By Dr Bede Harris, constitutional law expert and Senior Lecturer and Law Discipline Head in the Charles Sturt School of Business in the Faculty of Business, Justice and Behavioural Sciences.

The 50th anniversary of the dismissal of the Whitlam Labor government on 11 November 1975 and the recent stripping of titles from former Prince Andrew, now Mr Andrew Mountbatten-Windsor, make it timely to reconsider Australia severing links with the monarchy and becoming a republic.

Political commentary on the anniversary of the dismissal was predictably partisan. The Prime Minister Anthony Albanese called the dismissal a ‘political ambush.’ Former Labor Prime Minister Paul Keating went further and called it a ‘coup’.

Both claims were untrue. Kerr’s dismissal of Whitlam was lawful according to the text of the Constitution. Neither Albanese nor Keating addressed structural flaws in the Constitution which were root cause of the crisis.

Understanding of the dismissal depends on understanding the difference between constitutional law, which consists of the text of the Constitution and case law interpreting it, and constitutional conventions, which are political rules regarded as binding but which, precisely because they are convention rather than law, are not legally enforceable.

The dismissal was precipitated by the Liberal-National Country Coalition majority in the Senate refusing to pass the Whitlam government’s taxation and expenditure - or supply - legislation.

Labor figures have argued that there was a convention that the Senate would not block supply. But Section 53 of the Constitution gives the Senate the clear right to do this.

Similarly, when faced with the deadlock between the House of Representatives and the Senate and the fact that the government’s authority to raise taxes and spend money would expire within three weeks, the Governor-General had no option but to dismiss the Prime Minister under Section 64 and to dissolve parliament under Section 5 of the Constitution.

In the 50 years since the dismissal, nothing has been done to remedy the flaws in the Constitution that gave rise to it. The consequence is that there is nothing to prevent the 1975 crisis recurring today.

The Section 53 problem could be remedied either by removing the power of the Senate to block supply or reducing it to a power to delay.

Codification of the powers of the Governor-General and when they may be exercised – that is, making the rules enforceable by law by inserting them into the Constitution - would mean that what the Constitution said would correspond to how it worked, eliminating the controversy that arose in 1975.

Codification would be a good in itself, but it would have particular impact on the debate on an Australian republic.

Opinion polls over the past 30 years have consistently shown that, if there was a republic, voters would want that person to be an elected President.

During debate preceding the drafting of the 1999 referendum question, monarchists, led by Australians for a Constitutional Monarchy (ACM), raised the spectre that an elected president might act in breach of the conventions that applied to the office of Governor-General.

This helped ensure that election by parliament rather than election by the people was the model put to referendum – a model that even a majority of republicans did not want.

The ACM argued that it was impossible to codify the conventions. Contradictorily they also argued that they could be codified but that that would change the relationship of the courts with the other branches of government because the courts would have to adjudicate political questions when they interpreted the codified powers.

Both these arguments are false. Numerous Commonwealth countries have codified the conventions  to prescribe in law the manner in which a Governor-General (in countries that retained a link with the crown), or a President (in countries that became republics), should exercise their powers.

The same is true of Ireland which, while not a member of the Commonwealth, combines parliamentary government headed by a Taoiseach (Prime Minister) with a popular election of a figurehead president. If the people in Ireland have been able to elect a president for 80+ years, why shouldn’t Australians?

The argument about the courts is also wrong. Every constitutional question that comes before the courts is ‘political’ in the sense that it determines the limits of the institutions of government, including parliament and the executive.

The view that underlies this argument - that there should be a law-free zone lying at the heart of the Constitution, where a Governor-General can exercise powers without legal constraint – is incompatible with the rule of law.

Dr Harris noted that the ACM appeared to be out of touch with current developments and not to understand how the Constitution works.

The ACM’s website reveals that they have yet to update their charter to acknowledge the accession of Charles III, and in so far as they give a reason why Australia should have a monarch, it appears to be that the country needs a person to protect the interests of all Australians.

How Charles III does that, given his non-involvement in Australian politics, is not explained.

The hereditary nature of the office raises another question, asking what the ACM have had to say if, but for an accident of birth, King Andrew, rather than King Charles, had become King of Australia, and whether he would have been a fitting symbol for the country.

The insurmountable problem that monarchists face is that whereas voters can dispose of a president, that option does not exist in the case of a King.

The anniversary of 1975 and the ‘Prince Andrew’ affair invite Australians to re-consider the questions of whether the rules governing the person exercising key powers should be put into law and why that person should be the monarch of the United Kingdom rather than someone Australians themselves have chosen.