Amidst all the depressing events of last week’s failed leadership coup in the Northern Territory, there was at least one redeeming feature, at least for constitutional lawyers. Adam Giles’ refusal to resign as Chief Minister, despite losing the confidence of the majority of his party room (albeit in a dodgy unofficial meeting), gave rise momentarily to an occasion for exercise of the Administrator’s reserve powers.
Chief Minister “elect” Willem Westra van Holthe asserted to the assembled media at Government House that Giles’ refusal to sign a resignation letter was just a momentary glitch in his plans to be sworn in as the new Chief Minister by Administrator John Hardie. They would simply need to prepare an “instrument of termination” for the Administrator to sign.
Unfortunately for van Holthe and his majority coup plotters, the Administrator didn’t agree. He indicated (no doubt after consulting the Solicitor-General) that it was a matter for the Legislative Assembly. In the circumstances that existed last week, that was clearly the case. The conventions of responsible government indicate that an Administrator/Governor should only exercise his reserve powers by dismissing a Chief Minister/Premier/Prime Minister contrary to the incumbent’s advice and appointing a successor in his or her place if it is completely clear that the incumbent has lost the confidence of Parliament and that the claimed successor now enjoys that confidence. Usually that will require the contenders’ numbers to be tested on the floor of Parliament. However, what happens if the claimed successor is able to produce clear written evidence that he/she now enjoys the support of a majority of members of Parliament? Wouldn’t that be sufficient justification for exercise of the reserve powers?
Of course that wasn’t the situation in the Northern Territory last week. Van Holthe had the support of only nine out of the 25 members of the Legislative Assembly i.e. a clear majority of the governing party but not of the Parliament itself. Accordingly, there is no doubt that the Administrator was correct in his interpretation of reserve powers. The only way to resolve the situation was for the contenders to test their support on the floor of the Assembly. The Administrator no doubt would have exercised his reserve power to recall the Legislative Assembly urgently had the CLP Parliamentary Wing not resolved its leadership dispute (in however bizarre manner) a few hours later.
But what if the situation had been that Giles was refusing to resign but it was clear that the other 13 government MLAs supported the claimed successor van Holthe? Could the Administrator properly have terminated Giles’ commission and appointed van Holthe without a Parliamentary motion of no confidence? It appears that the question has arisen in several Commonwealth nations with a Westminster system, including Malaysia, India and Fiji. However, the most entertaining example of such a situation is one that occurred in Nigeria. It suggests that the Queen and her advisers do not necessarily regard a no-confidence motion as being an essential requirement for dismissal. The story is recounted by prominent constitutional law academic Anne Twomey:
If vice-regal reserve powers are dependent upon the responsibility of Ministers, then this leads to the difficult question of how one determines whether responsibility has been lost. There have been numerous disputes within countries that operate a system of responsible government as to whether responsibility must be determined on the floor of the House or whether a vice-regal officer may determine responsibility on the basis of a letter or sworn statement by a majority of the lower House that the Prime Minister or Premier no longer has their support.
Perhaps the most interesting case in which difficult issues of responsibility arose occurred in Nigeria in 1962. The Premier of Western Nigeria, Chief Akintola, lost the support of a majority of his party and was instructed by the party to resign as Premier. He refused to do so. He sought a dissolution, which was refused by the Governor, and he sought the recall of Parliament to determine confidence, which was refused by the Speaker. He was dismissed by the Governor without there having been a vote of no confidence against him. He claimed to be invalidly dismissed and advised the Queen to dismiss the Governor.
The British Government and the Queen took the view that she could not act on Akintola’s advice because he was no longer her responsible adviser. The Supreme Court of Nigeria, however, held that a vote of no confidence was required before the Premier could be dismissed. Hence Akintola remained Premier and the Queen’s constitutional adviser. But the Nigerian Government had declared a state of emergency, taking over the government of Western Nigeria, suspending the Premier and the Governor. So Akintola was not the Queen’s responsible adviser. The state of emergency was terminated on 31 December 1962 and Akintola was restored as Premier without fresh elections. Whether or not he held the confidence of Parliament at that time was uncertain, because it had not been recalled and no vote of confidence had been taken. Nonetheless, at this stage the Queen acted on Akintola’s advice and dismissed the Governor.
Akintola later regained the confidence of the legislature, with two votes of confidence in his favour, showing he was responsible. The Privy Council, however, then reversed the Supreme Court of Nigeria, holding that Akintola had been validly dismissed, so he was not the Queen’s responsible adviser. Akintola responded by causing the Western Nigerian Parliament to pass a constitutional amendment, with retrospective effect, so that the Premier cannot be dismissed unless there is a vote of no confidence in him on the floor of the House. This restored his status as a responsible Minister. His responsibility was later terminated by a bullet in a coup d’etat.
Addendum – Thanks to frequent commenter Alan, who links this article. It may well be that the Palace’s view about proper exercise of reserve powers in this situation had changed between 1962 and 1987 when a not dissimilar situation arose in Queensland with Premier Joh Bjelke-Petersen refusing to resign despite losing party room numbers in the midst of the Fitzgerald Royal Commission. The Queen’s Private Secretary Sir William Heseltine later expressed the view to Qld Governor Sir Walter Campbell “that you would have been safe in withdrawing the Premier’s Commission only when and if he had suffered a defeat in the Parliament itself”. In other words, the Governor certainly could have accepted the advice of Queensland Nationals parliamentary leaders that Sir John should be sacked, but he would have run the risk that the numbers might later have changed as the contending sides played political “hardball”, resulting in the Governor being inadvertently drawn into an unresolved political controversy in a way that might have been embarrassing and seen by some as lacking impartiality. Similar factors were at play in the Northern Territory last week as the contenders played hardball although, as noted previously, there wasn’t in fact even an arguable occasion for Giles’ dismissal because the coup plotters fairly clearly did not command a majority of MLAs sufficient to carry a no confidence motion in Giles or a confidence motion in themselves.