Eligibility not an issue in governor-general’s deliberations

Malcolm Turnbull with Sir Peter Cosgrove during a swearing-in ceremony at Government House Picture: Gary Ramage.

When Malcolm Turnbull faced a leadership challenge from Peter Dutton in August last year, he reportedly told the Attorney-General, Christian Porter, that the Governor-General would not appoint Dutton as prime minister due to uncertainty about his eligibility.

The Attorney-General apparently replied that Turnbull was “wrong in law” and that the Governor-General could only take into account whether or not Dutton held the confidence of the lower house. Who was right?

Under the constitutional principle of responsible government, the governor-general is ordinarily bound, by convention, to act upon the advice of his or her responsible ministers, because they are accountable for that advice to parliament, and through it, to the people.

That rule does not apply to appointing the prime minister. This is because the outgoing prime minister cannot remain responsible to parliament for any advice about who shall be his or her successor.

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It is also due to the fact that the overriding principle of responsible government is that the prime minister must be the person who holds, or is most likely to hold, the confidence of the lower house.

If an outgoing prime minister were to advise the governor-general to appoint as their successor a person who did not hold the confidence of the house, the governor-general would be entitled to ignore that advice, and appoint whoever, in the governor-general’s opinion, most likely held that confidence.

This is why the power to appoint the prime minister is regarded as a reserve power.

Nonetheless, there remains some controversy about this proposition. In 2013, when Julia Gillard was defeated by Kevin Rudd, and the independents who supported Gillard’s minority government said their agreement was with Gillard alone, there was a question about whether Rudd would hold the confidence of the house.

The acting solicitor-general at the time advised the governor-general that she should appoint Rudd as prime minister based upon Gillard’s advice. In doing so, the acting solicitor-general appeared to take the view that the governor-general was obliged to act upon the advice of the outgoing prime minister.

So if the Liberal Party had appointed Dutton as its leader and Turnbull had advised the Governor-General to appoint another member as prime minister, what should the Governor-General have done?

He could have requested legal advice as to the extent of his powers and whether or not he was obliged to act upon the advice of the outgoing prime minister. That would then have raised the question of who should give that advice.

In 2013 the governor-general requested and received legal advice from the acting solicitor-general. It is not clear whether the solicitor-general last year would have taken the same view as the acting solicitor-general in 2013, or the more orthodox constitutional view that the governor-general is not bound by the advice of the outgoing prime minister on his or her successor.

Nor is it clear what the governor-general should have done if the advice of the solicitor-general conflicted with that of the attorney-general, or the advice of the attorney-general conflicted with that of the prime minister — all of which was possible.

In Australia, there remains deep uncertainty about from whom vice-regal officers should obtain legal advice in a time of crisis.

If, however, the governor-general took the orthodox view that the appointment of the prime minister was a reserve power, and he should appoint the person who was most likely to hold the confidence of the house, should he have appointed Dutton in circumstances when there were doubts about his eligibility to be a member of parliament and a minister?

The governor-general, like everyone else, must abide by the rule of law and comply with the Constitution. He therefore should not appoint as prime minister a person who is clearly legally disqualified from holding the office.

But it is not the governor-general’s role to determine disqualification. This power is vested solely in the relevant house or the Court of Disputed Returns. When the issue is contestable, as was the case concerning Dutton, it is not for the governor-general to determine.

The governor-general must make the decision of whom to appoint as prime minister based upon an assessment of who holds the confidence of the lower house. Where this is doubtful, as it was in the case of Rudd in 2013, the governor-general can require an assurance that the member, if appointed as prime minister, would immediately face parliament, to determine where confidence lies.

Where there is also significant doubt as to the legal eligibility of the person to be prime minister, then it would also be reasonable for the governor-general to seek an assurance that upon appointment the new prime minister would facilitate referral of the legal question to the appropriate body for determination, consistent with the rule of law.

A minister can be appointed for three months before having to be a member of parliament, allowing a court to resolve the issue during that time.

In this way, the governor-general would have ensured the crucial constitutional decisions were made by those entitled to do so.

Anne Twomey is a professor of constitutional law at the University of Sydney and author of The Veiled Sceptre — Reserve Powers of Heads of State in Westminster Systems.