By Ryan Goss
New revelations surrounding the lead-up to the Whitlam government’s dismissal in 1975 emphasise the ongoing significance of the events of four decades ago to politics today. But is The Dismissal a moment that will become even more significant if the push for Australia to become a republic gains momentum?
Relying on conventions has its risks
On November 11, 1975, the governor-general, Sir John Kerr, dismissed the Labor government of Gough Whitlam. The government had been unable to get its budget through the Senate, in which it lacked a majority.
The opposition leader, Malcolm Fraser, is now known to have been in detailed discussions with Kerr prior to Whitlam’s dismissal. Fraser was sworn in as prime minister that afternoon, the budget passed and an election held shortly afterward.
Some see the events of 1975 as a product of a “clash of political wills” more than a product of Australia’s Constitution. But, for many, the 1975 crisis was brought about in part by the nature of Australia’s constitutional arrangements.
Many things Australians might expect to be in the Constitution simply are not there. There is, for example, no reference to the prime minister in the Constitution. And when it comes to the governor-general, as jurist George Winterton wrote in 2003:
The Constitution is largely silent on the method of appointment and removal and the qualifications of the governor-general.
What’s more, the accepted understanding of the governor-general’s role – especially in a crisis – relies less on the Constitution’s text and more on unwritten rules (or “constitutional conventions”). As unwritten rules, it is not always clear precisely what constitutional conventions allow or require.
Unlike laws, constitutional conventions cannot be enforced in the courts. When a convention is broken, the consequences tend to be political rather than legal.
Much of the time, these conventions work well. They provide a degree of certainty, but also flexibility, allowing constitutional arrangements to evolve and adapt over time.
In times of high crisis, though, relying on constitutional conventions has risks. The rules are not clear, and there is no-one to enforce the rules. Did convention require that Whitlam resign after unsuccessful attempts to get his budget through the Senate? Did convention forbid Kerr from negotiating with Fraser in the manner that has recently been revealed?
Did convention require that Kerr warn Whitlam before terminating his commission as prime minister? Did convention require that Kerr reinstate Whitlam as prime minister on the afternoon of November 11, after Whitlam proved that he continued to maintain the confidence of a majority of the House of Representatives?
There was no clear answer to these questions in the Constitution’s text. To the extent there were answers to these questions, those answers were unwritten and not legally binding. They could not be enforced in the courts. And the consequences for Kerr, Whitlam and Fraser were political rather than legal.
Is Ireland a possible model?
The Dismissal was unquestionably a traumatic constitutional event. And yet, in the 40 years since, there has been no constitutional amendment relating to the key questions about the governor-general’s powers over the government of the day – sometimes referred to as “the reserve powers”.
This has not proven problematic in the four decades since The Dismissal. No constitutional crisis has recurred. Although there has been discussion about codifying the governor-general’s powers in a clear or legally binding form, no change has been made.
But the new revelations and the recent resurgence of republicanism raise the question: what if Australia were to consider breaking ties with the British monarchy and become an independent republic? Would it be necessary to try to codify the powers of the new head of state?
The last time Australia had a vote on whether to sever ties with the British monarchy was in 1999. Back then, the proposal was to replace the governor-general and the Queen with a president chosen by parliament. Because this form of a republic was a fairly minimal change to the existing system, at the time it was not thought necessary to codify all the president’s powers.
Instead, when it came to the governor-general’s ability to dismiss a government, the proposed amendment simply would have continued the status quo by saying:
… the president may exercise a power that was a reserve power of the governor-general in accordance with the constitutional conventions.
But having a president chosen by parliament is not the only way to choose a head of state. If Australia had a president elected by the people instead of by the parliament, there might be a demand to make the president’s powers clear and codified. Otherwise, a president with a popular electoral mandate might try to push the limits of their powers beyond those that the governor-general currently has.
As Malcolm Turnbull said in 2005:
If … at some point in the future there was widespread support for having a president who was directly elected … then the powers would have to be spelt out and in some fine detail.
Australia is not the only country to have faced this problem. The Republic of Ireland operates under a very similar constitutional system to Australia’s. As a republic, however, Ireland has a popularly elected president instead of the governor-general and the Queen.
Ireland made the choice to set out in its Constitution a number of matters that are missing from Australia’s Constitution. These include the president’s powers to appoint the prime minister and to dissolve the lower house of parliament, and the circumstances in which the prime minister must resign.
This ensures the president is able to be a uniting symbol for the nation, but is unable to act beyond a carefully specified constitutional mandate.
Australia’s constitutional circumstances are not identical to Ireland’s, and it simply isn’t possible to design a perfect constitution. But the Irish model provides reassurance that codifying critical constitutional conventions is not impossible and that The Dismissal’s legacy need not be an obstacle to Australia becoming a republic.
Ryan will be on hand for an Author Q&A between 3:30 and 4:30pm AEDT on Wednesday, November 11, 2015. Post your questions in the comments section below.
Ryan Goss is a Lecturer in Law at the ANU College of Law. This article was originally published on The Conversation.