With the resignation on Saturday of John Alexander, MP for Bennelong, due to doubts about his eligibility under the now-notorious section 44 of the constitution, the Turnbull government is now in a minority in the House of Representatives. Cue, yet again, angst and ignorance from all quarters.
Greens leader Richard Di Natale, for example, said (according to the ABC) that he was “seeking advice from parliamentary officials about what options his party has to call for the Governor-General to intervene.”
Anyone would think we’d never been here before. But of course we have; it’s only the parliament before last, from 2010 to 2013, when we had a minority government that survived three years with no great difficulty, again despite a torrent of ill-informed commentary.
When Julia Gillard was replaced by Kevin Rudd, I wrote a post, “Westminster government for beginners,” specifically to try to debunk some of that commentary. It seems to be still necessary.
Please go back and read the whole thing, but here’s the key section:
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.
The gap between actual practice and public understanding comes because people treat the government as a creature of parliament, whereas in strict legal terms it is a creature of the crown. Parliament’s role is negative: it can remove a government (or force it to the polls) when it chooses, but the government has no obligation to keep assuring the governor-general (or anyone else) that it enjoys parliamentary support.
Malcolm Turnbull will “lose control of parliament” (if he does) not when individual MPs resign or are elected, but when actual votes are carried against him. Until that happens – or until he does something improper to try to stop it happening – the governor-general has no business to get involved.
If our journalists can’t remember Rudd and Gillard, there’s not much chance they’ll remember back to 1911. But that’s the precedent from New South Wales that David Clune uses today to explain the situation in a very interesting piece at Inside Story.*
It’s well worth a read. His conclusion is the same as mine: there is no crisis, we have conventions that are well-equipped to deal with this sort of situation, and calls for vice-regal intervention are at best premature, and at worst “would take us back to the absolutist ways of King Charles I.”
Unfortunately, we are saddled with media and a pundit class that make a living from stoking fears of “instability”, and have taught the public to regard a single-party majority as normal and healthy rather than (as in most of the rest of the world) something abnormal and dangerous.
If they wanted to do something useful, they could stop trying to be amateur constitutional lawyers and work towards building a consensus for reform of section 44 – the parliamentary report of 1997 would be a good place to start.
* Technical note: I disagree with Clune at just one point, where he says “It would also have been constitutionally wrong to allow Wade to go to an election as premier because he lacked a majority in parliament”; given that Holman’s resignation was unprompted, I think the governor would have been entitled to allow the opposition leader to take office as caretaker premier if an election was necessary. But he was certainly not obliged to.