor-General.  On this there is a clear separation of powers.

The Governor- General’s role  is to appoint a prime minister whom he believes enjoys the confidence of the House of Representatives. This is sometimes referred to a “reserve power”, one where the Governor-General  is not bound to accept ministerial advice.

While eligibility to sit is  not a matter for  the Governor-General, some commentary argues that this is a matter for the High Court. This is  only partially true.

The power to rule on eligibility  was vested at Federation in the House of Representatives “until the Parliament otherwise provides.” The Parliament has not taken this power away from the House.

It has however provided in legislation dating back to 1918 that Parliament ‘’may’’ refer such questions to the Court of Disputed Returns. Under that  legislation the High Court sits as  the Court of Disputed Returns.

The crucial point is that eligibility is essentially a matter for the House which may either decide the question itself or refer it to the Court of Disputed Returns.  And the  High Court has made it clear that it will not consider any such question without a reference from the House.  

In addition, a prime minister need not be a member of the House of Representatives.  After the disappearance of Harold Holt, Senator John  Gorton was appointed Prime Minister. He then resigned from the Senate to contest a vacant House of Representatives seat to comply with the custom that prime ministers sit in the House.

Nor is there any requirement that the prime minister be a member of parliament. In Canada, where leaders are commonly  elected by   party members, they can be appointed prime minister before they find a seat. In Australia an outsider minister has three months to find a seat. 

The suggestion that Sir Peter Cosgrove had decided that he would not appoint Mr Dutton if he were to be elected leader is difficult to accept. No Governor-General properly advised would come to that conclusion, and Sir Peter has shown himself to be meticulous in observing constitutional requirements, for example in requiring that supply be granted before the request for the 2016 double dissolution was granted.

The situation would  have been  different had the people not rejected the 1999 republic referendum. When the referendum bill was being considered by a parliamentary joint committee, I filed a submission on behalf of Australians for Constitutional Monarchy proposing that the question which would appear on the ballot paper be changed.

The question was “Do you approve of an Act to alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and Governor General being replaced by a President appointed by a two-thirds majority of the members of the Commonwealth Parliament? “

We proposed that these additional words be Inserted before the question mark: “and dismissible by the prime minister at any time without notice, without any grounds and without any right of appeal”

This was because the model proposed by Mr Turnbull’s republican movement,  but not passed with the majority required by the 1998 Constitutional Convention, would have created  the only republic in the world or indeed, in history, where a prime minister  would have such extraordinary powers.

From the moment he was appointed, a  president  would have his neck on the prime minister’s  guillotine. He would know that the prime minister’s wish was his command. 

It was said that this was no different than the present situation and that the prime minister could always advise the Queen to remove a governor-general. It is clear that the Queen would only act on well-argued advice and that she could ask questions and make suggestions concerning this the resolution of the problem. Here we are entering into what is effectively the Queen’s reserve powers. What is clear is that she would not act instantly. Indeed, in one case, the King took several months to  remove a governor-general.

If the Turnbull republic had been approved, a prime minister could have not only told the President who not to appoint as his  successor. What else might some future prime minister try to do? In 1975, Indian  Prime Minister Indira Gandhi, to avoid her disqualification from parliament persuaded a compliant president to give her dictatorial powers under  a contrived state of emergency.

The extraordinary powers to be vested in a prime minister under the Turnbull  republic were dangerous, a fact which true constitutionalists recognised at the time.

Indeed, real republicans leaders Clem Jones and Ted Mack opposed the Turnbull republic for this reason and  sat on the official Vote No Committee with eight representatives of Australians for Constitutional Monarchy. (The ten were appointed because they had attracted by far the largest votes on the opposition side at  the Convention election )

It is a sad fact that in their obsession to remove the Crown, about two thirds of the  sitting politicians and almost all of the mainstream media barracked for this model.

But fortunately,  rank-and-file Australians  had more sense and decided in every state and 72% of electorates to  keep the existing, carefully drafted Constitution with its checks and balances.

 [ Note: According to media reports on 10 July 2019 the former Governor-General, Sir Peter Cosgrove,  has confirmed that questions of eligibility of MP’s to sit are not,in his view ,matters relevant to the exercise of the reserve power to appoint a prime minister]


Here’s the full interview on Sky TV on 27 June 2019 between Peta Credlin and Professor David Flint where Flint explains why eligibility to sit is not, under the Constitution, a relevant matter for the Governor-General. He also warns what would have happened had the people not rejected the Turnbull-Keating politicians’ republic in 1999



Governor-General or President? Chris Kenny, Kel Richards and David Flint compare the roles.


About this website


Governor-General or President?

In the Kenny report on Sky on 1 July 2019, Chris Kenny, Kel Richards and David Flint compare the role of the Governor-General comparing this with the role of…


 David Flint discusses the role of the Governor-General with 2GB’s Luke Grant on 2 July 2019.

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