Lessons for Australia from the Capitol Bombings

We must consider amending the Australian Constitution to prevent an attack on our own democracy similar to the US insurgency of January 6, writes David Muir.

LAST JANUARY’s attack on the United States Capitol was a reminder that not everyone believes democratic institutions are sacrosanct.

The reality is that our institutions can be tested at any time by those who seek power or seek to retain it at any cost.

The events in Washington DC were largely resolved by force, so it’s disturbing to think about what might have happened if the violent mob had executed the plans they had in mind.

While an election can be overturned or nearly overturned in the world’s most powerful democracy, it can be overturned anywhere.

Far-right forces that sought to overthrow the 2020 US presidential election have influenced protests against COVID-19-related restrictions and vaccinations across nearly the entire Western world, including Australia.

By describing any government action as tyranny and destruction of personal or political rights, far-right radicals seek to undermine our institutions.

Attempting to overthrow democratic elections through disinformation and insurgency can happen again. Those who appreciate our democracy must ensure that our institutions are ready.

The Australian Constitution requires direct popular election of Members and Senators of both Houses of Parliament.

Ministers are formally appointed by the Governor General under Article 64 of our Constitution.

However, the office of Prime Minister itself is not specified in our Constitution.

The installation of a Prime Minister is based solely on the convention and practice that he or she retains the confidence of the majority of the members of the House of Representatives.

In contrast, the Constitution of Ireland is very specific.

Ireland has a Westminster-style parliamentary system with lower and upper houses, an executive government headed by a prime minister, but also a president directly elected as head of state with clearly specified powers and responsibilities.

Irish constitution states president appoints prime minister ‘on the appointment of’ the lower house of parliament and a prime minister advising the president on appointments or dismissals of ministers.

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It is worth considering the possibility of an Australian Prime Minister insisting on remaining in power, even if an opposition party wins a majority in the House of Representatives in an election.

Unlike the limited terms of a US president, an Australian prime minister’s term only ends if he resigns or has his commission revoked by the governor general.

If a prime minister does not resign and is not removed from office by the governor general, the main requirement of a prime minister to remain in office is that parliament pass budget bills to conserve supply.

An Australian prime minister who sought to overturn democracy might have time to fiddle with the numbers in parliament to stay in office.

In the case of a prime minister facing the chop, he or she could resort to advising the Governor General to call an election.

While the Irish and Australian constitutions allow the President or Governor General to convene or dissolve Parliament, it is on the advice of the Prime Minister.

But the Irish constitution gives the president “Absolute discretion” refuse to dissolve Parliament on the advice of a Prime Minister who has lost the confidence of Parliament.

An Australian Prime Minister can still play the snap elections card, or if he has just lost an election, can seek to retain office in defiance of democracy.

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In such a scenario, almost all Australians would expect the Governor General to intervene by sacking the rogue Prime Minister. But can we always trust this expectation?

The Governor General is officially appointed by the Queen, but in reality this is done on the advice of the Prime Minister.

In practice, the governor general is ultimately the prime minister’s choice, so a Trump-style prime minister could install a lackey as governor general as an insurance.

After an election, such a governor general might simply ignore the convention and refuse to terminate the prime minister’s commission.

At this point, there would be cries for the Queen to step in and sack the Governor General’s stooge and appoint another to restore normalcy.

The Palace Letters of 1975 show that the British Crown is very reluctant to make formal constitutional interventions. Even during the UK Parliament’s prorogation crisis in 2019, the Crown took a hands-off approach to the Parliament at Westminster.

Fundamentally, the strength of our Australian democracy depends on an honest, impartial and independent Governor General.

The current system under which the Prime Minister essentially controls the appointment and dismissal of the Governor General is a potentially fatal flaw in our governance.

As of January 6, 2021, we cannot take for granted that all leaders will respect democratic institutions. Our democratic institutions must be strong enough to defeat those who are tempted to break them.

A roadmap for a republic and other real reforms

The question of an Australian republic and how our head of state would be determined is now more than a question of symbolism. It is potentially a question of the security of our democracy.

The selection and tenure of our Head of State require real independence. Current constitutional provisions can easily be hacked by a prime minister without any respect for them.

A republic with a directly elected head of state, independent of partisan politics, serving for a fixed term and with clear, codified powers and responsibilities would provide security against a prime minister trying to ignore the will of the voters.

Our democratic institutions would be further strengthened by constitutionally mandating a directly elected head of state to be responsible for an independent Australian Civil Service Commission. Likewise, take responsibility for appointments to anti-corruption and integrity agencies or commissions, the Australian Election Commission and the Compensation Tribunal, as well as what are now the so-called independent officials of Parliament – the Auditor General, Commonwealth Ombudsman, Australian Information Commissioner and others.

In previous debates on the republic, the proposal of a directly elected head of state has been called risky compared to current arrangements or a republic with a head of state appointed by the federal parliament.

With the growth of the far right and illiberal forces that disrespect democracy in the Western world, it is now risky to leave our current constitutional arrangements as they are.

Only a directly elected head of state would hold a rogue prime minister in check and guarantee our democracy.

The old maxim – if not broken, don’t fix it – will never protect us from those who believe the rules are meant to be broken.

David Muir is President of Real Republic Australia and was Queensland’s delegate to the 1998 Constitutional Convention in Canberra, elected as part of the team led by the former Lord Mayor of Brisbane, the late Clem Jones, in favor of ‘a directly elected head of state.

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