27 June 2013

Gillard, Rudd, and mid-term transitions

For the record (if the Rudd coup d'├ętat happened in NZ):

1. The change of leadership triggers a change of PM without a change of government. As incumbent PM but ousted leader, Gillard is obliged to advise the GG of her resignation and the identity of her successor (as reached in accordance with the internal political processes of the Labor party) (cl 6.51).

2. The GG is obliged to accept the advice, as the government continues to have the confidence of the House. The government continues to command confidence unless and until there is a lost vote of confidence (or some other similar public, clear and incontrovertible evidence). It's not the job of the GG to dip into the political morass to query the various speculative statements about support for Rudd etc. It's the obligation of the political parties to clearly manifest the position - publicly and unequivocally. (cl 2.2 and ch 6.36-6.40)

3. If Rudd subsequently loses the vote of confidence, he becomes a caretaker PM. As a consequence, he loses his mandate to request the dissolution of Parliament for an "early" election. Any decision about the dissolution of Parliament for an early election, including effectively the date of such an election, must be made in accordance with the caretaker convention. As a significant decision, the GG is only entitled and obliged to act on a request if it is made with the support of a majority within Parliament (cl 6.20 and 6.58). The reference to early election means dissolution of Parliament before the constitutionally mandated date - the GG would, of course, be obliged to dissolve Parliament for elections if that date was reached.

4. If Rudd survives the vote of confidence, he is entitled, as usual, to request a dissolution for an election as and when he wishes (cl 6.56).
PS I'm not representing these thoughts as necessarily the operative rules in Australia - I don't know the detail of their conventions and rules (which may have some odd differences). However, our Cabinet Manual is well-founded in the constitutional first principles and is often a good guide.

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    Course Outline

    Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

    "From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


    This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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