Governor-General Sam Mostyn appears to have a contentious view of her powers

With the 50th anniversary of the Dismissal, our Governor-General appears to have opened a constitutional can of worms of her own.

Commenting on the event that invokes furious debate to his day, Sam Mostyn offers a new interpretation of what she regards as the role and responsibilities of the monarch’s representative.

She clearly has a more expansive view of the job than any before her. But the Mostyn doctrine seems to be one also full of potential landmines.

In an interview with this newspaper’s Troy Bramston at the weekend, the Governor-General spoke of “irresponsible” government and what she would do when confronted with a government acting “irresponsibly”.

“If a government starts to behave irresponsibly, the role of the governor-general will be to have those conversations with the prime minister, with the ministers of the Crown, early enough to say ‘there’s trouble ahead’,” she explained.

“The holder of this office is there to protect the Australian public against the potential of irresponsible government.

“This is one of the most important roles that must be conducted in a way that gives confidence to the Australian people by virtue of operating and demonstrating to the Australian people that we don’t have matters that are suddenly dramatic, surprising and it can throw things into chaos.”

If this was a case of imprecision by the Governor-General, then one might assume she is referring to the opposite of responsible government – that being, government responsible to the parliament.

And if that were the case, it would be hardly controversial.

But Mostyn appears to be referring to something broader and so far undefined.

It is not the first time she has made a reference to “irresponsible” government. And there are some clues as to what this might mean.

In an interview with the ABC in October, reflecting on the use of reserve powers, Mostyn suggested that she would have acted differently than Sir John Kerr and would not have thrown around those powers in an “acute way”.

But she left open to interpretation her view on the definition of responsible government.

“Should I ever see a government moving in the direction of irresponsibility, the job of the governor-general is to utilise the powers of encouragement and warning through to the prime minister and cabinet to say this is feeling somewhat like it doesn’t reflect the responsible nature of the parliament and the government that the people have elected,” Mostyn said.

“It helps that I’m trained as a lawyer and understand the Constitution, but also I spend a lot of time out in the community and have a feeling for what people regard as responsible behaviour.”

This is obviously problematic. What represents responsible behaviour appears to go beyond the narrow definition of government being responsible to parliament. And considering the diversity of views within the community, what some people might regard as irresponsible behaviour won’t be by others.

One could argue that allowing power prices to be so high is irresponsible.

The judicial process and the political process exist to work these things out, rather than the governor-general.

Mostyn is not the first governor-general to publicly comment or reflect on the role while they are in it. But it is rare. Sir Paul Hasluck held an expansive view of the role not dissimilar to what Mostyn appears to be projecting, although he confined his commentary and reflections to lectures rather than interviews, podcasts and social media.

The governor-general, Hasluck said, should pay close regard to both the “requirements of the law and the conventions of the Constitution, and for the continuing interests of the whole nation, and that the government which the Australian people choose should be a stable government acting consistently and responsibly”.

The Mostyn doctrine appears to take this further.

The other problem that Mostyn raises in her contemplations of the Dismissal is the question of from where and from whom the governor-general should take advice.

Constitutional expert Anne Twomey argues that today, unlike in 1975, the chief justice of the High Court would not be the appropriate person to be offering opinion.

This is a position that was argued by the sitting chief justice, Robert French, in 2009.

In Donald Markwell’s 2016 book, Constitutional Conventions, French is quoted as saying it was “difficult to conceive of circumstances today in which it would be necessary or appropriate for the chief justice to provide legal advice to the governor-general on any course of action being contemplated by the holder of that office”.

Mostyn agrees that she would not consult the chief justice, as Kerr did, but instead approach the solicitor-general.

But Markwell, a constitutional expert, argued in his book that this was also deeply problematic, considering the solicitor-general was a lawyer appointed by the government to advise and serve the government.

Furthermore, it was contrary to constitutional practice and could not be regarded as being a source of independent legal opinion to the governor-general.

Mostyn said there were “other players in the system” she could consult but does not reveal who they might be.

This identifies a conundrum that has been considered previously, during the Turnbull government, and by French himself who argued that Australia might adopt the Canadian model of establishing a panel of independent experts that the governor-general could consult.

By laying down markers as to what she would and wouldn’t do she appears to be prejudging a potential future event in circumstances that are unknowable.

Gough Whitlam admitted that it was a “race to the palace”. Had Kerr adopted Mostyn’s approach, by offering a warning to Whitlam about where the whole thing was headed, Whitlam would have been there first.

Kerr privately acknowledged this would have robbed him of any moral authority to remove the government despite there being justifiable cause to do so.

By being a highly visible and active Governor-General, Mostyn will naturally invite criticism. And as Hasluck said, it is better to have an “active” governor-general rather than an inactive one.

But it is likely that most people would have a traditional view of the governor-general’s role, which is narrower than the one Mostyn appears to be expressing.