Kirk, Linda J --- "'Til Dismissal Us Do Part: Dismissal of a President" [1998] UNSWLawJl 4; (1998) 21(3) University of New South Wales Law Journal 892

`Til Dismissal Do Us Part
Dismissal of a President

LINDA J KIRK [*]

I. INTRODUCTION

The Constitutional Convention recommended to the Prime Minister and Parliament that the Bipartisan Appointment of the President Model (the "Bipartisan model") be put to the people in a constitutional referendum in 1999.[1] The dismissal procedure of the Bipartisan model allows the Prime Minister to, in effect, summarily dismiss a President. Under the existing arrangements, dismissal of a Governor-General is effective only after the Prime Minister has advised the Queen and she has taken time to consider the advice. This article will address the effect the dismissal procedure will have on the willingness of the President to exercise the reserve powers. It will also explore whether the model is capable of providing a satisfactory response to events such as those which occurred in 1975.

II. EXISTING ARRANGEMENTS

Writing after the events of 1975, Professor DP O'Connell expressed the view that if a Governor-General can be effectively dismissed by a Prime Minister "the constitution is destabilized at its heart".[2] He continued,

Any Governor-General is liable to intimidation by a Prime Minister, and the two offices of Head of State and Head of Government are apt, in practical terms, to coalesce.[3]

This observation is based on the assumption that the Prime Minister can secure the immediate dismissal of a Governor-General by the Queen. This led Canadian scholar Andrew Heard to suggest that,

[T]he notion that a prime minister can be automatically granted the removal of a Governor virtually negates the reserve powers of the Governor General. Governors General would be all but powerless if they could be removed any time they resisted the Prime Minister's will ...[4]

The more widely accepted view is that a Governor-General is not subject to immediate dismissal as the Queen would be entitled to the three rights recognised by Bagehot: to be consulted, to encourage, and to warn the Prime Minister.[5] The Constitutional Commission's Advisory Committee on Executive Government concluded that Whitlam could not have secured the immediate dismissal of the Governor-General in 1975 by a mere telephone call to Buckingham Palace.[6] The Queen would be entitled to request from the Prime Minister written advice and be allowed a reasonable period in which to consider it.[7] She may even seek the Governor-General's response to any allegations.[8] However, as the office is held "at pleasure" it would seem that it could be terminated without compliance with the rules of natural justice.[9]

Some commentators have expressed doubt as to whether the Queen is always bound to act on a request by a Prime Minister to appoint or dismiss a Governor-General. In a recent article two Oxford University political scientists, Bogdanor and Marshall, argue that the sovereign retains the right to refuse a request by a Prime Minister to dismiss a Governor-General which is made in order to subvert the democratic system of government.[10]

Under existing arrangements, the Governor-General's reserve powers are not inhibited by a fear of immediate dismissal by the Prime Minister. The office is protected from a politically motivated dismissal by the entitlement of the Queen to be consulted and to consider the Prime Minister's advice and possibly, in extreme circumstances, to refuse to dismiss a Governor-General.

III. BIPARTISAN MODEL

The Bipartisan model provides for removal of a President at any time by a notice in writing signed by the Prime Minister.[11] The President is removed immediately upon the Prime Minister's written notice being issued. The Prime Minister's decision must be ratified by the House of Representatives within 30 days of the removal. Failure of the House to ratify the Prime Minster's decision will not cause the President to be re-instated to office. Under the model the Prime Minister can, in effect, summarily dismiss the President.

This model does not prevent a politically motivated dismissal of a President. It relies on the political consequences of such an action to restrain a Prime Minister from taking such action. In the context of 1975, Professor Sawer suggested that a "summary dismissal" of Sir John Kerr, "attempted or achieved", would have been seen by Mr Whitlam to have the potential to "dig the political grave of the ALP for a long time to come".[12] However, the dismissal of a government may never occur again if the model has the effect of inhibiting a President from exercising this reserve power for fear that he or she will be dismissed by the Prime Minister.

Sir Harry Gibbs has criticised the dismissal procedure of the Bipartisan model.[13] He argues that a Prime Minister faced with a situation where supply is blocked in the Senate and who refused to resign could remove a President who threatened to dismiss the government. The Prime Minister's decision would be ratified by the House of Representatives where he or she held a majority and supply would continue to be blocked.[14]

A President who is dismissed by a Prime Minister would be replaced by an Administrator who would be the most senior State Governor.[15] Neither the Prime Minister nor the Parliament would have a hand in the selection of the Administrator who is chosen automatically by virtue of his or her seniority. Following his or her appointment, the Administrator would be in a position to exercise the reserve power to dismiss a government without fear of dismissal by the Prime Minister. It is incongruous that the Bipartisan model effectively restricts the reserve powers of a President due to the availability of summary dismissal but places no restriction on the exercise of these powers by an Administrator whose role is merely temporary.

The Administrator would fulfil the duties of the President until such time as a new President is appointed in accordance with the appointment process under the model.[16] A candidate would be nominated by the Prime Minister from the short list provided by the Committee, seconded by the Leader of the Opposition and approved by a two-thirds majority of a joint sitting of the Parliament. At a time of constitutional crisis it would be difficult, if not impossible, to obtain bi-partisan support for a candidate. The government may be satisfied to retain an Administrator who refuses to exercise the reserve power to dismiss the government. If so, it could delay the appointment of a new President. The opposition, in turn, may not agree to a candidate proposed by the Prime Minister who it believes is unlikely to exercise the reserve power when installed as President. The deadlock in the Senate would remain unresolved.

IV. ALTERNATIVE DISMISSAL PROCEDURE

These shortcomings of the dismissal procedure under the Bipartisan model are reason to reconsider the alternative dismissal procedure proposed by the Australian Republican Movement (the "ARM") at the Constitutional Convention.[17] Under this alternative dismissal procedure a Prime Minister who wished to remove a President would be required to convene a Constitutional Council (the "Council") constituted by the State Governors.[18] The Prime Minister would advise the Council in writing of his or her recommendation that the President be removed and the reasons for so doing. The Council would be required to confirm the removal of the President within not more than 48 hours of receiving this advice.[19] The Council would have the right to counsel the Prime Minister and perhaps warn him or her against proceeding. The Prime Minister's decision would prevail notwithstanding that the advice of the Council was against dismissal.

This alternative dismissal procedure replicates more closely the existing arrangements in that it allows an independent body to be consulted, to encourage and to warn.[20] As dismissal of a President cannot be effected summarily by the Prime Minister under this model, but only after consultation with the Council, a President's reserve powers will not be curtailed by a fear of dismissal should he or she warn of an intention to exercise such powers. If the Council's advice were made public the Prime Minister would be unlikely to act contrary to such advice for fear of the political consequences. The alternative dismissal procedure lessens the likelihood of a race between the Prime Minister and President to dismiss each other.

This alternative dismissal procedure does not resolve the situation where the President is dismissed, supply continues to be blocked by the Senate, and the Administrator refuses to act to dismiss the government and dissolve the Parliament. Short of removing the power of the Senate to block supply, this could be addressed by giving the Council the power to refuse to dismiss a President should it consider the dismissal is in order to subvert the democratic system of government. This may do no more than reproduce existing arrangements if it is the case that the Queen can refuse a Prime Ministerial request to dismiss a Governor-General in such extreme circumstances.

The Constitutional Council could also be given the role of providing advice to a President who is contemplating an exercise of the reserve powers. The Council would assume the role of impartial umpire due to its automatic selection. This would protect the office of President who could not be criticised, as was Sir John Kerr, for seeking advice from a person who may have been accused of political bias.

When the Bipartisan model is incorporated into a Referendum Bill, the Federal Parliament will have the opportunity to revisit the dismissal procedure. It should give further consideration to the alternative dismissal procedure proposed by the ARM at the Constitutional Convention. It should also give serious consideration to establishing a Constitutional Council with the enhanced role described in this article. The Council would replace the monarch as the ultimate guardian of the democratic system of government. This would better reflect existing arrangements and go some way to providing a more satisfactory response to the constitutional crisis of 1975.

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[*]BEc, LLB(Hons) (Adel), LLM (Cantab), Lecturer in Law, Faculty of Law, University of Adelaide. Australian Republican Movement delegate to the Constitutional Convention. I wish to thank Tom Kidman for his thoughtful comments on earlier drafts of this article.

[1] Constitutional Convention, Communiqué, 13 February 1998, at 2.

[2] DP O'Connell, "Canada, Australia, Constitutional Reform and the Crown" (1979) LX The Parliamentarian 5 at 9.

[3] Ibid.

[4] A Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics, Oxford University Press (1991) p 43 cited in G Winterton, "The Constitutional Position of Australian State Governors" in Winterton and Lee (eds) Australian Constitutional Perspectives, Law Book Co (1992) 274 at 279.

[5] W Bagehot, The English Constitution, Fontana (1963) p 11 cited in G Winterton, note 4 supra at 278.

[6] Constitutional Commission, Report of the Advisory Committee on Executive Government, June 1987 at 33.

[7] G Winterton, note 4 supra at 278. See also Constitutional Commission, ibid at 33-4.

[8] G Winterton, note 4 supra at 278-9. See also Z Cowen, "The Crown and Its Representative in the Commonwealth" [1985] Australian International Law News 584 at 600-1 and G Sawer, Federation Under Strain, Melbourne University Press (1977) p 161.

[9] G Winterton, note 4 supra at 278 in the context of removal of State Governors. See also G Sawer, note 8 supra, p 148 and G Winterton, Parliament, the Executive and the Governor-General, Melbourne University Press (1983) pp 128-33.

[10] V Bogdanor and G Marshall, "Dismissing Governor-Generals" [1996] Public Law 205 at 208. See also, V Bogdanor, The Monarchy and the Constitution, Clarendon Press (1995) pp 284-6.

[11] Constitutional Convention, Communiqué, note 1 supra at 4.

[12] G Sawer, note 8 supra, p 161.

[13] Interview with Suzanna Lobez, The Law Report, ABC Radio National, 17 February 1998.

[14] Such a situation could occur today, the only difference being that the prime minister would need to consult the Queen before the decision to dismiss a Governor-General would be made effective.

[15] This is not expressly provided for under the Bipartisan model but it reflects the existing practice. The Bi-Partisan Appointment, prime ministerial Removal model submitted to the Convention by the ARM on 10 February 1998 made express provision for the appointment of an Administrator. There would need to be provision made in the Constitution for a deputy to fulfil the duties of the president in the event of his or her death, resignation or removal.

[16] See Constitutional Convention, Communiqué, note 1 supra at 3 for the appointment procedure.

[17] Alternative dismissal procedure proposed by ARM at the Constitutional Convention on 10 February 1998.

[18] Other than the Senior State Governor who would act as Administrator in the event the president was removed. This is a variation on the Council of three retired Governors proposed by Richard McGarvie.

[19] The president could not dismiss the prime minister or dissolve Parliament during this period.

[20] The three entitlements of the monarch as discussed above.