Paper published substantially in the Australian, Age and Herald Sun, 1 May 1997 and fully in (1997) 101 Victorian Bar News, p. 31

 
I raise deep alarm. The republic debate is drifting us down tracks that would ruin our democracy. We must get our heads out of the clouds of theory, come down to earth and look at Australian reality.

Australians have built one of the world's oldest and most successful democracies. That is our priceless possession. Yet, in preferences for the way of going to a republic if we decided to do so, the way that would totally secure the strengths and safeguards of our democracy drew only 3% support in the Morgan Poll last year. The two ways that would destroy it shared 94% support.

The only safe way to go to a republic is the Australian way which would give us the republican equivalent of our present system. It would involve only a further couple of steps along the same track Australian evolution has followed for two centuries. That has taken us from Governor Phillip, arriving with the First Fleet in 1788 a complete autocrat, to the Governor-General and Governors now the de facto heads of state of our democracy. Democracy would be entirely safe in a republic which continued them doing the same things in the same way, but as the actual heads of state.

The positions of Governor-General and Governor have developed in Australia very differently from corresponding positions elsewhere, such as in the other Westminster-type federations of Canada and India.

The Australian way is the way I put to the Republic Advisory Committee and the first option it discusses in its 1993 report. In essence, though not in every working part, it is the option recommended by the South Australian Constitutional Advisory Council in its September 1996 report.

It is so safe, simple and obvious that it has little attraction for theorists. The debate has almost overlooked it.

The two models which shared 94% support would first demolish the tried and tested positions of Governor-General and Governors as developed in Australia. Their places would be taken by republican Presidents selected, appointed, tenured and dismissible in totally different ways. They would be elected for five years by Parliament or the whole electorate, have the powers of a Governor-General or Governor, and be dismissible during the period only by a two-thirds majority of a joint sitting of both Houses of Parliament. Based on features of republics around the world, these imported models do not have a shadow of Australian experience to back them. It is not enough to say their features work in overseas countries and cultures. They may sound all right in theory. They sound innocuous but are really changes of drastic potential. In the living reality of the political culture and constitutional practice of this country they would immediately corrode and ultimately destroy our democracy.

The debate has hardly given a thought to preserving our democracy.

There are no villains in the piece. Leaders of the debate on both sides wish to keep democracy but the debate has lost its way. It has concentrated on the heady, emotional issue of general preference for monarchy or republic. The models that would serve as bridges to the republic of an elected President have been sketched. Most in the debate have been so fascinated, or so repulsed, by the view of a republic they would have from those bridges, they have not found time to check the foundations. Perhaps they assumed someone else had done the checking. Clearly neither bridge has the strength in its foundations to cope with the stresses or bear the traffic of our modern democracy.

I take no side in the debate whether we should become a republic or stay a monarchy. Our absolute priority must be to maintain our democracy in all its strength. It is a secondary consideration whether we do that under a monarchy or republic. The only choice we should make is between our present democracy within the monarchic system and that same democracy within the one republican model that will retain it. We must totally reject both models for an elected republican President.

The organisational change needed to move to the republican equivalent of our present system, is to set up a Constitutional Council of three eminent Australians to take the place of the Queen in performing the one power she now performs — appointing or dismissing a Governor-General as advised by the Prime Minister. The Council would be created under the Australian Constitution, which would by formula automatically select its membership from persons retired from non-political, constitutional positions of trust such as Governors-General, Governors and High Court judges. It would only have that one power of the Queen and perform it in the same way on the Prime Minister's advice. It would have no other power or duty. It would only be paid during the process of receiving and acting on advice.

The other change has constitutional but no operational effect. It involves making the Governor-General actual head of state of Australia and transferring or patriating from the Queen the few remaining powers of head of state that are the Queen's not the Governor-General's. In practice nothing would change because for over half a century Governors-General have exercised the Queen's powers in respect of Australia on the advice of Australian Ministers.

For Australia to become entirely a republic, similar changes would be made in each State. Then each Governor of a State becomes its actual head of state, the State has its own Constitutional Council and the remaining powers of the Queen in respect of the State are patriated to the Governor.

The Queen's relationship with Australia as head of the Commonwealth of Nations would continue in the same way as it does with other member countries, whether monarchies or republics.

I outline the way that either our present monarchic system or its republican equivalent would keep our democracy safe and secure in future. I can deal with them together because, although the Constitutional Council replaces the Queen in the republican equivalent, there is no alteration in the operation of any part of the system at all. I speak mainly of the Governor-General but what I say applies to the Governors whose positions in the Sates are much the same.

As in the past, the Prime Minister alone will select a new Governor-General. There is no need to consult anyone though it is open to do so. When a selected person agrees to serve, an informal arrangement is made with the Prime Minister to serve for a period, usually five years. The Prime Minister then advises the Queen, or in the republican equivalent, the Constitutional Council, to appoint the person Governor-General. The Queen, or the Constitutional Council, is entitled to counsel the Prime Minister against an unsuitable appointment, but, if the Prime Minister insists, is bound by convention to make the appointment. The appointment is made and the Prime Minister in announcing it says the new Governor-General will serve for five years or whatever period has been arranged.

The Queen or the Constitutional Council will still appoint the new Governor-General 'at pleasure'. That means that at any time if the Prime Minister advised that the Governor-General be dismissed, the Queen or Constitutional Council would be bound to do so. Again there would be the opportunity of counselling the Prime Minister against dismissal but if insisted on the Queen or Constitutional Council would be bound to dismiss within a couple of weeks of the advice.

The Governor-General has no legal right to serve for the arranged period because the informal arrangement has no force in law and could not be enforced in a court. However, the realities of politics make the Governor-General's position secure. The community regard the Governor-General, who is central to their system of government, as belonging to them, not to the Prime Minister. A Prime Minister having a Governor-General dismissed whom the community regards as complying with the constitutional conventions and meeting the standards it expected, would encounter an immense, adverse political reaction. A Governor's position is the same. Every Governor-General or Governor knows that while in theory dismissal is possible, in reality their service will last for the arranged period so long as the expected conventions and standards are satisfied. In Australia no Governor-General or Governor has been dismissed during the arranged period over the last eighty years.

It is crucial to our democracy, however, that the Governor-General be always liable to prompt dismissal for breach of convention.

The Governor-General exercises many vital powers central to our system. It is the Governor-General who can prorogue (adjourn) Parliament, dissolve it and bring about a general election, summon it after the election, and convert a bill into an Act by signing assent after it has passed both Houses. The Governor-General is the one with the power to appoint or dismiss the Prime Minister or any Minister. The Governor-General is legally entitled to exercise those powers as and when he or she chooses. In a different way, the Constitution and Acts of Parliament provide that numerous powers of the widest variety are to be exercised by the Governor-General in Council. They include appointing judges and issuing writs in a general election. Powers of the Governor-General in Council require the advice of the Ministers of the Federal Executive Council before they can be exercised but the Governor-General is legally entitled to refuse to exercise them although the Ministers advise it.

If one person, the Governor-General, has all those powers, you might ask, how are we a democracy? What gives us our democracy is the basic constitutional convention which binds the Governor-General to act in accordance with advice from Ministers of the elected government. It is the link between the decisions made by the community in elections and the exercise of those powers by the Governor-General.

As we often see in the English language the word 'convention' has several different meanings. The meeting at the end of the year to consider a republic has been called a 'constitutional convention'. (Note: the constitutional convention on the republic eventually held in February, 1998, was originally to be held at the end of 1997). The conventions I write about are binding constitutional customs. A constitutional convention is a constitutional custom so uniformly followed and expected to be followed as to create a sense of clear obligation, and backed by so effective a sanction as to be binding in practice though not in law.

The convention is not binding in law and you could not get an order from a court directing the Governor-General to do what Ministers advised. It is firmly binding in practice, having been uniformly followed for decades and being backed by the effective sanction of dismissal. Every Governor-General knows that failure to comply with the convention, would lead the Prime Minister to advise the Queen to dismiss the Governor-General. Within two weeks the Governor-General would be dismissed with public approval and loss of reputation. The basic constitutional convention is deeply embedded in the Australian constitutional system. It would remain identically embedded in the republican equivalent, with the Constitutional Council dismissing instead of the Queen.

It is a pity that in the debate we did not describe the issue as patriating the remaining powers of head of state from the Queen to Australians. Then we would have started on the basis that we have one of the world's best democracies and asked how we could patriate those powers while maintaining democracy at full strength. Our priority would have been to protect the basic constitutional convention on which our democracy depends.

Instead, confused by the word 'republic', we set off in a different way. The search went around the world to see how republics get their heads of state. Protection of the convention was usually forgotten. It was also forgotten that for a convention to be binding in Australia it must be backed by an effective sanction. Professor Sawer emphasised that in 1977 in his Federation Under Strain. One of his prime examples of that was the way the sanction of dismissal makes the basic constitutional convention binding on the Governor-General.

Both models for an elected republican President would ruin our democracy by first destroying the basic constitutional convention. It would cease to be binding because it would have lost its effective sanction of dismissal. Democracy would unravel. We would be forgetting the lessons of centuries of history that you do not put people in positions of great power unless they are subject to democratic control. When the basic constitutional convention withers so does the democratic control.

In assessing how those models for a republican president would work we must look at the living reality of Australian political culture. Australians have been a particularly successful people, politically and constitutionally. It was a miracle we got federation. It has been a miracle that we have made it work so well. I admire Australian political achievement. I also admire Australian Rules Football. But both games are played hard. You don't find one team coming to the aid of the other to help them out of their difficulties.

The theory that the opposition would join the government for a two-thirds majority to remove a republican President who was frustrating the government by defying the convention, cannot stand up to scrutiny in clear Australian daylight. Say you had a President who, at a time when the government's popularity with the electorate had slumped, rejected Ministers' advice to assent to an unpopular government bill which had passed both Houses. Usually the opposition, of whichever side of politics, would be more likely to commend the President for recognising what a bad government it was, than to join in a resolution of dismissal. Without the opposition's support it would usually be pointless for the Prime Minister to initiate a two-thirds resolution of a joint sitting.

Governments in Australia normally do not have a two-thirds majority of both Houses. No government has in the federal Parliament for over fifty years. In March 1996 the Howard Government won with what was called a landslide majority. In a joint sitting it had 131 votes. It would need 150 for a two-thirds majority. In Victoria for 45 of the last 50 years governments have not had a two-thirds majority in both Houses.

The result would be no better if we imagined that change to an elected republican President would change traditional political culture so that oppositions would support governments. A President with an instinct for self-defence could avoid a resolution of dismissal by exercising the power to prorogue (adjourn) Parliament or to dissolve it.

The models for an elected republican President sharing 94% support last year are recipes for disruption that would cost us our democracy by giving us an undismissible President. They are not worth trying to patch up. Their destruction of the basic constitutional convention is a fatal flaw. The notion that it does not matter because we could create a legally binding obligation to exercise powers as Ministers advise, might appeal to theory but not to practical experience. The novelty of bringing the courts into the political process to order a President to comply with Ministers' advice, would be as damaging to that process as to the courts. The spectacle of putting the political process on hold while court trials, exercises of discretion whether to order compliance, and appeals took place, cannot be taken seriously. The system could not even be regarded as working if the President, mentioned above, who refused to assent to the government bill, resisted a court order to do so and was committed by court order to prison until he or she assented to the bill. Posterity would be unforgiving if we substituted that ineffective legal sanction for the sanction of the basic constitutional convention, so effective that it has not had to be used for eighty years.

An elected republican President would lack other essential attributes.

The system would not work with two rival centres of political power. The present system and its republican equivalent are designed to avoid the Governor-General being actuated towards becoming a political rival to the Prime Minister through the mandate or authority that comes from election. The Governor-General is selected by one person, the Prime Minister.

Because Australian parties vote as blocs, and the support of the opposition would usually be necessary, the vote of a joint sitting electing a republican President would usually be entirely or almost unanimous. The President's mandate from the Parliament would far exceed the Prime Minister's, who might have a bare majority in the lower House, have been elected by a small majority within the party room and be in minority in the Senate.

A President elected by the whole electorate would hold the only office in the system directly elected. The President's mandate would overshadow the Prime Minister's. It would be an irreversible move towards the American system. We should only go to that system by choice — not by accident. Before going there we would have to rewrite our Constitution to introduce the different checks and balances that over two centuries of American experience has shown that system needs.

Democracy requires that two of the basic parts of our system be chosen by elections — the Parliament and the government. Equally it requires that the other two — the head of state and the courts — be not elected. The need to face elections deprives judges of impartiality. The head of state should be a person of influence but virtually no effective power, because powers are exercised as advised by elected Ministers. It is only in exceptional circumstances as a last resort to protect the system from stalling or serious abuse that a head of state is justified in using a reserve power independently of Ministers' advice.

The incentive to wield effective power would be created by the mandate of election by Parliament or people. Our system needs a person with high reputation and respect, capable of exerting influence but acting above politics in a non-partisan way.

It is unfortunate that the name 'President' has been used because it arouses visions of the totally different position of President of the United States. For entirely different reasons, it would be expected that in the United States the most powerful leader in the world, combining the two offices of head of government and head of state, would be elected.

In Australian experience Prime Ministers have chosen suitable Governors-General. They know their own reputation with the community and with history will be affected by their choice. They have the whole of Australia to choose from.

If a President is elected by a two-thirds majority of a joint sitting it would be naive to assume there will not be parliamentary inquiries into suitability as occurs with Supreme Court judges in the United States. Baseless but wounding allegations of disgraceful conduct would be prone to be made there or via Internet or overseas television where there is now little protection. Why should people of repute like those who the community has expected to be Governors-General in the past, enter that bear pit? Presidents would be very different people from what Governors-General have been.

Unless a multi-millionaire, a person could only campaign in the electorate for the position of President if supported by a political party. To secure election, policies would be stated and expected to be pursued upon election. The President would inevitably be a party politician with popular election-winning skills — a person vastly different from what Australians expect in a Governor-General.

We have two centuries' experience of adapting the office of Governor to perform the duties of head of state in a way that suits Australian conditions, culture and democracy. If, as we approach a century of successful federation, we decide to become a republic, we do not need to throw it all away and start again. We do not have to go around the world copying bits from other countries. We have the strongest reason to have confidence in what Australians have created and to take the adaptation of the tried and tested offices of Governor-General and Governors the little distance further that would give us a republic safe for democracy.
 
 

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