Water Week

EWN Publishing

Quite possible for an Australian prime minister to refuse to call an election, warns former federal attorney-general

Posted by waterweek on 11 October 2007

According to Michael Lavarch, executive dean of the QUT Law Faculty and a former federal attorney-general, writing in The Australian Financial Review, (5/10/2007), p. 56, the prime minister only needs to go to the governor-general to get the house dissolved if he wants an election called before 15 November 2007.

He can opt to do nothing: Then, “a constitutional provision would kick in to bring about the end of the House of Representatives. This happened in 1910 but, on all other occasions, elections have been triggered by the prime minister”.

The final provision is section 32: This provided that the governor-general in council may cause writs to be issued for the election. The issuing of a writ was the formal mechanism by which the role of the Australian Electoral Commission was triggered in order to conduct the election.

GG has to act “in council” with ministers: It should be noted that this provision, unlike sections 5 and 28, talks about the governor-general acting “in council”. This means he needs to formally act on the advice of his ministers. It is generally regarded that;

• the power given to the governor-general in sections 5 and 28 falls within the domain of the so-called reserve powers; while

• the power in section 32 to issue writs can only be exercised on the advice of the prime minister.

What it all means: “Putting all this together means that it is at least theoretically possible for a prime minister to rely on the expiration of time for the House of Representatives to end and then refuse to give advice to the governor-general to issue writs to bring about the mechanics of the election.

Extraordinary circumstance possible: This would be regarded as extraordinary because of the unwritten understandings of how our political system operates and what role the prime minister and the governor-general will play, notwithstanding the written terms of the constitution. If this extraordinary circumstance were to come about, then it could only be resolved by ;

• either the governor-general acting without the advice of his ministers and issuing writs to bring on the election; or

• possibly through the intervention of the High Court ordering the issuing of the writs.

Completely uncharted waters: Both courses of action would take Australia into completely uncharted waters and would take some time to resolve. While Howard has explored the limits of constitutional power, it is quite unimaginable to think that Australia would find itself in a constitutional dilemma of this nature. Then again, probably John Kerr, Gough Whitlam and Malcolm Fraser never envisaged that they would make history in the way that occurred in the mid-1970s. We will wait with interest as 15 November approaches”.

Reference: Michael Lavarch is executive dean of the QUT Law Faculty and a former federal attorney-general.

The Australian Financial Review, 5/10/2007, p. 56

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