Conventions not rules: What the Governor-General-Turnbull-Porter debate can teach us

This article also appears on the Spectator’s Flat White blog.

Personality in politics is like salt to a dish – a pinch here or there is not a bad thing.  It brings out the flavours, enlivens the meal and creates a nice healthy edge. But too much, of course, can ruin things beyond repair. 

Malcolm Turnbull’s recent confirmation he had tried to sink Peter Dutton’s eligibility for the prime ministership, through the governor-general, shows personality of the wrong kind – one that, laced with other recent actions, points to an unhealthy retribution in our public affairs. 

It is entirely fair, at least on face value, for Mr Turnbull to question Dutton’s eligibility. After all, mid-2018 was a time of near-weekly Section 44 citizenship and eligibility concerns. “I took the responsible course of action,” recently tweeted Turnbull, “obtained the necessary advice, published it and the Party Room was informed when it made the decision to elect Mr Morrison, rather than Mr Dutton, as leader.” 

But I sense most Australians know that, in the heat of a leadership spill (in fact two), political survival and its associated behaviours can trump high principle. That the then-prime minister had gone to this length – seeking the intervention of the governor-general – shows an alarming attempt to drag a position above politics into a party room ballot. 

It appears the only measure preventing Turnbull making a statement that the governor-general could not appoint Dutton came from attorney-general Christian Porter. At a pre-press briefing, according to Porter, things got so heated that he told the prime minister, “If you say this at your press conference I will rebut it.” 

Understandably, this incident has provoked a series of views on who advises the governor-general on legal matters and how binding an outgoing prime minister’s advice is. In recent times the solicitor-general has been the ‘go to’ for the governor-general, with Quentin Bryce requesting advice on whether to appoint Rudd as prime minister on Gillard’s advice (in that case the solicitor said ‘yes’). The means there is “no clear position in Australia on who should provide legal advice to the governor-general and the constraints upon the type of advice that should be given,” writes legal professor Anne Twomey. “This needs to be addressed in the future.” 

But, taking a step back, does it? Indeed, this incident has shown a number of things but there are two that stand out. 

First, for reasons of stability, it shows how important a governor-general is versus a president to our system of government. “If we had become a republic in 1999,” notes the Australian Monarchist League’s Philip Benwell, “and if the president came from the same faction as Malcolm Turnbull (‘a mate for head of state’), the end result could have been far different and would most likely have resulted in a constitutional crisis.” 

Second, this event shows the neat fusion of convention, reserve powers and responsible government in Australia. Not all needs to be codified and, in many instances, having a single source of legal advice would put the governor-general in more than a tough spot. For example, in 1975, if a Labor attorney-general were to provide legal advice to Sir John Kerr on the dismissal of prime minister Whitlam, as some have seriously suggested, it would have dramatically intensified the constitutional crisis. 

Ultimately, there is an element of instinct or ‘feel’ required for the office of governor-general. Attempts to codify or spell out, to the letter, executive head of state responsibilities is a common impulse that draws heavily from a modern desire to create rules for all aspects of conduct or disagreement. 

This does not mean the governor-general is entirely rudderless in making decisions. “Convention decrees that the governor-general must accept the advice of the prime minister,” notes Benwell, “but that is only if that advice accords to the constitution and its conventions and precedents.” 

To alter this arrangement, or in fact any around the governor-general, would tangle us in issues we cannot anticipate. With Labor’s defeat the debate on an Australian republic has subsided for at least another electoral term. And, as last week’s events reveal, it is a good place to stay.

Photo: Cyprus Mail