Statement by Mr R. J. Ellicott QC

Statement by Mr R. J. Ellicott QC

Statement by Mr R. J. Ellicott, Q.C

In this statement, Mr Bob Ellicott, a leading Queen’s Counsel at the time and an Opposition front-bencher has said that the Governor-General is “entitled to and should ask the Prime Minister if the government is prepared to advise him to dissolve the House of Representatives and the Senate or the House of Representatives alone as a means of ensuring that the disagreement between the two Houses is resolved. If the Prime Minister refuses to do either it is then open to the Governor General to dismiss his present Ministers and seek others who are prepared to give him the only proper advice open. This he should proceed to do.”

Statement by Mr R. J. Ellicott, Q.C

In a statement issued in Canberra today Opposition Front-Bencher, Mr R. J. Ellicott, Q.C., said:

"The Governor-General's basic role is the execution and maintenance of the Constitution and of the laws of the Commonwealth. He performs this role with the advice of Ministers whom he chooses and who hold office during his pleasure.

The Prime Minister is treating the Governor-General as a mere automaton with no public will of his own, sitting at Yarralumla waiting to do his bidding.

Nothing could be further from the truth. It is contrary to principle, precedent and common sense. The Governor-General has at least two clear constitutional prerogatives which he can exercise - the right to dismiss his Ministers and appoint others, and the right to refuse a dissolution of the Parliament or of either House.

These prerogatives, of their very nature will only be exercised on the rarest occasions. They have been exercised in the past and the proper working of the Constitution demands that they continue. One only has to think of extreme cases to realise the sense behind them, e.g. the case of an obviously corrupt Government.

The maintenance of the Constitution and of the laws of the Commonwealth require that the Government have authority from Parliament to spend money in order to perform those functions. A Government without supply cannot govern.

The refusal by Parliament of supply, whether through the House or the Senate, is a clear signal to the Governor-General that his chosen Minister may not be able to carry on. In the proper performance of his role, he would inevitably want to have from the Prime Minister an explanation of how he proposed to overcome the situation.

If the Prime Minister proposed and insisted on means which were unlawful or which did not solve the problems of the disagreement between the Houses and left the Government without funds to carry on, it would be within the Governor-General's power and his duty to dismiss his Ministers and appoint others.

In the current situation now facing us, the Governor-General, in the performance of his role, would need to know immediately what steps the Government proposes to take in order to avert the problem of it being without supply in the near future, so endangering the maintenance of the Constitution and of the laws of the Commonwealth.

He is not powerless and the proper exercise of his powers demands that he be informed immediately on this matter. The Prime Minister should inform him on his own initiative. If he does not, the Governor-General would be justified in sending for him and seeking the information.

The Governor-General is entitled to know:
(1) when it is that the Government will or is likely to run out of funds under the current Supply Acts:
and
(2) how the Government proposes to carry on after those funds run out; and
(3) how the Government proposes that the disagreement between the two Houses should be resolved.

These questions cannot properly be left to be considered at a later date because of these consequences which, lack of authorised appropriations will have on the Government's capacity to govern, the public service of the Commonwealth and public order.

If he is informed by the Prime banister that the Government proposes that a half Senate selection be held and that by this means (as a result of the election of Territory Senators) the Government hopes to have a majority in the Senate the Governor-General will need to be satisfied:-
(i) that having regard to the proposed date of the election, the Government will have sufficient supply to carry
on until the result of that election has been ascertained.
(ii) that the election is likely to resolve the difference between the two Houses by giving the Government a majority in the Senate.

In being satisfied of the first matter a number of factors would be relevant and he would be entitled to be informed about them e.g.
(i) The date when the Government would or would be likely to run out of supply. Because of the seriousness of the Government not having supply the Governor-General should not be expected to rely nor should he rely on mere estimates. He is entitled to and should be satisfied what supply the Government still has and when it will in the ordinary course run out.
(ii) the date when the result of the poll is likely to be known having regard to possible events such as a large number of candidates or postal voting.
Because of the seriousness of the Government being without supply before that date the assessment should err on the conservative side.

In being satisfied of the second (the likelihood of the Government obtaining a majority in the Senate as a result of the election, he will need to have information which justifies their conclusion. He would also be entitled immediately to consider how those who will be in the Senate after the election are likely to vote if the Appropriation Bills were re-submitted. If it was thought that some of the States were not prepared to hold the elections he would be entitled to consider, for instance, the likely votes of those casual Senators who would remain, e.g. Senator Field. The fact that Senator Field's seat is under challenge would only add uncertainty as to whether the Government can hope to get a majority as his replacement would be a matter for the Queensland Government.

In view of the Government’s complaint that the Senate has consistently blocked its legislation the Governor- General would be entitled to consider whether the dispute would really be solved by a half term election or whether the only practicable course was for the Government to seek a double dissolution so that the matter could be resolved by the people.

If the Governor General was not satisfied that the Government would have supply until the election result in the Territories was known he would only have one option open to him in the interests of good government. He is entitled to and should ask the Prime Minister if the government is prepared to advise him to dissolve the House of Representatives and the Senate or the House of Representatives alone as a means of ensuring that the disagreement between the two Houses is resolved.

If the Prime Minister refuses to do either it is then open to the Governor-General to dismiss his present Ministers and seek others who are prepared to give him the only proper advice open. This he should proceed to do.

The proper advice in the circumstances is to dissolve both Houses of the Parliament or the House of Representatives alone with or without a half Senate election.”

 

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