Democracy's hidden wiring

Before Australian politics is absorbed in election business the mechanics of Kevin Rudd's return to the Prime Minister's Lodge should be appraised.

The course events on 26-27 June 2013 is deeply revealing of the locus of power in Australia's parliamentary and governmental arrangements, in particular, the malleability of Australia's governing framework in meeting the convenience of prevailing party leadership (for the time being).

Inherent in thus exalting party leadership, even leadership lacking assured support in the House of Representatives, is a perceptibly limited view of the vice-regal role and responsibilities.

This is reinforced by emergence of the solicitor-general as key vice-regal adviser in such situations. This practice needs close scrutiny before it is set in concrete.

Finally, where it might be expected that the House could claim more than a bit part in the dramatis personae, it finishes up as little more than an extra as events run their course.

The June 2013 changeover is complex because no party nor combination of parties has a majority in the House. Merely claiming party leadership from an incumbent prime minister does not necessarily carry majority support with it.

Leading up to Rudd's elevation, there were warnings that succession might entail more than a win in caucus followed by a trip to Yarralumla. There was also the question of how the House might react.

Sometime after the fateful votes Julia Gillard travelled to Yarralumla taking a letter in which she advised Her Excellency the Governor-General to "send for Mr Rudd and ask him to accept appointment to the office of Prime Minister." She included her wish to resign "with effect from the appointment of Mr Rudd."

Later Her Excellency met the Acting Solicitor-General, Dr Robert Orr, QC, at Government House. She sought advice "as to the course of action she should take" in response to Gillard's letter. (Dr Orr's visit was not reported in the daily program published by Government House.)

Subsequently the Official Secretary wrote to Dr Orr requesting confirmation of his "oral advice . . . that the Governor-General should commission Mr Rudd as Prime Minister based upon the Prime Minister's tendered advice."

He continued: "I confirm the Governor-General's view . . . that it would be her intention, if your advice is to commission Mr Rudd as Prime Minister, that she seek an assurance that he will announce his appointment at the first possible opportunity to the House of Representatives in order to give the House the opportunity for whatever, if any, action it chooses to take."

Dr Orr confirmed that Rudd should be commissioned, adding that it was open to Her Excellency "to seek an assurance from Mr Rudd that he will announce his appointment at the first possible opportunity" to the House.

He continued tellingly but contentiously: "I do not think that the Governor-General can require such an assurance or make the appointment conditional on such an assurance."

On the contrary, Her Excellency had an obligation to ensure that the House's position was actively respected.

Though not spelt out in detail in law, it is assumed that a prime minister either has the confidence of the House or, where appropriate, is on the way to a general election. For the House to give its confidence, either explicitly or, as in the present case, implicitly, it must know in a formal sense – not just from what its members may learn from the media – who the prime minister is.

Her Excellency's instincts, as far as we know them, were thus well-placed and show that she certainly understood what has been called the hidden wiring which underlies the functioning of the Constitution.

Her Excellency's insight was acute. She sought only that the House be informed of what had transpired so that it had the opportunity to act if and as it so wished.

Her approach was fully in accord with Paul Hasluck's treatment of the vice-regal role. He stressed not simply observance of the Constitution and the laws of the Commonwealth but also "the customary usages of Australian government."

The same cannot be said for Dr Orr (nor, according to his letter, the Solicitor-General). Dr Orr's minimalist reading seems to look upon a prime minister's commission as some sort of contract with the Governor-General, and a very limited one at that.

It might be good law but the statecraft is decidedly deficient. Fortunately, in a formal sense, Mr Rudd resolved the matter in an undated memorandum to Her Excellency received at 8.07 am on 27 June.

In seeking a commission, he stated: "Should you commission me, it is my intention to announce this to the House of Representatives at the nearest opportunity. The House is due to convene at 12pm today and I would make such an announcement at this time."

This course of events constitutes a precedent for future commissions of prime ministers so it would be valuable, indeed, obligatory, that the Acting Solicitor-General, or even the Solicitor-General himself, amplify the advice of 26 June. Brevity in state papers is much to be admired but a five-sentence letter is really not sufficient.

There remains the matter of the Solicitor-General's role as apparently sole adviser to the governor-general in cases of this sort (save for the departing prime minister). While not inconsistent with the Law Officers Act, it does not follow that a solicitor-general will necessarily have the range of expertise or experience needed; so it seems to have turned out on 26 June 2013.

In the United Kingdom, the principal private secretaries to the Queen and the prime minister, the Cabinet Secretary, and possibly also the Clerk of the House of Commons would come into play. As adjudged necessary they would seek advice on such legal questions as may arise.

In Ottawa, the Clerk of the Privy Council has claimed a role as adviser to the governor-general on constitutional questions. As the Clerk is also the Cabinet Secretary it is not a necessarily satisfactory arrangement.

This is not the first time support for the governor-general on prerogative matters has arisen. A clear lesson from recent disclosures of Sir John Kerr's predicament during the 1975 crisis was the need for a governor-general to have informed and expert assistance when routine structures of advice from ministers may not be available nor appropriate.

That expertise would embrace matters of law but would also include parliamentary, governmental and administrative practice, what Hasluck usefully characterises as "the customary usages of Australian government."

Though the events of 26-27 June were handled deftly, there is clearly a vacuum in the vice-regal institution which ought to be addressed.