OPINION / Crispin Hull on Djokovic, Discretion, Diversion and Direction

The Governor-General, General David Hurley, has tested positive for Covid. We wish him a speedy recovery, of course, but it gives rise to the question of whether Australia needs a Governor-General at all, and more broadly how have our constitutional arrangements stood up, and how well will they stand up in the face of the pandemic.

In the past several months we have seen endless speculation over the election date, adding to the uncertainties of the pandemic.

In the past week we have seen the confusion over state-federal responsibilities with the Novak Djokovic case.

At first, Prime Minister Scott Morrison – looking around everywhere for someone else to blame for the diplomatically awkward position of turning away a visa-carrying tennis star ­– accused Victoria.

News of Djokovic’s “vaccine exemption” caused uproar. So, Morrison said six days ago, “Well, that is a matter for the Victorian government. They have provided him with an exemption to come to Australia, and so we then act in accordance with that decision. . . . That’s how it works. States provide exemptions for people to enter on those bases, and that’s been happening for the last two years. So, there’s no change to that arrangement.

“The Victorian government made their decision on that. And so, I’d have to refer to the Victoria Government about their reasons for doing so.”


This, of course, is claptrap. The acid question is: vaccine-exempt from what? The Victorian Government has no power to determine who enters Australia. The Federal Government has legislated comprehensively on immigration. It has covered the field, leaving no room for the states to act.

All the Victorian Government has done is deal with vaccine exemptions for entry into sporting events by people WHO HAVE ALREADY ENTERED AUSTRALIA.

The Border Force people at Melbourne Airport had no choice but to apply the federal law which does not provide for discretion. They could no more let Djokovic in than allow a drug dealer and his parcel of heroin free passage through customs.

So, Morrison changed his tune, saying “the rules are the rules”, evoking the 2001 words of then Prime Minister John Howard: “We will decide who comes to this country and the circumstances in which they come.” Both were politically artful distractions from other faults.

Morrison did not explain why Djokovic was permitted on an aircraft bound for Australia without providing clear information as to what documents and proof would be required upon landing in Australia.

Those rules are federal, and apply across Australia irrespective of the state one lands in. Once landed and through customs and immigration, various state rules apply.

Morrison has since shifted the blame to Tennis Australia for not doing that.

It was just another example of federal-state responsibility-shifting that has been made more obvious by the pandemic.

The constitutional founders made it pretty plain that the Feds should run immigration and quarantine by putting those words under the list of Commonwealth powers in Section 51 of the Constitution. But in this pandemic, the Morrison Government has resiled from leadership and direction on those questions.

The blurred lines continue across health, hospitals, aged care, and education. And the whole fiscal remit of taxes and spending needs an overhaul.

The Feds have got to be prevented from warping policy by dictating terms upon which their education and hospital grants to the states are spent in favour of inefficient private provision. The Feds have got to be prevented from diverting spending from genuine Commonwealth purposes to all sorts of special grants in marginal electorates that amount to bribing voters on things which should be the remit of local government.

The tax breaks on the wealthy must be phased out – capital gains, negative gearing, superannuation, trusts, flattening and lower income taxes, GST exemption on private school fees etc – so that money is available for aged care and public health and education. The pandemic has revealed that public hospitals and public health generally have fallen through the gap of federal-state bickering.

Now, let’s return to the Governor-General. Under the Constitution, the Governor-General can dissolve the House of Representatives and call an election. The Governor-General (with one exception in 1975) has always acted on the advice of the Prime Minister when doing this.

The House must be dissolved and writs for the election issued not later than three years and 10 days from the first sitting of the House after the previous election. The maximum election campaign duration is 68 days. Technically, the House election could be held as late as 24 September 2022.

But senators have to be elected in the 12 months before the end of their terms in time for them to take their seats on 1 July 2022. The latest date for that is 21 May. Most likely the House election would be on the same day. But who knows what a desperate Prime Minister might do to hold on to office as long as possible?

If we had fixed three-year terms, that would be one less thing for a Governor-General to do. Everyone would know the date and could plan accordingly. And pity knows, we have had too little planning during this pandemic.

The Governor-General also appoints the Ministers and Prime Minister, according to who can command a majority in the House. Given the waning of confidence in the major parties caused by their failing before and during the pandemic, it is increasingly likely neither major party will have a majority.

That impasse could be avoided if the Prime Minister were to be elected by the Parliament at the first sitting after an election (as has worked well in the ACT through more than 30 years of minority governments). One less thing for the Governor-General to do.

Finally, the Governor-General’s token role as commander-in-chief would be redundant if the rules were changed so that only Parliament could commit Australian troops to overseas conflicts.

The pandemic has, unfortunately, caused our fearful political leaders to shy away from the very bold steps needed to deal with the political fault lines that that very pandemic has exposed.

Supply chains and food and fuel security are not the only thing stressed by the pandemic. It has also revealed weaknesses in our political system that ultimately have resulted in suffering and even death.

To the extent that Australia so far has done reasonably well on vaccination and death rates is despite the actions of the Federal Government (in cahoots with NSW since October) not because of them.

This article first appeared in The Canberra Times and other Australian media on 11 January 2022.


Crispin Hull BA, LLB (Hons) | Property Convenor  |  ANU School of Legal Practice Lawyer of the Supreme Court of the ACT, on the Register of Practitioners kept by the High Court of Australia


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