Article published in ASX Perspective, 1^st Quarter, 1998, p. 46

 

For more than five years the republic debate focused mainly on the easy question: whether or not Australia should become a republic. The answer to it is neither unimportant nor self-evident. At any time, however, most people know from their loyalties and their feelings for the country which side they are on.

The crucial question is the hard one — which model for head of state in a republic would best maintain the strengths and safeguards of our democracy? It is crucial because we are trustees for future generations of one of the world’s best democracies, which Australians have built. Because democracy belongs to the people, so does the responsibility for making sure that any constitutional change will fully maintain it.

It is hard, because making an assessment of the effect of a change involves having a good practical understanding of how the present system works,¹ and then reliably predicting whether and how a proposed change will alter its operation. Edmund Burke’s memorable words remind us of the careful consideration which must precede a decision on constitutional change:

We are members for a free country; and surely we all know that the machine of a free constitution is no simple thing, but as intricate and as delicate as it is valuable … A constitution made up of balanced powers must ever be a critical thing.²

As realists, we would accept the constitutional wisdom of Alexander Hamilton that:

The desire for reward is one of the strongest incentives of human conduct; …
the best security for the fidelity of mankind is to make their interest coincide with their duty; [and] the love of fame [is] the ruling passion of the noblest minds.³

Business leaders will be struck by the identity of approach in assessing the effect of constitutional change, to the approach that, from their own experience, they have mastered in assessing the effect of change upon a business organisation or system.

Constitutional Duties

Because Governors-General and Governors are all in much the same position, in outlining the constitutional duties of a de facto head of state in Australia I take a Governor as the example so as to draw on my own experience.

Professor Brian Galligan, Professor of Political Science at the University of Melbourne, has emphasised that the office of Governor, the oldest part of the machinery of government in Australia, is the part that has undergone the most substantial change in evolving to suit the needs of this community and becoming totally Australianised.⁴

When Phillip arrived as Governor of New South Wales in 1788 he had most of the powers now possessed by Governor, Parliament, government and courts and was able to exercise them as an autocrat, as he chose. One change has been that powers more appropriately exercised by the other three of those essential organs of government have gone to them. The other change is that the Governor’s exercise of powers is now controlled by Ministers of the elected government.

Our type of head of state, the nominal chief executive, is quite different from the chief executive, as in the U.S.A., where the President is head of government as well as head of state, and from the non- executive of Ireland, where most of the executive powers are vested in the government or parliament rather than the President.

Under the Victorian Constitution the Governor is the only one who can exercise powers central to our system of government. In law they can be exercised as and when the Governor chooses. No Minister can exercise them. Only the Governor can dissolve Parliament and call an election; summon it after the election; appoint or dismiss Premier and Ministers or give the assent that converts into law a bill that has passed both houses.

Our democracy depends on the basic constitutional convention that binds the Governor to exercise constitutional powers as advised by Ministers of the elected government. In Australia a constitutional convention is not a law enforceable by a court. It is a constitutional custom which is so uniformly followed and expected to be followed as to create a sense of clear obligation and which is backed by so effective a sanction that it is binding in practice though not in law.

It is solely the Premier who chooses a new Governor. The person who agrees to serve makes an informal arrangement with the Premier to serve for a period, usually five years. The Premier advises the Queen to make the appointment and she is bound by convention to do so. The appointment is at pleasure. If at any time the Premier advised the Queen to dismiss the Governor, she is bound by convention to do so. The Governor has no legal security of tenure. There is a most effective political security. When the new Governor is announced the community becomes aware of the arranged period of service.

The community regards the Governor as belonging to them, not the Premier. If a Governor complies within the basic and other constitutional conventions, and meets the standards the community expects, a Premier who brought about dismissal of the Governor during the arranged period would encounter an immense adverse political reaction and loss of trust. A Governor knows that so long as there is compliance with the conventions and standards, tenure is in practice as secure as if it were legal.

Every Governor (and Governor-General) also knows that refusal to exercise powers as Ministers advise would result in the Premier (or Prime Minister) who has the greatest interest in the observance of the basic constitutional convention, advising the Queen to dismiss. A Governor breaching that convention would lose community support and within a couple of weeks would be dismissed with total loss of reputation. It is a superbly effective sanction. Our democracy depends on the person who exercises the powers of head of state remaining liable to prompt dismissal for breach of the basic constitutional convention. The same liability to dismissal for breach, gives binding effect to the convention that a Governor does not make public criticism of the government or become its rival in political influence through public statements or otherwise.

Through the separation of powers and becoming bound by those conventions, the Governor is now the foremost to serve and support our system of democracy. For decades the Queen has had no control whatsoever over Governors and her influence has been confined to good example.

The Governor is the administrator or manager of the government of Victoria, using ‘government’ to refer to the whole system of government, rather than in the more common use of the word to refer to the Premier and Ministers. To administer a system which has responsible government and an independent judiciary, and which is largely self-operating, the Governor’s right to act independently of ministerial advice is extremely limited but sufficient.

The Governor’s primary responsibility is to ensure that the Parliament produced by elections provides a government able to govern effectively. As the capacity to provide the funds for government depends on getting money bills through the lower house, a government must have the support of a majority of that house. With the strongly entrenched party system it is usually clear who has that support but not always. In Tasmania in 1989 the election resulted in a lower house of 17 Liberals, 13 Labor and 5 Greens. It was uncertain who the Greens would support. The Governor consulted the Greens, found they would support Labor, so appointed Mr Field, the Labor leader, as Premier and his nominees as the other Ministers.

Since the Governors-General and Governors have been Australians, largely as a result of the example of that great Governor-General, Sir Paul Hasluck, the exercise of the traditional right to counsel Ministers has become an important part of our system of checks and balances. A Governor counsels mainly in the process of exercising the powers of Governor in Council. In Victoria thousands of powers are conferred by statute on the Governor and exercised on the advice of four Ministers who represent the government and meet with the Governor as the Executive Council each Tuesday. The powers include executive powers such as appointing judges, legislative powers such as making regulations and powers almost judicial, such as determining planning appeals called in by the Minister.

The recommendations from the individual responsible Ministers with their supporting papers are examined by the Governor well before the meeting. Only about one out of every ten recommendations has ever gone before Cabinet. If any recommendation for exercise of power seems to be inconsistent with the Constitution, basic constitutional principle, the law, or the practice of good government, it is open to the Governor to counsel on it. Usually it is enough to raise the concern with a department, through the Clerk of the Executive Council. Sometimes the Governor thinks it appropriate to ask the recommending Minister to call and puts the concern to the Minister. It is all done on the basis that ultimately the Governor will act as the Executive Council advises. I and other Governors have found that when a Governor counsels, Ministers go to great lengths to ensure that all is done properly. Because counselling is entirely confidential to Governor and Minister, the Minister loses no face if the recommendation is changed as a result.

An exception to the basic constitutional convention authorises the Governor in exceptional circumstances to exercise independently of ministerial advice one or more of the reserve powers of appointing or dismissing a Premier or dissolving or not dissolving Parliament. Unlike the emergency powers which in some systems enable the head of state to take over government, this authority limits the Governor to taking steps to refer an intractable constitutional situation to the decision-making centres of our democracy — Parliament or the electorate.

It is a protective mechanism to be used only as a last resort to protect the democratic system from stalling or from illegality or constitutional abuse of a grave nature. The Governor must give the Premier adequate warning that a reserve power might have to be used. This gives the Premier an opportunity of resolving the situation to avoid the reserve power being used. Sir John Kerr’s mistaken belief that if he warned Mr Whitlam of this, he would immediately be dismissed, lay at the heart of what went wrong in 1975. A Governor-General or Governor would be most reluctant to use the reserve power unless absolutely necessary, because of the crushing effect on their standing and reputation if the community disapproves of its use.

A Republic

Despite the little attention initially given to it, the most important task in the debate is identifying which of the proposed models for head of state in a republic would best maintain our democracy. Those proposing models (including this writer) should have their models examined with the acumen of business leaders considering the worth of a business system a salesperson seeks to sell.

The models should be tested by the way they measure up to the three essential requirements for a head of state in our type of system: the basic constitutional convention must remain binding; the head of state must not become a rival of the elected government in political power or influence; and must remain above politics while exerting a personal influence in the public interest.

I do not side with either the republicans or the monarchists in the debate. I disagree with monarchists who say there is no safe way to a democratic republic and with those republicans who promote either of the models for an elected republican President, despite its danger for democracy.

McGarvie Model

In discussing models for head of state in a republic, I will change to the Governor-General as the example. The entirely safe way of becoming a republic is the McGarvie model which I propose. It takes the office of Governor-General a further step or two along the path of evolution followed since 1788, so as to leave the nature of Australian democracy the same but convert it to the republican equivalent of the present system. That involves transferring the Queen’s remaining powers to the Governor-General who becomes the actual instead of the de facto head of state.

The Queen’s one active duty, appointing or dismissing a Governor-General, will be done on the advice of the Prime Minister by a Constitutional Council of three eminent Australians selected automatically by constitutional formula. No-one will select them. They will have no decision-making power but always act on the Prime Minister’s advice as the Queen does now. Under the Constitution the members will be persons retired from apolitical, constitutional positions of trust. In line of priority the categories will be retired Governors-General, Governors, High Court and Federal Court judges with priority within each category going to the most recently retired. For thirty years the formula will operate so that at least one woman will be a member. The convention of acting as the Prime Minister advises will be made binding by the sanction of automatic public dismissal from membership if the Prime Minister’s written advice to appoint or dismiss is not implemented within a fortnight.

This model ensures that the head of state is still effectively bound to exercise constitutional powers as advised by Ministers of the elected government. The Governor-General will not be a political rival of the government but will operate in the same way and under the same democratic control as now.

If each State also adopts this model, with the Governor becoming its actual head of state, appointed or dismissible on the Premier’s advice by a Constitutional Council constituted under its Constitution, Australia will be entirely a republic and its democracy safe.

The model is totally self-sufficient. Many share a mystical belief that Governors- General and Governors now have capacities and are subject to influences which would vanish if there were no longer a monarch. That is a myth, generated largely by the reading of English text books instead of Australian works such as the classic, Federation Under Strain, by Geoffrey Sawer. All the Queen’s remaining powers will be transferred. Our constitutional conventions are binding because of the operation of our system and its practical sanctions. The republican equivalent model will operate in the same way and keep them binding. As already mentioned the Queen now has no control over Governors-General and Governors and no influence beyond good example.

Elected President Models

The other two main models proposed, would have a republican President elected for a fixed term of five years with all the powers of the Governor-General. In the Keating model the President would be elected by a two-thirds majority of a joint sitting of both houses of Parliament; and in the direct presidential election model, by the whole electorate. In both models the President could be dismissed during the term only by resolution of a two-thirds majority of a joint sitting.

In assessing the way the models would work we must not overlook Australian political culture. Over a century ago Bagehot recognised it as one of harsh, merciless realism.⁵ I admire our constitutional and political achievement. I also admire Australian Rules football. In both the game is played hard. In neither does one side come to the aid of the other to help them out of their frustrations or in the interest of the greater game.

In both models for an elected republican President, the novelty of transferring to the opposition final decision on dismissal is justified by nothing but high hopes. No federal government for over fifty years has had a two-thirds majority of a joint sitting.

Take the situation of an elected President with four and a half years of the term to go, a parliamentary election in six months, the government unpopular and the President owing obligation to the opposition. If the President, despite Minister’s advice to do so, refuses to assent to an unpopular government bill which has passed both houses or to make unpopular regulations, what chance would the government have of applying the sanction of dismissal? Parliament would divide on political lines as in the inquiries relating to Mr Justice Murphy in the 1980’s. The opposition, of whichever side of politics, would commend the President for standing up for the people against a bankrupt government. In a move for dismissal, as Malcolm Fraser has said, ‘The government would support it, the opposition would oppose it, the necessary majority would not be there’.⁶

Even if there were a two-thirds majority available, the President could frustrate dismissal by exercising the power to dissolve or adjourn (prorogue) Parliament.

Once the sanction of dismissal had gone, the conventions that powers be exercised as Ministers advise and that the head of state not speak in public criticism or rival the government in political influence, would cease to bind.

Proponents of the elected President models often respond to the disappearance of the sanction of dismissal by saying they would codify the conventions, including the convention to act on Ministers’ advice, and make them legal obligations. That would work so far as precluding the exercise of powers without advice but not in practice effectively bind the head of state to exercise powers whenever advised.

If the President mentioned above, resolutely refused to assent to the bill or make the regulations, the Prime Minister would have to commence an action for a court order that the President do so. Assume that after the court hearing and appeals were completed, there was such an order. A President could make political mileage by becoming a martyr committed to prison for refusal and receiving maximum media attention. Years ago Clarrie O’Shea in that way forced amendment of legislation resented by unions. It is an ill-conceived constitution that provides the opportunity of political mileage by defiance of the law. Also, involving the courts in the governmental process in this way would be as damaging to the courts as to that process.

In the sixty years since Dr Evatt initiated the idea of codifying the conventions,⁷ attempts to reach consensus on their content have not been successful. Even if consensus could be reached, to place in the black text of legal obligations, the working conventions produced by practice, balances, incentives and sanctions, would limit their flexible application in new situations and stultify their evolutionary development.

Rival to Government

In the present system and its republican equivalent the Governor-General, selected by one person, a Prime Minister, can have no illusion of mandate from the community or its parliamentary representatives. In the Keating model the opposition support necessary for two-thirds majority election would come from agreement between Prime Minister and Leader of the Opposition. With each side bound by party discipline to support that agreement, the President would be elected with the support of all or almost all the Parliament. The Prime Minister may have been elected party leader by a small majority in the party room, have a bare majority in the lower house and only minority support in the Senate. The title ‘President’ would lead many to urge and expect the exertion of political influence like the President most familiar to people, the President of the United States.

A President elected by the whole of Australia will have a mandate greater than anyone else in the country and far exceeding the Prime Minister’s.

The combined effect of a President with effective power to refuse to act as Ministers advise and with encouragement to independent conduct from election by Parliament or people, will create for the first time in our experience a centre of political power and influence competing with the elected government. Business leaders will have seen in some overseas countries the chaotic consequences of such competition. Our democracy depends not only on free and fair elections, but on the elected government’s being able to govern effectively, subject to the checks and balances of the system.

Apolitical but Influential

A different sort of person is likely to be elected by the Keating model than the kind Australians have come to expect as Governors-General. In this media-powerful community, parliamentary inquiries into fitness for the office are bound to emerge. A person agreeing to be nominated would run the risk faced by nominees for the Supreme Court in the United States, of baseless allegations of disgraceful conduct being made and receiving saturation media coverage. Persons of high reputation near the end of a career would be reluctant to nominate and face this risk.

As the Prime Minister and Leader of the Opposition will need their party members to vote in a joint sitting for the agreed person, they could hardly agree without first taking the opinion of those members on the person. It is possible in the present system and its republican equivalent for a Prime Minister who has sole responsibility, to select a person of higher quality than if it were necessary to accommodate the views of the members of both sides. Experience in India and Ireland shows that when left to a number of politicians there is a real prospect of a politician of less than the top rank being chosen. An accommodation could develop where the sides of politics take turns in having their nominee elected.

A President popularly elected will inevitably have obligations to a political party. Who but the extremely wealthy could run a campaign throughout Australia without the support of the funds and organisation of a political party? The disciplined influence of Australian political parties is one of the highest in any democracy. The prospect of chaos if President and Prime Minister were bound to opposite political parties and of absence of checks and balances if they were bound to the same party, would be high.

A popularly elected president would be more likely to excel in political techniques and election winning skills than in exercising personal influence without effective power. A president who scored 35 per cent on the first count but was elected with a small majority when preferences were distributed would not well be placed to symbolise the whole nation or be a focal point for community cohesion.

The direct presidential-election model has potential for harmful effects not only through those elected but also through those who lose. In Germany’s presidential election in 1932 Nazi leader Adolph Hitler ran against the incumbent president, Paul von Hindenberg. He had no chance of winning, but the election gave him the platform on which to attract the national attention which was important in his rise to dictatorship.

Compound Characteristics

In assessing the way the models for elected republican Presidents would work, it is essential not to segregate and consider in isolation their failures to meet the three essentials. It is necessary to contemplate a President with the Governor-General’s powers, no longer bound effectively to exercise them as and whenever Ministers advise, nor to refrain from political criticism of the government and encouraged through election by Parliament or people to act as political rival of the government and inevitably in one and arguably in the other model, owing obligation to a political party.

Election and Appointment

It is easy to infer from the meaning of the word ‘democracy’ that all its positions of influence must be filled by election. That fails to distinguish between the two distinct sides of our system of democracy. The initiating, powerful, political side, comprising the Parliament and government, should have a mandate from the people and must be elected. It is as important that those constituting the instrumental, influential but apolitical side, the Governor-General and courts, be appointed not elected. Their role is essentially the secondary one of implementing or applying what others have decided. The Governor-General appoints the government the electorate has decided to elect, assents to bills on which the houses of Parliament have decided and exercises powers as Ministers have decided. The courts apply Acts decided on by Parliament, regulations decided on by a Minister and the common law decided by earlier judges.

The early Americans thought democracy meant elected judges, which most of their state courts have. That exerts most undesirable influences on the judges. By federation the lesson had been learnt and all federal judges in the United States are appointed not elected. If our Governor-General (or President) or our judges were elected, the mandate from election would bring continual pressure upon them to exert their independent authority from the community instead of conscientiously implementing and applying what others have decided.

Conclusion

That Australia has a problem in assessing the effect of the three main republican models was revealed by the Morgan Poll upon preferences in 1996. The models corresponding to the Keating and direct presidential election models shared 94 per cent support: the one corresponding to the McGarvie model drew 3 per cent: and 3 per cent were undecided. The perceptions, skills and courage of its business leaders are needed in Australia’s public life today as never before.

 

Notes

1 The realities of the Australian system are best shown by Geoffrey Sawer; Federation Under Strain, MUP, Melbourne 1977. Walter Bagehot pioneered the approach of looking at the living realities of a constitutional system and the edition of his work of 1867, The English Constitution, Fontana, London 1963, has an excellent updating introduction by RHS Crossman. There is good material on relevant subjects in the Report of the Republic Advisory Committee, AGPS, Canberra 1993, vol. 2. My papers on internet at http://www.chilli.net.au/~mcgarvie cover in more detail the issues of this article.

2 Conor Cruise O’Brien, The Great Melody, Minerva, London 1993, p. 444.

3 Hamilton, Jay & Madison, The Federalist (H.C. Lodge ed.) T Fisher Unwin, London 1888, no. 72, p. 452.

4 David Butler & D.A. Low (eds) ‘Australia’ in Sovereigns and Surrogates, Macmillan, London 1991, pp. 61 & 100.

5 Walter Bagehot, The English Constitution (1867), Fontana, London 1963, pp. 237-8.

6 ‘A republic with a constitutional council the best option’, The Australian, 2 July 1997, p. 13.

7 H.V. Evatt, The King and His Dominion Governors, OUP, London 1936.
 

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