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Rudd-Gillard: the constitutional context

By Nilay Patel - posted Friday, 30 July 2010

Now that the prime ministerial storm has passed and the high office reclaiming a sense of normalcy, one should remove some of the controversies of June 24 and its immediate aftermath, from scattered commotion and place it into its proper constitutional context.

Kevin Rudd, MP for Griffith, in his farewell speech said that he “was elected by the people of this country”. Of course, that is not altogether accurate.

To exacerbate the matter, Julia Gillard later said that she would not move into the Lodge until she was elected Prime Minister.


Across the Tasman, when Jenny Shipley rolled Jim Bolger as Prime Minister in 1997 thereby making Shipley the first female Prime Minister of New Zealand, then Opposition Leader Helen Clark retorted that she looked forward to being the “first elected female Prime Minister” of New Zealand.

The election of a prime minister does not rest in the hands of any one person or even group. The voters in any one electorate have the exclusive power to elect their parliamentary candidate as the prime minister but only on three conditions: first, that candidate must be the leader of their political party; second, that party must win the majority of electorates; and third, the governor-general must administer the oath of office to the prime minister-elect. Neither of these conditions rest with any one electorate. In fact, a person is elected party leader by that party’s parliamentary caucus and not by the electorates at all.

But at the same time, nor is it altogether accurate to say that the country elects the prime minister because that assumes that every voter in every electorate is wholly influenced by the person leading the political party. As we know, voter behaviour is based on a complex of variables.

It is more accurate for prime ministers to say that they were elected indirectly by the country. This raises an interesting similarity with the United States presidential elections. There, the voters, rather than voting for the presidential candidate of their choice, vote for the electors who are the authorised and direct constitutional participants in a presidential election. Similarly, we vote for our MPs who elect their party leader, the prime minister in-waiting. The obvious difference is that the MPs remain accountable to their electorate.

After Gillard took the top job, she announced a number of major policy changes: offshore processing of asylum seekers; sustainable population growth; a lower super profits tax; and a less-hurried and a more informed ETS policy. But the policies she is now changing were formed when she was the second-most senior member of the Rudd cabinet and her critics have pointed this out.

This about-turn can be explained by a very important, long-standing and quite coercive, as we now see, constitutional principle not mentioned by anyone. It is the doctrine of collective cabinet responsibility. It applies to all Westminster systems of government. It states that cabinet ministers are collectively seen as responsible for government policy. All ministers, whether senior or junior, must support the policy of the government publicly regardless of any private reservations. If a minister disregards this doctrine, it is expected that the minister resign or the prime minister dismiss the minister. The breach is a matter of degree. The decision is a matter of discretion.


There are numerous examples of this. In the UK, Robin Cook resigned over the Iraq attack. In NZ, the then Minister of Maori Affairs, Winston Peters was dismissed over disagreement in key policy areas.

If Gillard was so true to her convictions and if those convictions were strongly held, she should have resigned from the Rudd cabinet. But she did not. Either the convictions were not strong enough or she wanted to cling to power. Either way, one can question her new-found desire to restore a government lost in its way.

Then there was the question of Rudd wanting a high profile cabinet portfolio in a Gillard Government. Given that his policy views are well-known, for him to be a cabinet minister, and thereby subject to the doctrine of collective responsibility, would have placed him in a position of defending policies he would not agree with. When Shipley replaced Bolger, Bolger accepted a very low 22nd ranking in cabinet as the low profile minister of state. Soon after, he prematurely retired as MP. That has been the trend in Westminster systems.

What remains puzzling is why a prime minister, deposed from the pinnacle of public offices, would seek re-election and would accept or even seek to secure a lesser role in a cabinet in the meantime, led by a person who carried out a “midnight execution”.

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About the Author

Nilay B. Patel is a Melbourne-based lawyer and writer on constitutional law issues.

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