W. McKell
Despite a growing pile of evidence that “responsible government” in Tasmania has well and truly fallen of the rails, it is highly doubtful that the current Governor of Tasmania, Sir William Cox, would be so bold as to exercise his reserve powers to dismiss the Premier. But would the story be different if Richard Butler was still in the chair? When it was publicly announced that Butler would be the next Governor of Tasmania, ABC radio interviewed Premier Jim Bacon and Monarchist Professor David Flint. The interview concluded with Flint observing that Butler may be the type of person who may willingly exercise the reserve powers of the Crown. Despite his down-falls, it is true that Butler was an accomplished and intelligent diplomat with strong beliefs in social justice. Perhaps also Butler’s greatest sin was the fact that he ruffled the plumage of Tasmania’s elite establishment and may indeed have been a potential thorn in the side of a Government engaged in dubious dealings.
CALL out the reserve! — the reserve powers that is.
With the Tasmanian Government lurching from one embarrassing crisis to another — is it technically possible that the Governor can use his reserve powers
under the Constitution to dismiss Lennon?
And what may have happened if Richard Butler had remained in the seat of Governor?
It is interesting that much of the Tasmanian Government’s public documentation of the role of the State Governor describes the ceremonial and executive roles — exercised by convention under the advice of the Premier or the “Ministry”.
Little is mentioned of the “reserve powers” held by all state Governors and Governors-General which provide significant constitutional authority to dismiss an elected Premier and/or his/her Government.
In light of the raft of recent scandals besieging Mr Lennon and his Government …
• Accusations of Government interference in the RPDC Pulp Mill assessment, “unethical” behaviour and contempt for the public.
• Resignation of half the RPDC Assessment committee including the Chair.
• Ex-gratia payments to senior beurocrats described by some as “hush money”.
• Ongoing forestry activities in sensitive areas despite the Supreme Court decision in Wielengta case.
• Dubious dealing in the Auspine-FEA Affair with possible breaches of the Tasmanian Forestry Act and the subsequent destruction of the lifeblood of the town of Scottsdale.
• A string of controversial resignations of senior beurocrats who have described “bullying” and the state health system as a “basket case”.
• A Minister of Crown (Green) facing criminal changes for alleged conspiracy. (He has denied the charges).
• Accusations of breaches of the RFA and the hounding of whistleblowers (Manning).
• The hounding of Governor Richard Butler and his subsequent “payout” with secrecy clause.
• Revelations of Hydro Tasmania “influencing” the RPDC assessment committee for Basslink and the possible use of dubious river moedlling data in a Wilderness area protected by Commonwealth law.
… many Tasmanians are now looking for constitutional means to bring the Government to account.
Are there precedents and significant questions about Government propriety in Tasmania which are enough to justify actions by the Governor of Tasmania, Sir William Cox, in the exercising of the reserve powers of the Crown to dismiss Mr. Lennon?
As Mr Lennon seems to be spending most if his time in the office of the Solicitor-General taking advice, which he subsequently refuses to release, perhaps he can also get Mr Bale to advise him on the precariousness of his situation with regards to the powers of the Crown.
A check against abuse of power
The Governor of a state or the Governor-General may use “reserve powers” as a means to hold a Government to account. With regards to reserve powers, Sir Harry Gibbs QC advises that the Governor “… may exercise according to his own discretion, and without the advice, or even contrary to the advice, of the Ministry.
These powers, which are rather misleadingly called ‘reserve powers’, are designed to ensure that the powers of the Parliament and the Executive are operated in accordance with the principles of responsible government and representative democracy, or in other words, to ensure that the Ministry is responsible to Parliament and that the ultimate supremacy of the electorate will prevail. The reserve powers provide an essential check against abuse of power by the Executive or by Parliament” …
Whilst most people are aware of Governors intervening when supply is blocked or a vote of no confidence is gained, a Governor may also use reserve powers on matters of legality. Indeed Gibbs argues that Governor or Governor-General may dismiss a Premier or Prime Minister who is acting “illegally” — particularly if Commonwealth law is breached. Certainly this was the argument used by Sir Phillip Game, the Governor of NSW, when he dismissed Jack Lang, the Labor Premier, in 1932.
Consequently it is arguable that any class actions against a state Government where that Government is found to have acted unconstitutionally by the High Court may form grounds for dismissal under the reserve powers of the Crown.
As the Tasmanian Greens and Liberals do not hold enough seats to either block supply or force a vote of no confidence, the only Parliamentary means to prompt the Governor to act is for Labor members to rebel and threaten a no-confidence vote.
With cracks appearing daily in the Lennon Government façade this may not seem too ludicrous a possibility. This occurred in Queensland in 1987 when Premier Jo Bjelke-Petersen threatened to resign so as to axe some of his rebellious ministers and re-appoint a new Ministry. The Governor called Jo’s bluff and said that he may not be reappointed as Premier if he resigned. Jo subsequently lost the confidence of his own party and was deposed as Premier.
I hope Tasmanian Labor MP s are taking notes here?
There have been four cases where the Governor-General has used reserve powers and one case where a State Governor has dismissed a Premier (Lang). Although the Whitlam and Lang dismissals are the most frequently discussed, the lesser known actions of Governor-General William Humble Ward in 1909 are worth considering.
Ward, the Second Earl of Dudley, was an avowed conservative and noted for his extravagance and pompousness. He took an instant dislike to Labor Prime Minister Andrew Fisher and sided with Australian conservative MPs in an attempt to scuttle Fisher’s plans to form an Australian Navy in 1909. Fisher subsequently resigned and in a most controversial move Ward dissolved Parliament and appointed an entirely new (and unelected) coalition of parties to form a temporary Government — a caretaker Government comprised of people who had not faced the electorate! Consequently reserve powers are indeed very powerful.
The Butler may have done it!
Despite a growing pile of evidence that “responsible government” in Tasmania has well and truly fallen of the rails, it is highly doubtful that the current Governor of Tasmania, Sir William Cox, would be so bold as to exercise his reserve powers to dismiss the Premier.
But would the story be different if Richard Butler was still in the chair?
When it was publicly announced that Butler would be the next Governor of Tasmania, ABC radio interviewed Premier Jim Bacon and Monarchist Professor David Flint. The interview concluded with Flint observing that Butler may be the type of person who may willingly exercise the reserve powers of the Crown.
Despite his down-falls, it is true that Butler was an accomplished and intelligent diplomat with strong beliefs in social justice. Perhaps also Butler’s greatest sin was the fact that he ruffled the plumage of Tasmania’s elite establishment and may indeed have been a potential thorn in the side of a Government engaged in dubious dealings.
We can now only wonder what Governor Butler may have done today. Perhaps he may have denied Royal Accent to enabling legislation for various “Projects of State Significance”? Perhaps he may have questioned the Government, if not dismissed it, following the Bryan Green scandal, the RPDC debacle or the Auspine Scottsdale sell-out.
The avalanche of scandals, one involving criminal charges, certainly suggests that the Executive feel that they are not required to be accountable to Parliament or the people.
Regardless there is one thing for certain that we know about Butler — he definitely would have looked quite dimly on this sad, contemptuous and blundering Government.
Just like the rest of us.
Earlier W. McKell:
The Wooden Head Festival
Time to call in the Administrators
