The Reserve Powers in Times of Political Crisis: The Dutton/Turnbull Leadership Challenge and Royal Assent to the Medevac Bill and Brexit Bills

The Chronology of Events

It is convenient to start by setting out the order of events that happened in one frenetic week in August 2018. Leadership speculation of a challenge by Peter Dutton against Prime Minister Turnbull became intense on the weekend of 18–19 August 2018. In the late afternoon on Monday 20 August, the media reported that Peter Dutton might be disqualified as a Member of Parliament. ¹ The allegation was that he held an indirect pecuniary interest in an agreement with the Public Service, in breach of s 44(v) of the Constitution, due to his interest in childcare centres which directly received payments of Commonwealth childcare subsidies for children attending the centres.

The following day, amidst mounting leadership speculation, Turnbull called a surprise spill of the party leadership at a party meeting. Dutton stood as a candidate but was defeated by 48 votes to 35. The margin was sufficiently close for Dutton to work on a second leadership challenge. A number of ministers resigned, stoking a sense of crisis.

On the morning of Thursday 23 August, Dutton demanded another spill. Turnbull later agreed to hold a spill the following day if he received a petition signed by a majority of parliamentary party members calling for one. This delay was in part intended to allow other potential candidates, such as Scott Morrison and Julie Bishop, to stand for the leadership to thwart Dutton. Turnbull stated that if the spill motion was successful, he would not stand in the ensuing leadership ballot.

The Solicitor-General, who had been asked to advise upon Dutton’s eligibility to Parliament, provided a legal opinion on the morning of Friday 24 August that the better view was that Dutton was not disqualified from Parliament, but that there was still some risk that the High Court might find otherwise. ² The petition to hold a party meeting was later produced with the requisite number of signatures, and the party meeting was held. The vote to spill the leadership positions was passed by 45 votes to 40. The leadership was contested by Peter Dutton, Julie Bishop and Scott Morrison. Morrison defeated Dutton in the second round of voting by 45 votes to 40.

The Relevance of the Disqualification Question

The question as to Dutton’s eligibility to be a Member of Parliament arose in the context of numerous other Members and Senators being found to be disqualified from Parliament for breaching s 44 of the Constitution. ³ While most of those disqualifications occurred due to dual citizenship, Senator Day had earlier been found by the High Court to be disqualified due to holding an indirect pecuniary interest in an agreement with the Public Service under s 44(v). ⁴ The Court’s judgment in that case was unclear on a number of issues, leaving continuing uncertainty about the application of s 44(v). ⁵

This run of disqualifications led journalists to scour the backgrounds and financial interests of all Members and Senators with a view to exposing more cases of disqualification, and it was in the course of such a journalistic investigation that Dutton’s financial interest in childcare centres receiving government subsidies was questioned. Whether or not Dutton was disqualified from Parliament was a hotly contested issue, with various legal opinions being given. ⁶ Its relevance to the leadership challenge and the application of reserve powers was that if Dutton was in breach of s 44(v) of the Constitution, then he would not have been validly elected to Parliament at the previous general election in 2016. This would then have triggered s 64 of the Constitution, which provides that ‘no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives’. That three months had long expired before Dutton’s leadership challenge occurred.

According to Turnbull, when the eligibility of other Ministers — Barnaby Joyce, Matt Canavan and Fiona Nash — was in question, the Solicitor-General had advised that every decision that those ministers had made from 3 months after their election would have been invalid. The Solicitor-General apparently rejected the view that invalidity only applied to their actions after they had become aware that they were potentially disqualified from Parliament. He concluded that the ‘only way to validate those invalid decisions was with legislation’. ⁷ Turnbull took the view that Dutton’s resignation as a Minister and later reappointment as Prime Minister would not revive the 3-month period of grace. He considered that the Solicitor-General’s advice of 2017 had dealt with that, and it was not possible to appoint Dutton as Prime Minister in 2018, if he was disqualified from Parliament. ⁸

It was in this context that Turnbull raised the prospect that if Dutton overturned him as leader of the Liberal Party, the Governor-General would not appoint Dutton as Prime Minister due to doubts as to his eligibility, given that this could result in the invalidity of his decisions as Prime Minister. Turnbull asked:

If there was any doubt about Dutton’s eligibility, how could he possibly be sworn in as prime minister? Every single act of his — from recommending the appointment of ministers, to appointing senior public servants, to sending our troops into conflict — everything would be under a cloud of questionable legitimacy. It was unthinkable. ⁹

Turnbull’s concerns were accentuated, rather than assuaged, by the Solicitor-General’s advice of Friday 24 August regarding Dutton’s possible disqualification. It was not only hedged with qualifications concerning lack of information and the risk that the High Court might find invalidity, ¹⁰ but it also raised the existence of a further agreement directly between the Commonwealth and one of the childcare centres in which Dutton had an indirect pecuniary interest. ¹¹ Turnbull and his legal team took the view that, despite the contrary opinion of the Solicitor-General, this latter agreement clearly gave rise to an indirect pecuniary interest that would disqualify Dutton. ¹² This was a reasonable view to take in the circumstances, as this was the weakest and least explicable part of the Solicitor-General’s opinion. ¹³

The Prime Minister, the Attorney-General and Advice to the Governor-General

Turnbull later stated that if Dutton had been elected leader, Turnbull would have ‘advised the governor-general not to swear him in as prime minister unless and until the High Court had concluded he was eligible to sit in the parliament’. He considered that in the meantime, the Deputy Prime Minister should have served as Acting Prime Minister. ¹⁴ Turnbull took the view that as there was doubt about Dutton’s eligibility, the Government’s existing practice ought to have been followed of referring the matter to the High Court, as the Court of Disputed Returns, so it could be definitively resolved. ¹⁵

According to books by both Savva and Crowe, the Attorney-General, Christian Porter, contended that the Governor-General had no right to consider whether Dutton was eligible to hold the office of Prime Minister or Member of Parliament. Porter reportedly said he would publicly rebut the Prime Minister if he claimed in a press conference that the Governor-General could not appoint Dutton. ¹⁶ Turnbull has disputed this, stating that Porter did not ‘make any threats to contradict me publicly if I were to say I didn’t believe the governor-general would accept Dutton as prime minister’. ¹⁷

Porter apparently obtained departmental advice about the situation if the Prime Minister refused to surrender his commission or sought to prevent someone else being commissioned as Prime Minister. According to Porter, the advice was that the Governor-General could only take into account confidence and the passage of supply — not eligibility to sit in Parliament. He considered that any s 44 disqualification was an issue for the party room, where political issues could be taken into account. ¹⁸ Turnbull noted that Porter had argued that the Governor-General could only take into account ‘whether the would-be prime minister commanded the confidence of the House of Representatives’ and observed that by the Friday morning he ‘produced some advice from the Australian government solicitor in support of this proposition’. ¹⁹

Porter also reportedly formally instructed the Solicitor-General not to speak or offer advice to anyone other than himself. This included refusing to speak to the Prime Minister (who Porter was concerned, as a talented lawyer and persuasive advocate, might influence the outcome of that advice). ²⁰ It also, presumably, extended to refusing to speak to or advise the Governor-General, at least without the Attorney-General’s approval.

This led to the interesting scenario of a Prime Minister and Attorney-General at odds over a constitutional issue, with the Attorney-General controlling access to, and advice from, the Solicitor-General. ²¹ Porter contacted the Governor-General, with an offer of advice, while the Prime Minister spoke informally to the Governor-General during the crisis ²² and the Solicitor-General was prohibited from doing so. There is ongoing controversy about from whom the Governor-General should receive advice, ²³ which becomes particularly vexed if there is conflicting advice from within the Government.

But when it comes to exercises of the reserve powers, the Governor-General exercises his or her discretion, rather than acting upon ministerial advice. This does not mean that the Governor-General has an unfettered discretion to act according to his or her own personal political wishes. The Governor-General’s discretion is constrained by constitutional conventions.

Those conventions, based upon precedent, cannot be blindly applied to all circumstances. They will not always be perfectly applicable to new facts. Sometimes conventions will clash. Sometimes a situation will be novel, requiring the creation of a new convention or the adaptation of an existing one. Sometimes it will be unclear how a convention should be applied to particular facts. In such cases, the best approach is to draw upon the fundamental constitutional principles that underlie and support existing constitutional conventions. ²⁴ These principles provide the ‘reason’ ²⁵ behind the development of constitutional conventions, and the conventions therefore need to be read and applied in that context. The Governor-General is bound to uphold the Constitution, including recognised constitutional principles, in exercising his or her powers.

Accordingly, the discussion below deals with the novel dilemmas that potentially arose for the Governor-General and the Queen in 2018 and 2019 and draws on constitutional principle as a guide for how convention could best be applied or adapted to resolve those dilemmas.

Dissolution

What if Turnbull, when facing a leadership challenge, or even after having been defeated for the party leadership, but while still Prime Minister, advised the Governor-General, Sir Peter Cosgrove, to dissolve Parliament and hold an election? Both Crowe and Savva reported that Turnbull raised the prospect of doing this and kept his car and security detail on stand-by to make the trip to Yarralumla. ²⁶ Turnbull later stated that he had in fact decided to call an election and had made an appointment to visit the Governor-General to do so at 8 am on Thursday 23 August (the day before he eventually lost the leadership). Turnbull took the view that the Governor-General would have welcomed an election. ²⁷ But would he have granted one to a Prime Minister who was facing a pending leadership ballot and might not hold the confidence of the House or his own party?

This scenario had been raised during the leadership challenge brought by Mike Ahern against Joh Bjelke-Petersen in Queensland in 1987. Ahern sought advice from legal counsel about whether Bjelke-Petersen could seek an election, rather than resign, if he lost his party’s leadership. Counsel advised that the Governor should not grant a request to dissolve Parliament if it is made contrary to the wishes of the Executive Council or when the minister making the request has ceased to command the confidence of the House. They also noted that the Governor should take into account the proximity of the previous election, the cost involved in holding an election and whether a government can be formed which commands the confidence of the House. ²⁸

The Queen’s Private Secretary, Sir William Heseltine, commenting later on this advice, queried the proposition that a Prime Minister needs the support of the Executive Council to request a dissolution. He noted that in the UK, it was warmly debated during the time of the Wilson Government, but generally accepted that the Prime Minister had the right to request a dissolution regardless of whether he or she had the backing of the Cabinet. ²⁹

In Australia, in most circumstances, the Prime Minister alone would be regarded as having the authority to request a dissolution and an election, but if he or she appeared to have lost the confidence of the House, then that advice would no longer be regarded as conventionally binding upon the Governor-General because the Prime Minister would no longer be a ‘responsible’ minister. ³⁰ If another Member of the House could form a government that held its confidence and had a good prospect of governing in a stable manner, then the Governor-General would be entitled, in the circumstances, to reject the advice to dissolve, require the resignation of the Prime Minister and appoint an alternative one, who may be from the same party. ³¹ This would more likely be the case if an election had been recently held and a fresh election would be inappropriate. ³² In contrast, if the government was heading towards the end of its term, or if the political situation remained fraught and unstable, the Governor-General could legitimately consider that it would be preferable for the people to resolve the conflict through an election. ³³

Hence if Turnbull had advised a snap election when his leadership was under threat or had been lost, the Governor-General could have refused to grant it, or he could have taken the view that an election was the most democratic way of deciding who should lead the country. It would have been a genuine matter of discretion and he could legitimately have chosen to act in either way. ³⁴

No doubt some would have passionately argued that the Governor-General had to act upon the advice of the Prime Minister and dissolve Parliament, with no room for any discretion, while others would just have passionately argued that a Prime Minister who is facing the potential loss of the leadership of his own party cannot use an election to take revenge against his party, and that an election should have been denied. Indeed, Jennings argued that the Queen must not ‘support a Prime Minister against his colleagues’ in granting a dissolution. ³⁵

Appointment of a Prime Minister Who May Be Disqualified

Turnbull stated in his memoir that if he had been defeated by Dutton for the leadership, before resigning as Prime Minister, he would have advised the Governor-General not to appoint Dutton as Prime Minister. Instead the deputy Prime Minister could have served as Acting Prime Minister, pending a legal determination by the Court of Disputed Returns of Dutton’s eligibility to be a Member of Parliament. ³⁶ What would the constitutional position have been then?

As the appointment of a Prime Minister is a reserve power, the Governor-General is not obliged to act upon ministerial advice in relation to such an appointment. The outgoing Prime Minister may make a recommendation as to his or her replacement (and regularly does so ³⁷ ), but as the outgoing Prime Minister will cease to be responsible for that advice, it is not conventionally binding. ³⁸ Turnbull was conscious of the fact that his advice in this regard was not binding on the Governor-General. He observed: ‘The governor-general may not have taken my advice, but in my view the risk of having a constitutionally ineligible person in the office of prime minister is utterly unacceptable’. ³⁹

While the Governor-General’s power to appoint a Prime Minister is a reserve power which is exercisable without ministerial advice, it is closely constrained by constitutional convention. According to convention, the Governor-General appoints as Prime Minister the person who commands, or is most likely to command, the confidence of the lower House. ⁴⁰ This is ordinarily the person who leads the party, or coalition of parties, that win a majority of seats in the lower House at a general election. When there is a mid-term change in the premiership, due to a change in the leadership of the governing party, the Governor-General ordinarily seeks an assurance that the new leader enjoys the confidence of the House and can guarantee supply, which assurance is usually given in writing. ⁴¹ Does this mean that these are the only considerations that may be taken into account? Given that a s 44 disqualification issue has never arisen before in relation to a putative Prime Minister, the fact that it has not been considered in the past does not mean that it could not be considered when relevant.

The Rule of Law and Representative Government

The rule of law requires that the Governor-General, along with everyone else, must obey the law and, especially, the Constitution. For example, if Turnbull had recommended to the Governor-General that Rupert Murdoch be appointed Prime Minister, and Murdoch had given an assurance that he held the confidence of the House, the Governor-General could legitimately have taken into account that Murdoch is not a Member of Parliament and is not qualified to stand for Parliament either because he is not an Australian citizen or because he is disqualified for holding citizenship of a foreign power. ⁴²

On its face, s 64 of the Constitution contemplates a person being made a Minister while not holding a seat in Parliament, but holding that office for no longer than three months unless he or she secures election to either House of Parliament. This permits a person who leads the party that won a majority in a general election to be appointed Prime Minister, even if he or she lost his or her seat in the election, as long as another seat can be vacated and won in a by-election in the requisite period. It would also permit the appointment of a Senator as Prime Minister, who could then resign from the Senate and win a by-election for a vacant seat in the House of Representatives, as occurred with the appointment of Senator John Gorton as Prime Minister after the death of Prime Minister Holt. But in all such cases, it is expected that the Prime Minister be eligible to be elected.

In the above scenario, the Governor-General could legitimately take into account that in practical terms it would be unlikely that a foreign citizen could, within the space of three months, become an Australian citizen, fully renounce his or her United States’ citizenship under United States law, ⁴³ qualify as an Australian elector, get on the electoral roll, nominate as a candidate for election to a seat in the House of Representatives and be elected to it. It is also doubtful whether s 64 would be interpreted as permitting the appointment of a Prime Minister who was plainly disqualified from being elected to Parliament, as this would be contrary to the principles of representative ⁴⁴ and responsible government.

While no court in Australia has ever had to address this question, as it has not ever arisen, it has been addressed in India. The Indian Constitution followed the Australian example of allowing a grace period during which a person appointed as a minister must be elected to Parliament to retain his or her office. Due to the similarity of both the Australian and Indian constitutional provisions and the constitutional conventions and principles drawn on upon by their respective courts, the jurisprudence on the application of this grace period is of particular interest.

In 1996, the Supreme Court of India held that a person could be sworn in as Prime Minister of India, even though he was not currently a Member of Parliament, as long as he did not serve as a minister beyond the grace period (which in India is six months, rather than the three months in Australia) without becoming a Member of Parliament. ⁴⁵

The Indian constitutional provisions bind not only federal ministers but also State ministers, with the requirement to be elected to Parliament within six months. In 2001, the Indian Supreme Court faced the more difficult question of whether a person who was ineligible to be a Member of Parliament could be appointed to serve as a Chief Minister of an Indian State. In this case, the leader of a political party, Ms Jayalalitha, had been convicted of offences under the Prevention of Corruption Act 1988 (India), which disqualified her from membership of the Legislature of Tamil Nadu. While her conviction was under appeal, a general election was held. She nominated to stand as a candidate, but her nomination was rejected due to her disqualification. Her party, however, secured a majority at the election and elected her its leader. She was then appointed chief minister of the State of Tamil Nadu. When her status was challenged, the Indian Supreme Court held that the existence of a grace period of six months in Art 164(4) of the Indian Constitution ⁴⁶ did not mean that a disqualified person could be appointed as Chief Minister. ⁴⁷ Justice Bharucha explained that Art 164(4) gave a non-legislator six months to become a member of the legislature and observed:

Necessarily, therefore, that non-legislator must be one who, when he is appointed, is not debarred from obtaining membership of the legislature: he must be one who is qualified to stand for the legislature and is not disqualified to do so.

It would be unreasonable and anomalous to conclude that a Minister who is a member of the legislature is required to meet the constitutional standards of qualification and disqualification but that a Minister who is not a member of the legislature need not. Logically, the standards expected of a Minister who is not a member should be the same as, if not greater than, those required of a member. ⁴⁸

It was contended before the Supreme Court that the Governor was obliged to act upon the will of the people in appointing as Chief Minister the leader of the party that had succeeded at the elections, and that the Governor was not in a position to determine disqualification. It was also argued that the only consideration that the Governor could take into account was that the person to be appointed held the confidence of the House. It was even submitted that the Governor should appoint the leader of the party holding confidence as Chief Minister even if, to the Governor’s knowledge, that person was ‘a non-citizen or an under age or a lunatic or an insolvent Chief Minister’, as the appropriate way to remove him or her would be by a vote of no confidence or a vote of the people in the next election. ⁴⁹

The Court rejected this argument as both dangerous and an absurd interpretation of the Constitution. Bharucha J observed that:

The Constitution prevails over the will of the people as expressed through the majority party. The will of the people as expressed through the majority party prevails only if it is in accord with the Constitution. The Governor is a functionary under the Constitution and is sworn to “preserve, protect and defend the Constitution and the law” (Article 159). The Governor cannot, in the exercise of his discretion or otherwise, do anything that is contrary to the Constitution and the laws…We are in no doubt at all that if the Governor is asked by the majority party in the Legislature to appoint as the Chief Minister a person who is not qualified to be a member of the Legislature or who is disqualified to be such, the Governor must, having due regard to the Constitution and the laws, to which he is subject, decline, and the exercise of discretion by him in this regard cannot be called in question. ⁵⁰

The Court also noted that if the Governor does appoint a person who is disqualified, then ‘the authority of the appointee to hold the appointment can be challenged in quo warranto proceedings’. ⁵¹ The mere fact that the Governor has made the appointment does not protect it from challenge. ‘If the appointment is contrary to constitutional provisions it will be struck down’. ⁵² The consequences of the decision were serious, as the State would not have had a validly appointed Chief Minister for a period of four months, the ministry appointed on the advice of the Chief Minister would also have been invalidly appointed, and all ministerial acts were therefore questionable. Accordingly, the Court applied the de facto officer doctrine, ⁵³ declaring that all otherwise legal and valid acts performed in that period by the Chief Minister and other ministers were not to be adversely affected by the order of the Court. ⁵⁴

In a separate case, the Indian Supreme Court also held that a person could not be appointed for the grace period of six months, resign after not securing a seat, and then later be appointed for another six-month period during the same parliamentary term. The Court considered that the grace period could only be used by a person once in the life of a Parliament. ⁵⁵ It did not consider that the clock re-set to a new six-month period each time a Minister resigned and was reappointed during the parliamentary term. It regarded the prospect of an unelected Minister being able to continue to sit for periods of six months as striking at the root of parliamentary democracy, as applied in England, Australia and Canada. ⁵⁶

It is not unlikely that the same view would be taken in Australia, as the same constitutional principles apply. Hence the Governor-General of Australia, relying on the principles of the rule of law, responsible government and representative government, might legitimately decide not to appoint as Prime Minister a person who is clearly disqualified from being a Member of Parliament and who has already used up the grace period in that term of Parliament. Consideration of ss 44 and 64 of the Commonwealth Constitution, in such circumstances, would be perfectly appropriate.

The Separation of Powers

The position with Dutton, however, was more complicated, because there was no clear-cut disqualification. While there were genuine arguments that Dutton might have been disqualified under s 44(v) of the Constitution, his case was borderline and a court could have decided the matter either way. How should the Governor-General act when there is uncertainty about whether a proposed minister is disqualified from Parliament?

This issue was also addressed by the Supreme Court of India. It had been argued that the Governor was not equipped to determine whether a person was disqualified from Parliament when appointing him or her as Chief Minister. Pattanaik J drew a distinction between cases where the disqualification was plain, such as conviction of an offence which attracted the relevant penalty, and those where it was uncertain. He noted that if any disqualifications are brought to the notice of the Governor and can be accepted without the need for adjudication, or if the Governor is satisfied that the person is not qualified, then the Governor should act in accordance with the constitutional mandate in not appointing that person. If, however, the alleged disqualification is dependent upon disputed questions of fact and evidence, the Governor may choose not to decide upon them and to appoint the person as Chief Minister. ⁵⁷ A similar approach was taken by Sir Isaac Isaacs, when he was Governor-General of Australia. He considered that other than in cases of ‘plain illegality’, he should act on the advice of ministers and leave adjudication of the law to the courts. ⁵⁸

In the case of Dutton, there was not only a lack of knowledge as to the full facts ⁵⁹ and uncertainty as to how the High Court would interpret the application of the disqualification in s 44(v) of the Constitution regarding an indirect pecuniary interest in any agreement with the Public Service of the Commonwealth, but also a need to clarify the application of the three month period in s 64 of the Constitution, including whether it could apply for a second time during the term of a Parliament. Only a court could provide certainty with respect to these issues.

The constitutional principle of the separation of powers therefore would have come into play. While the Governor-General is obliged to obey the law, the Governor-General should leave legally contentious issues to the courts, if they are able to determine them, rather than decide legal issues himself or herself. It is for the courts, not the Governor-General, to exercise judicial power. But this is predicated upon the courts being able to determine the issue. This is not always the case. It may be that a constitutional issue is non-justiciable, or no one has standing to bring it before a court, or the time period for bringing proceedings has ended, or a court cannot give an effective remedy or deal with the matter within the necessary time.

The difficulty with legal proceedings to determine disqualification under s 44 of the Constitution is that they can only be decided by the Court of Disputed Returns, and only if proceedings are brought within 40 days of the return of the writs in a general election or if the question is referred by the relevant House to the Court. ⁶⁰ In this particular case, the 40-day period after the previous election had long passed without anyone being aware of Dutton’s potential disqualification, or challenging the validity of his election. This only left referral to the Court of Disputed Returns by the House. On Thursday, 23 August 2018, the Opposition moved a motion to refer to the Court of Disputed Returns whether, by reason of s 44 of the Constitution, Dutton’s seat had become vacant. ⁶¹ But Turnbull’s Government held a majority in the House and refused to support making the reference. ⁶² Turnbull later explained that he had ‘stuck to the principled approach we’d taken in the past — obtain the solicitor-general’s advice and then, should there remain a doubt about eligibility, refer it to the High Court’. ⁶³ But despite the doubts that arose from the Solicitor-General’s advice when it was given the following day, no such reference was made, presumably for party-political reasons. ⁶⁴

What, then, should a Governor-General do when there are genuine questions about whether a putative Minister or even a Prime Minister, is disqualified from Parliament, and a court cannot resolve it because the limitation period of 40 days is over and a House, for party-political reasons, has refused to refer the matter to a court? Should the Governor-General consider the issue of disqualification, on the basis that only he or she can uphold the Constitution?

In the Dutton case, this issue would also have been complicated by concerns about confidence. If Dutton had won a leadership contest against Turnbull, as noted above, there would have been a real question about whether Dutton commanded the confidence of the House, as a number of Liberal and National Members had raised the prospect of moving to the cross benches if Dutton became Prime Minister. Turnbull’s own resignation from Parliament was likely to have the effect of tipping the Government into minority, as indeed it did. ⁶⁵ In addition, there was the risk that the House would not vest its confidence in a person over whom a cloud of disqualification was hanging. As Turnbull contended ‘the risk of having a constitutionally ineligible person in the office of prime minister is utterly unacceptable’. ⁶⁶ This would have potentially made s 44 of the Constitution and the risk of disqualification relevant to confidence.

Options for the Governor-General

In the circumstances, one option would have been for the Governor-General to defer appointing Dutton until he had faced the House and established that he held its confidence. That would have at least resolved the confidence side of the equation, satisfying the requirements of the principle of responsible government and ensuring that the appropriate body — the House of Representatives — was the one that determined confidence. But, had Dutton secured a vote of confidence, that would still have left unresolved the rule of law issue and the Governor-General’s obligation to act in accordance with the requirements of the Constitution, consistently with the doctrine of the separation of powers.

Another option open to the Governor-General, other than deferral of appointment, would have been to make an appointment that is conditional upon the giving of assurances. This does not mean that it is a conditional appointment (i.e. one that that automatically ceases to exist if a condition is not met in the future). Rather, it is conditional in the sense that the Governor-General may choose not to make the appointment of a particular person unless that person first gives a solemn assurance of particular matters, including a commitment to future behaviour. Breach of that assurance in the future would not nullify the appointment but would be regarded as a breach of good faith ⁶⁷ and may have political ramifications. But if the potential Prime Minister refuses, in the circumstances, to give such an assurance, that leaves the Governor-General in a dilemma if no one else holds the confidence of the House. Hence the tactic of requiring the giving of assurances can only be effectively used in particular circumstances where there are genuine choices open to the Governor-General or the Governor-General has strong powers of persuasion and influence.

The giving of assurances, as a condition of appointment, has occurred on numerous occasions in the past in Australia. Turnbull, in his letter of resignation as Prime Minister, stated: ‘As is the usual practice, I would consider it prudent for you to seek an assurance that the new leader enjoys the confidence of the House, and can guarantee supply’. ⁶⁸ This assurance was sought and given before Morrison was appointed as Prime Minister.

Where there is a mid-term change of government, which may occur because the previous Government has lost a leader, lost confidence or been dismissed, the appointment of a new government is often made the subject of a condition that assurances be given. ⁶⁹ The assurance might be that the incoming government will advise a dissolution immediately ⁷⁰ or do so after securing the passage of supply, ⁷¹ or after electoral rolls have been revised, ⁷² or that it will operate as a caretaker government pending an election ⁷³ or face Parliament rather than requesting an immediate prorogation or dissolution, ⁷⁴ or that it will obtain a vote of confidence from the lower House of Parliament ⁷⁵ or demonstrate the support of the party or Independents that it claims will secure it the confidence of the lower House. ⁷⁶ All of these assurances were made in aid of the constitutional principles of representative and responsible government.

Hence, had Dutton defeated Turnbull for the leadership of the Liberal Party in 2018, the Governor-General could have agreed to appoint Dutton as Prime Minister, rather than leaving an Acting Prime Minister in place, on the condition that Dutton gave the Governor-General an assurance that he would face the House to determine confidence and would facilitate its referral of the matter of his possible disqualification to the Court of Disputed Returns, so that it could be resolved expeditiously. Assuming that Dutton was genuine in his assertions of belief that he was not disqualified, ⁷⁷ it would have been in his interests to have any cloud of doubt over his eligibility to remain as a Member of Parliament resolved by the Court of Disputed Returns, so that he could fulfil his role as Prime Minister without ongoing speculation as to his right to do so. A Governor-General could therefore have persuaded him to give such an assurance as the price of immediate appointment, rather than deferral of appointment pending the same referral by the House, which would have been more controversial.

The Royal Role in the Procedure of Passing Bills in the United Kingdom

In the United Kingdom, the procedural role of the Queen was raised in relation to the passage of Brexit legislation against the wishes of the Government. It arose in two different aspects — the financial prerogative of the Crown and ‘Queen’s consent’ to any bill affecting the Queen’s prerogative.

In the United Kingdom, Standing Order 48 of the House of Commons provides that the House shall not proceed upon any motion for a grant or charge upon the public revenue unless recommended from the Crown. The Standing Orders also set down various procedures to be followed in the case of money bills. The former First Parliamentary Counsel, Sir Stephen Laws, contended in relation to the European Union (Withdrawal) (No 5) Bill that any bill that caused the delay of the Brexit date would undo the termination of the UK’s financial obligations to the EU. This would mean that there would be an increased financial burden on the exchequer, resulting in the need for a recommendation from the Crown in accordance with the Standing Orders of the House. ⁸²

In April 2019, 50 Members of the House of Commons wrote to the Speaker claiming that a message from the Crown was required before consideration of the European Union (Withdrawal) (No 5) Bill could proceed. It was argued that as much as £36 million could be at stake. ⁸³ The argument was therefore not about a bill positively increasing an appropriation, but rather one that would delay the termination of existing legal obligations to make payments. The Speaker ruled, however, that it was not a money resolution, as there were existing provisions in place to deal with the financial effects of moving the date for leaving the European Union. ⁸⁴ The Speaker ruled, for the same reason, that the European Union (Withdrawal) (No 6) Bill was not a money resolution, as the further change of the exit day would still be covered by existing financial resolutions from 2017. ⁸⁵

In the United Kingdom, unlike Australia, it is also a long-held practice that the Queen’s consent must be obtained prior to a bill being passed that would affect her prerogatives. The Queen acts upon ministerial advice in giving that consent (although she has an opportunity to seek to persuade the Government to alter or not proceed with a bill, if her consent is sought before its introduction). In practice, the Government usually seeks Queen’s consent to private members’ bills, even if it opposes them, ⁸⁶ but it could decline to do so, or it could simply take its time in doing so, so that a bill could not proceed to enactment during a short parliamentary sitting period, such as the period prior to the prorogation of Parliament in September 2019.

In relation to the Bills for extending the date for exit from the European Union, the argument was made that this interfered with the Queen’s prerogative with respect to making and withdrawing from treaties and conducting foreign affairs. When this point was raised with respect to both the April and September 2019 bills for extending the exit date, the Speaker ruled that Queen’s consent was not necessary on the basis that it had not been regarded as necessary for the passage of the European Union (Notification of Withdrawal) Act 2017 (UK) that permitted the Prime Minister to initiate the process of exiting the European Union in 2017. ⁸⁷

However, the point has been made that the European Union (Notification of Withdrawal) Act 2017 was enacted as a consequence of the UK Supreme Court’s judgment in Miller (No 1) where it held that a prerogative power could not be used to trigger the United Kingdom’s exit from the European Union because it would frustrate the application of legislation, and that Parliament needed to pass a law instead to authorise the Prime Minister to start the withdrawal period. Hence, as Robert Craig has observed, it was arguable that the resulting Act did not require Queen’s consent because the Supreme Court had already stated that the prerogative could not be used to initiate the exit process. ⁸⁸ Such an argument did not necessarily flow through to bills that required the Prime Minister to seek an extension of the exit date. ⁸⁹  But it is also doubtful whether an obligation upon the Prime Minister to request or even agree to an extension of the exit date really affects the Queen’s prerogatives.

The Refusal of Royal Assent to a Bill Passed by Both Houses of the Westminster Parliament

If the procedures for the passage of a bill are prescribed by law, ⁹⁰ and there has been a failure to comply with them, such as a failure to meet a legally imposed prerequisite of passage by a special majority of a House or the holding of a successful referendum, then this might constitute a ground for the refusal of royal assent. If the matter is justiciable, however, commentators have been of the view that it would be better to grant assent and leave the matter to the courts to resolve. ⁹¹

It is a different matter, however, if the procedural requirements are not imposed by law, but are the internal procedures of the House, which are imposed by, and under the control of, the relevant House. This includes the Standing Orders of a House, which are not laws, but the means by which the House, at any particular time, chooses to manage its business. ⁹² Ultimately, if a House, by a majority, chooses to pass a bill in a manner that is not consistent with its ordinary procedure, then the House has effectively decided to change its procedure in the circumstances. ⁹³

Whether Queen’s consent or a message from the Crown approving financial measures are required for a UK bill is a matter for the House of Commons to determine, as it is a procedural issue ⁹⁴ rather than a matter of law. ⁹⁵ If a majority of the House takes the view that it can pass a bill without the need for Queen’s consent or a message, then the passage of the bill by a House cannot be regarded as ‘unconstitutional’, because its passage is in accordance with the will of a majority of the House which has full power to control its own procedure. ⁹⁶

Nonetheless, the argument has been put in the United Kingdom that the ‘unconstitutional’ behaviour of the House in passing a bill without Queen’s consent or a message from the Crown would provide justification for ministers to advise the Queen to refuse royal assent to the bill. Sir Stephen Laws considered that if such a bill proceeded without a recommendation from the Crown or Queen’s consent, and it passed both Houses, the Government might take the view that it ‘could reassert its wrongly denied constitutional veto on such a Bill by advising the Monarch not to grant Royal Assent to the Bill’. He even suggested that the Government might consider it has a ‘duty to ensure that a Bill that had been passed in contravention of fundamental constitutional principles did not reach the statute book’. ⁹⁷ Laws later joined with Ekins in suggesting that in such circumstances the Government ‘advise Her Majesty not to assent to the Bill, notwithstanding the Bill passing both Lords and Commons’. ⁹⁸ Ekins subsequently observed that ‘Her Majesty would arguably be obliged to follow’ such advice. ⁹⁹ Finnis added that advice by Ministers to the Queen to withhold her assent from a Bill passed against the wishes of the Government ‘would be proper and appropriate’. ¹⁰⁰ Finnis also suggested that ministers might ‘delay’ submitting the bill to the Queen for assent.

In response, Paul Craig, Mark Elliott, Lord Pannick and numerous other academics and barristers, in a letter to The Times, contended that government advice to the Queen to refuse assent to legislation passed against the government’s wishes would be ‘utterly without precedent in the United Kingdom’ and ‘unconstitutional’. They considered that such action would ‘stand constitutional principle on its head’, as it presumes the executive has the power to override Parliament, whereas constitutionally, sovereignty resides in Parliament. ¹⁰¹

So how do constitutional principles apply to the grant of royal assent by the Queen? ¹⁰² Ordinarily, in accordance with the principle of responsible government, the Queen performs executive acts upon the advice of her ministers, who are responsible to Parliament for their advice. But the Queen, in granting royal assent to a bill, is essentially performing a legislative act. According to the principle of representative government, the Queen is fulfilling the wishes expressed by a majority of the elected representatives of the people in the House of Commons and a majority of members of the House of Lords. ‘Parliament’ is comprised of the two Houses and the Queen, and the enacting words of each statute in the United Kingdom provide that it is enacted by the Queen ‘with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this Parliament assembled, and by the authority of the same’.

The principles of responsible government and representative government are almost never in conflict, because the principle of responsible government requires the government to be drawn from, and command the confidence of, a majority of the elected representatives in the House of Commons. For example, if a bill is passed by both Houses, including by a government majority in the House of Commons, but before royal assent is given the government discovers a dangerous flaw in the bill, ¹⁰³ which cannot adequately be corrected by bringing the statute into effect and then enacting subsequent legislation to fix the flaw, ¹⁰⁴ then it may be appropriate for Ministers to advise the Queen to withhold or defer royal assent. This would be because it could be assumed that as the Government commands the support of a majority of the House of Commons, that House would also wish the Queen to withhold or defer royal assent. Such an approach has been taken in Canada, where the Journals of the Legislative Assembly of Ontario recorded that the Lieutenant Governor withheld assent to a bill upon the advice of ministers, ‘it being understood that the Legislative Assembly also desires such withholding of assent thereto’. ¹⁰⁵

It is a different matter, however, where a bill is passed against the wishes of Government. In such a case, there is potentially a clash between the principles of responsible and representative government. Those who favour responsible government would argue that the Queen is obliged to act upon the advice of her ministers, while those who favour representative government would argue that the Queen is obliged to act upon the advice of the two Houses ¹⁰⁶ and that the government has no role in advising her with respect to royal assent.

On the responsible government side, Tomkins has contended that if ‘the monarch were given clear and firm Prime Ministerial advice that she should withhold her royal assent to a Bill which had passed through the Houses of Parliament, it seems to be the case that the monarch should follow that advice’. ¹⁰⁷ But if a bill has been passed by both Houses against the will of the government and ministers advise the Queen to refuse assent to it, the case can be made that those ministers have ceased to be responsible.

This is certainly the case if the bill is a money bill. Ordinarily, however, a defeat of a government on a non-money bill will not signify a loss of confidence unless the bill is declared by the government to be of such significance that it is a matter of confidence. If the bill is so important to the government’s policy that it would take the drastic step of advising the Queen to refuse assent to it, there is a strong argument that this transforms the passage of the bill into a matter of confidence. Hence, by the giving of such advice to the Queen, ministers would effectively signify their loss of responsibility and the fact that the Queen is not obliged to act upon their advice, at least with respect to this matter. When this occurred in New Zealand in 1877, the Governor, Lord Normanby, concluded that ministers should not be able to defeat a bill at the assent stage if they could not do so in either House. The British Secretary of State supported the Governor’s refusal of royal assent in these circumstances. ¹⁰⁸

The alternative approach is to contend that ministers have no role advising the Queen with respect to royal assent to bills, as she is fulfilling a legislative role that involves acting upon the advice of the two Houses. Mark Elliott, for example, argued that the applicable convention is that the Queen must grant assent to any bill validly passed by the House of Commons and (other than when the Parliament Acts 1911–1949 apply) the House of Lords. He regarded this as a convention that gives effect to the constitutional principle of parliamentary sovereignty — that it is Parliament, rather than the Executive, which has constitutional primacy in matters of law-making. He concluded that any Government that advised the Queen ‘not to grant royal assent to a duly enacted Bill’ would be ‘subverting fundamental constitutional principle’ and that the Queen would be ‘constitutionally entitled — and required — to disregard it’. ¹⁰⁹

Jeff King agreed that the convention that the Queen acts upon ministerial advice is reserved for her executive functions outside the legislative process. He considered it inapplicable when the Monarch acts as ‘Crown-in-Parliament’. ¹¹⁰ Paul Bowen pointed to the enacting words of every Act of Parliament as evidence that the power to legislate is vested in the Houses advising the monarch. He considered that it would be unconstitutional for the Queen to act on the advice of a Prime Minister to refuse assent to a bill and that the Queen would be bound ‘by the principle of Parliamentary sovereignty, to respect the will of Parliament.’ ¹¹¹

Thomas Poole favoured the principle of representative government, arguing that the answer lies in the constitutional settlement of 1688 — that ‘Parliament, not government, is supreme’. ¹¹² He pointed out that the constitutional authority to pass laws was never the government’s to lose, as it belongs to the Houses. He considered that for a government to ask the monarch to thwart Parliament in the interests of the executive would be ‘little short of monstrous’.

In addition to monstrous, such advice might now be considered to be unlawful. In R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland, ¹¹³ the UK Supreme Court held that advice to the Queen that frustrated or prevented, without reasonable justification, the ability of Parliament to carry out is constitutional functions as a legislature and as the body responsible for the supervision of the executive, was unlawful. ¹¹⁴ A case could be made that advice to the Queen to refuse royal assent to a bill that had been passed by both Houses of Parliament would be unlawful because it would frustrate the ability of Parliament to fulfil its constitutional functions as a legislature — i.e. the function of enacting legislation. It is doubtful that the government’s policy objection to a bill and its failure to defeat it in either House could be regarded as a ‘reasonable excuse’ for such frustration. ¹¹⁵

As can be seen from the above discussion, the nature of royal assent (i.e. whether it is an executive act performed on the advice of the executive or a legislative act performed on the advice of the Houses) and the circumstances in which royal assent could be refused remain deeply contested issues. Until recently, the focus has been on excluding the exercise of personal discretion by the monarch, while accepting that in very limited cases some discretion may remain as long as it is exercised only for the purpose of supporting constitutional principles, such as the rule of law, representative government and responsible government. ¹¹⁶ The notion of a government advising the Queen to refuse royal assent to a bill of major importance passed by both Houses against the wishes of the government would have been regarded, until recently, as ‘unthinkable’ and therefore not deserving of consideration.

Rather than dealing in absolutes, such as ‘the Queen must act on the advice of ministers’ or ‘the Queen must give royal assent to bills passed by both Houses’, the better approach is to address the particular circumstance of a conflict by reference to the applicable constitutional principles. Had the Prime Minister advised the Queen to refuse assent to either of the above Bills simply because the government did not want the Bill to come into effect, the Queen would have been entitled to ignore the advice, due to the application of the principles of responsible government, representative government and parliamentary sovereignty. While the principle of responsible government requires the Queen generally, in fulfilling her executive functions, to act upon the advice of ministers, this is only the case while they are responsible ministers. Defeat on the relevant Bill would have been a strong indication that they were no longer responsible. The principle of representative government would have required the Queen to act upon the advice of parliamentary representatives. The principle of parliamentary sovereignty requires the executive to be responsible to Parliament, not vice versa.

The Royal Role in the Procedure of Passing Bills in Australia

In Australia, the Crown also has a procedural role in relation to the passage of appropriation bills. Rather than appearing in a Standing Order, this is formalised in s 56 of the Constitution. It provides:

A vote, resolution, or proposed law for the appropriation of revenue or moneys shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor-General to the House in which the proposal originated.

There are two important points to make about this provision. First, it is not regarded as a reserve power, so the Governor-General acts upon the advice of his or her responsible ministers (as long as they remain responsible) in making a recommendation. The effect is to ensure that the Government maintains control over the budget, or at least, the appropriation of public moneys from the Consolidated Revenue Fund. A temporary majority in Parliament, therefore, cannot appropriate money for expenditure on a purpose of which the Government does not approve, because the Government can decline to advise the Governor-General to provide the relevant message.

Even if ministers have ceased to be responsible, having lost the confidence of the lower House, resulting in the capacity of the Governor-General to decline to accept the advice of ministers, this does not give the Governor-General a positive discretion to make a recommendation approving appropriation of revenue for a particular purpose. The Governor-General has the discretion to reject advice from ministers who have ceased to be responsible (or were never responsible), ¹¹⁷ but this does not confer on the Governor-General a positive discretion to send such a message without, or contrary to, the advice of ministers.

Second, s 56 concerns the internal proceedings of the Houses and is not justiciable. ¹¹⁸ This means that if the Houses pass such a bill, without having received a message from the Governor-General making the relevant recommendation, and the bill receives royal assent, its validity cannot be challenged on the ground that the requirements of s 56 were not met. This is an internal matter for the Houses to deal with. Nonetheless, there is an obligation upon the Houses to obey the Constitution and to conduct their procedures accordingly. This obligation weighs particularly on the Presiding Officers and the procedural rulings that they make.

Before s 56 arises as an issue with respect to a bill, it must be ascertained whether the bill can be regarded as one ‘for the appropriation of revenue or moneys’. Usually this is straightforward, but in some cases, such as where an amendment to the bill would increase the cost of implementing a government policy, hard questions arise as to whether this is a bill for the appropriation of revenue or moneys. In this regard, s 56 interacts with s 53 of the Constitution, ¹¹⁹ which provides that proposed laws appropriating revenues or moneys shall not originate in the Senate and the Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.

The Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018 (Cth) was a government bill that was introduced in, and passed by, the House of Representatives. It was then amended by the Senate to establish a scheme for ascertaining, upon the advice of a new Independent Health Advice Panel (‘the Panel’), when asylum seekers should be returned to Australia for medical treatment (resulting in the Bill becoming colloquially known as the Medevac Bill). When the Bill was returned to the House of Representatives, to seek its approval of the amendments, the Attorney-General, Christian Porter, contended that these amendments breached s 53 of the Constitution by increasing a ‘charge or burden on the people’ and would not comply with the requirements of s 56 of the Constitution because no relevant message recommending the appropriation had been provided by the Governor-General to the originating House. The Attorney-General wrote to the Speaker of the House, Tony Smith, arguing that the amendments should be set aside and not voted upon by the House. ¹²⁰ The Speaker, against the wishes of the Attorney-General, tabled the letter and the Solicitor-General’s Opinion that was attached to it. ¹²¹

The Attorney-General’s argument was based upon the fact that under these amendments, six members were to be appointed by the Minister to the Panel for a minimum term of 3 years. This would mean that they held ‘public offices’ under the Remuneration Tribunal Act 1973 (Cth), for which they would have to be remunerated. The amount of that remuneration, once ascertained by the Remuneration Tribunal, would come out of the standing appropriation in the Remuneration Tribunal Act, ¹²² which would have to be increased to accommodate it. Hence, although the amendments themselves would not appropriate the additional moneys, it was claimed that they would cause an increase in an appropriation under an existing Act, thereby increasing a charge or burden on the people in breach of s 53 and without the Governor-General’s recommendation in breach of s 56. ¹²³

The Attorney-General stated that s 56 is a ‘particularly significant aspect of Australia’s Constitution which establishes the Government’s “financial initiative”: as the Governor-General acts on ministerial advice, in practice only a Minister may introduce a Bill appropriating public moneys’. ¹²⁴ He added that it was not possible to rectify the position by the Governor-General now giving a recommendation to the House of Representatives, as this needed to be done before the amendments were passed in the Senate, which was the House in which the proposal originated. ¹²⁵

The Opposition resolved the issue by proposing a further amendment that ‘a person is not entitled to remuneration in respect of their position as a member of the panel’. ¹²⁶ The House passed the Bill as amended. To the extent that this removed any automatic increase in the burden on the people, it could no longer be regarded as breaching ss 53 and 56 of the Constitution, so the focus switched back to the political, rather than the constitutional, concerns. This additional amendment was approved by the Senate, and the Bill, as passed by both Houses, was presented for royal assent.

The Refusal of Royal Assent to a Bill Passed by Both Houses of the Commonwealth Parliament

As in the United Kingdom, the constitutional principles of responsible and representative government would have been relevant in Australia if the Morrison Government had advised the Governor-General to refuse royal assent to the Medevac Bill. Parliamentary sovereignty, however, does not have the same application in Australia, as in the United Kingdom, given the federal system and the entrenched Commonwealth Constitution.

The other difference in Australia is that s 56 of the Commonwealth Constitution, rather than a Standing Order, was in play before the Opposition’s amendment was made. Section 56 is a provision of a law — the ultimate law, the Constitution — but as discussed above, it is non-justiciable and does not have any effect upon the validity of a resulting law. In this regard, it might be regarded as giving effect to a ‘duty of imperfect obligation’. It is a duty that has political, but not legal, force. Some constitutional provisions have been recognised as having this status. ¹²⁷

If a Prime Minister were to advise the Governor-General to refuse to give royal assent to a bill that had been passed against the wishes of the Government, but based its advice upon the breach of non-justiciable constitutional provisions, such as ss 53 and 56 of the Constitution, it could at least contend that it had a ‘reasonable justification’ for its advice, as it was seeking to give effect to a duty of imperfect obligation. Problems with such an argument would, however, still arise. First, the duty of imperfect obligation lies on the Houses, rather than the Government. Second, if the Government were defeated in both Houses on a money bill, this could be taken as an indication of loss of confidence in the Government, causing ministers to be no longer responsible and their advice not conventionally binding. In addition, the argument could still be made that the Governor-General acts upon the advice of the Houses in giving royal assent, rather than the advice of ministers.

An example, in less contentious circumstances, occurred in South Australia in 2004. A private member’s bill passed both Houses of the South Australian Parliament, but royal assent to it was deferred when a question was later raised as to whether it was a money bill. The Premier advised the Governor to defer assent until legal advice could be obtained as to its status and whether its passage had met the relevant procedural requirements. The Speaker then objected, claiming that the Governor was advised by the Houses with respect to assent, rather than by the Premier. ¹²⁸ The South Australian Government backed off, agreeing that assent should be given and that Parliament should address the issue by repealing the Act. ¹²⁹ Unlike the Medevac Bill, this was not a case of a government opposing the bill and losing votes in both Houses on it, so it does not provide a completely analogous example.

Further, as the claim that the Medevac Bill was a money bill was quickly terminated by the making of an amendment to the Bill, the arguments about royal assent did not receive the same attention in Australia as the equivalent issues in the United Kingdom. In neither country was royal assent refused. In both cases, the governments appear to have been wise enough to avoid the constitutional controversy that the refusal of royal assent would have caused.