by

Anne Twomey

A government riven by a dispute over energy policy. A leader overthrown by his party. A government cast into minority and defeated on the vote of its own former leader.

This is not a “worst-case scenario” but a remembrance of times past. It happened in Tasmania in the 1980s and it contains salutary constitutional and political lessons for politicians today.

In 1981, the issue also was about energy. Should the Franklin River be dammed to provide hydroelectricity? The Labor Premier, Doug Lowe, objected to damming the Franklin, while the unions strongly supported it because of the jobs it would bring. Labor was torn apart, with environmentalists wanting no more dams and unions and business pushing for the dam to be built.

On November 11, traditionally a bad day for Labor leaders, Lowe was overturned by his own party and lost the leadership. Instead of going quietly, he and the ALP whip, Mary Willey, moved to the crossbenches. This put the Labor government into minority and dependent upon the votes of its two disaffected former members to survive.

Lowe had promised a plebiscite upon the building of the dam. When it was held, most voted in favour of damming the Franklin, but there was a very large number of informal votes marked “No Dams”. The community, too, was divided on the issue.

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Labor decided to go ahead with the Franklin Dam. Parliament was prorogued for three months, so that a vote of no confidence in the government could not be held. When it eventually resumed, a no-confidence vote in the Labor government was passed with the support of its own former leader, Lowe, and the former whip, Willey. An election was held and the Liberal government of Robin Gray was elected, with a policy of damming the Franklin. The Hawke federal government later legislated to prevent the dam from being built. Coal power instead was used in Tasmania, in a pyrrhic victory for the environment.

What is the main lesson for today? When a government only has a majority of one, it is a very dangerous thing to remove its leader, particularly in circumstances where there are strongly held views on a key policy, such as energy.

It may well lead to an early election and government defeat. It is even more dangerous to do so when the government is part of a coalition and the other party may not necessarily support the new choice as leader.

This makes life difficult for the Governor-General. There are two things he needs to keep in mind. First, that the office of Prime Minister cannot be filled unless there is a vacancy. There is only a vacancy if the Prime Minister dies, resigns or is dismissed. Loss of the leadership of one’s own party does not cause a vacancy in the prime ministership. Until such time as the Prime Minister resigns, or is defeated in a confidence motion on the floor of the House of Representatives, the Governor-General could not appoint anyone else as Prime Minister because there would be no vacancy. Loss of party leadership is not itself a ground for dismissal, as Sir Joh Bjelke-Petersen found in 1987. Only if the Prime Minister refused to resign after being defeated in the House, could the Governor-General dismiss him.

Second, the appointment of the Prime Minister is a reserve power. Neither a party nor its new leader can advise the Governor-General who to appoint as Prime Minister. This choice is governed by a convention that requires the appointment of the person who is most likely to command the confidence of the lower House. It is always possible, particularly if members of the other coalition party support another candidate, that someone else is more likely to command the confidence of the House.

Finally, the Governor-General may also wish to brush up on his power to refuse a dissolution. If the Prime Minister, facing imminent defeat in his party and against the wishes of his ministry, asks the Governor-General for a dissolution, he is not obliged to grant it. If he took the view that someone else could command the confidence of the lower House and conduct a stable government, he could refuse to grant it. However, in the present environment, it is hard to imagine the Governor-General would anticipate stable government, so it is likely that he would grant the dissolution, especially because the last election was more than two years ago.

Anne Twomey is professor of constitutional law at the University of Sydney and author of The Veiled Sceptre – Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press).

Loss of party leadership is not itself a ground for dismissal. Only if the Prime Minister refused to resign after being ...
Loss of party leadership is not itself a ground for dismissal. Only if the Prime Minister refused to resign after being defeated in the House, could the Governor-General dismiss him.

Alex Ellinghausen

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