https://twitter.com/tanya_plibersek/status/1453666070221312006
The five scariest words in the English language: Acting Prime Minister Barnaby Joyce.
- Tanya Plibersek, @tanya_plibersek (via Twitter), 28th Oct 2021
serious question ... constitutionally could he call an election ???
- Sir Dave Lennon, @Davelennonabc (via Twitter), 28th Oct 2021
One of the things I like about asking questions like this is that you can test the boundaries of constitutional theory and practice, in the relative safety of thought experiments. Of course, the problem with thought experiments is that very occasionally if you leave a Bunsen burner on, the conclusions and ideas that you have reached become so explosive and flammable that they escape the laboratory of the mind and potentially have the power to start burning things in the real world.
The question of whether or not the Acting Prime Minister Barnaby Joyce has the ability and authority to call an election is a good one because, it gently prods ideas with a stirring rod and if there's one thing that we like doing in poltical philosophy, it is to cause a stir.
To address the question directly, could Acting Prime Minister Barnaby Joyce constitutionally call an election?
No.
The actual authority for holding an election (and by this I assume a general election where all of the seats in the House of Representative and at least half of the Senate) rests wholly and solely with the the Governor-General who will issue a writ dissolving the parliament; per Sections 5 and 28 of the Commonwealth of Australia Constitution Act (1900):
The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives.
- Section 5, Commonwealth of Australia Constitution Act (1900)
Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General.
- Section 28, Commonwealth of Australia Constitution Act (1900)
Writs for general elections of the House of Representatives and Senate are issued by the Governor-General and this sets in motion an entire calendar of events. Actually, there are in fact 8 such writs for a general election which are issued for each of the six States and the two Territories and they are deemed to have been issued at 6pm. I have not idea why the time of 6pm is important. As with all of these kind of events, the issue of writs is notified in the Government Notices Gazette.
Generally speaking, the Prime Minister will make a trip from the Prime Minister's Office to Government House, which is the Governor-General's residence in Yarralumla and bring the necessary paperwork requesting a dissolution and the issue of writs for an election.
The actual authority for holding an election and dissolving the parliament doesn't lie with the Prime Minister; which means that that with regards the request for a dissolution the Governor General either may or may not accept the request but almost always does.
A Governor-General refusing to accept a request to dissolve parliament happened in Canada in 1926, when the Governor General of Canada, the Lord Byng of Vimy, refused a request by Prime Minister Mackenzie King, to dissolve parliament and call a general election.
However, this doesn't actually address the question. What would happen if Acting Prime Minister Barnaby Joyce brought the the appropriate paperwork requesting to hold a general election and dissolve the parliament? Then what? Admittedly this would be a really weird set of circumstances and as such, it demands a really weird answer to the question.
Nowhere in the Commonwealth of Australia Constitution Act will you find the existence of a thing known as the "Prime Minister". In passing there might be the the idea that there is some kind of head of the Federal Executive Council, which is mentioned, but nothing specifically about the office of Prime Minister.
62. Federal Executive Council
There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.
- Section 62, Commonwealth of Australia Constitution Act (1900)
63. Provisions referring to Governor-General
The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.
- Section 63, Commonwealth of Australia Constitution Act (1900)
64. Ministers of State
The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.
Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth.
Ministers to sit in Parliament
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, Commonwealth of Australia Constitution Act (1900)
This is where really really weird implications arrive.
The office of the Governor-General is in fact insanely powerful even though for 121 years, the only two times that anyone tcan think that the Governor-General did anything of practical import was either in 1900 when the Governor-General appointed the wrong person and had to get someone else before the first parliament, and in 1975 when the Governor-General sacked one Prime Minister, gave assent to a budget act, appointed a new Prime Minister, then issued writs for a general election of the House of Representatives and Senate upon on the advice of that new Prime Minister. All of this was within the authority of the Governor-General.
This is where you will find the answer to the question. Acting Prime Minister Barnaby Joyce is already a member of the Federal Executive Council to advise the Governor-General in the government of the Commonwealth per Section 62, if Acting Prime Minister Barnaby Joyce requested an election and a dissolution of parliament then it would be the Governor-General acting with the advice of the Federal Executive Council per Section 63. The Governor-General would be perfectly entitled to issue a writs dissolving the parliament; per Sections 5 and 28.
Actually, truth be told, if the Governor-General wanted to, they could appoint me to be a Minister of State per Section 64, and I could request an election and a dissolution of parliament; as in the case above. I don't even need to sit in Parliament to be Prime Minister. The Governor-General could in theory appoint literally anyone in the world to Minister of State per Section 64; including Jacinda Ardern, Xi Jingping, Jeremy Clarkson, Kim Kardashian... and it still wouldn't be unconstitutional (within three months). For that chain of events to happen, you would have to assume that the Governor-General was as mad as a gum tree full of galahs and as reliable as a two dollar watch; however the sanity of sensibility of the Governor-General isn't mentioned in the Constitution.
Acting Prime Minister Barnaby Joyce wouldn't actually dare requesting an election and a dissolution of parliament because not only would that permanently damage the relationship between the Liberal Party and the National Party and thus ensure that the National Party would never hold any political office at Federal level ever again, the numbers simply don't work. Calling an election tomorrow would guarantee electoral wipe out; with the Labour Party picking up about 90 seats, the Liberal/National Coalition winning about 55 and there'd be 6 Others.
Since moving from being Senator for Queensland to MP for New England, Barnaby Joyce has won all of the elections with an outright majority in all cases. His seat would be safe and would likely need at least an 18% swing against him to lose his own seat but if he had the audacity to go to the Governor-General while being
Acting Prime Minister, then you'd have to assume that there was a fantastic reason for doing so. Maybe before the invention of air travel this might have been a thing but not today.
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