Minority Government in Australia and Canada

Professor Anne Twomey, from Sydney University Law School, has also worked for the High Court of Australia as a Senior Research Officer, the Commonwealth Parliamentary Research Service as a researcher in the Law and Government Group, the Commonwealth Senate as Secretary to the Senate Legal and Constitutional Committee, and The Cabinet Office of NSW as Policy Manager of the Legal Branch. Anne Twomey has acted as a consultant to various government bodies. On Thursday November 18 2010, Professor Anne Twomey joined Canadian journalist Jeffrey Simpson to address The Sydney Institute on constitutional issues involved in minority government in Australia and Canada.

MINORITY GOVERNMENT IN AUSTRALIA AND CANADA

ANNE TWOMEY

While Australia and Canada have similar constitutional systems, drawn from the same British heritage, the most substantial difference that might affect a minority government is the different approaches taken to the role of the Governor-General.  In Australia, the Governor-General’s reserve powers have greater recognition and potential scope than they do in Canada. The explanation for this difference is essentially historical. In Australia, the reserve powers have been exercised decisively, prominently and within recent memory. The dismissal of the Whitlam Government is the most notable event, but there has also been the dismissal of the Lang Government and the occasional refusal by Governors-General or Governors to grant a dissolution of Parliament or even to prorogue it.

In contrast, in Canada the last prominent exercise of a reserve power was in 1926 and it was botched. The Governor-General refused a dissolution to a minority government and appointed a new Prime Minister, only to find that this Prime Minister didn’t have sufficient parliamentary support either. The Governor-General then granted a dissolution to the second Prime Minister, to almost universal criticism. Since then, a more restrictive view of the reserve powers has grown up in Canada. The leading Canadian constitutional lawyer, Peter Hogg, has stated that the Governor-General can only dismiss a Prime Minister if he or she has lost the confidence of the House and refused to resign or advise a dissolution. He has rejected the applicability in Canada of the Australian precedents of 1975 and 1932 and has concluded that that it would also be ‘probably contrary to convention’ for a Governor-General to refuse a dissolution.  The role of the Governor-General in dealing with any crisis arising from a hung parliament in Canada is therefore much more circumscribed.

In Australia, there is a greater risk that the Governor-General might refuse a minority government’s advice on certain matters, making the situation more unpredictable.  Let me give you three examples.

Royal assent

What happens if the parliament passes legislation against the wishes of the government that is of great significance and undermines, or seriously affects, the government’s policies, plans or budget?  Can it advise the Governor-General to refuse assent, and if it does, should he/she comply?

First, s 56 of the Commonwealth Constitution says that a proposed law for the appropriation of revenue or moneys shall not be passed unless the purpose of the appropriation has been recommended by message of the Governor-General.  What if the Bill does not itself appropriate funds, but legally commits the government to expenditure, obliging it to appropriate the funds at a future time? Is such a Bill covered by s 56? What if the Speaker does not rule the Bill out of order and it is passed?  There is considerable doubt as to whether a dispute about the application of s 56 would be justiciable. A court may take the view that it is a matter for the internal proceedings of Parliament and therefore not intervene to enforce it. What if the government advised the Governor-General to refuse assent to the Bill? It might do so on the ground that the Bill was unlawfully passed due to a breach of s 56 of the Constitution, which could not be enforced in the courts – leaving the Governor-General as the only person who could enforce the Constitution. Alternatively, it might argue simply that assent should be refused because the Government does not support the Bill and does not want it to become a law, and the Governor-General must act upon ministerial advice.  What should the Governor-General do?

It is clear, both in Canada and Australia, that the Governor-General does not have a reserve power to refuse assent to Bills as a matter of personal discretion.  However, the more difficult question is whether the Governor-General can refuse assent upon the advice of a minority government.  The issue is whether the Governor-General, in giving royal assent, is fulfilling a legislative act as part of the parliament, acting on the advice of the two Houses, or is performing an executive act on the advice of responsible ministers. Different views have been taken in the different Australian states. In South Australia, the Governor is advised on royal assent by Ministers through the Executive Council. In the other states, however, no ministerial advice is given to the Governor regarding assent.Some Government House officials have taken the view that the Governor is advised by the Houses of Parliament on assent, not ministers, and that the Governor should not refuse assent to a Bill validly passed by the two Houses, even when advised by ministers to do so.

The underlying issue involves a clash between representative government and responsible government. Should the ministers of a minority government have the power, through the Governor-General, to override the will of parliament? From a political point of view, the answer ought to be that ministers are responsible to the parliament for their actions in advising the Governor-General and if the House of Representatives disagrees with that advice, it can hold a vote of no confidence in the government and bring it down.  In reality, the power balance is more delicate given the strong interest on the part of the independents for parliament to run its full term and avoid an early election which will most likely destroy their influence. How the politics would play out would depend upon the subject-matter of the disputed Bill and its popularity.

From a constitutional point of view, the answer is not clear with mixed views amongst academic commentators and no legal precedents. It is likely, again, that the question would not be justiciable and a court would refuse to become involved in the question of whether or not a Governor-General should give assent to a Bill passed by the two Houses. If this scenario occurred, the Governor-General would be placed in a very difficult position.

Prorogation

What should the Governor-General do if she is asked to prorogue the parliament by a Prime Minister who is about to face a vote of no confidence?  It may be that a scandal has erupted and the Prime Minister wants Parliament to be prorogued for a period during which an inquiry can be held, so that a parliamentary vote on confidence is not held until all the facts are known. This happened in NSW in 1899 and the 27 year old Governor, Earl Beauchamp, refused to prorogue, as he saw the advice he had received from his ministers as motivated by party interests.

It may be that government Members have resigned or died and the Prime Minister wants Parliament prorogued until after the by-elections are held, to deal with what might be only a temporary loss of confidence. When this happened in NSW in 1911, the Lieutenant-Governor initially refused to prorogue. The Labor Government then resigned, as did its Speaker. The Opposition then discovered that it could not command the confidence of Parliament either, especially once it provided a Speaker. The Governor was forced to back-down, reinstate the Labor Government and grant it a prorogation until after the by-elections. In similar circumstances in 1971, the Western Australian Governor granted the prorogation until the by-election was held, but was so worried about it that he asked the British Government whether or not he had done the right thing. The British replied that he had acted within his powers, but they were not prepared to comment on the merits of his action.

Where the loss of confidence arises through temporary vacancies in seats, it would appear reasonable for a Governor-General to prorogue parliament until those seats are filled so that the confidence of the lower House can be determined with all constituents being represented. However, if prorogation is solely to avoid a vote of no confidence in a fully constituted House, as occurred in Canada in 2008, there is a much stronger argument that the Governor-General should not act in a manner that prolongs the life of a government that does not hold the confidence of the parliament.  While it is hard to predict such matters, I believe that it is more likely that an Australian Governor-General would refuse to prorogue in such circumstances than a Canadian Governor-General, simply because Australian recognition and acceptance of the existence and exercise of reserve powers is greater than in Canada.

Dissolution

At the Commonwealth level we have flexible parliamentary terms of up to three years.  The Prime Minister can advise the Governor-General to dissolve the House of Representatives at any time during the three year term. The Governor-General has the reserve power to refuse to dissolve the House of Representatives. This power might be exercised:  (a) if an election has been recently held and the Parliament has not been given sufficient time to function; (b) if there is no supply to cover the election period; or (c) if another government can be formed from the House of Representatives that is likely to be a stable government that will operate for a reasonable period.  There is thus no certainty that a dissolution will be granted to the Prime Minister of a minority government, particularly if it has lost the confidence of the House and another government might be formed or if a general election has only recently been held.

Canada is different. It nominally has fixed four year term Parliaments. However, the provision of the Canadian Elections Act that establishes fixed four year terms also states that: “‘Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion.”  This has been taken as meaning that the Governor-General can dissolve parliament at any time upon the advice of the Prime Minister, which rather defeats the purpose of “fixing” terms.  Indeed, before the first fixed term expired in 2009, the Governor-General granted the Prime Minister an early election in 2008. Legal action challenging the holding of this early election was dismissed by the Canadian Federal Court of Appeal.

There was recognition by the Court, however, that the Governor-General could take into account the will of parliament that it serve a full four year term, when deciding whether or not to dissolve parliament. This would appear to suggest that the Governor-General could justifiably have refused ministerial advice to dissolve the parliament. However, Canadian commentators have tended to take a narrow view of the scope of the prerogative to refuse advice to dissolve the parliament. Hogg has suggested that it is probably contrary to convention for a Governor-General to refuse advice to dissolve Parliament in any circumstances, except perhaps where an election had just been held.  So in Canada, a minority government can be very confident that it will be able to obtain a dissolution at a time of its choosing.

One could not be as confident in Australia as to how the Governor-General might act.  The Australian Governor-General might opt instead for a ‘baton-change’ rather than an election, if there was a loss of confidence in the minority government and another government could be formed that would be likely to be able to function effectively for a reasonable period.

Conclusion

Despite the fact that both Canada and Australia draw on the same Westminster system in the formation and operation of their governments and the fact that the reserve powers are derived historically from the same source, their operation in Australia and Canada may be quite different. A precedent in one jurisdiction will not necessarily translate to circumstances in another. In Australia, a broader view has been taken of the scope of the reserve powers and there is greater public recognition of their potential use.  In Canada a quite narrow view has been taken of the Governor-General’s reserve powers, resulting in greater power and certainty for a Prime Minister in advising the Governor-General.

Minority government in Australia, at least at the Commonwealth level, is therefore more difficult because when it comes to critical issues such as royal assent, prorogation and dissolution a government cannot be absolutely certain that the Governor-General will act as advised by the Prime Minister. Greater uncertainty as to the scope and application of the reserve powers is likely to lead to greater caution on the part of minority governments in Australia.  This may not be a bad thing.