The first duty of the members of parliament chosen at the election is to ensure the orderly transition of government. As a new government emerges, the most important consideration to bear in mind is that our sound and sophisticated constitutional system has within it the means to ensure that this orderly transition of government is done peacefully and fairly, all the while ensuring the will of the people will prevail.
In the meantime, the suggestion the Governor-General has a conflict of interest because of her daughter's marriage to Bill Shorten, a parliamentary secretary, is at least premature and probably cannot be sustained. But because this has been raised, the Governor-General has, quite correctly, sought legal advice on the claim.
When and if she comes to act under the discretionary powers of the Australian Crown (the reserve powers) she will no doubt act in accordance with that advice. In the unlikely event the legal advisers conclude there is a conflict of interest, she may stand aside as Governor-General. She may also do so for more abundant caution and to protect the office. Peter Hollingworth did.
The powers of the Crown would then be exercised either by one of the senior state governors acting as administrator of the commonwealth under his or her roving commission from the Queen, or another person, such as a deputy appointed to act on her behalf. Under the Constitution, the executive power of the commonwealth is formally exercised by the Governor-General, and accordingly, Her Excellency will play a significant role in the formation of the next government.
But we are at some distance from the Governor-General being required to act under the reserve powers in the unlikely event this occurs.
For some time, and at least until the parliament meets, which could be as late as November, the Governor-General will no doubt act on the advice of the caretaker prime minister.
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…no rubber stamp…..
But in doing this, she is not some rubber stamp. The Governor-General is the constitutional guardian and in accepting advice to act, she does not do so blindly. First, she must read and understand what she is doing, just as the Queen does.
She also needs to be assured she has the power to do what is being proposed. Further, she needs to be satisfied that any conditions on the exercise of the power have been fulfilled.
The vice-regal duty was most recently declared by Governor of Tasmania Peter Underwood. A viceroy's primary duty, he said, was to protect and maintain the Constitution and the system of representative parliamentary democracy. This extends to seeing that elections are conducted in accordance with the law and that there is an orderly transition of government that reflects the will of the people as expressed at the ballot box.
…the will of the people….
That will is recorded in the declaration of the poll for each of the 150 electorates. The number of votes received by a party, whether primary, two-party-preferred or however else someone wishes to count them, are constitutionally irrelevant. This is, after all, a representative democracy.
The vice-regal duty is to find a person who can form a stable government. This is a person who is able to advise the viceroy of the names of persons, normally elected to parliament, who, if appointed as ministers, will have the confidence of the House of Representatives.
For while the Governor-General proposes, it is the house that disposes.
….viceregal duty: three occasions…
This vice-regal duty of finding such a person comes up on three occasions. First, it comes up after every House of Representatives election; second, after the passage in the House of a vote of no confidence in the prime minister; and finally, on the failure of the parliament to grant supply.
The case before us is that following an election there is a responsibility on the members of parliament to try to find a majority in the House. This should be stressed. Our constitutional system raises the expectation, indeed the duty of the members of parliament, to find a solution.
Given that neither the government nor the opposition is likely to attain a majority, it seems three independent members of parliament may decide who will form the federal government.
They are the Queensland independent member for Kennedy, Bob Katter, and the NSW independent members for New England, Tony Windsor, and for Lyne, Robert Oakeshott. They come from electorates that are very different from the cities of our nation.
The 1999 republican referendum remains a good litmus test of the mood of electorates: in Kennedy, 70.21 per cent voted No; in New England, 67.39 per cent voted No; and in Lyne, 61.59 per cent voted No. This suggests these constituencies would expect their members to support conservative policies, but ones including good standards of communication and the harvesting of water.
Mr Katter in particular is prepared to adopt unfashionable positions, for example, in relation to agricultural trade.
An important side issue is the reform of House procedures so we may again have the full benefits of the Westminster system. Too often the House has been turned into a supine assembly under the thumb of a majority government, which, as we have seen, can fall under the control of a cabal of four. To have the people's House effectively controlled by four people is undesirable, even dangerous.
Some of the very poor policy decisions and maladministration that have occurred could have been more effectively challenged in a House as powerful as the House of Commons.
Remember, for example, how challenging the House was to the Blair government. This included the Labour back bench: Britain's Labour has never adopted the "caucus pledge".
Tony Abbott has made suggestions about this to the independents and no doubt Julia Gillard will match, or even better, these. The result will be more transparency and more true accountability and an end to that disgraceful and infantile practice, the Dorothy Dixer.
In the coming weeks, Ms Gillard will make an assessment as to whether she has majority support. She will be reminded that when the House meets, the Constitution requires that its first business must be to choose a member to be the Speaker. Now the Speaker cannot join in an expression of confidence in her or any government. He or she enjoys a casting vote only when the House is equally divided.
… PM’s options….
During the weeks before parliament meets, Ms Gillard may form the view that her cause is hopeless, and resign in advance. After making the decision to resign, she would presumably advise the Governor-General to call on Mr Abbott to form a government. We now enter into the discretionary area of the Governor-General's powers. The invitation to form a government is something clearly within the vice-regal prerogative, and as the Tasmanian governor observed, it is in no one else's gift. Even the premier cannot determine how it will be exercised.
That said, it is inconceivable in these circumstances that the Governor-General would do other than accept the advice of her prime minister and call Mr Abbott.
…very early election?…
It is unlikely that Ms Gillard would, at this early stage, advise that there should be another election. If she did, it is most unlikely that the Governor-General would grant this.
As Winston Churchill once said: "A new House of Commons has a right to live if it can, and should not be destroyed until some fresh issue or situation has arisen to place before the electors."
Canadian expert Eugene Forsey argues that if a government has been in office only a few months, and only a few months had elapsed since the last election, the grounds for a vice-regal refusal would be strong.
The exception to these considerations would be where the Governor-General forms the view that the parliament is unworkable.
Taking time to form a government is not in itself evidence that it is unworkable. What might be persuasive would be if a Speaker could not be found because no party and no independent was prepared to lose his or her deliberative vote.
In that case, the parliament could not even consider a motion of no confidence; it would be unable to do anything.
…dangerous to increase politicians’ power: importance of the Crown…
Former Labor leader H.V. Evatt, a considerable constitutional authority in his own right, adopts Edmund Burke's view that it would be dangerous to vest in cabinet, or presumably the prime minister, a right to dissolve parliament at any moment it pleases.
They say the power to dissolve is a prerogative of the Crown, which must be jealously guarded in the public interest. This would mean also that it must remain as it always has: unjusticiable, that is, not reviewable by the courts.
If, before the House meets, Ms Gillard does not choose to resign, she will advise the Governor-General of her proposed ministry and that she believes this would have the confidence of the House.
If the opposition then moved a vote of no confidence and she won, that would be the end of the matter unless, of course, she lost a subsequent vote of no confidence.
If she loses, she must resign, whatever the two-party-preferred vote.
In the highly unlikely event that she did not resign, the Governor-General would have to act under the reserve powers. I would expect Ms Gillard would resign and advise the Governor-General to call on Mr Abbott to form a government.
Were she to advise an election, the same considerations as above would apply.
…superb constitutional system….
The constitutional system works superbly: we are after all one of the world's six or seven oldest democracies. Central to this is that the constitutional guardian owes allegiance to the sovereign and is therefore above politics, and accordingly does not exercise her powers for political ambition. There is one matter to note.
Having supported a government, this does not guarantee majority support will continue.
There is a vice-regal precedent that may stand Ms Bryce in good stead. This was by the long-serving Lord Gowrie, a war hero who won a VC in the Sudan and was severely wounded at Gallipoli, where he was awarded the DSO and bar.
In the 1940 election, the first Menzies government survived only with the support of two conservative independents, Arthur Coles and Alex Wilson. Menzies was subsequently forced to resign by his party, and Arthur Fadden became prime minister.
The two independents crossed the floor. Lord Gowrie summoned them to Government House and insisted on their guaranteeing that if he invited the Labor leader, John Curtin, to form a government, they would support him and bring an end to this instability. They did, and Curtin was appointed. He won the next election by a landslide. Were the government commissioned this year to fall, this would not be a bad precedent for the Governor-General to follow.
[David Flint is an emeritus professor of law and convenor of Australians for Constitutional Monarchy]