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Why Is Kevin Rudd Still Prime Minister?

The federal election was held ten days ago. The Labor government was defeated. Tony Abbott has announced his new ministry. But Kevin Rudd is still prime minister.

Rudd will remain prime minister until tomorrow morning.

At that time, Abbott will be sworn in as prime minister and his ministers will take the oath of office.


Until that moment, Kevin Rudd remains caretaker prime minister, as he has been since the beginning of the election campaign.

This is quite normal.

  • In 2007, Kevin Rudd won the election on November 24 but was not sworn in as prime minister until December 3. John Howard remained prime minister until that date.
  • In 1996, the election was held on March 2 but John Howard did not replace Paul Keating as prime minister until March 11.
  • In 1983, the election was held on March 5 but Bob Hawke was not sworn in to replace Malcolm Fraser until March 11.
  • In 1949, the election was held on December 10 but Robert Menzies was not sworn in to replace Ben Chifley until December 19.

Excluding the immediate installation of Malcolm Fraser as prime minister, following the dismissal of Gough Whitlam, on November 11, 1975, the fastest transfer of the prime ministership in recent decades took place in 1972. Because Gough Whitlam wanted to get down to business immediately, he was sworn in as prime minister three days after the December 2 election in which he had defeated William McMahon and the Liberal-Country Party coalition. Whitlam and his deputy, Lance Barnard, served as a two-man government until December 19.

Transferring the Prime Ministership

The process followed this year by Rudd and Abbott is part of a long tradition.

On September 8, the day after the election, Rudd tendered his resignation to the Governor-General, Quentin Bryce.


In resigning, Rudd surrendered his commission to the Governor-General. Bryce accepted Rudd’s resignation but asked him to remain as caretaker prime minister until the swearing-in of the new ministry.


Rudd’s resignation will take effect the second that Abbott is sworn in. In this way, there is always a prime minister in place.

As can be seen in Rudd’s letter to Bryce, his last official advice to the Governor-General was to advise her to call Tony Abbott and commission him as prime minister.

The same thing happened on June 26 when Rudd defeated Julia Gillard. You can see the documents here.

Rudd’s resignation will also terminate the commissions of all his ministers. They do not need to submit individual resignations because their appointments are made on the advice of the prime minister.

You can see in Gillard’s letter to the Governor-General that she specifically said her resignation did not include those of her ministers. They were left in place until Rudd had decided on the composition of his ministry.

Why does it happen this way?

The Role Of The Crown

Australia is a constitutional monarchy. This means that the monarch is bound by the country’s constitution and laws.

As the monarch, Queen Elizabeth II plays no day-to-day part in Australia’s system of government. Instead, the Governor-General represents the Queen. The Governor-General is appointed by the Prime Minister on advice to the Queen. In other words, the Queen doesn’t actually decide who becomes Governor-General. She will always accept the advice of the prime minister.

Prime Minister Tony Abbott will appoint a new Governor-General in the coming months because Quentin Bryce is retiring in March. Her term was extended by six months so that her retirement would not come in the middle of the election campaign. Rumours say Abbott might appoint General Peter Cosgrove, in part because of the centenary of World War I in 2014 and Gallipoli in 2015.

A thousand years ago, the English monarch was an absolute monarch. The kings and queens of England had unfettered power to raise taxes, fight wars and impose laws on the population. Over time, the monarchy transitioned to its current form where it is subject to the rule of law as laid down by Parliament.

This first occurred when the monarch was forced to take advice on matters of government from the nobility, the aristocracy, wealthy landowners, etc. The Magna Carta of 1215 was a significant moment in this process.

With the development of the House of Commons (the lower house, equivalent of our House of Representatives), the monarch gradually surrendered power to the parliament.

By the 17th century, a series of conflicts between the monarch and the parliament resulted in the English Civil War (1640-49). King Charles I raised an army and fought a long war with the Parliament. Charles lost and was executed in 1649. England briefly became a republic.

When the monarchy was reinstituted in 1658 – a period known as the Restoration – the monarch’s power was further limited. During the 1700s, the position of prime minister emerged. Sir Robert Walpole is usually regarded as the first prime minister, even though the title was not officially used for some time.

The prime minister became the monarch’s chief adviser. For most of the past 200 years, the monarch has ceased to exercise real political power and only acts on the advice of the prime minister.

Advising the Governor-General

The concept of advice still exists. The Australian Constitution gives the Governor-General considerable power. In fact, Section 61 says that the executive power of the Commonwealth is vested in the Queen and the Governor-General. In practice, these powers are only exercised on the advice of the prime minister.

For example, Section 28 says that the Governor-General may dissolve parliament. In practice, it is the prime minister who decides when this will happen and when an election will take place. The decision is made in the form of advice to the Governor-General, as we saw when Kevin Rudd called the 2013 election.

On Sunday August 4, Rudd drove out to Government House with written advice that the parliament be dissolved and an election called. On the advice of the Prime Minister, the Governor-General issued an election writ that commanded the Australian Electoral Commission to conduct the election. The writ set out all the relevant dates for the election. Whilst it appeared in the form of an instruction from the Governor-General, all the decisions were taken on advice from the Prime Minister.

It sounds archaic and many think it is anachronistic but the idea of the Prime Minister giving advice to the Governor-General is one of the most important conventions in the Australian political system.

In fact, one of the most interesting things about the Australian Australian Constitution is that some sections of it are interpreted literally, whilst other sections operate in accordance with unwritten conventions.

The most controversial event in Australian political history occurred on November 11, 1975, when the Governor-General, Sir John Kerr, did not act on his prime minister’s advice. Rather than accept Whitlam’s advice to call a half-Senate election, Kerr dismissed Whitlam and immediately commissioned the Opposition Leader, Malcolm Fraser, as caretaker prime minister. Kerr appointed Fraser on condition that he immediately secure Supply from the Parliament and recommend a double dissolution of the parliament. This multi-layered constitutional crisis began when the Fraser-led Coalition tried to force an election through blocking the government’s budget in the Senate.

Kerr interpreted his power under Section 64 literally. This section gives the Governor-General the power to appoint ministers. In the normal course of events, as in the current situation, Section 64 operates by the convention that the Governor-General accepts the advice of the prime minister.

What Happens Tomorrow?

A ceremony will take place at Government House, Yarralumla, tomorrow morning.

Acting on the advice of the defeated Prime Minister Rudd, Governor-General Quentin Bryce will swear in Tony Abbott as Australia’s 28th prime minister. Rudd’s resignation will take effect at that moment.

Abbott’s ministry will then be sworn in. The new prime minister will introduce his ministers to the Governor-General. Those members who have not previously served in a government will first take the oath of office as Executive Councillors. All ministers and parliamentary secretaries will sign an oath of office for the position Abbott has given them.

In this way, power will transfer peacefully from one side of politics to the other. Whilst a literal reading of the Constitution makes it appear as if all the key decisions are taken by the Governor-General, in fact the people and their representatives will have been the key players.

It’s a far cry from the days of absolute monarchy, even if the rituals haven’t changed for centuries.

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Malcolm Farnsworth
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