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17 April 2022

The Prime Minister is the elected leader of Australia. Although not the official head of state, which is a role filled by the British monarch and delegated to the Governor-General, the Prime Minister serves as the head of government. Yet, surprisingly, the Prime Minister is not mentioned once in the Constitution. Rather, their power is mostly derived from constitutional conventions, which are political customs.

Before we discuss the role and powers of the Prime Minister, it is necessary to briefly touch on the history of the Prime Minister. It is a role that Australia adopted from the British government after Federation. In Britain, the role dates back to the reign of George I, a German who was also the Duke of Hanover, and so spent most of his time in mainland Europe, and who spoke little English. Robert Walpole, leader of the Whig Party, was thus able to serve as de facto Prime Minister. As time went on, Parliament, and the Prime Minister, were able to assume more powers of the Crown, due to the pre-occupation of the Hanover monarchs with their mainland affairs. The title of Prime Minister developed from the role of the Prime Minister as ‘first among equals’ in the Cabinet, which consisted of the various Ministers that made up the elected part of the executive branch of government. Indeed, the first Indian Prime Minister, Jawaharlal Nehru, referred to the Prime Ministership as being “the first servant of the Indian people,” as the legislature was meant to represent and serve the people.

Like the other Ministers, the Prime Minister is drawn from the party with the most seats in the lower house. In the event of a coalition government, some ministers will be drawn from the other party or parties in the coalition, but the Prime Minister will always be drawn from the largest party in the coalition. In this sense, there is not a true separation of powers between the executive and the legislature. It should be remembered that this is only constitutional convention, which has great importance, but can be overridden, as with the dismissal of Prime Minister Gough Whitlam by Governor-General John Kerr, and the appointment of opposition leader Malcolm Fraser as caretaker Prime Minister. Previously, we have explored the idea of ‘supply’ being tied to which party can form government. Whichever party can secure the supply of government spending by passing appropriation bills in the House of Representatives will form government, and that party’s leader will become the Prime Minister. This is why the official title of the Prime Minister in Britain has always been ‘First Lord of the Treasury,’ which demonstrates their ability to secure funds from the Treasury. Fraser was appointed caretaker Prime Minister on the condition that the Liberal and Country parties, the opposition, pass appropriation bills in the Senate, which they had previously refused to pass.

Edmund Barton, one of the framers of the Constitution, and leader of the Protectionist Party (somewhat similar to the modern National Party), served caretaker Prime Minister until the first election on 29-30 March, 1901. Barton’s party won the most seats in the House of Representatives, but was short of a majority, holding only 32 of 75 seats, whereas 38 seats were necessary to form government. As a result, the Protectionists formed a coalition with the Australian Labor Party, the smallest party at the time, with only 17 seats. This coalition allowed Barton to become the first elected Prime Minister. The opposition consisted of the Free Trade Party, led by George Reid. In 1903, Barton would go on to become one of the three original Justices of the High Court of Australia, and was replaced as Prime Minister by Alfred Deakin, also a Protectionist. The fact that the three original political parties were the Protectionist, Free Trade, and pro-union Labor parties, demonstrates the importance of economic issues in the years before Federation and immediately after Federation, and this is something that we will continue to return to when we discuss various provisions of the Constitution and why they exist.

Because constitutional convention dictates that the Prime Minister will also be the leader of their party, they are responsible for internal government affairs. The Prime Minister must be the leader of their party, so that they will follow the instructions of the leader. Even when Whitlam was sacked, Kerr made sure that the person he appointed as caretaker Prime Minister was the leader of the Liberal Party. They must also be in the House of Representatives, not the Senate, as the House of Representatives represents the people of Australia, whereas Senators represent the interests of the states and self-governing territories. There has only been one exception to this rule: when Prime Minister Harold Holt died, John Gorton, the deputy Liberal Party leader and a Senator, was Prime Minister for 3 weeks, before resigning from the Senate to contest Holt’s seat in a by-election, which he won. The reason this role wasn’t filled by the Deputy Prime Minister is that Deputy Prime Minister from the Country Party, as part of the Liberal-Country coalition, so couldn’t fill this role. As party leader, the Prime Minister can delegate tasks to various members of their own party. This includes appointing Ministers. Although this power officially rests with the Governor-General, under Section 64 of the Constitution, convention dictates that this will be done on the advice, meaning instructions, of the Prime Minister. Similarly, although the official power to call elections and dissolve Parliament rests with the Governor-General, in practice these powers are exercised on the advice of the Prime Minister. In addition, as the Ministers are drawn from the Prime Minister’s party, it means that the Prime Minister can issue and enforce ‘codes of conduct’ for the executive to follow.

The Prime Minister, like state Premiers, is not elected by the general public. Because of this, Australia does not have recall elections, unlike in the USA. As already discussed, the Prime Minister is almost always from the House of Representatives, by constitutional convention. This means that the Prime Minister is only elected by one electorate/division, the same as every other MP in the lower house. The Prime Minister is the leader of the party. This is determined, in the case of the Liberal Party, by a vote by all Liberal MPs and Senators, which is known as a Caucus. The National Party does the same thing, except when the LNP is in government, the Nationals leader is the Deputy Prime Minister. The Labor Party operates somewhat differently, with the Caucus having 50% of the vote and paying party members having 50% of the vote. This was the result of changes proposed by Prime Minister Kevin Rudd, shortly after deposing Julia Gillard. When Rudd resigned after his government lost the 2013 election, Bill Shorten and Anthony Albanese contested for the party leadership, with Shorten winning on the support of the party members.

In 2007, Rudd’s Labor Party defeated the incumbent LNP government of John Howard. Since then, Australia has seen many successful, and unsuccessful, leadership spills. Prior to the 2006 election, Rudd replaced Kim Beazley as party leader, and became the leader of the Opposition. Although Rudd won in 2007, on June 24, 2010, Julia Gillard, his deputy since the replacement of Beazley on December 4, 2006, replaced him. She won the 2010 election, but with a minority government. Rudd successfully challenged her for party leadership on June 27, 2013, before losing to Tony Abbott’s LNP in the election that year. Abbott would be replaced as Prime Minister and party leader on September 15, 2015, by Malcolm Turnbull. Abbott had previously couped Turnbull on December 1, 2009, replacing him as party leader. Although Turnbull won the 2016 double dissolution election, he was replaced by Scott Morrison on August 24, 2018. In the same year, Barnaby Joyce resigned as National Party leader, and thus also as Deputy Prime Minister, following a discovery that he was having an affair with a former staffer. Michael McCormack filled the vacancy on February 26, 2018, before losing it to Barnaby Joyce again on June 21, 2021.

The relationship between the Prime Minister, as leader of the government, and the Governor-General, as de facto head of state, is unique to Australia. Australia possesses an elected upper house, unlike Canada and the UK, (where the upper house is appointed), and New Zealand (no upper house). In the USA, there is a complete divide between the executive and legislature. And in mainland European countries like France, where there is a President and a Prime Minister, and Germany, where there is a President and a Chancellor, the head of state and head of government share power, rather than the unbalanced power divide in Australia.

Because the Prime Minister is not mentioned in the Constitution, when reading the Constitution it is important to remember that whenever the Governor-General in Council is referred to, it means the Governor-General is acting on the advice of the Prime Minister, or occasionally the broader Federal Executive Council, which we will look at in the next article.

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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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