WHO’LL WIELD THE AXE IF THE HEAD MUST COME OFF: ANGST OVER THE INSTANT REMOVAL OF A PRESIDENT IS JUSTIFIED Article published in The Australian, 25 August 1999, p. 13Professor George Winterton's defence of the republic referendum model's fundamental flaw - its instantly removable president (The Weekend Australian, August 7-8) - misses the realities.Now defending what he described last year as the 'peculiar removal mechanism' of the model, and criticised by virtually every commentator, he seeks to defend the indefensible. If it were the only fundamental flaw, his assertion that the model is at least as good and as safe as the present system and deserves our warm support would not be justified.
The Turnbull model designers have never understood the crucial importance of the mechanism for removal of a president in a democracy such as ours.
Originally removal was by two-thirds majority of a parliamentary joint sitting, which created an irremovable president and stripped the binding quality from the vital convention on which our democracy depends; that the president acts as advised by ministers of the government.
Stung by criticism, at the Constitutional Convention the designers went to the other extreme, creating an instantly removable president, which would damage our democracy in other ways.
Dismissing the Whitlam Government without warning was one of Sir John Kerr's most serious errors. He believed a warning would provoke Gough Whitlam to have him instantly removed and prevent him from bringing about the election, which was eventually the only way to resolve the deadlock. Those who have since carefully considered that have concluded he was wrong.
If Whitlam had tried to prevent Kerr acting, by getting in first and advising the Queen to remove Kerr, it would not have worked. The time the Queen would take to make inquiries and decide whether to counsel against removal, before ultimately removing the governor-general, builds in an essential delay factor. During that time the governor-general would learn of the advice, and having a right immediately to dismiss the prime minister, would do so and bring about an election. Any republic model must build in that delay factor.
The McGarvie model, which I have proposed, gives the Constitutional Council up to two weeks to act on a prime minister's advice to remove the governor-general. The present Turnbull model makes Kerr's unfounded fear constitutional law by giving the prime minister the express right, at any time, by signed instrument to 'remove the president with effect immediately'.
A president in a 1975 situation would have the repulsive options of risking immediate dismissal by warning the prime minister, suffering total loss of reputation by acting without warning as Kerr did, or doing nothing and letting the system slide into chaos. The temptation of the latter course would be enormous.
It is no answer to say the removed president would be replaced by the senior State governor as acting president. That person, also immediately removable, would enter the same triangle of repulsive options while the government was still busily demolishing the reputation of the removed president.
This flaw also renders impotent the continuing guarantee of our democracy, that a Government resigns upon clearly losing an election or a no-confidence vote showing loss of the ability to obtain support from the lower house majority.
Only conventions require a government to resign. With reserve authority crippled in the Turnbull model, what would stop a defeated government from legally obtaining finance from extra-parliamentary sources and continuing in government?
Winterton trivialises this gross defect, stressing as a compensating advantage that unless the House of Representatives endorses the president's removal within 30 days, the prime minister must face an election. That is theory but not practical political reality.
Even if the majority party rebelled against the prime minister on the issue, only suicidal tendencies would lead it to take the issue to the house, rather than replace the prime minister through party room decision.
Supposing a vote of no-confidence were carried upon the issue, the Tasmanian experience of 1991 demonstrates that there would be no election so long as the government could obtain the support of its house majority on other issues.
This is only one of the fundamental flaws of the Turnbull model, which Australians must view through eyes of practical reality, rather than wishful theory, in the brief time to the referendum.