Changing the Leader — the Constitutional Conventions concerning the Resignation of Prime Ministers and Premiers
| Author | Anne Twomey |
| Published date | 01 September 2011 |
| DOI | 10.22145/flr.39.3.1 |
| Date | 01 September 2011 |
| Subject Matter | Article |
CHANGING THE LEADER — THE CONSTITUTIONAL
CONVENTIONS CONCERNING THE RESIGNATION OF
PRIME MINISTERS AND PREMIERS
Anne Twomey
∗
I INTRODUCTION
In recent times in Australia there have been a number of changes in the leader of the
governing party at both Commonwealth and Sta te level, leading to a c hange in the
holder of the office of Prime Minister or Premier. These changes have occurred not as a
consequence of retirement or the loss of an election, b ut because of the loss of su pport
for the leader by the leader's parliamentary party. They include the South Au stralian
change of Premier from Mike Rann to Jay Weatherill, the New South Wales changes of
Premier from Morris Iemma to Nathan Rees to Kristina Keneally and the change in
Prime Minister from Kevin Rudd to Julia Gillard. Earlier examples include the change
from Bob Hawke to Paul Keating a nd from John Gorton to Billy McMahon. This article
explores the connection between the loss of party support for a leader and the role of
the Governor or Governor-General in the appointment and removal of the Premier or
Prime Minister.1
When a party loses confidence in its leader, there is u sually a leadership challenge
and a vote of the parliamenta ry party, which results in the appointment of a new
leader. The former leader then customarily resigns his or her commission as P rime
Minister and a new Prime Minister is co mmissioned. The Governor-Genera l, in
assessing who is most likely to hold the confidence of the lower House, will ordinarily
choose the person who leads the party or coalition which holds a majority of seats in
the lower House. Part II of this article considers the conse quences of resignation. In
doing so, it addresses two questio ns. First, does the resignation of a Prime Minister, in
such circumstances, entail the resignation of the entir e Cabinet? Secondly, i s the
Governor-General, in com missioning a new Prime Minister, obliged to act upon the
advice of the departing Prime Minister as to who should be his or her successor?
Part III of this article conside rs the position of a Prim e Minister who chooses not to
resign, despite having lost the leader ship of his or her party. This mig ht occur when a
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∗ Professor, University of Sydney Law School. Letters referred to in this article which do not
have a public source were either obtained through freedom of information applications or
less formal requests to the relevant offices of Premiers or Governors. My thanks to the
Commonwealth, New South Wales, South Australian and Tasmanian Governments for
providing information and documentary material.
1 For ease of reference, this article will refer in general to Prime Ministers and Governors-
General, but the same principles apply also to Premiers and Governors.
330 Federal Law Review Volume 39
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party splits or a new coalition forms, potentially lea ving the Prime Minister with a new
majority in the House. Alternatively, it may simply be a case of a Prime Minister
wanting to fight on, despite t he loss of support of a majorit y of his or her party. In
these circumstances, an issue arises as to the role of the Governor-General. On what
basis is the Governor-Gene ral justified in determining that the Prime Minister has lost
the confidence of a majority of the lower House? Can or should a Governor-General
dismiss a Prime Minister on the receipt of a letter of a majority of Members of the
House advising of a loss of confidence in the Prime Minister, or must there be a vote of
no confidence on the floor of the House? If a Prime Minister who has lost the
confidence of his or her Ca binet or party seeks to reasse rt control by advising the
Governor-General to dismiss Ministers, prorogue Parliament or dissolve Parliament,
should the Governor-Gene ral act upon that advice , or can it be ignored as no longer
representing the advice of the government? These are all difficult questions that have
rarely arisen in practice and even more rarely been the subject of judicial consideration.
As a consequence, this article draws not only on Australian experience, but on
experience in other countries, such as Canada, Nigeria and Malaysia, where similar
Westminster-style structures a nd conventions have applied.
II THE CONSEQUENCES OF THE RESIGNATION OF THE HEAD OF
GOVERNMENT
A The effect of a Prime Minister's resignation on the Ministry
1 Theory
When a government is formed after a n election, it is an individual wh o is
commissioned by the Governor -General to form a government. The convention which
governs the appointment of a Prime Minister obliges the Gover nor-General to
commission the person who hold s (or is most likely to hold) the conf idence of the
lower House. The Governor-General's decision about whom to commission is usually
based upon the assumption that the leader of a parliamentary party has the support of
all the members of that party in the lower House. If they form a majority, then it is a
fair assumption that the le ader of that party can for m a government that holds the
confidence of the lower House.
The person commissioned as Prime Minister to form a government does so by
advising the Governor-Ge neral on the appointmen t of Ministers and the a llocation of
portfolios to particular Ministers. The Prime Min ister may also advise the Governor-
General on the removal of Ministers, if they do not resign at the Prime Minister's
request.2 The removal of Ministers is not a reserve power — it is a power exe rcised by
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2 It is customary for Ministers to resign when requested to do so by the Prime Minister. In
rare cases, however, a Minister's commission has been terminated on the advice of the
Prime Minister or Premier. See, eg, Geoffrey Sawer, Australian Federal Politics and Law 1901-
1929 (Melbourne University Press, 1956) 161; R P Roulston, 'Dismissal of Ministers of the
Crown — A Tasmanian Precedent' (1959) 1 Tasmanian University Law Review 280; John Kerr,
Matters for Judgment (Macmillan, 1978) 241-4; R D Lumb, The Constitutions of the Australian
States (University of Queensland Press, 5th ed, 1991) 78; Richard McGarvie, Democracy
(Melbourne University Press, 1999) 55; and Stewart v Ronalds (2009) 76 NSWLR 99. In
Canada, the formal resignation of a Minister is not required. It is sufficient that the Prime
Minister recommends a Minister's replacement, as a Minister holds office 'during pleasure':
Canada, Privy Council Office, Manual of Official Procedure of the Government of Can ada
2011 Conventions Concerning the Resignation of Prime Ministers and Premiers 331
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the Governor-General on the advice of the Prime Minister. 3 This is because the Prime
Minister, while he or she holds his or her commission, is the person responsible for
forming the government an d advising upon its constitution.
If a Prime Minister resigns following the def eat of his or her government at an
election or a defeat in the lower House that indicat es a loss of confidence, t hen the
Prime Minister's resignatio n has the effect of term inating the commission s of all other
Ministers (subject to Ministers carrying on in a careta ker capacity until a new
government is sworn into office). If the Prime Minister dies or resigns for personal
reasons or because he or she has lost the confidence of the governing party, there are
mixed views as to the consequences for the rest of the Ministry.
Some have taken the view that a ministry is automatically terminated by the
resignation or death of the Prime Minister4 (subje ct again to continuation in office until
a new leader is chosen and a new ministry formed, as the country can never be without
a government). This is because the ministry is a ppointed on the advice of the Prime
Minister and its existence is dependent upon the op eration of the Prime Mi nister's
commission to form a governmen t. A new Prime Minister, operating pursuant to a
new commission, must form his or he r own government. As the Canad ian Privy
Council Office put it in the Manual of Official Procedures of the Government of Canada:5
The Prime Minister's resignation from office brings about the resignation of all ministers
and of the Government. Whether the Prime Minister's resignation follows a defeat in the
House or at the polls or is for personal or other reasons the life of the ministry is
terminated with the formal acceptance of his resignation. Individual ministers however
continue in office until the new Government is formed. …
The Government is identified with the Prime Minister and cannot exist without him. He
alone is responsible for recommending who will be appointed ministers. He can
recommend their replacement or dismissal and he can bring about the resignation of the
whole Government by his own resignation.
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(Ottawa, 1968) 338, <http://jameswjbowden.files.wordpress.com/2011/09/ manual-of-
official-procedure-of-the-goc.pdf>. In the UK dismissal is usually regarded as an implied
resignation: I Jennings, Cabinet Government (Cambridge University Press, 3rd ed, 1961) 83.
3 George Winterton, 'The Constitutional Position of Australian State Governors' in H P Lee
and G Winterton (eds), Australian Constitutional Perspectives (Law Book, 1992) 274, 303. See
also United Kingdom Cabinet Office, The Cabinet Manual (United Kingdom Government, 1st
ed, October 2011) para 3.4.
4 See in relation to Canada: Canada, Privy Council Office, Guide to Canadian Ministri es since
Confederation: <http://www. pco-bcp.gc.ca/mgm/index.asp?lang=eng#fN_2_>; Adam
Dodek, 'Rediscovering Constitutional Law: Succession Upon the Death of the Prime
Minister' (2000) 49 University of New Brunswick Law Journal 33, 36; A Heard, Canadian
Constitutional Conventions — The Marriage of Law and Politics (Oxford University Press, 1991)
49; J R Mallory, The Structure of Canadian Government (Gage Educational, revised ed, 1984)
93; and John Saywell, The Office of Lieutenant-Governor (University of Toronto Press,
Toronto, 1957) 94. See in relation to the UK: Alpheus Todd, Parliamentary Government in
England (Sampson Low, Marston, Revised ed, 1892) Vol II, 21; and A B Keith, The British
Cabinet System 1830-1938 (Steve ns & Sons, 1939) 63.
5 Privy Council Office, above n 2, 77 and 463.
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