Our system of government operates under a set of largely unwritten conventions. But they're well established and they work surprisingly well, which is why the governor-general has not tried to second-guess the ALP caucus.
Like much else (think rabbits, foxes and gentlemen’s clubs), Australia’s system of government was given to us by the British. We have made various changes to account for an absentee monarch and a federal system, but the core structure of our constitution remains that of a Westminster system.
The punditry surrounding the return of Kevin Rudd – an admittedly strange occurrence – has served as a reminder of how poorly that system is understood. Although the official transition from Gillard to Rudd proceeded smoothly it didn’t stop a number of pundits from pontificating, and yesterday the hares were set running again by a hint from Greens leader Christine Milne that there was a limit to how long the Greens might support Rudd in parliament.
What follows is my attempt to explain the relevant features of our system – and why much of the commentary involves imagining difficulties that aren’t really there.
The basic idea of a Westminster system is that the executive is responsible to the legislature. The head of government and his or her ministers have seats in parliament and can be removed by it; the head of state (who doesn’t and can’t, except perhaps in exceptional circumstances) appoints the head of government but otherwise has little effective political power.
Within that general description, Westminster systems cover a wide range of cases, including many countries with an appointed or elected president as head of state. Such a person usually has a set of constitutionally defined powers that can be used as necessary to keep the machinery of government running but that generally keep them out of politics.
Australia, however, follows the Westminster model more strictly. Our head of state is a hereditary monarch, represented here by the governor-general. And her powers on paper are extremely broad, dating from a time when the monarch was head of government as well. A few key constitutional provisions and a web of conventions serve to limit those powers and render her functions mostly ceremonial.
The key convention is that the governor-general acts only on advice. Her only personal act is the appointment of a prime minister; once she has a government she follows its advice until she is willing to dispense with its services, and she can only do that when she has an alternative government willing to take responsibility for the dismissal of its predecessor.
That first convention is very old – it was already in place in the seventeenth century. More recent, but still predating the settlement of Australia, is the principle that a key criterion when appointing a new prime minister is their ability to command a majority in the lower house of parliament. A government that cannot control the House of Representatives must either resign or call an election.
Note that this principle is never directly stated in our constitution; the only explicit restriction is that the government must not levy taxes or appropriate money without parliamentary approval. But that’s enough: no-one doubts that a deliberate vote of no confidence is all that is required to force a government from office or to the polls.
The third convention, more recent still, is that the head of state must not become a political actor. She must not dismiss or frustrate a government simply because she disagrees with its policies; she may only reject advice if it appears to her illegal or in some way constitutionally improper.
It’s only in the last century that this principle has become firmly established. George V was the first monarch to consistently adhere to it; several of his predecessors had fought policy duels with their own prime ministers. George III once dismissed a government even after it had backed down on its policy advice (over removing disabilities for Catholics) because it refused to promise never to raise the matter again.
The net effect of these principles is that once a government is in place, the head of state recedes into the background. The government continues to do its thing until something happens to it: it resigns, it loses control of parliament, it loses an election, or some extraordinary event occurs that would require vice-regal intervention.
None of these things happened when Julia Gillard resigned. As her letter to the governor-general makes clear, the government remained in being; her resignation was only for herself, and she directly recommended her successor. In those circumstances it would have been grossly improper for the governor-general to reject that advice.
If the House of Representatives had a problem with the change it was open to it (as of course it still is) to express its lack of confidence in the new prime minister. If the government had tried to prorogue parliament to prevent such a vote then the governor-general might have felt the need to make further inquiries (this seems to be the sort of scenario that Anne Twomey had in mind) – but of course it didn’t.
Instead, Rudd at the first opportunity made an announcement in the House that he had been commissioned as prime minister. A hostile majority could at that point easily have demonstrated control of proceedings, just as it did against Malcolm Fraser in November 1975. But it didn’t, because there was no such hostile majority. If the House sits again and one develops, then the option of a no confidence vote is always there for it.
“Losing control of parliament” is not some abstract notion; it means what it says. The governor-general doesn’t have to investigate the numbers in parliament – as Graham Young, for example, tells us she should have* – because parliament has the power to express its view directly. Until it does, the government is perfectly entitled to carry on as normal.
Milne is now quoted as saying that the Greens “would only guarantee their support until the end of September.” If that’s really her position, then it’s a complete guarantee, since the House of Representatives expires on 27 September: parliamentary support beyond that date is meaningless.
In the meantime, if Rudd meets parliament again on 20 August and government business gets done, that will demonstrate that he enjoys parliamentary support. If he loses a vote of confidence, he will have to either resign (most unlikely) or announce an election forthwith.
* I should say that I agree with Young that “There does have to be a better way of appointing the head of state than the one we have now” – but I don’t see that recent events do anything to help that case.