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At times like these we should be grateful for our Constitution

By John de Meyrick - posted Thursday, 7 July 2016

With the country appearing to be heading for another bumpy period of political instability, if not complete deadlock with a hung parliament, calls by various well-meaning commentators for calm and the need for politicians to work together for the good of the nation, are clearly falling on deaf ears.

Politics is a savage contest of power-grabbing where otherwise reasonable people are prone to say and do extraordinary things and to convince themselves that the end justifies the means.

As the counting of votes in the federal election continues to play out over ensuing days, there is already jockeying for power and claims of dirty tricks in the outcome. The scramble has also begun to secure the support of the (presently determined) 5 independent and minor party members.


On present trends the Coalition seems certain to end with more seats than Labor. If it were to secure a majority of 76 seats of the 150 in the lower house it would still need the support of at least one member of the cross bench in order to provide for a Speaker. But even if it were to exceed those expectations (with just 7 seats undecided), it will have such a small majority that it’s tenure over the next three years will be ever at risk and uncertain.

Add to this a new Senate composition that already has signs of being fractious, querulous and unworkable before it has even met, and the way ahead for the country is unlikely to produce good government or bring satisfaction to business and harmony within the general community.

Hung parliaments are well known to the Australian states and territories, especially in Tasmania with its Hare-Clark system of voting. All except the Northern territory have experienced at least one such occurrence in the past 25 years. But except for the first ten years of our federal parliament (when representation was somewhat disorganised), hung parliaments have occurred just twice. Once in 1940 when Robert Menzies had to secure the support of two cross bench members in order to govern and then, in more recent memory, when Julia Gillard in 2010 secured the support of four of the six independent and Greens Party cross bench members to continue to hold office.

Neither occasion made for stable government. (Menzies lost his two cross bench supporters a year later, who switched their support to the Labor Party and gave government to John Curtin, whilst the exploits of the Gillard-back-to-Rudd Government are too raw and well known to be repeated here.)

If the worst comes to the worst in such circumstances, the ‘crisis-breaker’ that a country needs at such times is a respected, independent head of state with the ability and authority to control and resolve any dysfunctional government situation that is causing community discord and disruption to stability and normality in the country. Someone the public can turn to. A plenipotentiary with the implicit trust and authority of the people and the right under constitutional law to act. But the power that is vested in that person must be limited to just so much power and authority as is necessary to restore normality and not to take advantage of the situation to usurp that role and assume power beyond its legitimacy.

Few countries have such a ‘crisis-breaker’. At times of ill-governance in many countries the lack of such a sentinel role results in military takeovers and suppression. The situation is worsened. New grounds for community dissatisfaction arise. Democratic values are abandoned and normality becomes a thing of the past.


Fortunately we have such a ‘crisis breaker’. It was inherited from Britain where it took centuries of conflict between monarchs and their subjects to hammer out. It’s the role that our Constitution gives to the Governor-General. And it is a timely reminder to revisit it.

It is also something that must never be meddled with should we ever become a republic no matter what the head of state may be called or how that role may be filled. Although by its essential need to be highly respected, widely accepted, entirely independent and impartial, it should never be a role filled by popular election or by a person of political affiliation or known political persuasion.

In some 800 years in which the despotic powers of the rulers of England were gradually taken from them and put into the hands of representative government, a ‘stand-off’ constitutional arrangement ultimately arose, and is implicitly accepted, that the monarch retains the power to appoint and dismiss the government of the people and the people have the power to remove the monarch at any time they wish.

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Note: The nature and extent of the “reserve powers” are discussed at length in an excellent published lecture by Prof Anne Twomey to be found on-line under the title, “The Unrecognised Reserve Powers”.

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About the Author

John de Meyrick is a barrister (ret’d), lecturer and writer on legal affairs.

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