The completely unsupported legend of how Issac Newton got the insipiration to formulate the theory and laws of gravity is that he was sitting under an apple tree and while he was musing about something else, an apple fell off the tree and them struck him in the head. I have no idea how much of the legend that I have gotten wrong and nor do I particularly care all that much because the whole event almost certainly never happened. It is a useful story though.
When you are faced with a conundrum of thought, sometimes it is helpful to shake the tree of knowledge and see what kind of leaves and maybe apples fall out. Of course sometimes you might also be liable to get squirrel poop and or other unpleasant liquids fall upon you, so maybe you should think about getting an umbrella for your analogy.
I have made the comment on a number of occasions now that I think that the best possible Prime Minister that Australia could have at the moment is Penny Wong. Ms Wong has a surfeit of competence as well as a calmness which we need from the head of executive government. On top of this, I would like to see Penny Wong as Prime Minister from the Senate because that chamber as the house of review, tends to carry itself with a little bit more decorum.
If you make such a comment though, invariably people will tell you that that's impossible because you can not be Prime Minister from the Senate and then go on a tangent and the entire train of thought is an express train to nonsense land. I know what I meant. I know what I said. I already knew that it's fine and because I have bothered to read the rules, I can prove it.
Every Constitution for a corporate entity, be it a sporting club, book group, church, corporation, nation state et cetera, is the set of rules which lay out how you make rules and policy. The various powers which that entity is enabled to do and the various offices which are empowered to be able to carry out policy are usually defined within the bounds of the constitution and the Constitution Of The Commonwealth Of Australia is no different. There are entire chapters defining the roles of the Governor-General, the House of Representatives, the Senate, the Powers that all of these have, how you change the Constitution, where the Constitution applies, how it interacts with the existing body of law and other relevant jurisdictions and so on.
What the Constitution does not do (and in my opinion should not do) is define what, how, or even if there needs to be a Prime Minister.
Literally nowhere in the document of the Constitution will you find any mention of the Prime Minister and because you will find no mention of the office, there isn't really anything to limit where the person to fill that office can come from. Immediately we move into that ethereal place called convention and truth be told, convention lasts exactly as long as it does until it doesn't. I would have thought that it should be convention for the Prime Minister not to go on holiday to a tropical island not in the country when half the country is on fire; I would have though that it should be convention for cabinet minister not to question a body with reasonable powers to investigate corruption; I would have though that it should be convention for a Prime Minister to at least make some attempt to care about the entire general population during a global pandemic and take reasonable action to secure a vaccine supply in a timely manner but clearly none of those things are subject to convention; so I fail to see what I should care an iota about a convention for a thing which isn't even contained within the Constitution.
There is a directive contained within the Constitution about the rules for appointing Ministers of State; so if we want to accept that the Prime Minister as the head of executive government is Minister Without Portfolio, then it behooves us to actually bother to read the relevant section of law:
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, Constitution of Australia Act (1900).
Take note. A Minister of State is expressly appointed by the Governor-General and at "the pleasure of the Governor-General". If you think that sounds like a lot of power to place in the hands of the Governor-General, then you would be right, it is. The Governor-General in the Australian Constitution is according to law a kind of hemi-semi-demigod who has massive powers to pretty much do whatever the heck they like and hire and fire people at will. It's not even entirely sure if the Governor-General, although named as the Queen's (King's) Representative, is answerable to the monarch or not and Section 64 leaves us with some very very strange implications.
Inside Section 64 you will find virtually no limits or direction on who the Governor-General can appoint to the role of Minister of State. The only limit is that such a person shall attain a seat in the Senate or the House of Representatives within three months. With no limit as to whom the Governor-General can appoint, this is where we can start shaking the tree of knowledge violently and see what falls out.
The Governor-General can appoint Vladimir Putin, Jacinda Ardern, Xi Jingping, Jamie Whincup, Martin Skrtel, Sir Donald Bradman, Chuck Norris, Kim Kardashian, Broken Hill City Council, Aslan, Captain James T Kirk, the entire Andromeda Galaxy... there is nothing within the text of Section 64 which puts any kind of limit; neither citizenship, nor being living or dead, nor being real or imaginary, nor being singular or corporate, nor even being a person or not, on who the Governor-General can appoint to be a Minister of State. If the text of the Constitution doesn't say a thing, then it doesn't say a thing.
The firing of the Prime Minister Gough Whitlam on the 11th of November 1975, is perhaps the only time in Australian political history when anyone even remotely remembers anything at all about the office of the Governor-General. The Whitlam Government had failed to pass a budget and six months after the bill had been introduced to the House of Representatives, the Governor-General Sir John Kerr took away his pleasure and appointed Malcolm Fraser. Was that legal? Absolutely. Actually, the text of Section 64 tells us that the pleasure of the Governor-General is the only requirement that someone be appointed to the position of Minister of State. The Governor-General was entirely within his Section 64 powers to fire the Prime Minister.
Likewise when the former Prime Minister Harold Holt wandered off into the sea at Portsea in 1966 (the United States has Presidents assassinated; Australia merely loses Prime Ministers), the leader of the National Party John McEwen was hurriedly made the next Prime Minister (for 22 days) and then while the Liberal Party sorted out its internal succession plan, John Gorton while in the Senate was made the next Prime Minister. Australia has already had a Prime Minister from the Senate. He then resigned his seat in the Senate to contest the newly vacated seat in the House of Representatives (and won it) but being in the House of Representatives is only a secondary condition as he was already in the Senate. Being in the House as opposed to the Senate was a matter of political theatre and not a constitutional requirement. For 22 days Australia had a Prime Minister in the Senate. For 23 days, Australia had a Prime Minister with no seat in any chamber at all and it was fine. Again we move back into the realm of convention; which I've already established is utterly worthless.
The truth is that having Ministers of State in the Senate is ridiculously normal and boring. The mechanics of Westminster Parliaments is that they do not care about where Ministers have their seats. The mother of all parliaments at Westminster herself, had quite a few Prime Ministers sitting in the House of Lords.
The Constitution doesn't specify if there even needs to be a Prime Minister. It could be possible to imagine a duumvirate, triumvirate, or an actual cabinet of equals and have the role, or even not have the role, dispersed. Since we've decided to burn all of the other norms and conventions of the job, why not remove that one last plank and rebuild the stature and worthiness of the job?
Having answered every single constitutional objection that is possible, the only objection that can be made about having Penny Wong as Prime Minister comes down the personal preference. Forgive my naivety but I want to see this country governed well, I want to see this country governed by someone who is competent to do the job, and more importantly I want this country to be governed by someone who paradoxically doesn't want the job. I want the best person for the job to do the best job.
Of course having said all of this, the actual chances of this happening are nil. Politics is the art of the expedient and the art of achieving the possible. I'm just tree shaking.
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