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The Australian Republic is now emerging as a key election issue, with the Prime Minister a mere observer in its wake. In considering the powers of a president in a new republic, it is important to affirm that government can only be formed with the confidence of the House of Representatives, writes Professor Jenny Hocking.

(Cartoon by Mark David / mdavid.com.au)

IF ANYONE had seriously thought that the year ended well for the Prime Minister, promising renewed leadership, enhanced authority and clearer policy direction, his rapid advance and equally rapid retreat on the republic would have brought them back to ground. The new year had barely begun before the reinvigorated Turnbull, buoyed by the rare success of the same-sex marriage legislation, showed himself to be no different from the previous year’s disappointing model.

On the morning of 1 January, Turnbull surprised everyone by unilaterally declaring his support for a renewed push towards a republic, floating the prospect of a postal survey to gauge popular support. By early afternoon the same day, duly chastised by his internal party critics, he had rescinded it. It was an exceptionally swift political U-turn – even for this Prime Minister – and a brutal reminder of how far the once brash, uncompromising, staunch republican has fallen. In just four hours, Turnbull had revealed the extent of his political humiliation — a leader unable to control his or his party’s agenda and reduced to a supine shell of the man who had promised so much.

Turnbull has since definitively ruled out any move towards a republic before the next election. Should the Queen die within the next 18 months, then Charles, Prince of Wales, will automatically become King of Australia — a prospect which has given added impetus to the Republican cause.

All of which leaves the republic now as an emerging election issue and with the Prime Minister a mere observer in its wake. And to think that this is the very ground that Turnbull once proudly called his own. He had taken on the British establishment and the intelligence community with the Spycatcher case and won, and had led the campaign for an Australian Republic at the 1999 referendum — and lost. Although most Australians then favoured a republic, a majority had voted against the model advocated by Turnbull. It was a devastating loss and one that should have raised more questions about Turnbull’s political capacity than it did.

The republic referendum secured Turnbull’s political future, yet he had been comprehensively outmanoeuvred by Liberal Prime Minister and ardent monarchist John Howard. Howard had shamelessly used the tactics of division over the form of appointment of an Australian Head of State to fragment the Republican support base, cruelling its chance of success. In Turnbull’s words, Howard was the Prime Minister who "broke this nation’s heart". As for Turnbull himself, the republic had been a moment of great promise followed by even greater disappointment — something we now see as typical.

In fact, the Opposition has already taken the running on the republic. In July last year, Opposition Leader Bill Shorten announced that a Labor government would deal with the question of an Australian Republic in its first term of office. He followed up in October with the appointment of a Shadow Assistant Minister for an Australian Head of State, Matt Thistlethwaite — an Australian first.

Shorten has proposed a two-stage process with a simple starting-point, a compulsory plebiscite with a single question: Do you support an Australian Republic with an Australian Head of State? It is a smart strategic move that gets directly to the substantive issue – do we want an Australian Republic? – and ensures that the debate over procedural matters, including the means of appointment and the powers of the new head of state, would then carry the authority of a national vote in support of a republic.

The thorny issue that neither Shorten nor the referendum addressed was the power of the head of state. Recently released Cabinet papers show that former Prime Minister Paul Keating was torn by the obvious need to address this critical question during the referendum debate and the knowledge that to do so would inevitably derail the debate. And so, the referendum was derailed instead over a proxy — over the mode of appointment of a head of state – whether directly elected or by parliamentary nomination – leaving the related and unavoidable matter of their powers unaddressed.

We cannot continue to simply ignore this and hope that it will go away. The question of the powers of a head of state cannot be avoided without also risking the substance of our parliamentary democracy and the Westminster system on which it is based. At the heart of this is its sine qua non: that government is formed by the party which commands a majority in the House of Representatives, "the peoples’ House", not by a unilateral decision of the head of state.

In this, the experience of 1975 with the dismissal of the elected government of former Prime Minister Gough Whitlam by the Governor-General, Sir John Kerr, is the elephant in every room. The Dismissal is instructive in telling us why both the powers and the means of appointment of an Australian Head of State matter greatly. Kerr’s greatest impropriety on 11 November 1975, even worse than his dismissal of the Whitlam Government, which retained its majority in the House of Representatives at all times, was his "second dismissal" later that afternoon – his refusal to acknowledge the House of Representatives’ motion of no confidence in the appointed Government of Malcolm Fraser and calling for the reinstatement of the Whitlam Government – and Kerr’s dismissal of the entire Parliament.

Although now accepted as improper if not unconstitutional, Kerr’s actions have set a dangerous precedent. The prospect that this power over the formation of government could rest with a president, rather than with the House of Representatives, is precisely why their appointment and their power are critical issues and cannot be willed away. A popularly elected president with such a power and such a mandate is simply unthinkable — at least within our existing notion of the Westminster system.

If we are to avoid again becoming bogged down in the confusing and divisive matter of the powers of a head of state, we need to find a new way to frame that aspect of the republic debate. The Dismissal has made us unusually and understandably concerned with the powers of the head of state in relation to the formation of government, and yet this becomes an issue only if the head of state can exercise the power assumed by Kerr to remove a democratically elected government and appoint one that lacks the confidence of the House of Representatives.

We need to turn this on its head and to focus instead on protecting the central role of the House of Representatives in the formation of government — the heart of the Westminster system. A simple statement affirming that government can only be formed with the confidence of the House of Representatives is all that is needed. With that central tenet of parliamentary democracy in place, the codification of the powers of the head of state becomes less urgent and no future Australian Head of State could appoint a government without the confidence of the House of Representatives, as John Kerr did in 1975.

Professor Jenny Hocking is an award-winning biographer and Emeritus Professor at Monash University. The Dismissal Dossier: Everything You Were Never Meant to Know About November 1975 – The Palace Connection, has just been published by Melbourne University Press. You can follow Professor Hocking on Twitter @JennyHocking2.

This article was originally published on 'Pearls and Irritations' and is republished with permission.

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