Sack the President at your peril

In the whole of Australia’s history, not one Governor General has ever been dismissed. Indeed, so far as we know, none has even had a green card waved under his vice-regal nostrils.

We might therefore think that whatever the excitement over the mechanism for appointing a republican head of state, issues about dismissal would have been quickly relegated to the category of mogadon and theory.

Not a bit of it. Monarchists are now inveighing fruitily that the proposal that a President might be sacked by the Prime Minister with the approval of the House of Representatives would leave him with a less secure tenure than the presidential cook.

Direct electionists agree, muttering constitutional spells to ward off this black magic against the "sovereignty of the people", whatever this may be taken to mean in the circumstances.

What both ends of this ill-fitted referendum marriage fail to grasp is the reason that the constitutional convention determined upon "simple dismissibility" in the first place.

Here, the Convention was guided by what sometimes was referred to as "the McGarvie principle", for the simple reason that it was most ably propounded by Richard McGarvie, the former Governor of Victoria.

This principle melded high constitutional theory with brutal reality. It held that the ultimate reason that Governors General acted constitutionally and in accordance with the advice proffered to them by their responsible ministers was because if they did not, they would be sacked.

This blunt proposition has the single virtue of obvious truth - a head of state who will be sacked if he runs amok will not run amok.

The Convention was deeply impressed by this reasoning, which gave constitutional conservatives their greatest victory at that event. Even before the Convention began, the Australian Republican Movement had begun to abandon its proposal that a President be dismissed only by a (politically unachievable) two thirds vote at a joint sitting of parliament.

Ironically, therefore, the present proposal that the President be dismissed by the Prime Minister with approval of the House of Representatives embodies not constitutional radicalism, but the high-water mark of constitutional conservativism.

Critical to such an understanding is the appreciation that the dismissal mechanism which will go to referendum certainly is no more permissive than that which operates under the constitutional monarchy.

A Governor-General presently may be dismissed by the simple expedient of a Prime Minister telephoning the Queen. In accordance with the most fundamental principles of the British (and Australian) constitutions, the Queen will act in accordance with the advice of her Prime Minister.

Recently, there has been some attempt by monarchist apologists to argue that the Queen has a "reserve power" to reject a Prime Minister’s advice.

This is unconstitutional, ahistorical nonsense, supported neither by principle nor precedent. The Queen’s only reserve power is to do as she is told. Unlike some of her supporters, she undoubtedly is wise enough to understand this.

Some other monarchists have attempted a less daring manoeuvre, claiming that the Queen at least can delay a dismissal by claiming time to think about it. The prospect of delay, presumably, is believed to put a dampener on prime ministerial will.

What these would-be constitutional theorists forget is that the fundamental principle of responsible government is that the Queen must act upon the advice of her ministers. If, therefore, a Prime Minister advises the Queen to sack a Governor-General and to do it now, her only option is prompt obedience.

Of course, in Bagheot’s phrase, she may advise, counsel and warn against such hasty action. But in the phrase of any Prime Minister imaginable, who cares?

So what really will change under the referendum model as it touches upon the power of the Prime Minister to dismiss the president?

The profoundly disconcerting answer for monarchists and their direct electionist allies of convenience is that it will make such an exercise harder, rather than easier.

The starting point here is that any presidential dismissal must be approved by the House of Representatives. Opponents of the model scoff, saying that this is nothing more than requiring that the Prime Minister’s actions be approved by his mates.

But think again. Any parliamentary motion for dismissal will be moved in front of the glaring lights, cameras and note-books of every journalist in Australia, and will be debated by the opposition until every salacious drop of political embarrassment has been extracted.

This is the sort of ghastly political set piece that any Prime Minister would chew his own leg off to avoid.

But the real sting lies in what happens after this. At present, if a Prime Minister dismisses the Governor General, he is merely faced with the congenial task of deciding which obedient patsy should appointed as a replacement.

In fact, it is his ability to install his own tool as a substitute for an obstreperous Governor General that is the only thing that makes a vice-regal sacking worth its while to a Prime Minister.

Yet this motivation vanishes completely under the referendum model. Instead of being able to turn to his stud-book of reliable party hacks, a Prime Minister will be faced immediately by the most senior State Governor as acting President.

Whatever a State Governor may be relied upon to be, a Prime Minister who automatically assumed that they would be a pliant political cipher would be a very foolish Prime Minister indeed. In a constitutional sense, it would be out of the presidential frying pan, and into the gubernatorial fire.

It gets even worse. When the Prime Minister turned to finding a permanent replacement for the sacked President, he would have to run the gauntlet of the whole bi-partisan appointment process.

Instead of promoting his chauffeur to Yarralumla, he would have to peruse the names provided by the Nominations Committee, and then come to an agreement with the Leader of the Opposition, which in turn would have to be ratified by a two thirds majority of a joint sitting.

What realistic constitutional commentator could imagine Prime Ministers sacking Presidents with the insouciance that they would bring to the dismissal of their cook when they would have no capacity to insist on a replacement?

There is no doubt that world records for obfuscation and distortion will be regularly broken in this referendum.

But it is most unlikely that the No case will rise above the heights of mutilated logic they have scaled on the question of presidential dismissal.