tag:theconversation.com,2011:/ca/topics/governor-general-6626/articlesGovernor-general – The Conversation2022-09-09T00:59:44Ztag:theconversation.com,2011:article/1903352022-09-09T00:59:44Z2022-09-09T00:59:44ZWhat are the legal and constitutional consequences for Australia of Queen Elizabeth II’s death?<p>The death of Queen Elizabeth II has prompted many people, perhaps for the first time, to wonder: what happens now, legally?</p>
<p>In fact, there are clear rules around succession and how it plays out in Australia. Because Queen Elizabeth has lived a long time, there has been a lot of planning for the transition to the new king. </p>
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<figcaption><span class="caption">Death of the Queen - the legal and constitutional consequences for Australia. By Anne Twomey.</span></figcaption>
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<h2>The change is automatic</h2>
<p>Legally, there does not need to be anything done in Australia to result in the change from queen to king. That happens automatically as soon as a monarch dies. When Queen Elizabeth II died, Charles immediately became king of Australia.</p>
<p>This is because the rules of succession in relation to the crown of Australia, while controlled by Australia and part of Australian law, are kept consistent with the British rules.</p>
<h2>Most activity will be ceremonial and symbolic</h2>
<p>There will be proclamations made in both the United Kingdom and Australia. The governor-general will read a proclamation at parliament house in Canberra. But that’s a ceremonial matter. It does not have any legal effect in changing the monarch.</p>
<p>There will be a national memorial service for the queen, flags will fly at half-mast, there will be gun salutes and other public ceremonies to mark this momentous change. Churches will hold ceremonies and the public will be invited to sign books of condolence. There is a whole history of tradition around royal mourning.</p>
<p>But because we haven’t had a change of monarch for so long, the traditions from the past will probably look different to those we use today. In the past, people might have worn black, donned black armbands, or put up portraits of the queen draped in black and purple crepe.</p>
<p>It is more likely today we would see people laying flowers and signing remembrance books. The laying of flowers, however, is not a particularly environmentally sound practice. It just leaves a pile of soggy, rotting foliage. A better way of remembering Queen Elizabeth would be to plant a tree. The queen planted many trees in ceremonies during visits to all her realms, including Australia. The new king, we know, is a keen environmentalist and a tree-lover. So planting a tree, #royaltree, would be a more appropriate sign of remembrance and respect. </p>
<h2>What about the Australian parliament?</h2>
<p>Australia’s parliament, which was due to sit next week, will instead break for 15 days.</p>
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<p>This is not a legal requirement; it is a matter of choice and a sign of respect. The prime minister will be heading to the UK for the queen’s funeral, so it is also a matter of practicality as he will be out of the country. </p>
<p>There is no legal requirement for federal members of parliament to re-swear their oaths. They have already sworn an oath to Queen Elizabeth II and “her heirs and successors according to law”, so that will continue to apply to the queen’s heir and successor, King Charles. But the Houses could choose to have their members take new oaths, as a matter of symbolism.</p>
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Read more:
<a href="https://theconversation.com/16-visits-over-57-years-reflecting-on-queen-elizabeth-iis-long-relationship-with-australia-170945">16 visits over 57 years: reflecting on Queen Elizabeth II's long relationship with Australia</a>
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<h2>Continuity is key</h2>
<p>Some people may try to use the queen’s death to argue that there are legal consequences to the change which affect legal proceedings, the validity of laws or the powers of office holders. They relish arguing about seals and oaths in an attempt to use these technicalities to escape from the application of the law or avoid having to pay tax. </p>
<p>However, there are numerous laws that make it very clear that the death of the monarch (which in legal terms is known as the “demise of the crown”) does not disrupt legal proceedings, invalidate laws or require officials to re-take an oath in order to exercise legal powers. </p>
<p>For example, in NSW <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1902-032#sec.12">section 12(4B)</a> of the Constitution Act says that members of parliament do not have to re-swear their oath. <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1902-032#sec.49A">Section 49A</a> says that the holding of any office under the Crown is not affected by the death of the monarch and it is not necessary for the office holder to take a new oath. <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1988-070#sec.8">Section 8</a> of the Crown Proceedings Act 1988 of NSW says that legal proceedings are not affected by the demise of the Crown.</p>
<p>Passports, official seals and currency which mention the queen will all remain valid. The system of change from one monarch to the next is legally seamless, leaving it a matter for the people how they decide to mark the change in a ceremonial and symbolic manner.</p><img src="https://counter.theconversation.com/content/190335/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the Australian Research Council and occasionally does consultancy work for governments and inter-governmental bodies. She has written books on the reserve powers and the role of vice-regal officers in Australia.</span></em></p>Legally, there does not need to be anything done in Australia to result in the change from queen to king. That happens automatically.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1892382022-08-23T11:37:14Z2022-08-23T11:37:14ZView from The Hill: How does Albanese frame Morrison inquiry without embroiling the governor-general?<p>Solicitor-General Stephen Donaghue has neatly summarised Scott Morrison’s political misdemeanour in having himself secretly appointed to all those ministries. </p>
<p>Morrison, by his failure to disclose what he had done, undermined the Westminster system of “responsible government” at the most basic level. </p>
<p>Ministers are responsible to parliament and, through parliament, to the voters. But how can there be that accountability if parliament and the public don’t know a (prime) minister has been appointed to administer a particular department? </p>
<p>As Anthony Albanese says, there remain outstanding questions in this affair. Despite his news conference last week, and more comments on Tuesday after the solicitor-general’s opinion was released, Morrison has not convincingly explained why he behaved in this strange way, with such discourtesy to colleagues, let along disdain for the public. </p>
<p>But whether we need a full legal inquiry is another matter. That smacks of current politics as well as past payback – for the investigations the Coalition government launched after it took office, into the “pink batts” scheme and into the trade unions. </p>
<p>Together, those royal commissions saw two former Labor prime ministers (Kevin Rudd and Julia Gillard) and a Labor opposition leader (Bill Shorten) giving evidence. </p>
<p>Labor would relish similar public pressure put on Morrison. </p>
<p>There’s no doubt what Morrison did was reprehensible. He was able to do it because of a gap in the political system’s safeguards, allowing for ministerial appointments to go unannounced. </p>
<p>But that gap is one which can be easily fixed, either by changes to rules or by legislation to ensure all such appointments have to be immediately disclosed. </p>
<p>Legislation would be best because once in place, it effectively couldn’t be undone. What government would try to repeal it, to allow secrecy again? </p>
<p>Going to an inquiry raises some tricky questions for the government, as it works out the detail of its terms of reference. </p>
<p>Prime among these is the matter of the Governor-General, David Hurley. </p>
<p>Hurley acted, properly, on government advice in ticking off on the Morrison appointments. But he also had the capacity to ask questions about what he was signing and, as far as we know, he didn’t do that. Hence there has been sharp criticism of him from some quarters.</p>
<p>From what we can judge, Albanese doesn’t want to embroil Hurley. </p>
<p>Asked whether the inquiry would examine Hurley’s role or exempt him, Albanese said: “Well, the governor-general’s role has been examined here [in the opinion]”. </p>
<p>Hurley had made “a very clear statement”, from his perspective, on how he operated, taking the advice of the government of the day, “which is consistent with the responsibility of the governor-general”, Albanese said. </p>
<p>The idea of the governor-general being asked to give evidence goes into awkward territory, even if it just exposed that Hurley wasn’t sharp enough to notice anything unusual. </p>
<p>But it is hard to figure how the governor-general can be carved out of an inquiry, if that inquiry is to get to the full story. This is especially so given the inquiry will look at the role of the prime minister’s department in preparing the request that was dispatched to Hurley. Clearly some bureaucrats will be in the frame.</p>
<p>Constitutional expert George Williams, from the University of NSW, is one who thinks Hurley’s role should not be excluded. Not because Hurley did anything wrong, but because “the governor-general was at the centre of the ratification”. </p>
<p>Williams would prefer a parliamentary inquiry, rather than one by a legal figure. “Parliamentarians should assert themselves in solving this problem”, he says. </p>
<p>The revelations about Morrison’s conduct have yielded a political bonanza for Albanese, and he will be hoping for more. Whether the inquiry will be seen in retrospect as justified, or political overkill, will depend on what it uncovers.</p>
<p>The <a href="https://www.pmc.gov.au/news-centre/government/solicitor-general-opinion-validity-appointment-mr-morrison">solicitor-general’s opinion</a> is another blow for Morrison’s record (and his quest for future employment), and for the Coalition as it tries to regroup. </p>
<p>Morrison, writing on Facebook on Tuesday, summarised his defence in these seven points. </p>
<blockquote>
<p>the authorities established were valid</p>
<p>there was no consistent process for publication of such authorities</p>
<p>no powers were exercised under these authorities, except in the
case of the PEP11 [gas exploration] decision, or misused</p>
<p>Ministers exercised their portfolio authorities fully, with my utmost confidence and trust, without intervention</p>
<p>as Prime Minister I did not ‘Act’ as Minister or engage in any
‘Co-Minister’ arrangements, except in the case of the PEP11 decision</p>
<p>on the PEP11 matter, this was done lawfully from first principles
and my intent to do so was advised to the relevant Minister before
doing so</p>
<p>Australia’s performance through the pandemic was one of the
strongest in the developed world</p>
</blockquote>
<p>He also said: “I will appropriately assist any genuine process to learn the lessons
from the pandemic. I would expect that any credible processes would
also extend to the actions of the States and Territories”. </p>
<p>But this inquiry is not one broadly into the handling of the pandemic. Albanese indicated a wider inquiry is still some time away.</p>
<p>Morrison can protest all he likes, but now that the appropriateness of his bizarre power grab has become an argument between him and the solicitor-general, he is on a hiding to nothing.</p><img src="https://counter.theconversation.com/content/189238/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Solicitor-General Stephen Donaghue has neatly summarised Scott Morrison’s political misdemeanour in having himself secretly appointed to all those ministries.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1749652022-01-18T05:28:29Z2022-01-18T05:28:29ZNew, exclusive letters between the queen and 6 governors-general show the evolution of a relationship of equals<p>More than a year after the High Court’s decision in the <a href="https://www.claytonutz.com/knowledge/2020/june/administrative-law-updater-the-palace-letters-released">“Palace letters” case</a>, which said the queen’s correspondence with Governor-General Sir John Kerr is not “personal”, more letters have now been made public. </p>
<p>The letters between a further six governors-general and the queen have now been released to me, from Lord Casey in 1965 to Sir William Deane in 2001. Deane’s letters are being revealed here for the first time. In total, this is more than 2,000 pages, spanning 36 years and nine prime ministers.</p>
<p>These newly released letters cover some of the most important and memorable moments in Australian politics: the <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2017/May/The_1967_Referendum">1967 referendum on Aboriginal rights</a>; the <a href="https://www.abc.net.au/news/2020-11-01/disappearance-harold-holt-inside-search-operation-australia/12817236">disappearance of Prime Minister Harold Holt</a> and appointment of Prime Minister John McEwen; the <a href="https://www.nma.gov.au/defining-moments/resources/whitlam-election">election of Gough Whitlam in 1972</a>; <a href="https://www.smh.com.au/politics/federal/from-the-archives-1974-whitlam-calls-a-double-dissolution-election-20190405-p51ba4.html">Whitlam’s double dissolution election in 1974</a> and <a href="https://www.naa.gov.au/explore-collection/australias-prime-ministers/malcolm-fraser/elections">Malcolm Fraser’s in 1983</a>; the <a href="https://www.legislation.gov.au/Details/C2004A03181">Australia Act</a>; the <a href="https://aiatsis.gov.au/explore/mabo-case">High Court’s 1992 Mabo decision</a>; and the <a href="https://www.smh.com.au/politics/federal/from-the-archives-1999-australia-says-no-to-a-republic-20191104-p537bp.html">1999 republic referendum</a>.</p>
<p>The breadth of correspondence gives us a rare opportunity to explore the changing nature of the vice-regal relationship over time. </p>
<p>The letters also provide a point of comparison with Kerr’s “sycophantic grovelling” and “stomach-churning” letters, as former Prime Minister Malcolm Turnbull <a href="https://scribepublications.com.au/books-authors/books/the-palace-letters-9781922310248">describes them</a>. Seen across the 36-year trajectory of this vice-regal correspondence, Kerr is even more clearly an outlier.</p>
<p>In just three and a half years, Kerr’s correspondence comprises as many pages as four governors-general (from Casey to Sir Ninian Stephen) put together. </p>
<p>No other governor-general even comes close to the obsessive frequency of Kerr’s 116 lengthy letters. Casey wrote about 34 letters during his five-year term, Sir Paul Hasluck 37 in six years, and Stephen just 23 letters in six and a half years.</p>
<h2>How much other governors-general shared with the queen</h2>
<p>The correspondence of these seven governors-general spans 14 elections, two of which, the 1974 and 1983 double dissolutions, had the potential to cause controversy for the governor-general in accepting the prime minister’s advice to call them. </p>
<p>Similarly, Whitlam’s formation of the “duumvirate” (two-man ministry) in 1972 was an unprecedented situation for his first governor-general, Hasluck. This was a two-week ministry made up of Whitlam, with 13 portfolios, and his deputy Lance Barnard with 14, until the final number of seats had been determined. </p>
<p>It is notable neither Hasluck in 1974 nor Stephen in 1983 discussed their options or intentions with the palace before accepting the prime minister’s advice.</p>
<p>There is no parallel in the correspondence of other governors-general with Kerr’s discussions with the queen, her private secretary, Sir Martin Charteris, and Prince Charles, regarding the possible dismissal of the Whitlam government and the use of the reserve powers (against ministerial advice) to do so.</p>
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Read more:
<a href="https://theconversation.com/at-long-last-we-can-tear-open-the-queens-secret-letters-with-australias-governors-general-174584">At long last, we can tear open the queen's secret letters with Australia's governors-general</a>
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<p>It is a hallmark of these letters that, unlike Kerr, the governors-general report back to the queen <em>after</em> these events they describe. </p>
<p>Casey informs the queen after he has appointed McEwen as acting prime minister following Holt’s disappearance, for example, while Hasluck writes to Charteris ten days after accepting Whitlam’s advice to call the 1974 double dissolution. </p>
<p>Stephen also writes to the queen two weeks after accepting Fraser’s contentious advice to call the 1983 double dissolution. Eighteen months later, he follows up with a letter on the intricacies of the <a href="https://research.monash.edu/en/publications/gough-whitlams-1974-re-election-government-by-double-dissolution">double dissolution provision</a> in section 57 of the Constitution and the discretionary power it confers to the governor-general.</p>
<p>In fact, it is Charteris who writes to Hasluck prior to the 1974 double dissolution hoping for further information, telling Hasluck he was “not uninterested at the moment in anything to do with the prerogative of Dissolution!”. Hasluck ignores this invitation to discuss the prerogative.</p>
<p>These post-facto comments are in no way comparable to Kerr’s extensive discussions with Charteris over several months about the governor-general’s reserve powers and the possible dismissal of the prime minister. There is simply no equivalent to what Kerr calls “<a href="https://www.mup.com.au/books/the-dismissal-dossier-electronic-book-text">Charteris’s advice to me on dismissal</a>”.</p>
<h2>Cowen’s streak of assertiveness</h2>
<p>Similar to Stephen after him, Governor-General Zelman Cowen is assertive and independent, at times disputing aspects of the queen’s letters and instructing the private secretary on matters of law. </p>
<p>In a letter to the private secretary Sir Philip Moore in December 1978, Cowen corrects erroneous press reports claiming if Whitlam had sought Kerr’s recall as governor-general in 1975, the queen would not have acted on the advice of the Australian prime minister and would instead have acted on the advice of her UK ministers. </p>
<p>Quoting his <a href="https://www.abebooks.com/book-search/title/isaac-isaacs/author/cowen-zelman/">own book</a> on the governor-general, Sir Isaac Isaacs, Cowen tells Moore, “it is inappropriate that UK ministers should be concerned in the appointment of a Governor-General” and it is “surely inappropriate that the Monarch should act otherwise” than on the Australian prime minister’s advice.</p>
<p>Cowen also strongly disagrees with Moore on the 1978 appointment of <a href="https://www.nytimes.com/1978/03/03/archives/australian-resigns-new-post-at-unesco-sir-john-kerr-cites-criticism.html">Kerr as Australia’s ambassador to UNESCO</a> – and on the appointment of any former governor-general to paid public office. He said, </p>
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<p>I have grave doubts about this […] any suggestion (or appearance of a suggestion) that a Governor General might be influenced in his conduct by such expectations is damaging. </p>
</blockquote>
<h2>‘I get no joy from these assessments’</h2>
<p>The suggestion other governors-general show the same “obsequious deference” as Kerr in these letters is unsustainable. </p>
<p>Bill Hayden follows Stephen as governor-general in 1989, towards the end of Bob Hawke’s term as prime minister. Clearly still bristling at <a href="https://en.wikipedia.org/wiki/1983_Australian_Labor_Party_leadership_spill#:%7E:text=A%20leadership%20spill%20in%20the,Bob%20Hawke%20as%20his%20replacement.">having lost the Labor leadership</a> to Hawke so close to the 1983 election, Hayden interprets his “duty” in writing to the queen as providing “a candid and fair, if at times harsh” assessment of political figures, many of whom are his former colleagues. </p>
<p>His reports are dry, lengthy descriptions of the political, social and economic situation in Australia. He invariably sees large-scale problems for Hawke, saying his “extraordinary popularity defies reasoned understanding”. </p>
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<p>Hayden is an astute and detailed observer, correct in many of his forecasts, and yet throughout his letters there is little sense of what he does in his daily routine as governor-general. </p>
<p>Where others send copies of articles, speeches and reports on things like engagements at Government House, Hayden’s letters seem more removed from everyday vice-regal life. They appear increasingly forced — particularly after Paul Keating defeats Hawke in a <a href="https://www.smh.com.au/politics/federal/flashback-1991-keating-defeats-hawke-in-a-leadership-spill-20180822-p4zyzj.html">1991 leadership spill</a> to become prime minister — and his letters become less frequent.</p>
<p>There is a poignancy in Hayden’s final lament to the queen about his “harsh judgment” of Keating. “I get no joy from these assessments”, he tells the queen, adding he has done so only as “a matter of duty to you”. Keating is a personal friend, “an admirable person”, he insists, seeming to regret what he has written. </p>
<p>It adds a human element to the absurdity of the arcane secret ritual of vice-regal correspondence.</p>
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Read more:
<a href="https://theconversation.com/jenny-hocking-why-my-battle-for-access-to-the-palace-letters-should-matter-to-all-australians-139738">Jenny Hocking: why my battle for access to the 'Palace letters' should matter to all Australians</a>
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<h2>Deane strikes a tone of equals</h2>
<p>With Sir William Deane following Hayden as governor-general, the transition from the supine deferential genuflections of Kerr to an exchange of letters between equals is complete. </p>
<p>Deane passes much of the routine reporting on plans for royal visits, election results and press clippings on the republic debate to the official secretary, who writes to the queen’s private secretary. Deane himself, for the most part, writes directly to the queen – “Your Majesty, Ma’am” – rather than her private secretary.</p>
<p>This assertion of vice-regal equivalence is a statement in itself, not so much of Deane’s self-assured independence, but Australia’s. </p>
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<p>At the same time, Deane informs the queen he will be sending copies of their correspondence to the prime minister, effectively ending the secrecy of vice-regal correspondence from the Australian government, which had so plagued Whitlam.</p>
<p>This dramatic shift follows an unusual exchange with the queen’s private secretary, Sir Robert Fellowes, early in Deane’s term. </p>
<p>In the context of the burgeoning constitutional debate ahead of the republic referendum, Fellowes asks the official secretary, Douglas Sturkey, whether there was anything members of the royal family could do “in the interests of the monarchical system”. He raises the timing of a possible royal visit by either Prince Charles or the queen. </p>
<p>Sturkey tells Deane he finds Fellowes’ suggestion “curious”: </p>
<blockquote>
<p>I cannot seriously believe that Sir Robert Fellowes is proposing an active (and unprecedented) role for the monarchy in public constitutional debate. </p>
</blockquote>
<p>Deane tells him not to do anything about it, and the letter goes unanswered for two months.</p>
<p>These letters are a unique window on an evolving vice-regal relationship and an exceptional addition to our history. It is immensely disappointing, therefore, the National Archives has made numerous redactions throughout them. </p>
<p>Worse, Buckingham Palace was consulted on those redactions. The former director-general of the archives, David Fricker, <a href="https://johnmenadue.com/why-is-the-queen-still-interfering-in-our-history-and-why-is-the-national-archives-allowing-this/">conceded</a> last year that the archives was consulting “the Royal Household” on redactions, despite the High Court’s decision overturning the queen’s embargo over their release.</p>
<p>After a four-year legal action to secure the release of these letters, the least the archives could do is to finally let us see them in full.</p><img src="https://counter.theconversation.com/content/174965/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jenny Hocking has received funding from The Australian Research Council. </span></em></p>More than 2,000 pages of letters spanning 36 years and nine prime ministers have now been made public, albeit with disappointing redactions throughout.Jenny Hocking, Emeritus Professor, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1745842022-01-11T19:17:43Z2022-01-11T19:17:43ZAt long last, we can tear open the queen’s secret letters with Australia’s governors-general<p>One consequence of the High Court’s 2020 <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/19.html">judgement</a> that caused the National Archives to release <a href="https://www.naa.gov.au/explore-collection/kerr-palace-letters">Sir John Kerr’s correspondence</a> with Buckingham Palace was that the royal correspondence of other governors-general also had to be released. </p>
<p>More than a year and a half later, after the archives scoured every document for an embarrassing detail that could be redacted, these letters have now been made public. </p>
<p>They cover the terms of four governors-general: Lord Richard Casey (1965-69), Sir Paul Hasluck (1969-74), Sir Zelman Cowen (1977-82) and Sir Ninian Stephen (1982-89).</p>
<p>What is most remarkable about the letters is how similar they are to Kerr’s correspondence with the palace. </p>
<p>All the features that critics have picked on as unprecedented and inappropriate – the detailed political analysis, the obsequious deference, the focus on formalities, the discussion of reserve powers – are common features in the correspondence of Kerr’s predecessors and successors.</p>
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Read more:
<a href="https://theconversation.com/palace-letters-show-the-queen-did-not-advise-or-encourage-kerr-to-sack-whitlam-government-142376">'Palace letters' show the queen did not advise, or encourage, Kerr to sack Whitlam government</a>
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<h2>Frank political reports</h2>
<p>This is unsurprising, because the palace encouraged the governors-general to write with “complete freedom and frankness” about political affairs in Australia and anything affecting the monarchy and the powers or status of the governor-general. This keeps the monarch well informed about her various realms.</p>
<p>Each governor-general, therefore, gave regular detailed and often quite critical reports on the political controversies of the day and the likely outcomes of elections. </p>
<p>Kerr’s analysis was, indeed, quite tame compared with that of his predecessors, Casey and Hasluck, who had stronger political pedigrees.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/439966/original/file-20220110-28-1lx2uga.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/439966/original/file-20220110-28-1lx2uga.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/439966/original/file-20220110-28-1lx2uga.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=611&fit=crop&dpr=1 600w, https://images.theconversation.com/files/439966/original/file-20220110-28-1lx2uga.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=611&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/439966/original/file-20220110-28-1lx2uga.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=611&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/439966/original/file-20220110-28-1lx2uga.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=768&fit=crop&dpr=1 754w, https://images.theconversation.com/files/439966/original/file-20220110-28-1lx2uga.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=768&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/439966/original/file-20220110-28-1lx2uga.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=768&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Sir Paul Hasluck (left) and Lord Casey (right) at Government House.</span>
<span class="attribution"><a class="source" href="https://recordsearch.naa.gov.au/SearchNRetrieve/Interface/DetailsReports/PhotoDetail.aspx?Barcode=11431267">National Archives</a></span>
</figcaption>
</figure>
<h2>Flattery and formality</h2>
<p>To today’s eyes, the correspondence is often cloying and obsequious in its formality and deference, but this was standard for the time. The letters include many professions of “loyalty” and “devotion” to the monarch and every royal tour is a “great success” and “very well received”, especially by the “plain folk”. </p>
<p>Hasluck, in his comment about a prospective first meeting of Queen Elizabeth and Prime Minister Gough Whitlam, said:</p>
<blockquote>
<p>If I may venture to say so, with due humility and respect, the wisdom and experience of Her Majesty will find here an opportunity to help make a promising Prime Minister into a better one and I believe he will prove responsive to Her counsel and guidance.</p>
</blockquote>
<p>Not even Kerr could have topped that for flattery.</p>
<p>The excess of admiration also flowed the other direction. Governors-general are constantly praised for their “wisdom”. Deference is also given to their greater knowledge and understanding of the local political situation.</p>
<p>Letters from the palace praise and support the governor-general – they never criticise or instruct.</p>
<p>The focus on the formalities was strong throughout. This is because the monarchy represents itself to the people through such courtesies, pomp, honours and ceremony. Hence, a large part of the correspondence concerns changes to the oath of allegiance, the national anthem, the vice-regal salute, the royal anthem and the honours system. </p>
<p>Hasluck did his best in 1972 to dissuade the prime minister, William McMahon, from initiating a search for a “national song”, fearing it would replace “God Save the Queen” as the national anthem. </p>
<p>In 1984, Stephen was still having robust discussions with Prime Minister Bob Hawke about the use of “God Save The Queen” and the vice-regal salute. He even changed an Executive Council Minute by hand so that groups such as the Country Women’s Association and the RSL could continue to sing “God Save the Queen” without being in the presence of royalty. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-what-is-the-palace-letters-case-and-what-will-the-high-court-consider-131000">Explainer: what is the 'palace letters' case and what will the High Court consider?</a>
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<h2>The reserve powers</h2>
<p>But what about the reserve powers, which allow a governor-general to act without, or contrary to, ministerial advice? Was it unprecedented or inappropriate to discuss their nature and hypothetical application? No, because the others did so, too. </p>
<p>Hasluck, for example, discussed what would happen if the prime minister, Sir John Gorton, was defeated in a vote of no confidence in 1970 (which had been a real prospect) and then requested the dissolution of parliament and an election. </p>
<p>Hasluck said he would have felt bound to ask whether it was impossible for Gorton to carry on the government without an election, and whether the governing parties might be able to continue to govern under a different leader. </p>
<p>Hasluck wanted to be satisfied all possibilities of forming a government without an election had been tried before granting one. If not, he would exercise his reserve power to refuse a dissolution and appoint a new prime minister. Hasluck said he had put down these thoughts on paper </p>
<blockquote>
<p>so that Her Majesty may be aware of the way in which I interpret my constitutional duties.</p>
</blockquote>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/439983/original/file-20220110-23-wjmg1q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/439983/original/file-20220110-23-wjmg1q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=605&fit=crop&dpr=1 600w, https://images.theconversation.com/files/439983/original/file-20220110-23-wjmg1q.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=605&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/439983/original/file-20220110-23-wjmg1q.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=605&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/439983/original/file-20220110-23-wjmg1q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=761&fit=crop&dpr=1 754w, https://images.theconversation.com/files/439983/original/file-20220110-23-wjmg1q.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=761&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/439983/original/file-20220110-23-wjmg1q.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=761&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Sir Paul Hasluck (left) with Prime Minister John Gorton at the swearing in the Gorton ministry in 1970.</span>
<span class="attribution"><span class="source">National Archives of Australia</span></span>
</figcaption>
</figure>
<p>He was not alone. Stephen also reported his views on his reserve power to refuse advice to hold a double dissolution election and made Prime Minister Malcolm Fraser come back with additional advice before he agreed to grant one in 1983. </p>
<p>Hasluck exercised a reserve power by <a href="https://trove.nla.gov.au/newspaper/article/107899959">refusing to sign</a> an Executive Council Minute approving a US defence science base in Australia just 12 days before the 1969 election. </p>
<p>He deferred acting because it would breach the caretaker conventions. He only signed the papers after the Coalition won the election and wished to proceed.</p>
<p>As for the governor-general consulting the chief justice of the High Court on legal matters, this again was shown to be well precedented. </p>
<p>Casey, for example, consulted Chief Justice Garfield Barwick after the presumed death of Prime Minister Harold Holt in 1967 and also, more bizarrely, on whether a satirical magazine that ran a spoof interview with Prince Philip could be prosecuted under the Crimes Act.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/439970/original/file-20220110-27-dpduit.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Prime Minister Harold Holt with Governor-General Lord Casey after swearing in of Holt as prime minister." src="https://images.theconversation.com/files/439970/original/file-20220110-27-dpduit.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/439970/original/file-20220110-27-dpduit.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=587&fit=crop&dpr=1 600w, https://images.theconversation.com/files/439970/original/file-20220110-27-dpduit.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=587&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/439970/original/file-20220110-27-dpduit.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=587&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/439970/original/file-20220110-27-dpduit.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=737&fit=crop&dpr=1 754w, https://images.theconversation.com/files/439970/original/file-20220110-27-dpduit.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=737&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/439970/original/file-20220110-27-dpduit.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=737&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Prime Minister Harold Holt with Governor-General Lord Casey after swearing in of Holt as prime minister.</span>
<span class="attribution"><a class="source" href="https://recordsearch.naa.gov.au/SearchNRetrieve/Interface/DetailsReports/PhotoDetail.aspx?Barcode=11196676">National Archives</a></span>
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</figure>
<h2>A snapshot of Australian history</h2>
<p>The letters of the governors-general provide a fascinating snapshot of political history. They add context to our understanding of the governor-general’s office and the relationship between the monarch and Australia. Seeing only Kerr’s correspondence led to distorted interpretations. Reading it in the context of his predecessors and successors gives a much more accurate picture.</p>
<p>While many of the reports are quite candid and frank, their release after so many years is hardly damaging, and the efforts to keep them secret for so long are again shown to be absurd. </p>
<p>Australia’s history should not be locked up forever in hermetically sealed boxes – it belongs to all of us and it is good that we can finally see some of it.</p><img src="https://counter.theconversation.com/content/174584/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the Australian Research Council and occasionally does consultancy work for governments and inter-governmental bodies. She has written books on the reserve powers and the role of vice-regal officers in Australia.</span></em></p>While many of the letters are quite candid, their release after so many years is hardly damaging, and the efforts to keep them secret for so long are again shown to be absurd.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1426462020-07-15T06:11:07Z2020-07-15T06:11:07ZIs Australia ready for another republic referendum? These consensus models could work<figure><img src="https://images.theconversation.com/files/347497/original/file-20200715-21-1s760ln.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> </figcaption></figure><p>The revelations in the “<a href="https://theconversation.com/palace-letters-reveal-the-palaces-fingerprints-on-the-dismissal-of-the-whitlam-government-142476">palace letters</a>” may well renew enthusiasm for an Australian republic, especially coming on top of recent controversies involving both <a href="https://www.theguardian.com/uk-news/2019/dec/07/prince-andrew-jeffrey-epstein-what-you-need-to-know">older</a> and <a href="https://www.bbc.com/news/uk-51043220">younger</a> members of the royal family.</p>
<p>A <a href="https://www.miragenews.com/new-poll-finds-62-per-cent-of-aussies-want-an-australian-head-of-state/">recent poll</a> also suggests increasing popular support for a republic. According to the YouGov poll, 62% of Australians said they wanted the head of state to be an Australian.</p>
<p>The palace letters make clear the problem with our current set-up: we have a legal (what lawyers call <em>de jure</em>) head of state who is a resident and national of the UK (the queen), as well as an effective or <em>de facto</em> Australian head of state (the governor-general) who can operate as if that legal status was his/hers.</p>
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Read more:
<a href="https://theconversation.com/first-reconciliation-then-a-republic-starting-with-changing-the-date-of-australia-day-89955">First reconciliation, then a republic – starting with changing the date of Australia Day</a>
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<p>Aside from the symbolism of having a foreign head of state – a blow to nativist Australian pride – there is also the practical question of whether the legal status and system of appointment (and removal) of the Australian governor-general is the best we can do.</p>
<p>This challenge is highlighted by the palace letters. They illustrate quite clearly that in extreme situations, such as when Prime Minister Gough Whitlam was dismissed by the governor-general, Sir John Kerr, in 1975, this arrangement can invite what has been referred to as a game of “<a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/swales21&div=60&id=&page=">constitutional chicken</a>”. </p>
<p>This occurs when a governor-general is in fear of being dismissed by the queen (on the advice of the Australian prime minister), while the prime minister can simultaneously be in fear of being dismissed by the governor-general. This situation gives each an incentive to act first to dismiss the other.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1282905906242441221"}"></div></p>
<h2>What happened in the 1999 referendum</h2>
<p>The republican model <a href="https://www.smh.com.au/politics/federal/from-the-archives-1999-australia-says-no-to-a-republic-20191104-p537bp.html">put to voters in a referendum in 1999</a> didn’t really fix that problem, as it still gave the prime minister the direct power to remove the head of state. </p>
<p>The other problem with the 1999 “<a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/1467-8500.00269">minimalist</a>” republic model was that it was attacked by some republicans who wanted a popular vote to select the head of state. </p>
<p>There has been disagreement since then between minimalist republicans, who favour parliamentary appointment of a ceremonial head of state (such as in India and Israel), and “direct electionists”, who want a direct vote for the head of state by the people (like Ireland and Austria). </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-model-for-an-australian-republic-that-can-unite-republicans-and-win-a-referendum-89919">A model for an Australian republic that can unite republicans and win a referendum</a>
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<p>In the 1999 referendum, some direct electionists <a href="https://www.tandfonline.com/doi/abs/10.1080/10361140120078826">opposed</a> the minimalist republic model and effectively joined with monarchists in defeating the proposal. </p>
<p>The challenge for the republican cause now is that many minimalist republicans may well <a href="https://morningmail.org/henderson-on-republic/">vote against a direct election model</a> in another referendum. </p>
<p>For them, the fear is Australia would move away from the Westminster system towards a US-style presidential system. And Donald Trump’s rise to power in the US, in particular, has led some to question the potential for popular votes to produce demagogues. </p>
<h2>How republic models could work</h2>
<p>So, what would it take for another republican referendum to succeed in Australia? </p>
<p>For starters, there must be a model that somehow unites the republican cause by allowing for a popular election but retaining a ceremonial, non-executive head of state. This head of state, apart from reserve powers, essentially defers to the parliament and prime minister. </p>
<p>In other words, such a model must preserve <a href="https://www.tandfonline.com/doi/abs/10.1080/14662048708447505?journalCode=fccp19">responsible government</a> – a government that comes from, and is responsible to, the parliament.</p>
<p><a href="https://theconversation.com/a-model-for-an-australian-republic-that-can-unite-republicans-and-win-a-referendum-89919">Some “hybrid” republic models have been proposed</a>, and my colleagues and I added our own ideas to the debate in a paper published in the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3292563">Public Law Review in 2018</a>. </p>
<p>In 2001, the late constitutional law professor George Winterton <a href="http://www5.austlii.edu.au/au/journals/UNDAULawRw/2001/4.html">proposed</a> an alternative bipartisan choice idea. In this model, parliament would endorse one candidate for head of state who would then be voted on in a popular national election (in which limited other nominees were free to stand).</p>
<p>We endorse this, but suggest that for such a model to work, provisions may be needed to bind the major political parties to the candidate selected by parliament. This would prevent parties or factions from campaigning for their own rival candidates. </p>
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Read more:
<a href="https://theconversation.com/cabinet-papers-1994-95-how-the-republic-was-doomed-without-a-directly-elected-president-88394">Cabinet papers 1994-95: How the republic was doomed without a directly elected president</a>
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<p>Another proposal is the “<a href="https://research.monash.edu/en/publications/parliamentary-appointment-or-popular-election-breaking-the-impass">50-50</a>” model, which aggregates the results of a parliamentary and popular vote, giving equal weight to both. This concept seeks to unite minimalists and direct electionists by requiring some sensible compromise from each side.</p>
<p>To avoid a repeat of Kerr’s dismissal of Gough in 1975, Australia could choose a republic model that includes “concurrent expiration”. </p>
<p>In this model, if a head of state acted to dismiss a sitting prime minister, he or she would also face an early expiration of their own term. Voters would then decide the fates of both in the ensuing election.</p>
<p>Certainly, if there is to be change to a republic in Australia that maintains the Westminster system of responsible government, this will take time, considered thought and debate. </p>
<p>In the very long term, an Australian head of state may be inevitable, so it is important to get it right.</p><img src="https://counter.theconversation.com/content/142646/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Duffy does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A new poll shows nearly two-thirds of Australians want an Australian head of state. A new republic model, however, would require compromise to succeed.Michael Duffy, Senior Lecturer and Researcher, Monash Business School, Director Corporate Law, Organisation and Litigation Research Group (CLOL), Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1195242019-06-27T20:44:56Z2019-06-27T20:44:56ZIf Dutton had defeated Turnbull, could the governor-general have stopped him becoming prime minister?<figure><img src="https://images.theconversation.com/files/281492/original/file-20190626-76709-tmuo4q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Had Peter Dutton won the 2018 leadership ballot and become prime minister, the governor-general may have had some tricky legal arguments on his hands.</span> <span class="attribution"><span class="source">AAP/Ellen Smith</span></span></figcaption></figure><p>Who decides who is to be prime minister?</p>
<p>When Malcom Turnbull was challenged by Peter Dutton in August 2018 for the leadership of the Liberal Party, and ultimately the prime ministership, Turnbull <a href="https://www.smh.com.au/politics/federal/that-is-wrong-in-law-turnbull-tried-to-bring-in-governor-general-in-last-ditch-act-20190627-p521nz.html">apparently asserted</a> that the governor-general would not appoint a person whose <a href="https://theconversation.com/explainer-is-peter-dutton-ineligible-to-sit-in-parliament-101840">eligibility to hold the office</a> was in doubt.</p>
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Read more:
<a href="https://theconversation.com/explainer-is-peter-dutton-ineligible-to-sit-in-parliament-101840">Explainer: is Peter Dutton ineligible to sit in parliament?</a>
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<p>His attorney-general, Christian Porter, reportedly <a href="https://www.smh.com.au/politics/federal/that-is-wrong-in-law-turnbull-tried-to-bring-in-governor-general-in-last-ditch-act-20190627-p521nz.html">replied</a> that Turnbull was “wrong in law” and that the governor-general could only have regard to issues of confidence. </p>
<p>Who was right, and what might have happened if Dutton had been chosen as leader of the Liberal Party?</p>
<h2>Not a choice between Dutton and Turnbull</h2>
<p>The governor-general can only act to fill a vacancy in the prime ministership if there is one. If Dutton had defeated Turnbull in a leadership challenge, this would not itself have vacated the office of prime minister. Turnbull would have continued as prime minister until he resigned (or in extreme circumstances, was dismissed). So the governor-general would not have faced the question of whether or not to appoint Dutton as prime minister until Turnbull had indicated he was going to resign. </p>
<p>The choice would then have been between Dutton and whoever else the governor-general considered was most likely to hold the confidence of the house. It would be unlikely that the governor-general would seek to reappoint the prime minister who had just resigned, unless he was the only person who could hold the confidence of the lower house.</p>
<p>This would seem most unlikely in the circumstances.</p>
<h2>What if Turnbull had advised the governor-general to appoint someone else?</h2>
<p>The more plausible scenario would have been that Turnbull resigned as prime minister but advised the governor-general to appoint someone other than Dutton, such as Julie Bishop, due to concerns about Dutton’s possible <a href="https://auspublaw.org/2018/09/section-44-and-the-competing-arguments-for-disqualification-and-exoneration-of-peter-dutton/">disqualification under section 44</a> of the Constitution. This raises the question of whether the advice of an outgoing prime minister about who should be his or her successor is conventionally binding on the governor-general. </p>
<p>Ordinarily, the principle of responsible government requires the governor-general to act on the advice of ministers who are responsible for that advice to parliament, and through parliament to the people.</p>
<p>But that principle only works when the minister continues to be responsible for that advice. An outgoing prime minister necessarily ceases to be responsible to parliament for advice about his or her successor. The governor-general is instead obliged, by convention, to appoint as prime minister the person who is most likely to command the confidence of the lower house, regardless of what the outgoing prime minister advises.</p>
<p>While this is the orthodox constitutional position, there is still some controversy about it. When Kevin Rudd defeated Julia Gillard for the leadership of the Labor Party in 2013, it was not clear whether the crossbenchers who supported the minority Gillard government would support Rudd.</p>
<p>The then governor-general, Quentin Bryce, sought advice from the acting solicitor-general as to whether to appoint Rudd as prime minister on the basis of Gillard’s advice. The acting solicitor-general <a href="https://www.gg.gov.au/sites/default/files/media_files/letter_to_the_acting_solicitor-general_and_letter_to_the_official_secretary.pdf">advised</a> that the governor-general should do so, and appeared to take the view that the outgoing prime minister’s advice was conventionally binding.</p>
<p>He did not advise the governor-general that her sole consideration should be who held the confidence of the house.</p>
<h2>Who advises the governor-general on legal issues?</h2>
<p>If, in 2018, the governor-general had sought legal advice about his powers and the conventions that govern them, two questions would have arisen. First, who should provide the advice? Should it be the solicitor-general, the attorney-general, or the even the prime minister? </p>
<p>In 1975, when the governor-general asked for legal advice, the prime minister, Gough Whitlam, said it could only come through him. The attorney-general and the solicitor-general prepared a joint draft advice, but it was not provided promptly. </p>
<p>When a frustrated governor-general, Sir John Kerr, called in the attorney-general to get the advice, he was presented with a draft that the attorney-general apparently said he had not carefully read and did not necessarily reflect his views. Kerr later, controversially, sought the <a href="http://blogs.usyd.edu.au/cru/2012/08/the_judiciousness_of_advising_1.html">advice of the chief justice</a>, Sir Garfield Barwick.</p>
<p>In more recent times, the solicitor-general has provided advice to the governor-general, as occurred in 2013. Even then, that advice was controversial, as it addressed how the governor-general “should” act, rather than simply advising on the powers and conventions that applied and leaving the governor-general to decide how to apply them.</p>
<p>There is currently no clear position in Australia on who should provide legal advice to the governor-general and the constraints upon the type of advice that should be given. This needs to be addressed in the future.</p>
<h2>What happens when advice conflicts?</h2>
<p>The second question is how the governor-general should deal with conflicting advice, which in 2018 was a real possibility. </p>
<p>For example, the solicitor-general could have taken the same view as the previous acting solicitor-general – that the advice of the outgoing prime minister is binding. The attorney-general, Christian Porter, apparently took the view that it was not binding, and that the governor-general should only consider who held the confidence of the house.</p>
<p>The prime minister is likely to have taken the view that the governor-general was bound to act on his advice not to appoint Dutton as prime minister, or that if the governor-general had a discretion, he should take into account the doubts about legal eligibility and refuse to appoint a person who might be disqualified from parliament. </p>
<p>There is no rule book that tells the governor-general how to deal with conflicting legal and ministerial advice. Ultimately, in this case, it was a reserve power that was in question and the discretion was a matter for the governor-general to exercise.</p>
<h2>Confidence and eligibility when appointing a prime minister</h2>
<p>Assuming the governor-general accepted the orthodox view that the appointment of a prime minister is a reserve power governed by the convention that the prime minister should hold the confidence of the lower house, what should he have done in this scenario? </p>
<p>The first issue is one of confidence. It is not certain that even if Dutton had been appointed leader of the Liberal Party, he would have held the confidence of the house. There may well have been defections that altered the balance of power. </p>
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Read more:
<a href="https://theconversation.com/the-government-was-defeated-on-the-medevac-bill-but-that-does-not-mean-the-end-of-the-government-111635">The government was defeated on the 'medevac' bill, but that does not mean the end of the government</a>
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<p>Hence the governor-general, as occurred in 2013, could have required an assurance to be given by the prospective prime minister that he would immediately face the house to allow it to determine confidence.</p>
<p>The second issue concerns eligibility. The governor-general is obliged to obey the Constitution. If the Constitution plainly prohibits action, such as appointing a prime minister in certain circumstances, the governor-general is obliged to obey it.</p>
<p>But where the legal question is contestable, it is not up to the governor-general to determine it. In this case, the Constitution and the law confer the power on the relevant house, or the High Court acting as the <a href="https://en.wikipedia.org/wiki/Court_of_Disputed_Returns_(Australia)">Court of Disputed Returns</a>, to determine disqualification from parliament. </p>
<p>Further, the Constitution allows a person to be a minister, without holding a seat in parliament, for <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s64.html">up to three months</a>. So the governor-general could legally have appointed Dutton as prime minister, but might first have required his assurance that he would ensure his eligibility was resolved by a reference to the High Court. </p>
<p>In this way, the governor-general would have protected the Constitution and the rule of law while still complying with the principle of responsible government. Of course, he may have had some difficulty persuading Dutton to give those assurances. But this is precisely why we appoint as governor-general people with the authority and gravitas to ensure that the Constitution is respected and upheld.</p><img src="https://counter.theconversation.com/content/119524/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the Australian Research Council with respect to research on the reserve powers and occasionally does consultancy work for governments. She has written a book on the reserve powers - The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems - which might get the odd extra sale due to this controversy.</span></em></p>The Constitution says that the governor-general can only act to fill a vacancy in the prime ministership if there is one - but in this case, some complex questions would have arisen.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1173802019-05-19T03:21:33Z2019-05-19T03:21:33ZMajority or minority Coalition government? Here’s what happens now<figure><img src="https://images.theconversation.com/files/275267/original/file-20190519-69174-pxkt38.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Scott Morrison has been returned as prime minister, but we don't yet know if the Coalition will get to the 77 seats it needs to form majority government (minus the speaker).</span> <span class="attribution"><span class="source">AAP/Joel Carrett</span></span></figcaption></figure><p>The election is over, the Coalition has won the most seats. But we don’t yet know if it will form a majority or a minority government. So what happens now?</p>
<p>First, there will be continued counting to determine the outcome of seats in the lower house and the more complex half-Senate election. When the outcomes have been declared by the Electoral Commission, after re-counts if necessary, the names of the winners will be certified and attached to the election writs which will then be “returned” to the governor-general for House of Representatives seats and the state governor for a state’s representatives in the Senate.</p>
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Read more:
<a href="https://theconversation.com/coalition-wins-election-but-abbott-loses-warringah-plus-how-the-polls-got-it-so-wrong-116804">Coalition wins election but Abbott loses Warringah, plus how the polls got it so wrong</a>
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<p>The date for the return of the writs is June 28. This will allow the new Senators to commence their terms of office on Monday, July 1. The Constitution then requires that </p>
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<p>the Parliament shall be summoned to meet not later than thirty days after the day appointed for the return of the writs. </p>
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<p>This means that parliament will have to sit by the end of July. It is likely to be a short sitting to deal with the formalities.</p>
<p>If anyone wants to challenge the validity of an election, including the disqualification of an elected candidate under section 44 of the Constitution, that has to be commenced within 40 days of the return of the writs on June 28.</p>
<h2>Majority government and a hung parliament</h2>
<p>If a party or coalition of parties wins 77 seats in the House of Representatives, it can govern in its own right, because after providing the speaker, this would give it a majority of 76 to 74 on the floor of the House.</p>
<p>If it wins 76 seats, it is trickier. Either it convinces an independent to take up the Speaker’s office, or it provides the speaker itself. If it provides the Speaker, then it potentially has a 75 to 75 tie on the floor of the House, unless it is supported by independents, meaning that the Speaker would have to give a casting vote.</p>
<p>This would mean that the government, while technically governing in its own right, would in practice need the support of crossbenchers, especially as conventions govern how the Speaker votes in the case of a tie. </p>
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Read more:
<a href="https://theconversation.com/key-challenges-for-the-re-elected-coalition-government-our-experts-respond-117325">Key challenges for the re-elected Coalition government: our experts respond</a>
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<p>If no party or coalition of parties wins 76 or more seats, then we have a hung parliament. The incumbent prime minister, Scott Morrison, then has the right to continue on as prime minister until such time as it is clear that he can command the support of a majority of the House of Representatives (for example by securing “confidence and supply” agreements with sufficient crossbenchers to show majority support) or until he faces the parliament and a test of confidence on the floor of the House of Representatives. </p>
<p>Governments can function for a full term as minority governments, as the Gillard government did. There is no requirement that there be a formal agreement with crossbenchers to support the government in the passage of “supply” (that is, the passing of the budget and the money bills necessary to run the government) or protect it against the passage of a motion of no confidence, but a minority government would most likely seek to secure such an agreement to provide some stability and security for its future.</p>
<h2>The role of the governor-general</h2>
<p>The governor-general has no role to play until such time as there is a vacancy in the office of prime minister. He cannot fill an office that is not vacant. Unless the prime minister resigns, or unless he is dismissed for refusing to resign when there has been a vote of no confidence passed against his government in the House of Representatives, then the governor-general has nothing to do but sit and watch.</p>
<p>When the governor-general does act to fill a vacancy, constitutional convention requires that he appoint as prime minister the person who is most likely to command the confidence of the House of Representatives. The governor-general is not bound by the advice of the outgoing Prime Minister about who should be appointed.</p>
<p>Once it is clear who will command the confidence of the House of Representatives, which is likely to be ascertained by vote counting and perhaps agreements with crossbenchers before the parliament sits, only then is it likely that the prime minister will resign and be reappointed if he is the one who commands that confidence, or replaced by whoever else does. The prime minister then advises the governor-general to appoint ministers under section 64 of the Constitution.</p>
<h2>In the meantime, government goes on</h2>
<p>Until a new government is formed, the existing ministers, including the prime minister, remain in office and continue to fill their ministerial functions. There must always be a government in place, even when there is uncertainty about who commands the confidence of the lower house.</p>
<p>During this period, the government operates as a “caretaker government” and does not make significant appointments or enter into significant binding contracts. The caretaker period will not end until it becomes clear who commands the confidence of the lower house and can form a government.</p><img src="https://counter.theconversation.com/content/117380/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the Australian Research Council and occasionally does consultancy work for governments and inter-governmental bodies.</span></em></p>We now wait for the final count of seats in the House of Representatives and the Senate - and in the meantime, government continues.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1105012019-01-28T19:17:00Z2019-01-28T19:17:00ZWhy a government would be mad to advise the refusal of royal assent to a bill passed against its will<figure><img src="https://images.theconversation.com/files/255539/original/file-20190125-108351-seklj3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">With the Morrison government now in minority, it is possible a bill for the transfer of asylum seekers from Nauru could pass against the government's wishes.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>In both the United Kingdom and Australia there is speculation that controversial bills may be passed against the will of the government. If so, could the government advise that the bill be refused royal assent – the last formal step in turning a bill into a law? </p>
<p>This raises questions about whose advice the Queen or governor-general acts upon when giving royal assent, and whether it is constitutionally permissible or wise for ministers to advise that assent not be given to a bill that has validly passed both houses of parliament.</p>
<h2>Could it happen with Brexit and Nauru?</h2>
<p>In the UK, internal parliamentary dissent about the management of Brexit has led some cross-party parliamentarians to suggest they might support a bill that would require the deferral of Brexit, rather than allow Britain to crash out of the European Union without an agreement. </p>
<p>This has given rise to speculation in both the British <a href="https://www.thesun.co.uk/news/brexit/8244760/brexit-latest-plotters-the-queen/">popular</a> <a href="https://www.express.co.uk/news/uk/1076768/the-queen-brexit-royal-assent-brexit-amendments-latest-news">press</a> and <a href="https://protect-au.mimecast.com/s/tqzvCjZrzqHoDOgQtWTyqF?domain=publiclawforeveryone.com">academic</a> <a href="https://ukconstitutionallaw.org/2019/01/22/robert-craig-could-the-government-advise-the-queen-to-refuse-royal-assent-to-a-backbench-bill/">blogs</a> about whether the Queen could refuse assent to such a bill, acting on the advice of government ministers.</p>
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Read more:
<a href="https://theconversation.com/explainer-what-is-a-hung-parliament-and-how-would-it-affect-the-passage-of-legislation-105358">Explainer: what is a hung parliament and how would it affect the passage of legislation?</a>
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<p>In Australia, the issue has arisen because the Morrison government has slipped into a parliamentary <a href="https://theconversation.com/explainer-what-is-a-hung-parliament-and-how-would-it-affect-the-passage-of-legislation-105358">minority</a>. This creates the potential for a bill, such as one concerning the transfer of asylum seekers from Nauru to Australia for <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p%3Bquery=Id%253A%2522legislation%252Fbillhome%252Fr6236%2522">medical care</a>, to pass the House of Representatives and the Senate <a href="https://www.abc.net.au/news/2018-12-06/crossbench-mps-push-federal-government-refugees-on-nauru/10588374">without government support</a>.</p>
<p>In both the <a href="https://www.theguardian.com/commentisfree/2009/feb/04/house-commons-government-executive">UK</a> and <a href="https://questions.peo.gov.au/questions/under-what-circumstances-would-standing-orders-be-suspended-and-for-what-purpose/22">Australia</a>, the standing orders of the relevant houses of parliament impose impediments to the passage of bills without government support. This is done by giving the government effective control over parliamentary business. Other parliamentary tactics, such as <a href="https://www.smh.com.au/politics/federal/lost-in-stagnation-behind-the-refugee-bill-that-plunged-the-parliament-into-chaos-20181206-p50koo.html">filibustering</a>, may also be used to prevent the passage of such bills. </p>
<p>But if such impediments are <a href="https://www.bbc.com/news/uk-politics-46818428">overcome</a> and a bill passes both houses against the wishes of the government, can it advise the Queen or the governor-general (described here collectively as the “head of state”) to refuse royal assent, and what should the head of state do if so advised?</p>
<h2>Royal assent</h2>
<p>In both the UK and Australia, parliament is defined as having three constituent parts – the lower house, the upper house and the Queen. A bill does not become a law until it has been passed by both houses (subject to special procedures for certain bills that may not need to be passed by the upper house) and has received royal assent. Royal assent is therefore a critical part of the legislative process. It has not been refused in the United Kingdom since 1707.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/255542/original/file-20190125-108361-1h6dfry.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/255542/original/file-20190125-108361-1h6dfry.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=392&fit=crop&dpr=1 600w, https://images.theconversation.com/files/255542/original/file-20190125-108361-1h6dfry.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=392&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/255542/original/file-20190125-108361-1h6dfry.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=392&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/255542/original/file-20190125-108361-1h6dfry.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=492&fit=crop&dpr=1 754w, https://images.theconversation.com/files/255542/original/file-20190125-108361-1h6dfry.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=492&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/255542/original/file-20190125-108361-1h6dfry.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=492&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Royal assent is a critical part of the legislative process.</span>
<span class="attribution"><span class="source">AAP/EPA/Neil Hall</span></span>
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<p>In practice, in neither country is the head of state given ministerial advice to assent to bills. While there is a common belief that assent is advised in meetings of the <a href="https://privycouncil.independent.gov.uk/">Privy Council</a> or the <a href="https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/Practice7/HTML/Chapter2/Federal_Executive_Council">Federal Executive Council</a> as the case may be, this is not so. It is done separately by the head of state as part of his or her normal paperwork, once the houses have passed the bills.</p>
<p>Indeed, in the UK, the formal words of enactment of a bill state that it is:</p>
<blockquote>
<p>enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same. </p>
</blockquote>
<p>In Australia the more succinct phrase is: “The Parliament of Australia enacts”.</p>
<p>The position is nicely illustrated by the controversy concerning Britain’s entry in 1972 into what later became the European Union. A British subject, Alan McWhirter, argued that the Queen should refuse assent to the European Communities Bill as it would fetter the powers of parliament.</p>
<p>The <a href="https://books.google.com.au/books?redir_esc=y&id=J7pQDwAAQBAJ&q=McWhirter#v=snippet&q=McWhirter&f=false">first draft</a> reply prepared by the British government explained it was a constitutional convention that the Queen cannot refuse assent to bills passed by both houses, and which ministers advise should receive assent.</p>
<p>After legal advice from the Lord Chancellor’s Office that ministerial advice is not tendered in relation to royal assent, the draft letter was corrected to say that it is an established constitutional convention that:</p>
<blockquote>
<p>the Royal Assent is not withheld from Bills which have been passed by both Houses of Parliament.</p>
</blockquote>
<h2>The relevant principles</h2>
<p>If ministers were to advise the head of state to refuse assent to a bill that both houses had validly passed, it would potentially raise a clash between the principles of representative and responsible government. The principle of representative government requires the head of state to act in accordance with the will of the democratically elected parliament by giving assent to bills the houses have validly passed. </p>
<p>The principle of responsible government ordinarily requires the head of state to act on the advice of ministers who are responsible to parliament because they hold the confidence of the lower house. The corollary of this principle is that the head of state is not obliged to act on the advice of ministers who have ceased to hold the confidence of the house.</p>
<p>The principle of responsible government serves that of representative government by ensuring that the executive government is responsible to, and derived from, the representatives of the people in parliament. Both principles require that parliament prevails over the executive, and the executive can only function as long as it holds the support of the lower (representative) house. </p>
<p>As <a href="https://ukconstitutionallaw.org/2013/09/25/nick-barber-can-royal-assent-be-refused-on-the-advice-of-the-prime-minster/">Nick Barber</a> has argued, it would therefore be inappropriate to rely on the principle of responsible government to undermine parliamentary representative government by allowing ministers to defeat the will of the houses of parliament. </p>
<h2>The consequences of advising refusal of assent</h2>
<p>The defeat of a government on a bill, whether it be defeat of a bill proposed by the government or the passage of a bill opposed by the government, will not necessarily indicate a loss of confidence and require the government to resign or seek an election. But it will do so when the bill is one of major importance to the government.</p>
<p>There is therefore a strong argument that if a government regards a bill to be of such critical importance that it is prepared to advise the head of state to refuse assent to it, then the government’s defeat indicated by the passage of that bill amounts to a loss of confidence in the government.</p>
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Read more:
<a href="https://theconversation.com/dual-citizenship-debacle-claims-five-more-mps-and-sounds-a-stern-warning-for-future-parliamentarians-96267">Dual citizenship debacle claims five more MPs – and sounds a stern warning for future parliamentarians</a>
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<p>This is why it would be madness for a government to advise the head of state to refuse assent to a bill that has been passed against its wishes. Such action would not only raise a serious question about whether it can continue governing, but it would place the head of state in an invidious position by forcing him or her to reject either the advice of the houses of parliament or of ministers. </p>
<p>Added to this would be enormous public controversy about the constitutional propriety of the government’s action. This would undoubtedly be damaging for a government in a subsequent election.</p>
<p>There is a reason why there is no precedent of a government in the UK or Australia advising the refusal of assent in such circumstances. It would not only be a constitutionally dubious thing to do, but would also be politically stupid.</p><img src="https://counter.theconversation.com/content/110501/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the ARC and occasionally does consulting work for governments. She has written a book on the reserve powers, 'The Veiled Sceptre - Reserve Powers of Heads of State in Westminster Systems', from which this article is drawn.</span></em></p>There has been recent speculation that governments could advise royal assent not be granted if bills are passed against their wishes. Here’s why this is very unlikely to happen.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1088902018-12-16T08:55:14Z2018-12-16T08:55:14ZView from The Hill: Morrison goes a bridge too far to outsmart Shorten<p>The Morrison government is going over the top in trying to outsmart and smother Bill Shorten and the Labor national conference.</p>
<p>Leaving aside the holding of the July Super Saturday byelections when the ALP meeting was originally due, the government is attempting to outdo the rescheduled conference at every turn.</p>
<p>Some time ago the budget update was set for Monday, to overshadow the second day of the conference. </p>
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Read more:
<a href="https://theconversation.com/mondays-myefo-will-look-good-but-it-will-set-the-budget-up-for-awful-trouble-down-the-track-107567">Monday's MYEFO will look good, but it will set the budget up for awful trouble down the track</a>
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<p>Not content with that, Scott Morrison decided to announce Australia’s new Governor-General, David Hurley, on Sunday morning at the exact same time as Shorten’s opening address in Adelaide.</p>
<p>The prime minister rang Shorten at 7:30am to tell him about the 10 o'clock announcement.</p>
<p>Labor has a legitimate point in complaining about Morrison’s failure to consult on the appointment. He was under no formal obligation to do so, but given that Hurley will not be sworn in until after the election, it would have been the proper course to take.</p>
<p>Regardless of any argument about that, the timing of the announcement was absolutely the wrong course. When Morrison was asked about it he could provide no convincing justification. It was indeed rather disrespectful to Hurley, because the obvious attempted one-upmanship would inevitably be controversial.</p>
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Read more:
<a href="https://theconversation.com/nsw-governor-david-hurley-will-be-australias-new-governor-general-108886">NSW Governor David Hurley will be Australia's new Governor-General</a>
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<p>Less provocative but also designed as a distraction from the attention on Labor was Sunday night’s announcement for the 7pm news of a $552.9 million increase in aged care funding, including the release of 10,000 high level home care places within weeks. </p>
<p>In other years, the Coalition would have wanted all attention on the Labor shindig, expecting fiery debates. But this time the government is worried about a conference which is a highly managed affair where divisions are being contained and participants have their eyes firmly on the prize of Labor winning power next year. </p>
<p>It is all about showcasing Shorten as fit to lead the nation. </p>
<p>Not that there weren’t some fracas on the first day. But they came from demonstrators rather than delegates. Anti-Adani and pro-refugee protesters invaded the stage as Shorten prepared to speak, and there were noisy scenes outside the Adelaide convention centre.</p>
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Read more:
<a href="https://theconversation.com/labor-promises-a-comprehensive-overhaul-of-federal-environmental-framework-108888">Labor promises a comprehensive overhaul of federal environmental framework</a>
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<p>Shorten in his speech unveiled initiatives on housing affordability, the protection of superannuation and the creation of new national environmental architecture. </p>
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Read more:
<a href="https://theconversation.com/shortens-subsidy-plan-to-boost-affordable-housing-108881">Shorten's subsidy plan to boost affordable housing</a>
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<p>His address was workmanlike - comprehensive rather than a rhetorical rallying cry. His approach at this conference is cautious and careful, designed to avoid false steps - although in policy terms Labor is bold and willing to be a big target.</p>
<p>The ALP’s new national president Wayne Swan told the conference that “the focus now shifts to us”.</p>
<p>In these three days Labor is committed to presenting itself as a convincing alternative government. Its message is that it’s ready for office.</p>
<p>There are two days to go for Labor in Adelaide. But at the end of day one the government was looking desperate while the opposition was looking determined.</p><img src="https://counter.theconversation.com/content/108890/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The government is worried about a conference which is a highly managed affair where divisions are being contained and participants have their eyes firmly on the prize of Labor winning power next year.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/899192018-01-25T01:07:54Z2018-01-25T01:07:54ZA model for an Australian republic that can unite republicans and win a referendum<figure><img src="https://images.theconversation.com/files/202375/original/file-20180118-53302-1l2z3hv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A proposed model for an Australian republic encourages active citizenship while preserving the non-partisan, ceremonial role of the head of state.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p><em>As the debate continues over whether Australia Day should be celebrated on January 26, <a href="https://theconversation.com/au/topics/rethinking-australia-day-48589">this series</a> looks at the politics of some unresolved issues swirling around Australia Day – namely, the republic and reconciliation. And just for good measure, we’ll check the health of Australian slang along the way.</em></p>
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<p>The lesson of 1999 is that an Australian republic can only come about if republicans unite. Minimalists want a small-change republic, in which parliament appoints the head of state. This, they argue, will ensure the head of state does not have a popular mandate and will not interfere in day-to-day politics.</p>
<p>It will also preserve the character of the role. Like the current governor-general, minimalists want the role to be an honour bestowed on a worthy servant, not a prize sought through ambitious campaigning. </p>
<p>Direct electionists believe the spirit of republicanism is active participation. They do not want politicians to simply choose a head of state; instead, they desire a system in which the people are involved. </p>
<p>The hybrid model below, designed by <a href="https://researchers.anu.edu.au/researchers/pickering-pa">Paul Pickering</a> and I, aims to ensure the process is democratic but also that the dignity of the office of head of state is maintained. It harnesses the best features of minimalism and direct election.</p>
<h2>A hybrid solution</h2>
<p>Under our model, each state and territory parliament nominates an Australian citizen to be head of state. There is no obligation to nominate someone who was born in or who resides in that particular state.</p>
<p>In the opinion of at least two-thirds of sitting MPs, the nominee must:</p>
<ul>
<li><p>be an Australian citizen over 18;</p></li>
<li><p>have served the nation with distinction in their chosen field or fields;</p></li>
<li><p>be of exemplary personal character and integrity; and</p></li>
<li><p>be willing to serve as head of state for a term of five years.</p></li>
</ul>
<p>Each parliament must nominate a different person. The eight nominees are then put to a non-compulsory, first-past-the-post, national vote.</p>
<p>The vote is non-compulsory to emphasise this is a titular and ceremonial role. Australians do not currently vote for the governor-general or the Queen, and should not have to vote for the head of state in a republic, either. </p>
<p>This model deliberately casts a wide net but is protected by two hurdles. A nominee must be endorsed first by a parliamentary majority and second by a public vote. </p>
<p>Some minimalists argue that, under a direct-election model, an exploitative populist or crass former sports star might become head of state. The twin hurdles of our hybrid model serve as a bulwark against unbridled populism, but ultimately defer to democracy. If a nominee has the confidence of both an elected parliament and the people, they deserve to be the head of state, regardless of their critics.</p>
<p>The nominee with the most votes becomes the Australian head of state and serves a five-year term.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/202246/original/file-20180117-53324-13ly9yz.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/202246/original/file-20180117-53324-13ly9yz.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=837&fit=crop&dpr=1 600w, https://images.theconversation.com/files/202246/original/file-20180117-53324-13ly9yz.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=837&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/202246/original/file-20180117-53324-13ly9yz.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=837&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/202246/original/file-20180117-53324-13ly9yz.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1052&fit=crop&dpr=1 754w, https://images.theconversation.com/files/202246/original/file-20180117-53324-13ly9yz.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1052&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/202246/original/file-20180117-53324-13ly9yz.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1052&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="attribution"><span class="source">The Conversation</span>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span>
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</figure>
<h2>To campaign or not?</h2>
<p>In the lead-up to the vote, the merits of each nominee are explained on the Australian Electoral Commission website. A small education budget is allocated to introduce the nominees to the public without any preference shown. </p>
<p>There is no need for nominees to campaign, but no penalty if they do. If supporters of a particular nominee want to conduct a traditional campaign with slogans, posters, advertisements and the like, that is their prerogative.</p>
<p>Many Australians would consider electioneering to be beneath the dignity of the office of head of state. Ultimately, our model puts its faith in the Australian people. They will dictate what kind of behaviour is appropriate on election day.</p>
<h2>Casting a wide net</h2>
<p>One possible criticism of our model is that the people can choose from just eight nominees. Opening it up to all casts a wider net in theory, but in reality it excludes many worthy candidates. </p>
<p>A simple direct-election model would likely result in only the wealthy, former politicians, or those with support from powerful lobby groups being nominated. In many cases, the kind of person we want as head of state is not the kind of person who would seek out such an honour. </p>
<p>Needing a two-thirds majority, state and territory parliaments will look for worthy individuals in a bipartisan manner. It is then over to the people to choose.</p>
<p>It should also be remembered that citizens are free to petition their government to endorse any particular individual.</p>
<h2>The best of both worlds</h2>
<p>One of our model’s strengths is that it encourages active citizenship while preserving the non-partisan, ceremonial role of the head of state. </p>
<p>With nominations from across the states and territories, Australians will be presented with a diverse choice of distinguished individuals. </p>
<p>Like the nominations for Australian of the Year, it will be an opportunity to recognise and honour Australians from different walks of life. Citizens are encouraged but not coerced into deciding who they want as their representative on the international stage.</p>
<p>The most important feature of our model is that it preserves the current power relation between the head of state and parliament. </p>
<p>Like the present governor-general, the head of state under our model will be a guardian of the Constitution. They will hold important reserve powers but will be bound by convention and protocol to use them only in the event of a constitutional crisis. They should carry themselves in a manner that brings honour to the country and should tirelessly promote Australia at home and abroad.</p>
<h2>Let democracy rule</h2>
<p>It’s worth reiterating that republicans must unite and be committed, above all, to democracy. Only with this attitude can the lazy impulse to revert to the status quo be overcome.</p>
<p>An Australian should be the Australian head of state. Our Constitution should be thoroughly democratic and independent. We should be able to tell our kids that they can grow up to be anything, even the head of state.</p>
<hr>
<p><em>Benjamin T. Jones’ new book <a href="https://www.blackincbooks.com.au/books/time">This Time: Australia’s Republican Past and Future</a> is published by Black Inc.</em></p>
<hr>
<p><em>Catch up on others in the series <a href="https://theconversation.com/au/topics/rethinking-australia-day-48589">here</a>.</em></p><img src="https://counter.theconversation.com/content/89919/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Benjamin T. Jones is a member of the Australian Republican Movement. </span></em></p>This model for an Australian republic aims to ensure the process of a choosing a head of state is democratic, but also that the dignity of the office is maintained.Benjamin T. Jones, Australian Research Council Fellow, School of History, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/897592018-01-22T01:21:07Z2018-01-22T01:21:07ZNine things you should know about a potential Australian republic<figure><img src="https://images.theconversation.com/files/201872/original/file-20180115-101483-1d9u92h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australia's Constitution vests executive power in the Queen and says that that power is exercised 'on her behalf' by the governor-general.</span> <span class="attribution"><span class="source">AAP/Alan Porritt</span></span></figcaption></figure><p><em>As the debate continues over whether Australia Day should be celebrated on January 26, <a href="https://theconversation.com/au/topics/rethinking-australia-day-48589">this series</a> looks at the politics of some unresolved issues swirling around Australia Day – namely, the republic and reconciliation. And just for good measure, we’ll check the health of Australian slang along the way.</em></p>
<hr>
<p>Whether Australia should become a republic or remain a monarchy is a perennial topic of debate, particularly around the time of Australia Day. Prime Minister Malcolm Turnbull briefly floated the <a href="http://www.smh.com.au/federal-politics/political-news/given-the-success-of-the-marriage-postal-survey-turnbull-flags-an-australian-republic-vote-20180101-h0bzlu.html?logout=true">idea of a plebiscite</a> on an Australian republic earlier this year. </p>
<p>Many would have questions about how such a change would affect our system of government. But the questions and answers below show there is nothing unique about Australia’s situation, and the issues that need to be addressed are not particularly difficult.</p>
<h2>1. Who is Australia’s current head of state?</h2>
<p>Possible answers to this question range from “no-one” to “the governor-general” to “the Queen”: it all depends on what you mean by “head of state”. </p>
<p>The term is not used in the Constitution, so there is no office of “head of state”. <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s61.html">Section 61</a> of the Constitution vests executive power in the Queen, and says power is exercised “on her behalf” by the governor-general. </p>
<p>What is incontrovertible is that the Queen is undoubtedly the source of executive power, even though the governor-general exercises it. So, if there were no Queen, there would be no governor-general. The governor-general’s powers are therefore entirely derivative. </p>
<p>So, you can say the Queen is head of state, as long as by “head of state” you mean “the person who is the ultimate source of executive power”.</p>
<h2>2. What benefit would there be in Australia becoming a republic?</h2>
<p>Such a move would be purely symbolic in that it could be effected without any change to the way functions are distributed under the Constitution. The Queen and governor-general would be replaced by an Australian president.</p>
<p>It would mean that any Australian could aspire to be the person embodying the ultimate source of executive authority in Australia.</p>
<p>It would also signal to the world that we are wholly independent, both in appearance and in fact, because we would no longer have a foreigner as our monarch.</p>
<h2>3. Would having a president change the functions of the office?</h2>
<p>No. Whatever changes were necessary to substitute a president for the Queen and governor-general could be made without changing the powers of the office. </p>
<p><a href="https://ipfs.io/ipfs/QmXoypizjW3WknFiJnKLwHCnL72vedxjQkDDP1mXWo6uco/wiki/Republics_in_the_Commonwealth_of_Nations.html">Many Commonwealth countries</a> have done this over the past 50 years, and have become republics while retaining the system of parliamentary government in which day-to-day power is vested in a prime minister.</p>
<h2>4. What method of selecting a president is most likely to be supported by a majority of voters?</h2>
<p><a href="https://www.aph.gov.au/sitecore/content/Home/About_Parliament/Senate/Powers_practice_n_procedures/pops/pop51/warhurst">Surveys show</a> that most voters favour the popular election of a president.</p>
<p>In that sense, the 1999 referendum was doomed to fail – not because a majority of Australians wanted to maintain the link with the Crown (polls showed a clear majority <a href="http://www.smh.com.au/federal-politics/political-opinion/unpalatable-choice-sank-the-republic-20091105-i03d.html">in favour of a republic</a>), but because the Howard government put to voters a model (selection of a president by parliament) that most republicans did not want.</p>
<h2>5. Would an elected president be compatible with our parliamentary system of government?</h2>
<p>Yes. </p>
<p><a href="https://www.taoiseach.gov.ie/DOT/eng/Historical_Information/The_Constitution/Constitution_of_Ireland_-_Bunreacht_na_h%C3%89ireann.html">Ireland</a>, for example, is a parliamentary democracy that has an elected head of state who performs the same limited role as Australia’s governor-general. Because the way Ireland’s president exercises his or her powers is determined entirely by the constitution, presidential candidates cannot make campaign promises.</p>
<p>Campaigning for president in Ireland does not revolve around party politics or political platforms, but around who voters think would best personify the country and represent it on the world stage.</p>
<h2>6. Is there a danger in having a popularly elected president?</h2>
<p>Some argue that a popularly elected president might think they had a mandate equal to that of the government, and so disregard the conventions that govern the role currently discharged by the governor-general.</p>
<h2>7. What are the conventions and how do they operate?</h2>
<p>There is a difference between a legal rule and a convention. A legal rule is enforceable by the courts; a convention is not – it is a rule whose effectiveness relies purely on customary compliance. </p>
<hr>
<p><em><strong>Further reading: <a href="https://theconversation.com/how-unwritten-rules-shape-ministerial-accountability-50515">How unwritten rules shape ministerial accountability</a></strong></em></p>
<hr>
<p>Confusion arises from the fact that what the governor-general may do according to the law can be very different from what they can do according to convention. For example, <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s58.html">Section 58</a> of the Constitution says the governor-general can decide whether to assent to legislation “according to his discretion”. In reality, convention dictates that the governor-general must always assent to bills passed by parliament. </p>
<p>Almost all the powers given to the governor-general by the Constitution are either expressly stated as being exercised on the advice of the government or are exercised on advice by convention. </p>
<p>However, the governor-general has four powers they exercise independently – that is, not on anyone’s advice. These are to: appoint a prime minister, dismiss a prime minister, dissolve parliament, and refuse to dissolve parliament. </p>
<p>The circumstances in which these powers should be exercised is governed by convention. Therein lies the problem that led to the 1975 constitutional crisis.</p>
<hr>
<p><em><strong>Further reading: <a href="https://theconversation.com/australian-politics-explainer-gough-whitlams-dismissal-as-prime-minister-74148">Australian politics explainer: Gough Whitlam’s dismissal as prime minister</a></strong></em></p>
<hr>
<p>There was no doubt that, under Section 64 of the Constitution, the governor-general had the legal power to dismiss the prime minister. What was in dispute was whether, under convention, failure to get supply passed by the Senate justified the exercising of that power.</p>
<h2>8. How would we prevent a president from acting contrary to the conventions?</h2>
<p>A governor-general or a president could act contrary to the conventions. The obvious solution to either of them doing this is to codify the conventions – that is, clarify what they are and put them into the Constitution, so they become rules of law enforceable by the courts. </p>
<p>There is nothing new in this: codification has been effected by many Commonwealth countries. </p>
<p>Some have retained the link with the Crown and have codified the powers of a <a href="https://www.bahamas.gov.bs/wps/wcm/connect/67f5a807-8caa-4888-8c07-467543cdde39/Chap+6+The+Executive.pdf?MOD=AJPERES">governor-general</a>. Others have become parliamentary republics, with <a href="http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---ilo_aids/documents/legaldocument/wcms_126778.pdf">presidents</a> with codified powers. </p>
<h2>9. How should reform be conducted?</h2>
<p>To ensure genuine majority support for change, there should be a compulsory plebiscite legislated for by parliament, followed by a referendum. </p>
<p>The plebiscite should have two questions: </p>
<ul>
<li><p>The first should ask whether voters want Australia to become a republic. </p></li>
<li><p>The second should ask which of a list of methods of selecting a president voters would prefer, assuming the first question showed a majority in favour of a republic. </p></li>
</ul>
<p>If a majority had favoured a republic, the ensuing referendum should ask voters to approve the model that obtained most votes in the plebiscite.</p>
<p>Many other parliamentary democracies have become republics over time. We should broaden our thinking to take their experiences into account.</p>
<hr>
<p><em>Catch up on others in the series <a href="https://theconversation.com/au/topics/rethinking-australia-day-48589">here</a>.</em></p>
<hr>
<p><em>Correction: Section 5 of this article originally mentioned both Ireland and Germany as examples of countries with democratically elected presidents. However, Germany’s president is not elected directly by the public, but instead by a specially convened Federal Convention representing the country’s federal and state parliaments.</em></p><img src="https://counter.theconversation.com/content/89759/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bede Harris does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Many of the questions that would arise if Australia wants to become a republic have been successfully tackled elsewhere.Bede Harris, Senior Lecturer in Law, Charles Sturt UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/469742015-09-07T00:09:04Z2015-09-07T00:09:04ZCan the Senate force the removal of a royal commissioner?<figure><img src="https://images.theconversation.com/files/93832/original/image-20150904-28887-12kxcxp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Labor says it will move a motion in the Senate this week for a message to be sent to the Governor-General, requesting he dismiss Dyson Heydon as royal commissioner.</span> <span class="attribution"><span class="source">AAP/Alan Porritt</span></span></figcaption></figure><p>Last Monday, Dyson Heydon, the royal commissioner investigating trade union corruption, <a href="http://www.tradeunionroyalcommission.gov.au/Hearings/Documents/2015/Evidence31August2015/ReasonsforRulingonDisqualificationApplicationdated31August2015.pdf">dismissed the unions’ application</a> for him to step down on the ground of apprehended bias. The unions are yet to reveal whether they will take the case to the courts.</p>
<p>In the meantime, Labor <a href="http://www.theguardian.com/australia-news/2015/sep/01/labor-seeks-crossbench-support-for-governor-general-to-sack-dyson-heydon?CMP=soc_568">says</a> it will move a motion in the Senate this week for a message to be sent to Governor-General Sir Peter Cosgrove, requesting he dismiss Heydon.</p>
<p>Does the Senate normally send these sorts of messages to the governor-general? And will it lead to the governor-general removing Heydon?</p>
<h2>How does the Senate communicate with the Governor-General?</h2>
<p>The Senate can communicate with the Queen or Governor-General by making an “address”. This formal process for communication with the Governor-General is set out in the <a href="http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/aso/so172">Senate standing orders</a> – the rules governing Senate practice and procedure. </p>
<p>The standing orders require that a motion be put before the Senate in order for the Senate to make an address to the Governor-General. If the Senate passes the motion, the Senate president will formally present the address to the Governor-General at a meeting between the Governor-General, the Senate president and other senators. The president will read the address to the Governor-General, with the senator who initiated the address also being present. </p>
<p>An address to the Governor-General is uncommon. Aside from an address-in-reply to the Governor-General’s speech opening a new parliamentary session, an address of the Senate has not been presented to the Governor-General since 1931.</p>
<p>In 1931, the Senate wrote to the Governor-General requesting that the Governor-General not sign off on any regulations that the Senate had already disallowed in that same parliamentary session. The Governor-General, former High Court chief justice Sir Isaac Isaacs, wrote back to the Senate explaining that he must:</p>
<blockquote>
<p>Simply adhere to the normal principle of responsible government by following the advice of ministers who are constitutionally assigned to me for the time being as my advisors.</p>
</blockquote>
<p>As Isaacs explained, the Governor-General ordinarily acts on the advice of the executive – essentially the ministers of the government of the day.</p>
<h2>What is the Governor-General’s role in establishing royal commissions?</h2>
<p>Under the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rca1902224/s1a.html">Royal Commissions Act</a>, it is the Governor-General who has the power to establish a royal commission. Royal commissions are established by <a href="https://www.comlaw.gov.au/content/whatisit">“letters patent”</a>, a legal document signed by the monarch or Governor-General to grant some sort of right. </p>
<p>In the case of royal commissions, the letters patent appoint the royal commissioner and set out the <a href="http://www.tradeunionroyalcommission.gov.au/About/Pages/Letterspatent.aspx">terms of reference</a> – the scope of the inquiry. </p>
<p>The Governor-General does not establish royal commissions on their own volition, but does so at the government’s request. This is a function of the Governor-General’s role within the Australian constitutional system. Section 61 of the <a href="http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution">Constitution</a> vests the executive power of the Commonwealth:</p>
<blockquote>
<p>… in the Queen and is exercisable by the Governor-General as the Queen’s representative.</p>
</blockquote>
<p>Sections 62 and 64 of the Constitution state that the Governor-General shall be advised by the “Federal Executive Council” and that this council is made up of all the government ministers. So, in practical terms, the executive power is ordinarily exercised by the Governor-General on the advice of the ministers through cabinet. </p>
<p>There are rare occasions when the Governor-General will act without – or contrary to – the government’s advice. These circumstances involve the exercise of the “reserve powers”. These instances are exceptional and involve such things as the power:</p>
<ul>
<li><p>to refuse to dissolve parliament or to force its dissolution; </p></li>
<li><p>to appoint a prime minister in the case of a “hung parliament”; </p></li>
<li><p>to dismiss a prime minister if they have lost the confidence of the House; or (perhaps) </p></li>
<li><p>to dismiss a prime minister or minister if they have acted unlawfully.</p></li>
</ul>
<h2>How might the Governor-General respond to a request?</h2>
<p>Given the Governor-General usually acts on the advice of the government and its ministers, an address from the Senate is unlikely to have any effect. </p>
<p>Should it pass the Senate, the Governor-General will presumably receive the address, consult with government ministers through the Federal Executive Council and be advised by the government that Heydon is to remain as royal commissioner. </p>
<p>It seems that this is not an instance when the Governor-General would exercise the “reserve powers” and act independently of the government. This conclusion is reinforced by a royal commissioner being appointed on the advice of the government. The same principle of acting on advice would apply with regard to removal.</p>
<p>The effect of the Senate sending a message to the Governor-General in these circumstances is largely political. If a legal solution is sought by Labor and the unions, the only option is to take the matter to the courts.</p><img src="https://counter.theconversation.com/content/46974/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adam Webster does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Given the Governor-General usually acts on the advice of the government and its ministers, an address from the Senate on Dyson Heydon is unlikely to have any effect.Adam Webster, Lecturer, Adelaide Law School, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/330842014-10-22T06:48:59Z2014-10-22T06:48:59ZMichael Jeffery and Helen Szoke on a military plan to improve Australia’s soils<p>A speech given by Major General Michael Jeffery at Victoria University College of Law and Justice on October 15 was the <a href="http://www.vu.edu.au/news-events/news/governors-general-lecture-series-launched">second of a series of four</a> tapping into the vast experience of eminent Australians who have served as Governor-General of Australia.</p>
<p>In an uncommon approach to environmental issues, Major General Jeffery’s address urged the use of military planning processes to deliver more effective outcomes.</p>
<p>Drawing on almost 60 years of continuous military involvement and his passion for better and more sustainable land use, Major General Jeffery outlined the workings of the model to show how it could be adopted at a national decision-making level to tackle environmental challenges.</p>
<p>He warned that Australia faced serious and complex challenges associated with land degradation, unreliable rainfall and urban growth and voiced his concern that in 5 to 10 years global food and water scarcity would be the key drivers of military conflict and mass migration - the effect of which will be felt most by the world’s poorest communities.</p>
<p>Major General Jeffery’s full speech can be found <a href="http://www.vu.edu.au/transcript/transcript-bringing-military-thinking-to-modern-issues">here</a>. </p>
<p>In response Helen Szoke, Chief Executive of Oxfam Australia, gave this speech of thanks. </p>
<h2>Response from Helen Szoke</h2>
<p>I want to commend you for your continued public service and particularly in the area that you’ve identified, in the area of global food and water crisis.</p>
<p>We have 105 million people who go to bed hungry every night, and if we don’t do something about climate change and the issue of food production, by 2050 we’ll have an additional 50 million people who will go to bed hungry. At the moment it’s one in nine people who go to bed hungry and 80% of those are people who are involved in food production.</p>
<p>So, I hope you keep your energy and commitment and focus because we need leaders in this field.</p>
<p>Oxfam has a lot of experience engaging with the military. As a humanitarian organisation we’re often in the same space. I had my first experience of seeing the military in action after Typhoon Haiyan in the Philippines and was able to see the benefits of that precision that is brought to situations.
Many of you will remember the images of Tacloban. In that case it was the US marines who had taken over the running of the airport, which was the most incredibly, heavily-trafficked place.</p>
<p>We know that we benefit very much from the commitment that the military have to planning and precision. And it’s certainly a fascinating process that you outlined, in terms of some of the thinking, which you’ve applied to other areas of life.</p>
<p>By contrast, Oxfam’s history started by challenging a military strategy. This was a military strategy adopted by Winston Churchill in the Second World War. Oxfam started as the Oxfam Committee for Famine Relief, campaigning for food to be passed through a naval blockade to starving women and children in enemy-occupied Greece.</p>
<p>I want to also reflect on your comments about protection of the land. We know that there’s a bitter irony that the people who produce food, either here in Australia with the changing nature of agricultural businesses, and across the world, are often the ones worst affected by hunger and lack of access to resources.</p>
<p>We also heard about the competition for land, which is happening globally, and can have a whole lot of consequences that are often hidden from the general community. It can lead to human rights violations, illegal land grabs, and unethical land acquisitions. We see communities displaced, denied access to sacred sites and food crops as land is turned over to agriculture in which community considerations play little regard.</p>
<p>So the issue of food and protection of the land is absolutely crucial to looking at global issues, not just here in Australia but overall.</p>
<p>It’s estimated that a third of food produce is lost in the food system and this is another issue that we really have to face. In a world where so many people are hungry, there is so much waste. Waste often occurs because farmers lack access to resources or appropriate information to deal with food production; and in the domestic context face other challenges such as uncompetitive pricing and a real lack of regard for the critical role they play.</p>
<p>When I was invited to move this vote of thanks I was curious to know what the commonality might be in your own agenda and in the work we are doing at Oxfam and you’ve given me a happy coincidence, both to appreciate the work that you’re doing to understand the importance of these issues domestically, but also perhaps to give you an opportunity and insight into what one civil society organisation does in trying to do our bit to perhaps advance the similar agendas to you but in developing countries across the world.</p>
<p>I found your talk fascinating; I’m greatly appreciative of the opportunity to meet you and to move this vote of thanks and would ask everyone to join me in thanking the Honourable Michael Jeffery for his presentation.</p>
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<p><em>The series continues next year and will feature The Honourable Dame Quentin Bryce AD CVO and His Excellency General the Honourable Sir Peter Cosgrove AK MC.</em></p><img src="https://counter.theconversation.com/content/33084/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicola Roxon does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A speech given by Major General Michael Jeffery at Victoria University College of Law and Justice on October 15 was the second of a series of four tapping into the vast experience of eminent Australians…Nicola Roxon, Adjunct Professor and Chair, Sir Zelman Cowen Centre, College of Law & Justice, Victoria UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/224992014-01-28T23:13:55Z2014-01-28T23:13:55ZPeter Cosgrove, groomed by a life of service to be our GG<figure><img src="https://images.theconversation.com/files/40016/original/93kdynrb-1390910507.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A down-to-earth bloke with a CV to make some other leaders blush, Peter Cosgrove was made to be a modern governor-general.</span> <span class="attribution"><span class="source">AAP/Dave Hunt</span></span></figcaption></figure><p>In racing terms, there are favourites, odds-on favourites and unbackable favourites. Then there is Peter Cosgrove.</p>
<p>About the only person not certain over the past three months that Cosgrove would be <a href="http://www.pm.gov.au/media/2014-01-28/appointment-governor-general">appointed our next Governor-General</a> would be Kevin Rudd. He may still be waiting for the phone call.</p>
<p>Cosgrove is less qualified for the job than designed for it. He is a general; a war hero (he won the <a href="http://www.9rar.org.au/images/Citations/Words%20on%20Citation/03%20Cosgrove.pdf">Military Cross</a> in Vietnam); a civic hero (he oversaw the reconstruction of North Queensland after <a href="http://en.wikipedia.org/wiki/Cyclone_Larry">Cyclone Larry</a>); and an international figure (for leading the <a href="http://www.skynews.com.au/national/article.aspx?id=945551&vId=4319159&cId=National">peacekeeping force in East Timor</a>).</p>
<p>He is the sort of person you would dislike on principle out of sheer jealousy, if he were not also one of the nicest and most down-to-earth blokes in Australia.</p>
<p>But, most important of all, the very qualities that underlie his accomplishments qualify him perfectly for the role of governor-general.</p>
<h2>An eminent Australian</h2>
<p>The first is eminence. There is no uppity Australian politician who will be able to say, “What the hell did Peter Cosgrove ever do?” Foreign leaders and heads of state, reading <a href="http://en.wikipedia.org/wiki/Peter_Cosgrove">his CV</a>, may well blush.</p>
<p>But combined with eminence comes a level of approachability not seen since that friendly labrador down the road moved away. Cosgrove loves people. All people. From soldiers to students, he greets everyone with the same genuine interest and lack of side.</p>
<p>A man with this record of achievement and this level of personal understanding will bring with him a sophisticated understanding of his office. Indeed, given the state of the odds, it would be surprising if he had not been reading up for some time.</p>
<p>Peter Cosgrove will comprehend his role perfectly. Publicly, he will not politicise, but he will be a serial empathiser. There will be no controversial speeches or gestures, but where there is a national celebration he will celebrate with gusto and where there is a tragedy his broad shoulders will be there to lean on.</p>
<h2>A figure above politics</h2>
<p>Politically, Cosgrove will understand that the prime minister – any prime minister – runs the country. It is his role, outside the most extreme circumstances, to advise, to counsel and to warn.</p>
<p>But let us be clear. Advice from an intellectually endowed and physically very impressive general with a record of personal heroism and public achievement, who has been <a href="http://www.australianoftheyear.org.au/honour-roll/?view=fullView&recipientID=104">Australian of the Year</a> and has more foreign honours than a champion Hereford bull, is not something to be taken lightly. Cosgrove will be heard.</p>
<p>And woe betide any prime minister who strays into the twilight land of constitutional impropriety or subterfuge. </p>
<p>Those usually kindly eyes can swivel like the guns of a very big battleship towards anything that might threaten an institution Peter Cosgrove is protecting.</p>
<p>The <a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Fprspub%2FIAR30%22">reserve powers</a> have been used only once in Australia’s history. Cosgrove is a great conciliator and would be the last governor-general ever to press the trigger. But if he did, he would not miss, friend or foe alike.</p>
<p>These will be Cosgrove’s great strengths as governor-general. He has the judgement and the experience to understand the absolute limits of his role, and the dignity and toughness to carry it out. In an office that carries a light touch, no one will take him lightly.</p>
<p>He has, of course, the great advantage of the classic governor-general. He has literally nothing to gain. He has been everywhere and done everything. After a life of duty, the only thing that remains is to serve and maintain his reputation.</p>
<p>Were the prime minister, Tony Abbott, to fall after only one term, Cosgrove would offer exactly the same wise, friendly counsel to any Labor leader. And the same absolutely principled discharge of his office.</p>
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<img alt="" src="https://images.theconversation.com/files/40022/original/xfsmjhp3-1390913700.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/40022/original/xfsmjhp3-1390913700.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/40022/original/xfsmjhp3-1390913700.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/40022/original/xfsmjhp3-1390913700.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/40022/original/xfsmjhp3-1390913700.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/40022/original/xfsmjhp3-1390913700.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/40022/original/xfsmjhp3-1390913700.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Peter Cosgrove will offer the same advice, friendly but fearless, to Coalition prime minister Tony Abbott as he would to a Labor PM.</span>
<span class="attribution"><span class="source">AAP/Alan Porritt</span></span>
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</figure>
<p>The same would apply in the incredibly unlikely event that Australia were to become a republic on Cosgrove’s watch. He would serve as impeccably as an apolitical head of state as he would as a viceroy.</p>
<p>In a sense, this implacable ethic of non-political service is what makes <a href="http://www.gg.gov.au/former-governors-general/major-general-honourable-michael-jeffery-and-mrs-jeffery">former eminent military personnel</a> so genuinely suitable as vice-regal appointees, despite the occasional brouhaha over braid and sabres. They have lived lives of initiative and achievement, but in service and without political ambition of their own.</p>
<p>Cosgrove also brings with him a rare bonus in his wife, Lynne. As clever and as funny as her husband, she is the veteran of innumerable parades, fund-raisers and graduations.</p>
<p>With three children of her own and a newly minted grandson, she is another people-lover who will make the Cosgroves a very Australian gubernatorial combination.</p>
<p>All in all, Australia has the very model of a modern governor-general.</p><img src="https://counter.theconversation.com/content/22499/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Greg Craven worked with Peter Cosgrove from 2010-13 while he was Chancellor at the Australian Catholic University .</span></em></p>In racing terms, there are favourites, odds-on favourites and unbackable favourites. Then there is Peter Cosgrove. About the only person not certain over the past three months that Cosgrove would be appointed…Greg Craven, Vice-Chancellor, Australian Catholic UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/168172013-08-07T20:16:18Z2013-08-07T20:16:18ZExplainer: what are the caretaker government conventions?<figure><img src="https://images.theconversation.com/files/28838/original/553kp5x5-1375855201.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Now that governor-general Quentin Bryce has issued the writs for the election and dissolved parliament, the government is in caretaker mode. But what does this mean?</span> <span class="attribution"><span class="source">AAP/Alan Porritt</span></span></figcaption></figure><p>The Coalition has raised <a href="http://www.news.com.au/breaking-news/abbott-wants-answers-over-caretaker-convention-on-png-deal/story-e6frfkp9-1226692577614">concerns</a> that the <a href="http://www.abc.net.au/news/2013-08-06/an-auspng-asylum-deal/4869128">Memorandum of Understanding</a> with Papua New Guinea over the Manus Island asylum seeker processing deal was entered into after the caretaker conventions commenced. </p>
<p>But what are these conventions and what are the consequences of breaching them?</p>
<h2>What are the caretaker conventions?</h2>
<p>The caretaker conventions have been adhered to by all political parties in Australia for decades. They set the ground rules for how governments are to behave in the lead-up to the election and in the post-election period until the election result is clear and a new government (if there is a change of government) is appointed. The Department of Prime Minister and Cabinet issues formal <a href="http://www.dpmc.gov.au/guidelines/docs/caretaker_conventions.pdf">Guidance on Caretaker Conventions</a> before each election.</p>
<p>The caretaker conventions started applying to the Commonwealth government at 5:30pm on August 5, 2013, upon the dissolution of parliament.</p>
<h2>Why do the caretaker conventions exist?</h2>
<p>There are two rationales for the operation of the caretaker conventions. The first is that once parliament is dissolved, ministers are no longer “accountable” to parliament for their actions and should therefore be constrained in the way they behave.</p>
<p>The second rationale is that it is unfair if a (potentially) outgoing government can bind a future government just before it comes into office. If it could do so, a losing government could leave all kinds of booby-traps or impose enormous financial commitments upon its successor. </p>
<p>The caretaker conventions are intended to avoid unfairness and to constrain potentially inappropriate actions while parliament is dissolved and until the newly elected government takes office.</p>
<h2>What limits apply to government actions during the caretaker period?</h2>
<p>During the caretaker period, the ordinary administration of government must continue. It is only in relation to particular high level matters that there are any constraints. The conventions therefore provide that during the caretaker period the government should not: take major policy decisions that are likely to commit an incoming government; make significant appointments; or enter into significant contracts or undertakings.</p>
<p>Deciding whether a policy is major or an appointment or contract is significant is a matter of judgement. There are no hard and fast rules. Factors include whether or not it is a routine or contentious matter, whether it commits government resources, whether it involves large amounts of money, the length of any commitment and whether or not it can easily be reversed. </p>
<p>If circumstances arise where a major decision has to be made during the caretaker period (for example about whether to commit Australian troops to military action or whether to provide emergency relief to deal with a natural disaster), it is customary for the government to consult the Opposition to try to find a mutually agreed position.</p>
<h2>What are the consequences of a breach of the caretaker conventions?</h2>
<p>The caretaker conventions are just conventions. They are not law and are therefore not legally binding limits on the powers of the government. Ministers still have the formal power to enter into contracts and make decisions as long as they continue to hold office. There are therefore no legal grounds to challenge the validity of contracts or appointments simply because they are made during the caretaker period.</p>
<p>There is a possibility (albeit a remote one) that the governor-general could refuse to act upon advice (for instance, to make an appointment) during the caretaker period, or defer any action until after the caretaker period was over, if that advice involved a serious breach of the caretaker conventions. In constitutional terms, this would be because ministers are not responsible to parliament during the caretaker period, and therefore are not the “responsible advisers” of the governor-general. </p>
<p>For example, in Canada in 1896, after the Tupper government had lost the election but before a new government was sworn-in, prime minister Charles Tupper advised the governor-general to appoint a number of senators and judges. The governor-general refused and left it to the new government to advise upon filling the places. Equally, South Australian premier Don Dunstan sought the appointment of a new governor days before the election in 1968. However, the appointment was deferred until after the election, and the incoming government decided to appoint someone else.</p>
<h2>What about Manus Island?</h2>
<p>The Memorandum of Understanding with PNG is a borderline caretaker convention issue. It was reportedly entered into by Australia’s representative before 5:30pm on August 5 when parliament was dissolved, but was not executed by the PNG government until afterwards. </p>
<p>Given that the issue is when the decision of the Commonwealth government was actually made - rather than the decision of the PNG government - it would appear to have been made and formally executed before the caretaker period commenced. Hence it would appear not to be a breach of the conventions, even though it came very close to the line. Even if it had crossed the line, this would not be grounds for a legal challenge as it would only have breached a convention - not the law. Any consequences would be political.</p><img src="https://counter.theconversation.com/content/16817/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey receives funding from the ARC and occasionally does consultancy work for governments and inter-governmental organisations.</span></em></p>The Coalition has raised concerns that the Memorandum of Understanding with Papua New Guinea over the Manus Island asylum seeker processing deal was entered into after the caretaker conventions commenced…Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.