Hung parliament let the people decide

Mr. Stephen Gageler,
Australia - Solicitor General
stephen.gageler@ag.gov.au

Dear Mr. Gageler,

We refer to the reports below for your information.

Would you like to comment, please?

We look forward to hearing from you soon.

Yours truly,

Eddie Hwang
President
Unity Party WA
unitypartywa@westnet.com.au
www.unitywa.org
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Phone/Fax: 61893681884
Date: 28-Aug-2010.
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Governor-General Quentin Bryce should resign now
Peter Faris - The Australian - August 27, 2010 12:00AM

THE federal election has produced a hung parliament where any government will be in a minority.
This has produced the possibility that the Governor-General, Quentin Bryce, may have to exercise her constitutional powers.

In my view, she gives the appearance of being biased in favour of Labor.

This issue of bias cannot be resolved and consequently she must resign now.

An independent administrator would then be appointed by arrangement between Julia Gillard (as leader of the caretaker government) and Tony Abbott (as Leader of the Opposition). At that point we would then have the independent umpire that the nation is entitled to.

A failure by Bryce to completely remove herself will make her personal position an issue in the resolution of which party is to govern. The issues are difficult enough without adding that.

The law in relation to bias is well settled. In Webb and Hay (1994), Justice Deane said in the High Court: “The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case.

“The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment.

“The second is disqualification by conduct, including published statements.

“The third category is disqualification by association. It will often overlap the first and consist of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings.

“The fourth is disqualification by extraneous information. It will commonly overlap the third.”

Deane added, in a footnote, as an example of disqualification by association, “a case where a dependent spouse or child has a direct pecuniary interest in the proceedings”.

The following facts seem to be beyond argument.

A Labor member of federal parliament, William Richard “Bill” Shorten, is married to the daughter of Bryce. Shorten is Parliamentary Secretary for Disability and Children's Services in the Gillard caretaker government.

On November 29, 2007, immediately after that year's election, Shorten was appointed to that parliamentary post. On September 5, 2008, Bryce was sworn in as Governor-General. Shorten married her daughter, Chloe Bryce, on November 14, 2009. Their child, Clementine, was born about December 23, 2009.

The following allegations have been made.

First, that Shorten was one of the faceless men behind the sacking of Kevin Rudd in favour of Gillard.

Second, that Shorten is favourite to topple Gillard and to become prime minister in her place.

A combination of these facts and allegations show that it is of the utmost personal importance to Shorten that Labor retain power as a result of this election.

Similarly, if Bryce is to play a role in the decision making process, then it is critical to Shorten (and no doubt his wife Chloe) that Bryce either decides in favour of Labor or makes the decision that suits Labor best (for example, a new election, if that is what they want).

It is impossible to predict what will occur in the final resolution of the election issues. It is entirely possible that Gillard will advise Bryce to make a particular decision tomorrow.

Alternatively, Australia could limp along for several months with an unstable minority government until Bryce is called upon to make a decision.

Let me make two things clear.

First, I cannot predict if there will be a decision by the Governor-General on some issue. But the present circumstances of a hung parliament make it highly likely.

Second, and most important, I cannot prove that Bryce is biased in favour of Labor because of her close family connections. I do not say that she is.

But what I do say, and I say very strongly, is that there is a perception of bias.

Bryce is subject to the doctrine of disqualification by reason of the appearance of bias. Her daughter's husband has an enormous interest in the outcome of the election: a favourable decision by Bryce may enable Shorten to become prime minister.

Surely his wife and her daughter, Chloe, shares that interest.

Bryce must resign now to avoid her personal issue precipitating a constitutional crisis similar to 1975. Bryce is fatally compromised: regardless of whatever decision she makes, half the country will be dissatisfied. Any decision she makes in favour of Labor, however correct or innocent that decision may be, will leave half the citizens of Australia believing that she made the decision for personal and family reasons. That is perceived bias.

Bryce must stand down now - she cannot wait for the crisis to envelop her and us.

None of this is very surprising. The duty of Governor-General to be an impartial adjudicator in electoral crises is the most important part of the job.

When she accepted the position, on September 5, 2008, it is difficult to know if she knew Shorten was having an affair with her daughter but given that the marriage occurred 14 months later, it is probable that she did.

In any event, with an upcoming election in 2010, her position as Governor-General, when her son-in-law was a leading Labor politician and powerbroker, was always going to be precarious.

If there had been a convincing outright result to the election, these issues may not have arisen.

Australia is entitled to a Governor-General who is independent and above politics. We are also entitled to a Governor-General who does not have the appearance of bias.

It is the constitutional duty of Bryce to remove herself immediately. Otherwise there will be a real constitutional crisis.

Peter Faris QC is a Melbourne barrister.

Solution to political crisis is simple: let the people decide
Tony Koch - The Australian - August 25, 2010 12:00AM
THE advice from one of the country's most respected legal practitioners to the Governor-General is simple: "Let the people decide."

In settling the current political crisis, Quentin Bryce could use elements of the controversial precedent set by then governor-general John Kerr in 1975 when he sacked the Whitlam government, Bill Pincus QC, a former president of the Australian Law Council, suggested yesterday.

The important element that would bring about stable government is that another election should be called soon, Mr Pincus said.

"Sir John Kerr, who sacked the federal Labor government in 1975, was much criticised by the Labor side which had appointed him.

"Whether he did it as cleverly as he might have done is arguable, but he achieved the result that the government, which could not guarantee supply because of Senate obstruction, ceased.

"He installed Malcolm Fraser as prime minister and instructed him that an election had to be held as soon as possible, and so the people of Australia settled the issue.
"A situation with some similarities arose in Queensland in 1987, when the governor and former chief justice Sir Walter Campbell put an end to the political career of Sir Joh Bjelke-Petersen -- who incidentally had appointed him to the vice-regal position.

"Does anybody really believe that both Sir John Kerr and Sir Walter Campbell would not have had a lot of sleepless nights over those decisions?

"But they did their duty as they saw fit, and the political impasse was addressed."

Mr Pincus, a retired Federal Court judge who also served for nine years on Queensland's Court of Appeal, said it was nonsense to suggest Dr Bryce could not make necessary decisions because of a possible conflict of interest brought about through her daughter being married to Labor frontbencher Bill Shorten.

He said Ms Bryce had "a discretion unfettered by any law" to act to solve any impasse she saw inhibiting stable government.

"In doing what has to be done, the Governor-General will get little guidance from the law," Mr Pincus stated. "The problems are typically practical ones, involving common sense and fairness rather than legal rules . . . A defect of our Constitution, some think, is that it leaves the governor-general role undefined in most respects but gives the office-holder sweeping powers."

Mr Pincus said that in deciding who should govern, the Governor-General was not obliged to take notice of promises made by the independents .

"A government which is dependent on the whims of a few no doubt well-meaning independent MPs would be a very weak one," he said.