There are calls now for the Northern Territory Administrator to intervene in the stand off between Chief Minister Adam Giles and party colleagues seeking his removal, but if other options are available, they should be considered first, writes constitutional law expert Anne Twomey.

The refusal of the Chief Minister of the Northern Territory to resign his office despite a majority of his party colleagues seeking his removal as their leader, has led to suggestions that the Administrator (who is the equivalent of the Governor in a Territory) should immediately dismiss him.

Wiser heads, however, would suggest caution. One of the abiding lessons from the Whitlam Government dismissal in 1975 is that the dismissal of a government by a vice-regal representative is an extreme act that should only take place in exceptional circumstances. If other options are available, they should be considered first.

The need to ascertain the facts

In these circumstances, the Administrator would need to ascertain a number of facts. First, it has been claimed that the Chief Minister has been removed as leader of his parliamentary party. However, it appears that some members of the parliamentary party were not aware of the relevant meeting. This raises questions about whether a formal meeting was held within the party's rules and whether he has been validly removed as leader of the party.

The second and more important issue concerns who holds the confidence of the Legislative Assembly. The fundamental principle which governs how a Governor or Administrator chooses who to appoint as Premier or Chief Minister is that the person chosen is the one "best able" or "most likely" to hold the confidence of the lower House. Where a party has a strong majority in the House and where a party is unified in supporting its leader, it can generally be assumed that the party leader should be appointed. However, in the current circumstances, the possibility arises that some party members would not support their new leader in the Legislative Assembly and that he might therefore not have majority support. In those circumstances, it would be preferable for the House to decide who has its confidence, rather than the Administrator.

The option of delay

One of the difficulties in 1975 was the perceived need to act quickly in order to hold a fresh election before supply ran out and before the summer holiday period. Sir John Kerr did not feel that he had the option to delay - although others argued that he should have delayed longer to let political pressure resolve the matter. In the Northern Territory there is no necessity to rush to a resolution. Delay, in these circumstances, may be the best approach as it gives the political participants the chance to resolve the issue without vice-regal interference.

A good example arose in Queensland at the end of Sir Joh Bjelke-Petersen's premiership. Sir Joh lost the support of his party, who voted in Mike Ahern as the new leader. Ahern went to the Governor with a document declaring the support of all the members of his party (other than Sir Joh), comprising a majority of the Legislative Assembly. Nonetheless, the Governor declined to appoint him as Premier at that time as there was no vacancy. The Governor cannot be constitutionally advised by a caucus and considered that he did not have grounds to dismiss the Premier. Instead the Governor extracted an agreement from Sir Joh that Parliament would be convened within a few days, with the intention of leaving it for the Legislative Assembly to decide upon the leader in a confidence motion. Although there were a few days of political uncertainty, the political pressures built up and did their work with Sir Joh resigning before Parliament resumed. Once he had resigned, the Governor appointed Mike Ahern as Premier.

While there was some criticism of the Queensland Governor during the period of uncertainty over the leadership, he was widely praised afterwards for the way he dealt with the crisis and for achieving a transition without the constitutional controversy that a dismissal would have caused. The Northern Territory Administrator may well wish to follow in his footsteps.

Could an election be called?

What if no leader holds the support of a majority of the House? Can an election be called? The Northern Territory has fixed term elections and the next one is not scheduled to be held until August 2016. However, an extraordinary general election can be held if a motion of no confidence in the Government is passed by the Legislative Assembly. If the Members of the Legislative Assembly cannot agree upon a leader who holds the support of a majority of the House, then an election triggered by a no confidence vote may be the only way out - although one would imagine that not many Members would like to face the voters in the wake of such political upheaval. Hence, there may be a real political imperative to achieve unity and stable government for the rest of the parliamentary term.

Anne Twomey is a Professor of Constitutional Law at the University of Sydney.