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5 June 2022

A common theme throughout this series has been that, when talking about the Australian government or Constitution, the response to many questions is ‘Yes, but actually no,’ or vice versa. And one of those questions is the topic of this article. There are two cases in the 121 years of Australian politician history where the Prime Minister has not been an elected member of the House of Representatives, and we will look at both of these today.

Pictured: A discussion about Australian constitutional law, circa 1968 (colourised)

With the government changing from the Liberal-National Party to the Labor Party following the 21st May election, Australia has had 31 Prime Ministers, serving 37 separate elected terms, because some Prime Ministers have had non-consecutive terms. In parliamentary democracies, like the UK and Australia, a person having two (or three) non-consecutive terms is much more common than in presidential republics, because in parliamentary democracies the Prime Minister is not elected by the public, but is instead the leader of the political party that has formed government. The leader is elected by sitting party members in the House of Representatives and Senate. This means that the sitting party members can remove a Prime Minister part-way through their term as Prime Minister, through what is called a ‘leadership spill,’ where other sitting party members can try and contest for leadership. Scott Morrison, who replaced Malcolm Turnbull in the 2018 LNP leadership spill, was re-elected at the 2019 election, and 2019-22 was the first time since 2007 that a Prime Minister completed a three-year term as Prime Minister.

29 of Australia’s Prime Ministers were members of the House of Representatives for their entire time as Prime Minister. This is normal, because the party that forms government is meant to have a majority in the House of Representatives, so that they can pass appropriation bills to spend government money. It is also where most laws are proposed, and most government business carries on. So it makes sense that the Prime Minister would want to be in the House of Representatives, so that they can control this process.

Edmund Barton, Australia’s first Prime Minister and a founding member of the High Court, which is a story for another time, was appointed Prime Minister by Governor-General Lord Hopetoun on 1 January 1901.1 This was the same day that the Constitution came into effect. It was impossible to hold elections until the Constitution came into effect, so the first ‘Barton Ministry,’ containing the new Prime Minister and his Ministers, were appointed to set up the government and organise the first election. This was expected, and so Section 64 of the Constitution contains the following sentence:

“After the first general election no Minister of State [including the Prime Minister] 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.”

This election was held over two days, Friday 29 March and Saturday 30 March. I plan to do an article on this election shortly, but I’ll give a brief description of it now. Edmund Barton was elected in the Division of Hunter, and was appointed as the first elected Prime Minister of Australia. Although party lines weren’t as solidified as they would be at a later date, Barton could count on 30 other MPs, as the Protectionist Party, for a total of 31. The Protectionist Party dated back to the New South Wales election of 1887. However, there were 75 seats in Parliament. He needed 38 seats, 7 more than he had, to have a majority. George Reid, his rival in the New South Wales Parliament, was the leader of the Free Trade Party, which also dated back to the 1887 election. The Free Trade Party won 28 seats. So Barton turned to Labor, the youngest party, formed only in 1891, with their 14 seats. This made Barton Australia’s first Prime Minister, first elected Prime Minister, and first Prime Minister of a minority government. As a side note, many of you have probably done the maths, and worked out that 31+28+14=73, not 75. There were also two independents, who weren’t members of any party.

However, the much more interesting story, in my opinion, is the Prime Ministership of John Gorton. On 20 January 1966, Robert Menzies resigned from the position of Prime Minister, a position he held from 1939-41 and 1949-66, having turned 71 a month before. He also resigned as Liberal Party leader, but remained as Prime Minister until 26 January, while the Liberal Party held a vote for his replacement. They unanimously agreed upon Harold Holt. However, Holt disappeared while swimming alone on 17 December 1967. No body was ever found, but it is presumed that he was caught in a rip and drowned. Ironically, there is now a swimming pool named after him. John McEwen was sworn in the following day as Prime Minister. However, John McEwen was from the Country Party (now National Party), not the Liberal Party. Since 1922, the Country Party had been in a coalition with the Liberal Party, and its predecessors. The larger party, the Liberals, would provide the majority of the Ministers, plus the Prime Minister, and the Nationals would provide a few Ministers, when the Coalition formed government. With the Liberals leaderless, McEwen took the helm of the nation.

But why did McEwen need to become Prime Minister? Surely the Liberals could have quickly elected a replacement, right? After all, when Menzies resigned, he was replaced by his deputy, Holt. So why wasn’t William McMahon, Holt’s deputy, elected? Well, the Liberal Party did not have enough seats to form government in their own right, so depended on their fellow conservatives in the National Party. But McEwen didn’t like or trust McMahon, so said that the Country Party would leave the Coalition if McMahon was elected Party leader. The Liberal Party was sent scrambling. It wasn’t until three weeks later, on 9 January 1968, that a new leader was elected. John Gorton defeated Paul Hasluck, Minister of External Affairs,2 51-30.3 The following day, Gorton was sworn in as Prime Minister. But there was just one problem: Gorton was a Senator.

As seen in the above excerpt from Section 64 of the Constitution, Ministers can be drawn from either the Senate or House of Representatives. And the Prime Minister is treated as just another Minister in the Constitution, with no special reference to them. But in the UK, the Prime Minister was never from the upper house, the House of Lords, because they were in the nobility. And even though Australia had an elected upper house, that tradition stayed. So now there was a major problem. Although it wasn’t illegal, Australia had a Prime Minister sitting in the wrong house! However, when Holt died, the Division of Higgins did not have a representative in Parliament. A by-election had to be called to fill that vacancy. So Gorton resigned from the Senate on 1 February 1968, and won the by-election on 24 February 1968. However, for 3 weeks the Prime Minister was a Senator, and then for another three weeks the Prime Minister wasn’t actually an elected member of Parliament. Fortunately, Section 64 made this legal by allowing for the Prime Minister to not sit in either House for a total of 3 months.

McEwen’s reward for serving as Prime Minister while the Liberal Party sorted itself out was being appointed the first Deputy Prime Minister of Australia. This formalised the procedure that the Country Party leader would serve in the place of the Liberal Party leader, the Prime Minister, in the event that anything happened to the latter. However, to this date, no Prime Minister has died in office since Holt.

So, it turns out that not only do you not need to be in the House of Representatives to be Prime Minister, you don’t even need to be an elected member of either house of Parliament, provided that you are elected or resign within 3 months. This doesn’t happen often, but as with many things in Australian politics, the answer is ‘it depends.’

Footnotes

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Stuart Jeffery, aka LibertyDownUnder, is the founder of the Australian Liberty Network. He is also the host of the Gumtree of Liberty and Gumtree of Liberty Live podcasts, and is editor of the Liberty Review. Stuart is currently studying a Bachelor of Laws and Bachelor of Arts, majoring in international relations, at the University of Southern Queensland.

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