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Friday, November 27, 2020

Our Governor-General is too powerful

This week we saw the opening of the 46th Parliament of Australia. We did it with as much fanfare we can muster but it is a pale imitation of the mother of all parliaments in Westminster. When it comes to pomp and ceremony, no one does it better than the British. But in fact our newly sworn in Governor-General David Hurley is no pale imitation; he has more power over our government than the Queen.

Last August, Australia narrowly avoided a constitutional crisis every bit as dramatic as the Whitlam Dismissal in 1975.The trigger for the drama was the frantic efforts Malcolm Turnbull made to thwart Home Affairs Minister Peter Dutton succeeding him as prime minister.

Turnbull told the plotters – they are now talking either to Sky News or to authors like Niki Savva whose book Plots and Prayers is out this week – that the Governor-General would not appoint Dutton as PM. Turnbull’s reasoning was because there was a serious cloud over Dutton’s eligibility to sit in parliament, let alone hold the top job.

Turnbull told Dutton’s ally, the Attorney General Christian Porter, he was wrong to say that it was none of the GG’s business. Lawyer and barrister Turnbull is an expert here, having studied the whole issue of our head of state in detail in the run up to the republic referendum in 1999. In a tweet rebutting Porter, Turnbull said the Governor-General “is not a constitutional cypher”.

Indeed, our constitution gives the Queen’s representative more power than the Queen can exercise in Westminster. There, with no written constitution, parliament is supreme. No act of the British parliament is unconstitutional and in modern times it is unheard of for the monarch to refuse assent. The parliament determines who is eligible to be monarch and the parliament, through the prime minister, gives advice she cannot overrule. It is very different in Australia as Governor Game’s sacking of the Lang Government in NSW and Kerr’s “beheading” Whitlam proves.

A 1975 crisis where Sir John Kerr chose to sack a prime minister rather than to heed his advice could not happen in London. So, if Sir Peter Cosgrove chose to refuse to appoint Peter Dutton, there is nothing much Dutton could do about it. Constitutional expert Anne Twomey says Cosgrove could have set a condition on Dutton to submit his section 44 conflict of interest problems to the High Court before he could continue in the role. In the end, the doubts raised by Turnbull were enough to see the dark horse Scott Morrison seize the prize and avert the drama.

But how long are we going to put up with a derivative second-rate constitution? Our parliament surely needs the same dignity and authority over the crown’s “representative” as the monarch herself is restrained by in London.

An Australian head of state – elected by the people or their representatives with truly democratic checks and balances – is long overdue.

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