[new column] Malcolm Turnbull's threat to use GG Peter Cosgrove to thwart Peter Dutton becoming PM was the act of a reckless, dangerous and desperate PM
Reckless Turnbull knows better
One of the golden rules of Australian government is that the governor-general should never be embroiled in politics. This has served us well, apart from a few exceptions during the past 50 or so years, which makes it extraordinary that Malcolm Turnbull threatened to advise Peter Cosgrove not to swear in Peter Dutton as prime minister.
Turnbull — as revealed by Paul Kelly in The Australian this week — had a robust debate with Attorney-General Christian Porter last August about Dutton’s eligibility to be a member of parliament under section 44 (v) of the Constitution, given he had a financial interest in a family trust that owned childcare centres that benefited from government subsidies.
Solicitor-General Stephen Donaghue was commissioned to provide legal advice, which showed Dutton was probably not in breach of the Constitution but there was the possibility the High Court could find otherwise. In any event, Turnbull argued to colleagues that Cosgrove would not commission Dutton if he were elected to lead the Liberal Party. READ NEXT
Porter said this was “wrong at law” and he would resign if Turnbull tendered such advice to Cosgrove. Turnbull — also according to Niki Savva in her new book Plots and Prayers — repeatedly told ministers that he would get Cosgrove on the phone to discuss it and, presumably, confirm his view. This is the threat of a reckless prime minister.
That Australia’s most prominent republican considered appealing to the crown’s representative to thwart Dutton becoming prime minister is astonishing. The last thing a republican should support is involving the governor-general in a political dispute, thus precipitating a constitutional crisis. It shows how desperate Turnbull was to deny Dutton the prime ministership.
Malcolm Turnbull and Peter John Cosgrove. Picture: Gary Ramage
It would be a mistake to think Cosgrove would have automatically accepted the advice of an outgoing prime minister who had lost the confidence of his party. Cosgrove would have acted cautiously if placed in this position. When Cosgrove was sworn in as governor-general in 2014, he said his role was to “shine light but not to generate heat”. He did not want to be seen as a participant in the political process.
The irony is that Turnbull has been one of the most prominent critics of John Kerr’s unwarranted and unprecedented intervention in the constitutional crisis of November 1975. Turnbull did not support Kerr’s sacking of Gough Whitlam. Nor did he support Malcolm Fraser’s Liberal Party blocking supply in the Senate. And he did not support chief justice Garfield Barwick providing legal advice to Kerr.
Turnbull was interviewed for The Dismissal: In the Queen’s Name (Penguin), which I co-authored with Kelly in 2015. He said he was “surprised and shocked” that Kerr had used his reserve powers to intervene in the crisis and sack Whitlam. He thought Fraser had wrongly pushed the political system to the brink.
“With the benefit of hindsight, it would have been better not to push it that hard,” he said.
The convention is that the governor-general appoints a prime minister who can command the confidence of the House of Representatives. This is the only requirement. It means they can govern with a majority of seats and secure supply.
Indeed, Porter told Turnbull that Cosgrove could commission Dutton as prime minister even if there were doubt about his eligibility to be a member of parliament. This is correct. The governor-general, if he were concerned about section 44 (v) of the Constitution, could have commissioned Dutton as prime minister on the proviso that his eligibility be referred to the High Court.
It is absurd to think that Cosgrove should have weighed up and adjudicated whether Dutton was eligible to be an MP. This is not the responsibility of the governor-general. This is a responsibility of the High Court. But this is what Turnbull seemed to argue in response to the reporting this week via Twitter. “The proposition advanced by Mr Porter that it is none of the GG’s business whether the would-be PM is constitutionally eligible is nonsense,” Turnbull argued. Is he seriously suggesting the governor-general should pre-empt the High Court?
What if the Liberal Party had chosen Dutton as leader and Turnbull then advised Cosgrove not to appoint him prime minister? And what if Porter gave conflicting advice to the governor-general? (There is precedent for attorneys-general advising the governor-general. And Porter did offer to provide advice to Cosgrove.)
In this event, it is likely that Cosgrove would have ignored Turnbull and commissioned Dutton as prime minister with the expectation that his support be tested in the house. This is what Quentin Bryce did, based on legal advice, in June 2013 when Kevin Rudd returned to the prime ministership and the government did not have a majority of seats.
Yet Turnbull apparently implied to Porter that he had already established Cosgrove’s view about whether he would commission Dutton with a question remaining over his eligibility to be an MP. This may have been bluff and bluster. Let’s hope so. Because if any speculative conversation like this did take place, that would be a grave mistake.
As I wrote earlier this week, Cosgrove has met the prime minister every six to eight weeks. These meetings are conducted in the spirit of what Walter Bagehot described in his classic text, The English Constitution, as the crown’s right to be consulted and to encourage and warn the government on matters of national importance.
Turnbull could have placed Cosgrove in a difficult position. The governor-general would likely have rejected Turnbull’s advice. It would have been untenable for Cosgrove to deny Dutton a prime ministerial commission if the Liberal Party had chosen him as its leader. Imagine the outrage from the Liberal Party. Cosgrove would have been denounced.
Commissioning a prime minister is a reserve power. It is the governor-general’s responsibility to commission a prime minister who they believe has the confidence of the house. While a governor-general should act on the advice of their ministers, the historical convention is that this does not apply when appointing a prime minister.
One of the legacies of the 1975 constitutional crisis is that none of Kerr’s successors has supported his intervention based on the reserve powers of the crown. It is a damning judgment on Kerr’s dismissal of Whitlam. Yet Turnbull was suggesting Cosgrove use his reserve powers to deny Dutton a prime ministerial commission even though he would have had the confidence of the house.
It would have been regrettable if Turnbull had drawn Cosgrove into an ugly political dispute over his successor. It is irresponsible and dangerous that he threatened to do so. The governor-general is not a political weapon to be used against your opponents.
We should be thankful that wiser heads prevailed, helping to avoid a constitutional crisis not seen since November 1975 that trashed conventions and precedents, and damaged the institutions that underpin our parliamentary democracy.
