The Reserve Powers in Times of Political Crisis: The Dutton/Turnbull Leadership Challenge and Royal Assent to the Medevac Bill and Brexit Bills

Publication Date01 March 2021
Date01 March 2021
AuthorAnne Twomey
DOI10.1177/0067205X20973485
SubjectArticles
Article
The Reserve Powers in Times
of Political Crisis: The Dutton/
Turnbull Leadership Challenge
and Royal Assent to the Medevac
Bill and Brexit Bills
Anne Twomey*
Abstract
The period of 2018–19 threw up political crises in Australia and the United Kingdom that raised
circumstances in which the reserve powers of the Queen or the Governor-General might have
been exercised. This article discusses in depth the 2018 challenge to Prime Minister Turnbull’s
leadership, including how the Governor-General should have responded if he had been asked to
dissolve Parliament in the midst of the challenge or if he had been advised not to appoint Dutton as
Prime Minister due to concerns about his eligibility to sit in Parliament. The second part deals with
the question of whether royal assent should be refused, upon ministerial advice, to a bill, such as
the Medevac Bill in Australia and two Brexit delay bills in the United Kingdom, which were passed
against the wishes of the relevant government, including when procedural or non-justiciable
constitutional requirements were breached in the passage of the bills. It concludes that the best
way of resolving such issues is to resort to the application of fundamental constitutional principles.
Introduction
Many Australians are conscious of the reserve powers because of the Whitlam dismissal in 1975.
But in the UK, the lack of public evidence of their use has led some to believe they are obsolete.
For the most part, the difficulty has been imagining realistic circumstances in which such powers
might need to be exercised. Recent events, however, in both Australia and the United Kingdom
have raised, if not actual exercises of the reserve powers, at least the discussion of real scenarios in
which they might have been used.
The first part of this article explores issues concerning the reserve powers of the Governor-
General of Australia that arose during Peter Dutton’s leadership challenge against Prime Minister
Turnbull in August 2018. Unbeknown to most at the time, while Turnbull’s leadership was under
challenge, he made an appointment to visit the Governor-General to advise him to dissolve
* Professor of Constitutional Law, University of Sydney. This article is a revised version of the Geoffrey Sawer Lecture
delivered at ANU in November 2019. The author may be contacted at anne.twomey@sydney.edu.au.
Federal Law Review
2021, Vol. 49(1) 96–121
ªThe Author(s) 2020
Article reuse guidelines:
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DOI: 10.1177/0067205X20973485
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Parliament and hold an election. He was later talked out of proceeding with this unusual course.
Turnbull also stated that he proposed, if Dutton had won the leadership, to advise the Governor-
General not to appoint Dutton as Prime Minister until doubts as to his eligibility to sit in Parliament
were resolved. While neither of these scenarios came to fruition, both raised difficult questions as
to how the Governor-General should respond to such advice from a Prime Minister who had lost, or
was under threat of losing, the confidence of his party and possibly the House of Representatives.
This article examines how the Governor-General should have approached such issues, drawing
upon fundamental constitutional principles including responsible and representative government,
the rule of law and the separation of powers.
The second part of this article concerns the role of the Queen and the Governor-General in
giving or withholding royal assent from bills passed by the relevant Parliament against the wishes
of the Government. In the United Kingdom the controversy surrounding its exit from the European
Union (‘Brexit’) resulted in the House of Commons taking control of parliamentary business out of
the hands of the Government and passing a number of bills (or amendments to bills) against the
wishes of the Government. This raised heated debate about whether this was legally valid and
whether it would provide a ground for ministers advising the Queen to refuse assent to the bills.
In Australia, the same issue was discussed, although with less rancour, after a bill was amended
and passed, against the wishes of the Commonwealth Government in early 2019, to permit the
medical evacuation of asylum seekers on Nauru and Manus Island on medical advice, with only
limited powers of refusal being vested in the Minister. In neither the United Kingdom, nor
Australia, as far as is known, was advice given to refuse assent to such bills, averting a constitu-
tional crisis. Nonetheless, these very real examples provide an opportunity to analyse the relevant
principles and determine, out of the heat and passion of the political moment, how such a crisis
should have been resolved.
Part 1: Turnbull/Dutton Leadership Challenge
The Chronology of Events
It is convenient to start by setting out the order of events that happened in one frenetic week in
August 2018. Leadership speculation of a challenge by Peter Dutton against Prime Minister Turn-
bull became intense on the weekend of 18–19 August 2018. In the late afternoon on Monday
20 August, the media reported that Peter Dutton might be disqualified as a Member of
Parliament.
1
The allegation was that he held an indirect pecuniary interest in an agreement with
the Public Service, in breach of s 44(v) of the Constitution, due to his interest in childcare centres
which directly received payments of Commonwealth childcare subsidies for children attending the
centres.
1. Hugh Riminton, ‘Constitutional Cloud Emerges Over Peter Dutton’s Business Interests’, 10 Daily News (online), 20
August 2018 <https://10daily.com.au/news/politics/a180820xwi/constitutional-cloud-emerges-over-peter-duttons-
business-interests-20180820>; Michael Koziol, ‘Leadership Twist as Report Claims Peter Dutton Could Be
Ineligible to Sit in Parliament’, Sydney Morning Herald (online), 20 August 2018 <https://www.smh.com.au/
politics/federal/leadership-twist-as-report-claims-peter-dutton-could-be-ineligible-to-sit-in-parliament-20180820-
p4zyn1.html>. The author notes, for transparency, that she had been interviewed by Riminton about the constitutional
issue on the previous Wednesday, before any leadership speculation had commenced, but that the interview was not
aired until the evening of Monday 20 August when such speculation was rife.
Twomey 97

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