Law experts are split over a perceived conflict of interest between Governor-General Quentin Bryce and Labor MP Bill Shorten, as the constitutional impasse after Saturday’s election result looms large on the horizon.
Queries have been raised over the Governor-General’s role in forming the next government, with the outcome of the federal election yielding a hung parliament. Bill Shorten, member for Maribyrnong and Labor power broker, married Bryce’s daughter last year.
Barrister Peter Faris QC told Crikey that the Bryce-Shorten connection was a clear case of perceived bias and that any decision made by the Governor-General would be “fatally compromised”. Faris said that Bryce could avoid a constitutional crisis by handing the decision over to the Chief Justice.
“It can’t be resolved without peers,” Faris told Crikey. “She could say, look, I accept that I am disqualified through perceived bias and have the Chief Justice act in her stead.”
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“But if she does make the decision and she appoints Gillard, the firestorm will come down on her. It will be John Kerr all over again.”
However Greg Barns, Director of the Australia Lawyers Alliance and a former political adviser, has said that the Governor-General should be “free to make the call” and that “it is important that she shows that the office is above influence from any quarter.”
“The office of Governor-General needs to be perceived that it is above any conflict of interest,” Barns told Crikey. “If she believes that there is a weakness in her office, then it demonstrates that [the role of] Governor-General is subject to personal whim.”
Barns said it was unprecedented that a Governor-General was faced with such a dilemma and that the only instance that people could draw a parallel with was past Governors who had previously acted as Chief Justices standing down in pardon cases.
Legal expert Professor David Flint agreed with Barns, telling Crikey that he did not see any obvious conflict of interest.
“Most of the process from now on will occur in accordance with well-established conventions,” Flint told Crikey. “The fact that her son-in-law happens to be an MP, I don’t see that is in itself an obvious conflict of interest.”
Aside from the Shorten issue, Greg Barns said that it was likely Bryce would follow the lead of Tasmanian Governor Peter Underwood and base any decisions on constitutional convention.
Earlier this year, Underwood ignored the public statements of Premier David Bartlett and Liberal leader Will Hodgman, because he believed Bartlett would be better able to form a stable government.
In a speech explaining his decision, Underwood said that the decision was “entirely the Governor’s prerogative” and that power was not for any political leader to hand over.
“In the exercise of the duty to commission a person who can form a stable government the Governor will take formal advice from the current holder of that commission but is not bound to act on that advice,” explained Underwood. “It was my duty to act in accordance with constitutional conventions that have been built up over the years.”
Barns agreed with Underwood’s decision, saying that it provided a recent blueprint for Bryce to call upon.
“The Governor-General has to find the person who can form a stable government and has the confidence of the lower house,” said Barns.
“In Tasmania you had public statements made by political leaders expressing their view as to what should happen. Underwood made it clear that it is entirely his prerogative and not at the whim of any political leaders.”