Mr Benjamin Davies

University

University of Sydney

Place (Rank)

1st Place

Year

2004

Introduction

Mr Davies of Victoria is a student at Monash University. He is awarded the Governor-General’s Scholarship for an essay demonstrating a well considered, thoughtful and clear analysis of the Governor-General’s reserve powers in a constitutional crisis. He emphasized the importance of vice-regal officers encouraging political resolution of the choice of Prime Minister and minimizing the need for the exercise of the reserve powers.

Essay

Question 5

This scenario potentially requires the exercise of two of the Governor-General’s powers:

  1. The power to appoint a Ministry following an election,
  2. The power to either accept or refuse a Prime Minister’s advice for a dissolution of Parliament.

This question draws attention to the interaction of the conventions of Responsible Government and the reserve powers of the Governor-General.  Both are inherited from the United Kingdom and largely operate in a similar manner in Australia.

It is the duty of the Crown to determine who shall form a government whilst at the same time adhering to its prime duty to be politically impartial.[1]

In this scenario the Governor-General has three options: 

  • commission the Opposition Leader as Prime Minister;
  • agree to the Prime Minister’s request and dissolve the House in accordance with his power to do so under section 5 of the Constitution; or
  • explicitly decline the request and give more time for political events to play themselves out in the hope of a resolution.

It shall be argued that the third course of action is the most appropriate for the Governor-General and in pursuing this course of action he should exercise his right to consult with each of the three parties to properly ascertain the likelihood of a workable resolution.

Power to appoint a Prime Minister:

Under the system of Responsible Government, the Prime Minister is appointed by the Crown, on the basis of his or her ability to command the confidence of the Lower House. Section 64 of the Constitution gives effect to the conventions of Responsible Government in Australia by requiring the Governor-General to appoint ministers who are members of the House of Representatives or Senators.[2] The Governor-General is obliged to commission as Prime Minister the party leader most likely to gain the confidence of the House and only has independent discretion in so doing in situations where neither party can demonstrate a clear likelihood of commanding such confidence.[3]

In the Westminster system, the incumbent Prime Minister remains Prime Minister in circumstances in which the result of the election is unclear. There is no convention that he or she resign unless it appears certain that he or she cannot gain the confidence of the new House.[4] It is a commonly observed convention that when no party achieves a majority following an election an incumbent Prime Minister is entitled to a reasonable period of time to ascertain whether he or she is able to form a new government[5] and there are several precedents in which this convention was followed. Following the hung Parliament of the 1923 British general election, Stanley Baldwin remained as Prime Minister until his position was put to a vote of confidence in the Commons, which he duly lost.[6] Tasmanian Premier Robin Grey pursued the same course in similar circumstances in 1989,[7] whilst Victorian Premier Jeff Kennett also had several weeks to ascertain whether he could form a government following the 1999 election before the Legislative Assembly had sat. A Prime Minister is still entitled to remain commissioned and explore the options for a new government even when his party no longer has the greatest number of seats, as is the case in the present situation.[8] The Governor-General should therefore decline the request of the Leader of the Opposition to commission him as Prime Minister. Under normal circumstances, a Governor-General should avoid quickly exercising his discretion and allow the parliament and the political process to determine the matter.[9] A Governor-General should only commission the Leader of the Opposition as Prime Minister once it has become clear that he would command a majority in a confidence vote in the House when it meets.

Whilst the Governor-General must commission the Prime Minister who has best chance of gaining the confidence of the House, there is a difference between a party which commands a majority who support it and a party which does not have a majority of the House prepared to vote against it.[10] If the latter scenario is possible then the Governor-General has the option of commissioning a minority government by either large party without a formal coalition or agreement with the Reform Party. Such a situation occurred in the British Parliament in 1923 when Ramsay Macdonald was commissioned to form a Labour government with only 191 seats in the Commons without having received a formal pledge of support from the Liberals, who held 159 seats, enough to give Macdonald a majority.[11] There is no requirement for a Prime Minister to seek majority support in a hung Parliament, nor any obligation to enter into negotiations with the balance-of-power party.[12] It is therefore open to the Governor-General to commission either of the large parties as a minority government although he should refrain from doing so until such time as the parties themselves indicate that one is likely to be able to form a viable government.

Power to refuse a request for a dissolution:

The Governor-General has the power to refuse to dissolve Parliament against the wishes of a Prime Minister.[13]

 The exercise of this power, however, is limited to situations in when it is absolutely necessary to do so to preserve the operation of the political system.[14] George Winterton has described the limits to this discretion in the following way:“An unelected Governor-General can be allowed no personal discretion beyond that absolutely necessary to ensure the effective operation of parliamentary democracy”[15].

The Governor-General’s first duty must be to the system of government.[16] He should only refuse the Prime Minister’s request for a dissolution if he is satisfied that the granting of a dissolution would detract for the proper functioning of the system. It is generally agreed that a Governor-General should refuse a dissolution before the House has had an opportunity to meet and consider in whom it has confidence.[17] In the current situation, the granting of a dissolution would detract from the proper functioning of the political system. It would thwart the will of the people by denying the Parliament they have chosen the opportunity to consider who is able to form a government.

An incumbent government cannot be forced out of office until it has lost the confidence of the House, and the Crown should not take action until that has either happened is clearly likely to happen.[18] Convention therefore dictates that a dissolution not be granted before the House has met.[19] It is imperative that a Governor-General not pre-empt a situation and instead allow political events to play themselves out if there is any possibility of agreement being reached between the parties. If, following consultation with the Governor-General, it becomes clear that agreement cannot be reached and a workable government cannot be established, the Governor-General should commission one of the party leaders on the condition that they recommend a dissolution.[20] It is important that such a dissolution only be granted on advice of the commissioned Prime Minister, so that the political party is seen to be taking political responsibility for bringing on the election, rather than the Governor-General[21]

The Governor-General is also entitled to make inquiries of all relevant parties as to whether an alternative Prime Minister can command a working majority.[22]

In 1989 the Governor of Tasmania, General Sir Phillip Bennett was faced with a similar situation in which an election had failed to produce a clear majority. The incumbent Liberal Party had the highest number of seats of any party and Premier Robin Gray advised the Governor that he would be able to form a government.[23] The Governor accepted this advice and granted him a new commission, on the understanding that his support would be tested in Parliament when next it met.[24] The Government then lost a no-confidence motion and the Governor was left to appoint a new government, based on his own discussions with the opposition Labor Party and the five Greens-Independents who held the balance of power. On the basis of assurances provided to him by these members, he commissioned the Labor Party to form a minority government.[25] Although the Labor Party had a parliamentary motion of confidence in its favour, the Governor still consulted with the Greens-Independents afterwards to satisfy himself that they would provide ongoing support to the Government, given that they had not previously given such an assurance.

The Governor-General would be well-advised to follow a similar course in the current situation. As Sir Phillip Bennett did in 1989 he should seek the agreement of the Prime Minister to exercise his right to consult with all three parties in order to encourage them to reach a breakthrough or, if such a breakthrough it not possible, to properly satisfy himself personally that the parties’ intransigence precludes such a solution.[26]

The national crisis situation

The current circumstances of economic crisis and security threats mitigate against a course of action which will take a longer period of time to reach a resolution, and should be taken into consideration by the Governor-General in the exercise of his powers. Although it is not normally appropriate for the Governor-General to make assessments of the “national interest” in handling such a situation, given the political nature of such assessments, in times of national crisis it is permissible for him to do so.[27] In 1916, when facing a “hung” parliament in which support for Prime Minister Asquith had collapsed, King George V informed the party leaders in the course of his discussions with them that a minority government was not in the national interest in wartime and encouraged them to seek a solution which provided a stable coalition with a majority in the Commons. In 1931, during a period of economic emergency, George V commissioned a national government comprising both major parties in response to the crisis. It should also be borne in mind that in both of these situations George V also expressed a view that a new general election at such a time was undesirable.[28] These precedents do not suggest that either of the two options presently available to the Governor-General (a new election or commissioning a minority government) is more appropriate than the other. They do, however, confirm is that when it comes to his discussions with the party leaders, the Governor-General is within his rights to encourage them to seek a solution in which a stable parliamentary majority can be achieved, in order to provide the certainty necessary to deal with the national crisis. The Governor-General must be careful not to insist on such an outcome, as this could be seen to exerting undue influence on the political process, as well as being partial towards the Reform Party, whose influence it would be guaranteeing.[29]

Conclusion

The Governor-General should first refuse the request of the Leader of the Opposition to commission him as Prime Minister before Parliament sits, for the reasons outlined above. He should then seek the agreement of the Prime Minister to engage in direct discussions with the leaders of all three parties to more accurately ascertain their positions. In doing so, he should exercise his right to encourage the parties to seek a solution which provides for a stable government to be formed, given the imperative of the national crisis, although he should not be so forthright if there were not a national crisis.

The Governor-General has a duty to ensure that the rule of the people is given proper effect by enabling their chosen Parliament to at least attempt to produce a workable government.[30] The undesirability of a further election so soon after the last one in a time of national crisis is a further argument in favour of the House of Representatives considering the matter. If it becomes apparent that the Progressive Party will be able to form a government with the support of the Reform Party then, according to convention, the Prime Minister ought to resign and recommend that the Leader of the Opposition be commissioned as Prime Minister.[31] If the Prime Minister does not resign and faces the House and loses a confidence vote, then by convention he must resign (if not, he can be dismissed by the Governor-General) and the Leader of the Opposition can then be commissioned.

If there is no likelihood of either party being able to form a government, then the Prime Minister is entitled to face the House and attempt to govern as a minority government. It is important that the Governor-General not pre-empt such an outcome by passing judgement on the likely viability of such a Government before the Prime Minister has faced the House, unless the two other parties have made it absolutely clear that he will not have the confidence of the House. If the Prime Minister then loses the confidence of the House and the Leader of the Opposition cannot gain it, then another dissolution is the only available option, and the Governor-General should seek such a recommendation from the commissioned Prime Minister.

Bibliography:

Bagehot, W. The English Constitution, Sussex Academic Press, 1997

Barwick, G. Sir John Did His Duty, Serendip, Sydney, 1983

Bogdanor, V. The Monarchy and the Constitution, Oxford University Press, 1985

Constitutional Centenary Foundation The Australian Constitution (2nd ed) Constitutional Centenary Foundation, 1997

Cowan, Z. Governor-Generalship in the Commonwealth, Journal of the Royal Society of Arts, August 1985

Evatt, H. & Forsey, E. Evatt and Forsey on the Reserve Powers, Legal Books, Sydney, 1990

Galligan, B. A Federal Republic: Australia’s Constitutional System of Government, Cambridge, Melbourne, 1995

Green, G. Governors, Democracy and the Rule of Law, Sir Robert Menzies Oration on Higher Education, 29 October 1999

Hirst, J. A Republican Manifesto, Oxford, Melbourne, 1994

Kerr, J. Matters for Judgement, MacMillan, Sydney, 1978

McGarvie, R. Democracy: Choosing Australia’s Republic, Melbourne University Press, 1999

Republic Advisory Committee: An Australian Republic: The Options – The Report, Report of the Republic Advisory Committee, 1993

Republic Advisory Committee: An Australian Republic: The Options – The Appendices, Report of the Republic Advisory Committee, 1993

Smith D. The Role of the Governor-General Upholding the Australian Constitution, Volume 8, Samuel Griffith Society, 1997

Smith, D. The Role of State Governors: An Endangered Species? Upholding the Australian Constitution, Volume 16, Samuel Griffith Society, 2004

Winterton, G. Monarchy to Republic: Australian Republican Government, Oxford University Press, Melbourne, 1986

Winterton, G. Parliament, the Executive and the Governor-General, Melbourne University Press 1983

Winterton, G. (ed) We, the People, Allen & Unwin, Sydney, 1994

Winterton, G. & Lee, H.P. Australian Constitutional Perspectives, Law Book Co, Sydney, 1992

[1] Bogdanor, V. The Monarchy and the Constitution, Oxford, 1985, p147

[2] Constitutional Centenary Foundation, The Australian Constitution (2nd ed) 1997, p72

[3] Republic Advisory Committee, An Australian Republic: The Options – The Appendices, Appendix 6 – The Reserve Powers of the Governor-General, p248

[4] ibid

[5] Winterton, G. Monarchy to Republic: Australian Republican Government, Oxford, 1986, p35

[6] Bogdanor, Op cit, p148

[7] McGarvie, R. Democracy: Choosing Australia’s Republic, MUP, 1999, p50

[8] A precedent for such an event can be found following the British general election in 1885 when Lord Salisbury, despite being reduced to having the second-largest party in the Commons, remained Prime Minister until he lost a vote of no-confidence - Bodganor, Op cit. p149; A similar situation also occurred in relation to the Government of Edward Heath in 1974 – Winterton, Op cit, p35

[9] Winterton, Op cit, pp36-37

[10] Bogdanor, Op cit, pp151-2

[11] Bogdanor, Op cit, pp152-3

[12] ibid, p153

[13] Bagehot, The English Constitution, Sussex Academic Press, 1997, p45

[14] McGarvie, Op cit, p146

[15] Winterton, G. Parliament, the Executive and the Governor-General, MUP, 1983, p152

[16] Kerr, J, Matters for Judgment,, MacMillian, 1978, p327

[17] Republic Advisory Committee, An Australian Republic: The Options – The Report, p91

[18] Bogdanor, Op cit, p151

[19] Republic Advisory Committee The Appendices, Op cit, p250

[20] Forsey, E. Introduction­ – The Present Position of the Reserve Powers of the Crown in Evatt and Forsey on the Reserve Powers, Legal Books, Sydney, 1990, pp lxi-lxii

[21] McGarvie, Op cit. p53

[22] Bogdanor, Op cit, p158

[23] McGarvie, Op cit, p50

[24] Smith D. The Role of State Governors: An Endangered Species? in Upholding the Australian Constitution  Volume 16, Samuel Griffith Society, 2004, p115

[25] Winterton, G. The Constitutional Position of Australian State Governors in Winterton, G. & Lee, H.P. Australian Constitutional Perspectives, Law Book Co, Sydney, 1992, p304-314

[26] Unlike Sir Phillip in 1989, there should not be any need for the Governor-General to consult the Reform Party following a confidence vote in the House. Sir Phillip deemed it necessary to consult the Greens-Independents afterwards as they purported to not be a conventional political party in which conventional party discipline applied and, as such, could not guarantee their ongoing support for the new government (Smith. D. Op cit, p114). Assuming the Reform Party operates according to conventional notions of party discipline, there would be no such need, and it would be inappropriate for the Governor-General to consult with the party after a confidence motion in the House.

[27] Bogdanor, Op cit, p159

[28] ibid, p160

[29] ibid, p153

[30] McGarvie, R. Democracy: Choosing Australia’s Republic, MUP, 1999, p147

[31] Winterton, G. Monarchy to Republic, Op cit, p36