Hangin' with the Governor-General

Hangin' with the Governor-General

26 Aug 2010

scott-crawford Scott Crawford
Master of Laws student

Let’s not overstate the role of the Governor-General in appointing a Prime Minister. The legal power is clear, unquestionable and absolute. It can be found in section 64 of the Constitution. This section allows for their sole discretion in the appointment of ‘officers to administer such departments of State of the Commonwealth as the Governor-General may establish’.

Curiously, there is no mention of the Prime Minister as an office in the Constitution, but this reflects the idiosyncrasy of our Constitution. It imitates the monarchical government we inherited, as opposed to expressing the reality of Westminster. As a document, the Australian Constitution bears little resemblance to the way our democracy works. This has in many ways alienated many of the public from a true understanding of the system of government we enjoy. Notions therefore of ‘constitutional convention’ and the ‘reserve powers’ are nothing but gobbledegook to most.

So let’s clear the air. The fact is, the Governor-General does not decide who will be the PM – you do. Constitutional lawyers may gasp, but the GG is merely guided by the Parliament. Sure, they have a role as facilitator, as mediator and umpire. But, they appoint the person who is most likely to have a majority in the House of Representatives (made up of the people you voted for, unless you followed Mark Latham’s How-to-Vote card). The GG cannot appoint whoever they like. If they made an improper appointment not only would there be justified public outcry, the nefariously appointed  PM would not have the support of Parliament when it met and would  be unable to continue. After which, we’d be back where we started, trying to find a government…

More often than not the decision is crystal clear. The leader of the most numerous party or parties (if a coalition) is invited to form government. This position is a lot more difficult when there is no clear winner (eg right now). Political reality, however, means that deals are done, pork is dished out, and bridges will be built – figuratively and literally. A majority thus cobbled together from the disparate and the seemingly contradictory forces will be presented to the Governor-General.  Being competent and fulfilling their role they will make enquiries to ensure the relevant groups and individuals all support the leader as purported. Once it’s clear a leader has a majority, Bob’s your uncle… or Tony’s your PM or whatever.

This is not earth shattering stuff. It happens not-so infrequently. This year alone it has been on our radar in a variety of comparative situations. The recent UK election produced no clear winner, as did Tasmania’s state election. But in these cases, politics dictated who would be the Prime Minister or Premier, not the Queen or the Tasmanian Governor. Certainly when there are three parties in play this process is easy to navigate, as it was in those cases. But, the experience of Victoria in 1999-2002 demonstrated that if there is a commonality of purpose amongst independent Members the task need not be insurmountable.

Sure I’ve glossed over some intricacies of constitutional law, but be comforted (or not) by the fact that the government we get will be the government we elected, and not from some vice-regal whim.

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