The G-G's delicate judgment

FOR the best part of her adult life Quentin Bryce has taken on public roles and responsibilities which have demanded many skills.

Labor minister Bill Shorten and his mother-in-law, Governor-General Quentin Bryce.

FOR the best part of her adult life Quentin Bryce has taken on public roles and responsibilities which have demanded many skills.

Skills such as common sense, application of the law and a keen eye for the political agenda. All of which culminated in her becoming Australia's first female Governor-General.

Her commitment and capacity for work are undeniable; speeches and appearances are rarely faulted; and her apparent "small-l liberal" perspectives have not alienated the conservatives.

Bryce's contributions to public life and her tact and experience in dealing with politicians to the Left and Right would be, under normal circumstances, excellent preparation for the highly unusual constitutional and political challenge she might be asked to help resolve.

All of which make it an exquisite and cruel irony that the most important decision she now faces, on who should form Australia's next federal government, will be coloured, if not tainted, by the happenstance of her son-in-law being Labor's fast-rising Bill Shorten, a parliamentary secretary in Julia Gillard's government and one of the so-called "faceless men" who executed Kevin Rudd.

Given the seriousness of the decision Bryce faces about whether Opposition Leader Tony Abbott or Gillard should be given a chance to form a government, it is inconceivable that the Governor-General would be influenced by her daughter Chloe's recent marriage to Shorten, according to Scott Prasser, executive director of the Public Policy Institute at the Australian Catholic University.

But Prasser also believes that a public debate about whether a reasonable person will perceive or apprehend that Bryce may be biased because of the family connection is probably inescapable.

Late yesterday, Government House issued a one-line statement saying: "The Governor-General is seeking advice on concerns raised about her personal position in the current political circumstances."

The perception of the conservative side of politics, according to Prasser, "would be that [Bryce] is a small-l liberal who would have a big reform agenda on social and human rights".

"She has a record of promoting equal opportunity and the advancement of women. She's not a radical, but I think that if she were a politician, she would be in the Labor Party," Prasser says. "I don't think she would have the confidence of the conservative side at all. There would be some trepidation, I think, about her role.

"Here you also have a Governor-General appointed by the Rudd government with a daughter married to a man who was one of those responsible for getting rid of Kevin Rudd. All of these coincidence and overlaps are terribly unusual.

"But Quentin Bryce is an intelligent lawyer and she will take a step-by-step appraisal to try to handle this constitutional and political crisis.

"How will it all play out? I don't think it would have any bearing on her professional judgment.

"Given her legal background she will do this very properly by examining which party has the greater number of seats, which party can get supply from the independents and the Greens.

"She will take advice from any source she likes before making judgments. She will not be rushed. She will try to back up her decision with as much precedent and evidence as as possible. I do not believe her personal views will impact on any of it. She is too much of a professional to allow those views to interfere. I suppose she could step down and hand it to the Chief Justice of the High Court, but that's a very dramatic step and there would have to be a pretty big outcry questioning her veracity. It is an issue that everyone has been politely stepping around."

How concerned would, or should, Liberal Party voters be about the Shorten factor? Liberal Party chiefs are reluctant to wade into this very sensitive arena. It's a minefield until or unless Bryce makes a determination on how she will handle it.

Prasser describes Shorten's relationship with his mother-in-law "as getting pretty close to a potential conflict of interest".

"But I think that the Governor-General should still be making the decision. I don't think the apprehended bias is close enough to be a concern," he says.

Tony Morris QC, a former legal adviser to the Liberal Party, said yesterday the concept of "apprehended or ostensible bias" was developed for judicial, quasi-judicial and administrative decision-making, where it is usually possible for the designated decision-maker to stand aside.

"The principle has no application where there is only one person possessed of the relevant power," Morris says. "To my knowledge, it has never previously been suggested that the principle applies when a governor or governor-general comes to exercise one of the reserve powers of the Crown, and it is difficult to see how it could.

"By constitutional convention, governors and governors-general are always appointed on the advice of the incumbent head of the executive government - the relevant premier or prime minister - so it could be argued that there is always scope for a 'reasonable apprehension of bias' in favour of the person who, effectively, made the appointment.

"But it is assumed that individuals appointed to such positions are of a calibre which guarantees they will put the nation's interests first. Even in the case of the much-criticised dismissal of the Whitlam government, it was never suggested John Kerr acted otherwise than in what he believed, rightly or wrongly, to be the nation's best interests.

"The suggestion that Bryce could avoid a constitutional crisis by handing the decision over to the Chief Justice is flawed. Even if the Governor-General were to stand aside temporarily, it is not the Chief Justice who would take her place but the most senior of the state governors.

"The fact that there is a family marital relationship between Bryce and a senior Labor figure is just an extreme example of the fact that, in such a small and hothouse environment as Canberra, the Governor-General is likely to know most of the key players personally and have some kind of pre-existing relationship with at least some of them.

"Kevin Rudd has known Quentin Bryce for many years. [Liberal Party] senator George Brandis has probably known her for longer, since he was taught by Ms Bryce at the University of Queensland law faculty."

As Morris notes, however, "none of this is to deny the fact that ethical or moral considerations - as distinct from purely legal ones - may also come into play".

"One can imagine that, if it falls to Ms Bryce to decide who to call upon to form a government, she will find her position distinctly uncomfortable. Those who know her will feel confident that she will do her duty, as she sees it, in such circumstances. And, if that means standing aside so that the most senior state governor [rather than the Chief Justice] makes any necessary decision, it is hard to see how Ms Bryce could be criticised for doing so. But she is surely under no legal requirement to do so."

Notwithstanding the views of pundits, including Prasser, that the Governor-General's achievements and interests and curriculum vitae point to her being closer to the Left than the Right, accurately identifying the political allegiances of Bryce has posed something of a dilemma through the years.

Her speeches provide snippets of evidence of her sympathies. One notable exception 20 years ago was when Bryce was federal sex discrimination commissioner in the Human Rights and Equal Opportunity Commission. After a senior public servant in the federal Health Department's Therapeutic Goods Administration, Alexander Proudfoot, had complained that women's health centres in the ACT operated in breach of the Sex Discrimination Act, Bryce scrawled a short sentence on the internal case file.

"Another example of a man wasting our time with trivia," she wrote. Proudfoot obtained the file and Bryce found herself under investigation with a retired judge appointed to determine whether the original complaint was handled wrongfully or in a discriminatory matter. It was a rugged time for the woman dubbed the "commissar of political correctness".

As The Australian's Jamie Walker reported in a lengthy 1994 profile of Bryce: "In one memorable exchange, Proudfoot, representing himself at the hearing, cross-examined Bryce about an interview she gave to The Bulletin magazine in 1989. Was it true she had described herself as a radical feminist? Guilty as charged, she agreed. "I'm a radical feminist in the context that I am a feminist who believes in change and who works to bring about change." Asked about this now, she says simply: "I felt it was time to stand up and be counted."

Although eventually cleared, Bryce paid a heavy public price for her seemingly dismissive attitude to Proudfoot's comprehensive complaint. She has been scrupulously careful in the years since.

Walker concluded that "politically, she is said to have been a spear-carrier for both the Liberal and Labor parties; even her husband, Michael Bryce, professed not to know where her true loyalties lie. Her political patron and friend James Killen, the former Liberal minister with whom she studied at Queensland University, was once quizzed by Malcolm Fraser about her politics.

"For god's sake, Jim, where does this woman stand?" Killen replied, deadpan: "I would say, prime minister, she has an inquiring mind."

In one thoughtful speech before her first vice-regal appointment, Bryce related her struggle to achieve recognition as a female law student and lecturer.

"The 70s was an amazing decade on Australian campuses. The Whitlam government abolished fees and diversity came to university. In the richness of a wider community there were many women of all ages and stages of life. They questioned, they thrived, they broadened the horizons of law schools. The women's movement was gathering momentum and I was ready for it.

"At that time there were only two women who had ever been elected to the Legislative Assembly. I had five little ones under seven and I wanted to be the perfect everything: wife, mother, neighbour, activist, hostess.

"For several years I taught legal subjects to social workers . . . they aimed to demystify the law, educate the community about its use and give legal assistance to those without ready access to private solicitors. It was tough-going getting these [legal services] off the ground in a politically hostile environment [during the premiership of National Party premier Joh Bjelke-Petersen] in Queensland and through those struggles a sense of solidarity developed: women supporting each other, understanding that the personal is political.

"Remember the emotive language: leftist, hairy-legged boiler-suited brigade, bra burners. I loved being described as rabid."