Constitutional rob on 03 Sep 2010 04:22 pm
As a result of the hung parliament, the Governor-General Quentin Bryce sought advice about any legal impediment to exercising her constitutional discretion to resolve the uncertainty, especially arising from the perception she may favour the ALP as her son-in-law is the Honourable Bill Shorten MP.
Solicitor General Stephen Gageler SC gave his opinion on 26 August 2010. It is, in summary, that perception of bias or conflict of interest raises no legal barrier for the Governor-General. His reasoning is simple – it is necessary and critically important that the reserve powers can be exercised, especially in a politically charged impasse.
He noted the Queen’s instructions in her current letters patent allows for some of the Governor-General’s functions to be vested temporarily in an administrator and authorises the Governor-General to appoint a deputy. That the Australian constitution specifically allows such deft movements of reserve power had no impact on Mr. Gageler’s view of it.
Mr. Gageler’s opinion is unqualified in that the Governor-General’s connections and relationships cannot exclude or in any way impede their exercise of the functions of office. No mention is made of impairments beyond questionable connections or relationships, such as the precedent set by Dr Peter Hollingworth ceasing to function as Governor General on 15 May 2003 to defend a civil charge of rape.
It is remarkable, but understandable, that the Governor General has legal immunity from allegations of bias or conflict of interest. In the political tumult of the Governor-General making a deliberated decision there should be no legal appeal grounded in bias or conflict of interest, but more politics.
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