Professor David Flint: The 46th Parliament and our new Governor-General

Professor David Flint: The 46th Parliament and our new Governor-General

Professor David Flint joins Luke Grant from 2GB to discuss the significant political issues of the week, including the 46th Parliament and the swearing in of our new Governor-General. 


Luke Grant: It's time for our regular conversation with Professor David Flint where we talk about the significant political issues of the week and I'm delighted to say that he's joining us again in Michael's absence.

Luke Grant: David, I hope you're well.

Prof. David Flint: I am indeed and I hope you are too.

Luke Grant: Yes I am. Thank you. So it's been that kind of week where the parliament, the 46th parliament has convened in Canberra, and I guess you've viewed this from a distance I wonder what you've made of all the perhaps the pomp and ceremony.

Prof. David Flint: Well I think that's most appropriate but it shows just how wonderful our system is. We have we have a rather proper very good ceremony but it's simple the whole process is easily achieved. The Governor-General emerges without the country being divided without great expense and we get we've had a whole series of very good men and women in that position. And overwhelmingly the choice has been very good and I think well if we can have a system like that as it is why bother changing it.

Luke Grant: Agreed.

Prof. David Flint: Particularly when those who talk about change won't go away and do the hard yards to produce something which they believe to be significantly better.

Luke Grant: Yes. The current and the now current Governor-General and his predecessor are from a military background. I don't know if there's necessarily an obvious difference between those of a military background and others who've who've held the position. But is this a trend do you think or it's just that two very good individuals were available at the right time.

Prof. David Flint: I think they're certainly good as individuals. And that background seems to work very well with the position because they're used to doing what is right. They're used to following proper processes and they know how to behave in public. So they do have some advantages. They've been well trained.

Luke Grant: Yeah.

Prof. David Flint: For a similar sort of position.

Luke Grant: Yes in the Spectator I have to tell you this is a great read because many of us would have seen over the last week or so some of the reporting in relation to the last days or last weeks of the Turnbull prime ministership. But the idea that you know we could see Peter Dutton as some kind of threat and as a result you know there might be a chance to get him moved and to involve the Governor-General, you pulled that apart rather splendidly. Isn't it ironic that here we have the the former head of the republican movement seeking the intervention of potentially a Governor-General to save his position. I think that's beautiful.

Luke Grant: The main point you were trying to make in the piece David can you walk me through that?

Prof. David Flint: Essentially what Mr Turnbull is trying to introduce into the process of a Governor-General agreeing to appoint a new prime minister is something completely outside of the role of the Governor-General. The Governor-General's sole criterion in the appointment of a prime minister is will this person have the confidence of the House of Representatives. That's the constitutional position and that's something which has prevailed in the Westminster system right back to the early 19th century when it emerged gradually as a proper convention. It was no longer a matter just for the king to decide at his discretion. That person had to have the confidence of the house and if the Prime Minister doesn't have the confidence of the house and they express their opinion by way of a resolution a motion of no confidence and that's passed then constitutionally the Prime Minister should resign or be dismissed.

Luke Grant: Yes.

Prof. David Flint: Now that's the only consideration for the Governor-General. It's callled the reserve. One of the reserve powers where the Governor-General acts not necessarily according to the advice of the prime minister. So the suggestion that Mr Turnbull could have advised the Governor-General not to appoint Mr Dutton as his successor would have had no sway necessarily with the Governor-General but there's a further consideration and that's there are different powers. There's a separation of powers. The power to appoint is the Governor-General's, but the power in relation to determining whether somebody is qualified to sit. This was a challenge about Mr Dutton, it was said because he was involved in a trust declaration concerning the ownership of a childcare centre. So this meant this meant that he was disqualified under the infamous Section 44 which is usually associated with dual citizens and Section 44 if you have an indirect pecuniary interest in a contract with the government, then you are also to be disqualified. They were saying oh because he's involved in this childcare centre which is partially subsidized as all childcare centres are by the government, therefore he's got an indirect pecuniary interest. And the lawyers of course were divided over this but the ultimate decision is made by the House and the House has never got rid. They could have the constitution hand that power over. They haven't handed it over but what they've provided, and this is old legislation hundred years old, which says they may refer it to the Court of Disputed Returns. And The legislation makes the High Court the Court of Disputed Returns, As I've said on another occasion they could have they could just as well made the Balmain Magistrates Court the Court of Disputed Returns because some of the decisions of the High Court acting as a Court of Disputed Returns have really been I think they've pushed the envelope and they've found dual citizenship where I don't think it was reasonable to say that somebody who had done nothing to take the citizenship of New Zealand.

Luke Grant: Yes.

Prof. David Flint: Barnaby Joyce had not, to find that he was a dual citizen and I think was really stretching the meaning of Section 44. The house was not bound to do that but in any event determining eligibility is not for the Governor-General, it's for the House and the House can refer that to a court if it wants to.

Prof. David Flint: But there is another provision in the Constitution which Mr Turnbull ignored and that is under the Constitution you don't even have to be a member of the house.

Luke Grant: Now I find I find this extraordinary. You cite Canada and you say that the prime minister even in Canada is elected by party members that can be appointed prime minister before they even find a seat. Do we have anything like that in Australia. You say we do.

Prof. David Flint: Well we don't yet have, our two parties haven't become so democratic that they leave the choice of the prime minister to a convention of party members.

Prof. David Flint: They keep a very close shop.

Prof. David Flint: The Labor Party's partially involved the members, but only if there's a contested election and they now manage to avoid contested elections so they don't have to refer it to the members.

Prof. David Flint: But there's also a provision in the Constitution which says that you'd well firstly you don't have to. There's no requirement you have to be a member of the house, you could be a senator and Senator Gorton was appointed but then because it's normal for the Prime Ministers to sit in the house he then resigned from the Senate for two weeks.

Prof. David Flint: He wasn't a member of parliament.

Luke Grant: Was he still Prime Minister David?

Prof. David Flint: He was still prime minister because you can be prime minister for up to three months. You can be it doesn't say Prime Minister because the prime ministers are not mentioned in the Constitution. But any minister can be appointed in Australia but within three months they have to become either a senator or a member of the House of Representatives. That is that there's no such provision in Canada. So technically in Canada you could be a prime minister outside and that happened in in Sri Lanka when it was still a constitutional monarchy where you had a prime minister for quite an extensive period not being a member or even a member of parliament. So still quite possible in ours it can only last for up to three months. You have to get a you have to get a place within three months. But this just demonstrates how wrong Mr Turnbull was to say this.

Prof. David Flint: But then I brought it back to what would I wondered what would the situation be like if he'd got his republic through. And the big objections to the republic was not so much that it was a republic because in many ways we're already a republic.

Prof. David Flint: It was the model that was that's the much more important question not whether we've become a republic, because for many of us we're already crowned republic, it's the sort of republic. And what he proposed in 1999 was this extraordinary model and that's why leading real Republicans like Clem Jones and Ted Mack, Ted Mack many say was the most honest MP we've ever had.

Prof. David Flint: Ted Mack and Clem Jones were opposed to the Turnbull/Keating model.

Prof. David Flint: And the reason they were opposed, was the reason we asked for the question to be changed. We said you've got it put into the question not only the way in which the presidents to be appointed but also this extraordinary provision about his being. Moved because this would have been the only republic not only in the world but in history in which the prime minister could sack the president without any notice whatsoever without any grounds whatsoever and without any right of appeal. Now that would have, as I tried to show that article, It's like having a president with a gun to his head or his neck on the guillotine because he would know at any moment if he ever did anything that the Prime Minister didn't like he could be instantly sacked.

Luke Grant: This is because the parliament had the right to appoint the president, that's where it comes from.

Prof. David Flint: The parliament appointed, but the Prime Minister could dismiss.

Luke Grant: Yes yes yes.

Prof. David Flint: Turnbull and the Republic as though it's all just the same as today and it's not true.

Luke Grant: It's not. Well what you've just taken us all through then in relation to why what Malcolm Turnbull said in relation to Dutton was fantasy is surely one of the great strengths of the system of government we currently have.

Prof. David Flint: It is a very great strength and it's a safeguard and the old saying is very true.

Prof. David Flint: The crown today is important, not for the power it wields, but the power it denies others.

Prof. David Flint: And that's what the Governor-General does. He denies the prime minister the governor denies the Premier the right to make decisions which can only be done by the Governor-General or the governor, and this is a very important thing.

Prof. David Flint: In America you have a different system where the president's powers are balanced against those of the Congress. In Australia we've got a system whereby the Prime Minister and the cabinet, they're all in bed with the House of Representatives, they're part and parcel of the House of Representatives. So they've got control over at least one house of the legislative.

Prof. David Flint: They've also got a very great control on the executive.

Prof. David Flint: And you have this check and balance checks and balances and checks and balances very important because of the old maxim; "power tends to corrupt and absolute power corrupts absolutely".

Prof. David Flint: You've got to break it up, but do it in such a way as government is still stable and we've magically got that.

Prof. David Flint: Yeah it's very hard to get and you only get it through trial and error and we've had it over a couple of hundreds of years through the British and then here in Australia, it works very well. And I think there's a golden rule in relation to changing your constitution. And that is you never change the Constitution unless it is very clear that the change will significantly improve the governance of Australia. Otherwise don't do it.

Luke Grant: Yeah well that's an outstanding summary of what happened and it's a brilliant reminder of just how we do talk about dodging bullets. But the the proposal of Malcolm Turnbull and his mates back in the late 90s my goodness we dodged one there because as you say the system that we have now prevented a prime minister for purely political purpose, tried to play the system against a likely combatant, If that's the right word. Just before we leave Dutton, is it is it right to say that he had a problem? I heard you before say that in relation to Barnaby Joyce it was likely fair to say what the High Court came up with was a stretch, but in relation to Peter Dutton so he's part of the family trust with his wife who runs his business where they provide childcare services and by virtue of the fact that it's subsidised, they would receive some money from the taxpayer. In your mind is it is it fair to say that he didn't have much of a case to answer were you of the view. I think that Bret Walker SC put that Dutton was ineligible or do you take the other view?

Prof. David Flint: I think Bret Walker probably predicted that the High Court might well have found that he was ineligible, but the important thing to remember is the only way in which you can get it before the High Court not sitting as the High Court in the Constitution but sitting as a delegated course of Disputed Returns created by Parliament. The only way they could have got that there was by a majority vote in the house. And I can't I would say I would suspect this is a question of confidence. I don't think any government could have possibly let that go through. Even though I think Mr Turnbull would have loved to have got through. I don't think the government could have dared move that without there being unanimity or substantial unanimity within the parliament. If Mr Turnbull had tried to move a motion to that effect I think he would have just destroyed the coalition.

Luke Grant: He would have and let's be honest he would have got let's say given where the numbers were. If the Prime Minister had moved that he would have had the support of Banks and and others plus the ALP. Oh yes it does. It does present does not hope it does some extent. A very disturbing potential outcome.

Prof. David Flint: Yes he would have been shooting himself in the foot.

Luke Grant: Of course but at that point David wouldn't have been saying because of the type of person he might well be, he might have been saying well if I'm going, we're all out.

Prof. David Flint: Yes I wouldn't have been surprised.

Prof. David Flint: I thought it was always on the cards that he might have gone to the Governor-General and recommended an election before the party moved against him. Remember of course they didn't. It was only that he assumed he'd lost the vote. He didn't let it go to the second vote. The first vote he won, according to Niki Savva it was because Mr Morrison's supporters voting for Mr Turnbull's 34 voting for Dutton.

Prof. David Flint: But anyway whatever happened he decided not to challenge not to fight the second vote but he could have possibly in the end gone to the Governor-General is a situation so bad I'm recommending an election. It would have then been a matter for the Governor-General to decide whether to instantly hold an election.

Prof. David Flint: We were almost going to have one anyway, or call up on somebody else to form a government. Yeah well he didn't do that and I think Mr Turnbull probably realised that after 2016 he would have lost an election against Shorten.

Prof. David Flint: I have no doubt. Had he been the prime minister. Mr Shorten would have won the election. I don't think he had the campaigning prowess of Mr Morrison.

Luke Grant: Nor the stamina.

Luke Grant: Let's not forget last time he knocked off at lunchtime you know.

Prof. David Flint: That's right. Notwithstanding the atrocious policies that the Shorten Opposition was proposing, particularly the theft of the refunds on the Frank dividends.

Prof. David Flint: I think that that soured a lot of people and I think it put off it put off all those changes put a lot of a lot of people, aspirational Labor voters, tradespeople, small businessmen who might well have voted Labor and I think it turned them off that because they just didn't trust Labor because they saw Labor's targeting anybody who was aspirational.

Luke Grant: Indeed indeed. You can read David's piece and so much more on the Spectator Australia.

Luke Grant: Once again David thank you so much for your time. You will speak to Michael this time next week.

Luke Grant: Stay well.

Prof. David Flint: Thank you. Thank you Luke. You too.