66A.1 Section 65A(iii) is available to deal with a Prime Minister’s voluntary absences. By contrast, s.66A mainly addresses the involuntary absence or incapacity of a Prime Minister. It will be of most use when there is an emergency. It has been prepared with reference to what would work if the country was invaded and it is not clear which Government members are alive or dead.
66A.2 An Acting Prime Minister would assume office when either of two events occurs - a vacancy in the office of Prime Minister or an inability on the part of the Prime Minister to communicate with his or her Ministers. The latter may occur because of physical difficulties - e.g., stranded by floods - or due to ill health or accident. No attempt has been made to define vacancy or inability to communicate, because use of the provision is expected to be temporary. Except in times of chaos or war, it will be obvious whether the requirements of the section are met, and a Minister who attempted to usurp the Prime Minister’s position through a bogus claim to be acting could be the subject of an injunction from the High Court if other Ministers can show the Prime Minister is in contact with them, or if the Prime Minister himself/herself appears.
66A.3 The provision operates without any formal appointment because in times of emergency it may not be possible to communicate with the Governor-General or convene Parliament.
66A.4 Because the seniority list will have a clear legal effect, such lists in future will be based primarily on the Prime Minister’s view of ‘Who should take over in a crisis if the Deputy and myself are not here?” The list should be determined by who performs best in a crisis.
66A.5 Appointment will depend on who is “available”. This is a wider, more elastic concept than vacancy or inability to communicate. It includes proximity to the seat of power. A senior Minister who is stuck in the outback may not be sufficiently “available” to act until he or she returns to Canberra. This is something for those in the Cabinet to work out at the time.
66A.6 The section intersects with s.67A, which provides that Senators may become Acting Prime Minister.
66A.7 This clear provision for what is to happen in an emergency negates the need for any ‘temporary’ appointments, or the legally dubious appointment of ‘caretaker’ Prime Ministers. |
