If Dutton had defeated Turnbull, could the governor-general have stopped him becoming prime minister?


Had Peter Dutton won the 2018 leadership ballot and become prime minister, the governor-general may have had some tricky legal arguments on his hands.
AAP/Ellen Smith

Anne Twomey, University of Sydney

Who decides who is to be prime minister?

When Malcom Turnbull was challenged by Peter Dutton in August 2018 for the leadership of the Liberal Party, and ultimately the prime ministership, Turnbull apparently asserted that the governor-general would not appoint a person whose eligibility to hold the office was in doubt.




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His attorney-general, Christian Porter, reportedly replied that Turnbull was “wrong in law” and that the governor-general could only have regard to issues of confidence.

Who was right, and what might have happened if Dutton had been chosen as leader of the Liberal Party?

Not a choice between Dutton and Turnbull

The governor-general can only act to fill a vacancy in the prime ministership if there is one. If Dutton had defeated Turnbull in a leadership challenge, this would not itself have vacated the office of prime minister. Turnbull would have continued as prime minister until he resigned (or in extreme circumstances, was dismissed). So the governor-general would not have faced the question of whether or not to appoint Dutton as prime minister until Turnbull had indicated he was going to resign.

The choice would then have been between Dutton and whoever else the governor-general considered was most likely to hold the confidence of the house. It would be unlikely that the governor-general would seek to reappoint the prime minister who had just resigned, unless he was the only person who could hold the confidence of the lower house.

This would seem most unlikely in the circumstances.

What if Turnbull had advised the governor-general to appoint someone else?

The more plausible scenario would have been that Turnbull resigned as prime minister but advised the governor-general to appoint someone other than Dutton, such as Julie Bishop, due to concerns about Dutton’s possible disqualification under section 44 of the Constitution. This raises the question of whether the advice of an outgoing prime minister about who should be his or her successor is conventionally binding on the governor-general.

Ordinarily, the principle of responsible government requires the governor-general to act on the advice of ministers who are responsible for that advice to parliament, and through parliament to the people.

But that principle only works when the minister continues to be responsible for that advice. An outgoing prime minister necessarily ceases to be responsible to parliament for advice about his or her successor. The governor-general is instead obliged, by convention, to appoint as prime minister the person who is most likely to command the confidence of the lower house, regardless of what the outgoing prime minister advises.

While this is the orthodox constitutional position, there is still some controversy about it. When Kevin Rudd defeated Julia Gillard for the leadership of the Labor Party in 2013, it was not clear whether the crossbenchers who supported the minority Gillard government would support Rudd.

The then governor-general, Quentin Bryce, sought advice from the acting solicitor-general as to whether to appoint Rudd as prime minister on the basis of Gillard’s advice. The acting solicitor-general advised that the governor-general should do so, and appeared to take the view that the outgoing prime minister’s advice was conventionally binding.

He did not advise the governor-general that her sole consideration should be who held the confidence of the house.

Who advises the governor-general on legal issues?

If, in 2018, the governor-general had sought legal advice about his powers and the conventions that govern them, two questions would have arisen. First, who should provide the advice? Should it be the solicitor-general, the attorney-general, or the even the prime minister?

In 1975, when the governor-general asked for legal advice, the prime minister, Gough Whitlam, said it could only come through him. The attorney-general and the solicitor-general prepared a joint draft advice, but it was not provided promptly.

When a frustrated governor-general, Sir John Kerr, called in the attorney-general to get the advice, he was presented with a draft that the attorney-general apparently said he had not carefully read and did not necessarily reflect his views. Kerr later, controversially, sought the advice of the chief justice, Sir Garfield Barwick.

In more recent times, the solicitor-general has provided advice to the governor-general, as occurred in 2013. Even then, that advice was controversial, as it addressed how the governor-general “should” act, rather than simply advising on the powers and conventions that applied and leaving the governor-general to decide how to apply them.

There is currently no clear position in Australia on who should provide legal advice to the governor-general and the constraints upon the type of advice that should be given. This needs to be addressed in the future.

What happens when advice conflicts?

The second question is how the governor-general should deal with conflicting advice, which in 2018 was a real possibility.

For example, the solicitor-general could have taken the same view as the previous acting solicitor-general – that the advice of the outgoing prime minister is binding. The attorney-general, Christian Porter, apparently took the view that it was not binding, and that the governor-general should only consider who held the confidence of the house.

The prime minister is likely to have taken the view that the governor-general was bound to act on his advice not to appoint Dutton as prime minister, or that if the governor-general had a discretion, he should take into account the doubts about legal eligibility and refuse to appoint a person who might be disqualified from parliament.

There is no rule book that tells the governor-general how to deal with conflicting legal and ministerial advice. Ultimately, in this case, it was a reserve power that was in question and the discretion was a matter for the governor-general to exercise.

Confidence and eligibility when appointing a prime minister

Assuming the governor-general accepted the orthodox view that the appointment of a prime minister is a reserve power governed by the convention that the prime minister should hold the confidence of the lower house, what should he have done in this scenario?

The first issue is one of confidence. It is not certain that even if Dutton had been appointed leader of the Liberal Party, he would have held the confidence of the house. There may well have been defections that altered the balance of power.




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Hence the governor-general, as occurred in 2013, could have required an assurance to be given by the prospective prime minister that he would immediately face the house to allow it to determine confidence.

The second issue concerns eligibility. The governor-general is obliged to obey the Constitution. If the Constitution plainly prohibits action, such as appointing a prime minister in certain circumstances, the governor-general is obliged to obey it.

But where the legal question is contestable, it is not up to the governor-general to determine it. In this case, the Constitution and the law confer the power on the relevant house, or the High Court acting as the Court of Disputed Returns, to determine disqualification from parliament.

Further, the Constitution allows a person to be a minister, without holding a seat in parliament, for up to three months. So the governor-general could legally have appointed Dutton as prime minister, but might first have required his assurance that he would ensure his eligibility was resolved by a reference to the High Court.

In this way, the governor-general would have protected the Constitution and the rule of law while still complying with the principle of responsible government. Of course, he may have had some difficulty persuading Dutton to give those assurances. But this is precisely why we appoint as governor-general people with the authority and gravitas to ensure that the Constitution is respected and upheld.The Conversation

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Turnbull slams Porter for “nonsense” advice


Michelle Grattan, University of Canberra

Malcolm Turnbull has accused Attorney-General Christian Porter of providing advice to him that was constitutional “nonsense”, as the divisive events around the former prime minister’s removal are revisited.

Turnbull launched his acerbic Twitter attack following reports that the day before he was deposed last August, he clashed with Porter over trying to involve Governor-General Peter Cosgrove in the leadership crisis. Turnbull was seeking to ensure Peter Dutton did not become prime minister if he won the leadership.

Meantime, Dutton has revealed that before the May election he removed himself from involvement in a family trust – an involvement that last term had raised doubts about his eligibility to sit in parliament. The trust received money from his wife’s child care business, and child care receives government subsidy.

Dutton always maintained he was on safe constitutional ground and his spokeswoman on Thursday reaffirmed that he had had legal opinions saying he was not in breach of section 44. During the leadership crisis the Solicitor-General provided advice, taking the view Dutton was eligible, though he left some doubt.

“Nonetheless, to silence those who are politically motivated and continue to raise this; prior to the minister’s nomination at the May election, he formally renounced any interest in the trust in question,” she said.




Read more:
Explainer: is Peter Dutton ineligible to sit in parliament?


Accounts of the contretemps between Turnbull and Porter were published in Thursday’s Australian and by Nine newspapers.

Turnbull argued Cosgrove should refuse to commission Dutton, if he won the leadership, on the grounds he might be constitutionally ineligible to sit in parliament.

Porter insisted Turnbull’s suggested course would be “wrong in law” – that the eligibility issue was not a matter for the governor-general – and threatened to repudiate Turnbull’s position if he advanced it publicly at an imminent news conference.

The Attorney-General had a letter of resignation with him, in case he needed to provide it.




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The events of last year will be extensively raked over in coming weeks in books by journalists Niki Savva and David Crowe. They featured in a Sky documentary this week.

Turnbull refought his battle with Porter on Thursday, tweeting: “The discretion to swear in a person as PM is vested in the Governor General. The proposition advanced by Mr Porter that it is none of the GG’s business whether the would be PM is constitutionally eligible is nonsense. The GG is not a constitutional cypher.

“During the week of 24 August 2018 there was advice from leading constitutional lawyers Bret Walker that Dutton was ineligible to sit in the Parliament and thus ineligible to be a Minister, let alone Prime Minister. I ensured we sought the advice of the Solicitor General.

“I took the responsible course of action, obtained the necessary advice, published it and the Party Room was informed when it made its decision to elect Mr Morrison, rather than Mr Dutton, as leader.”

Porter, speaking on radio on Thursday, confirmed the accuracy of the media reports, including the tense nature of the meeting. “Sometimes meetings in government aren’t all potpourri and roses,” he said.

Porter said an attorney-general’s role was to provide advice they considered accurate and legally correct.

“Sometimes that advice is not always what people want to hear. But I’ve always taken very seriously the role and the fact that the role requires to give advice to the best of your legal knowledge and ability you think is accurate and correct.

“And that’s what I’ve always tried to do, that’s what I did during the course of that very difficult week.”The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

NSW Governor David Hurley will be Australia’s new Governor-General


Michelle Grattan, University of Canberra

Scott Morrison has announced that New South Wales Governor David Hurley will become Australia’s next Governor-General, succeeding Sir Peter Cosgrove.

The Prime Minister timed his news conference in Canberra with the governor-general designate to coincide with Bill Shorten’s opening address at the ALP national conference in Adelaide.

Like Cosgrove, Hurley is a former military man. He has been NSW Governor since 2014 and served as chief of the Australian Defence Force from 2011-2014.

He will be regarded as a safe and uncontroversial choice, although some critics will say the government should have looked beyond former military ranks.

Labor frontbencher Jim Chalmers said the opposition welcomed Hurley’s appointment but was disappointed that Shorten had not been consulted. The opposition leader was only informed on Sunday morning, ahead of the 10am announcement.

“Ideally, so close to an election the opposition would have been properly consulted on an appointment which is so important to Australia and goes for such a long time” Chalmers said.

Morrison said Hurley would be sworn in on June 28, to allow him to fulfil his present duties. Cosgrove’s term, which ends in March, will be briefly extended.

Morrison in a statement said Hurley had been “a very popular governor of NSW. From his weekly boxing workouts with Indigenous children as part of the Tribal Warriors Program, to his frequent regional trips, Governor Hurley is known as being generous and approachable to young and old alike.”

Appearing at their joint news conference in the prime ministerial courtyard, Morrison said of General Hurley “I had only one choice, my first choice, and he is standing next to me,”

Asked why the announcement was made on Sunday, Morrison said “it needed to be done to provide certainty about the role going into next year”

“Next year is an election year and it is very important that … this appointment is seen well outside the context of any electoral issues.”

The start of Shorten’s national conference speech was disrupted when demonstrators, protesting about the Adani mine and refugee policy, mounted the stage. An anti-Adani protestor stood beside Shorten with a flag that said “Stop Adani”, and other protestors unfurled a banner “ALP – Stop playing politics with peoples lives. #ClosetheCamps”.

An obviously frustrated Shorten said people had the right to protest but “you have got to ask yourself when you see these protests, who is the winner? It is the Coalition”.

Security guards escorted and dragged the protesters off the stage.

In his speech, Shorten said a Labor government would be the first government in Australian history with 50% of women in its parliamentary ranks. Standing in front of the conference’s theme of “A Fair Go for Australia” Shorten said “inequality is eating away at our prosperity”.

He announced that an ALP government would make superannuation part of the national employment standards, saying it was a workplace right and that bosses who stole superannuation from their employees should suffer the same penalties as others who violated workplace rights.

He stressed that Labor’s plans were fully costed and a Labor government could “guarantee stronger budget surpluses”.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.