There’s still no evidence that this morning’s Labor leadership contest involved anything like a contest of policies or ideas. But just possibly you could see it as a contest of competing constitutional theories.

A constant refrain from Kevin Rudd and his supporters has been that “the Australian people” elected him prime minister in 2007, and for that choice to be subverted by the Labor caucus in 2010 was illegitimate. The contrary message — that an election is a contest of parties, and it is up to the party to choose its leaders — seems to have failed to gain traction with the public.

Paul Strangio, in a very thorough piece in this morning’s Age, explains it like this:

“[Rudd’s] colleagues discovered the public was habituated to seeing politics through the prism of leaders — they felt they had anointed a leader rather than voted for a local member of a party. To be brutally reminded that in our system of government it is a parliamentary party’s prerogative to make and break a PM shocked them. Their sense of being cheated by Labor’s regicide hurt Gillard’s legitimacy and created a wave of sympathy for Rudd that rekindled his popularity.”

Strangio expresses the hope that Labor has made a clean break with this way of thinking, not being “seduced by the Rudd family’s ‘people power’ campaign”. But the fact that things were allowed to reach this point suggests that public opinion has lost touch somewhat with the actual rules of how government works.

Different systems have different rules. If, for example, halfway through Barack Obama’s term the Democratic Party decided that it wanted a different president, there would be basically nothing it could do about it — and American voters would understand that. A parliamentary system such as ours works differently, but there is a much greater gap in public understanding: first because Australians get woefully little education in civics, and secondly because the rules themselves are imperfectly codified.

Although we have a written constitution, the processes of prime minister, cabinet and party government depend on unwritten rules that have evolved over more than 300 years. In the course of that time it’s not surprising that a gap has opened up between what we might call the formal and the substantive features of the system.

In form, our ministers are the servants of the Governor-General, responsible for carrying on her business in Parliament. In substance, they are the democratically elected leaders of the country. In practice, the reconciliation between these two things, having developed through long experience, is smooth and straightforward. But it’s a difficult thing to explain to the lay observer.

Witness constitutional law expert Anne Twomey, called to explain things on SBS World News last night, who was led to make the surprising suggestion that in the event of a change of leadership the Governor-General could decide for herself who to commission, and even “wait for the Parliament to decide on a vote of confidence or no confidence and make the appointment according to however parliament decides”.

If Rudd had won the ballot this morning, there’s not the slightest doubt that Julia Gillard would have tendered her resignation and advised the Governor-General to send for Rudd, and that she in turn would have been bound to accept that advice to the extent of inviting Rudd to form a government.

Twomey’s point was that such a government would have to win the confidence of the House of Representatives in order to survive, and that if there was any doubt about the matter the Governor-General would be entitled to ask Rudd to test his support on the floor of the House — which might have been a very interesting exercise. But she has to make an appointment first. The Governor-General can’t just go to Parliament on her own and ask them who they’d like her to pick, because in form a prime minister is her servant, not theirs.

It would be nice if the media spent less time on the horse race and more time in learning and then explaining the rules.

Peter Fray

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