A client of ours came with a bunch of paperwork so that we could do his 2018 Tax Return and the conversation came around to the by-election for the seat of Wentworth, which he will be voting in on Saturday, thanks to the Festival Of The Thirsty Knife 2018 which brought down former Prime Minister Malcolm Turnbull.
He expressed a discontent with politics in Australia and said that four of the last 6 Prime Ministers being knifed, serves to prove that democracy in Australia is broken. I disagreed and made the case that a Prime Minister's tenure ends exactly when they lose the confidence of the public, the party or the parliament and does not even extend one day beyond that; to which he agreed, before again reminding us both that the position of the Prime Minister isn't even found within the constitution at all.
I then posed the seemingly bizarre proposal that even after John Howard lost his own seat of Bennelong in 2007, he could have remained as Prime Minister if the Liberal-National Coalition had won a majority of seats in the 2007 election. After I walked him through my reasoning, he gave me a standing ovation because as a QC and someone who has appeared in the High Court of Australia, he was impressed that I could ask stupid questions of the constitution and arrive at improbale answers that are watertight legally.
John Howard lost his own seat of Bennelong in 2007, when for the first time since 1974, the people decided that they had had enough of him. Bennelong had been held by the Liberal Party since the seat's inception in 1949 and Howard's defeat which saw a 5.5% swing against him personally, was pretty close to the 5.4% swing on a nationwide basis.
Let's pretend though that John Howard lost the seat of Bennelong but the Coalition was returned to power. We'll call it 86 seats to 61 seats, which meant that his seat was the only seat changing hands. How would he remain as Prime Minister?
As I said, the "Prime Minister," is not an official position within the constitution and so as far as the constitution is concerned, it does not exist.
Australia has a Westminster system of parliament and as such, there is no direct election of the executive. Both the United States and France elect a President who then appoints the executive but in Australia and indeed other Westminster parliaments, the executive is appointed from within the governing party or coalition or mish-mash by convention only, with the express appointment of the monarch or their representative, the Governor-General.
Specifically in Australia, this power to make appointments to be ministers of the Crown, is contained within Section 64 of the Constitution:
The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.
- Section 64, Constitution of Australia Act (1900)
What this means in real terms is that the Prime Minister of the day, who is not even mentioned in the Constitution, is themself an appointment by the Governor-General. The Prime Minister who is in reality head of the Cabinet and minister without portfolio (except when they have a portfolio), will then make suggestions to the Governor-General; who then makes further appointments under Section 64.
However this is not the whole story. The rest of the section goes on to say:
After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.
- Section 64, Constitution of Australia Act (1900)
The implication is that you can have a minister of the Crown (of which the Prime Minister is minister without portfolio) even thought they aren't in parliament.
This was of course blatantly obvious in 1900 when Australia needed to form an opening Parliament before a general election had taken place. The then Governor-General John Hope, 7th Earl of Hopetoun, appointed Sir William Lyne who was at the time the Premier of New South Wales to be Australia's first Prime Minister because New South Wales and that followed the Canadian convention from 1867 when they formed their first parliament. Lyne however, was previously an anti-federation in stance and so pro-federation politicians including Edmund Barton and Alfred Deakin managed to convince Mr Hope that someone who actually believed in the idea of the Commonwealth might be a good candidate to have as head of the executive of the nation.
The next really weird series of events where Section 64 comes into play was with the appointment of John Gorton as Prime Minister.
John McEwen had taken over from Harold Holt after Holt had disappeared off the coast of Portsea in 1967. McEwen's time as Prime Minister was turbulent and eventually the Liberal Party pulled together enough of it's own internal caucus to depose McEwen and install John Gorton as Prime Minister. The thing was, Gorton was a Senator.
As there is no official position within the constitution called the "Prime Minister," there are also no rules that say that they have to come from the House of Representatives. The reason why Prime Ministers come from the House of Representatives by convention is that it is the House of Representatives where the budget comes from. Gorton resigned his position as Senator for Victoria on 1 February 1968; to contest the seat of Higgins which had been newly vacated thanks to the disappearance of Harold Holt.
Technically from 1st Feb 1968 until the by-election on 24th Feb 1968, John Gorton was Prime Minister of Australia despite not having a seat in parliament; which is only 23 days and well within the time frame of three months as specified in Section 64. This is where the John Howard question gets answered.
If the Coalition had won the 2007 election but Howard lost his own seat, then technically Michael Jeffery could have appointed him as Prime Minister and it still would have been legal provided that Howard then won some by-election in the House of Representatives or was appointed as a Senator; in both cases someone would need to step aside even though they were freshly elected.
There would have been nothing to prevent Senator John Howard from being Prime Minister if another Liberal Senator had stood aside because there is no official position within the constitution called the "Prime Minister".
There might be some particular reason for that course of events which I can not currently forsee in the case of Australia but if Australia was embroiled in some Brexit like negotiations or perhaps another period of total war, then it might justify this kind of course of action. Ultimately the position of Prime Minister which is actually at the call of the Governor-General anyway, is itself a useful piece of legal fiction which is designed to increase stability; which is pretty ironic given that Australia periodically goes through patches of stabbing Prime Ministers in the back, to get rid of them.