George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

For the Senate to pass this resolution it would be a serious violation of basic constitutional principles. It is a fundamental principle of constitutional government that the Governor-General only acts upon the advice of his ministers. The only exception is the extremely rare case where the Governor-General exercises the reserve powers of the Crown. Nobody suggests that this case falls within that exception. By requesting that the Governor-General act contrary to the advice of ministers, the resolution asks the Governor-General to act unconstitutionally. Further, the resolution asks the Governor-General to act on the advice of the Senate, although the House of Representatives has a different view. The Governor-General cannot be asked to favour the view of one house of the parliament in preference to the other.

Finally, the appropriate place for any challenge to the royal commissioner's decision not to disqualify himself is the courts. If the Senate were to pass this resolution, it would be interference with the judicial process and a violation of the separation of powers. On two previous occasions, governors-general have considered this situation: Sir Ronald Munro Ferguson in 1914; and Sir Isaac Isaacs—like Mr Heydon, by the way, a former member of the High Court of Australia—in 1931, when a Senate resolution asked the Governor-General to act at variance from the advice of ministers. This is the way Sir Isaac Isaacs disposed of the matter in 1931:

My plain duty in such circumstances, as it appears to me, acting, not as the representative of His Majesty the King as a constituent part of the Commonwealth Parliament, but as the designated executant of a statutory power created and conferred by the whole Parliament, is simply to adhere to the normal principle of responsible government by following the advice of the Ministers who are constitutionally assigned to me for the time being as my advisers, and who must take the responsibility of that advice. If, as you request me to do, I should reject their advice, supported as it is by the considered opinion of the House of Representatives, and should act upon the equally considered contrary opinion of the Senate, my conduct would, I fear, even on ordinary constitutional grounds, amount to an open personal preference of one House against the other—in other words, an act of partisanship.

That is the position into which this motion seeks to place his Excellency the Governor-General. Regardless of what one might say about the Royal Commission into Trade Union Governance and Corruption, this is plainly an attempt to use the Senate to achieve an unconstitutional end; an end at variance with constitutional precedent and practice which seeks to embarrass His Excellency the Governor-General by asking him to act at variance with the advice of his ministers.