Article published in The Adelaide Review, No. 171, December 1997, p. 20The debate avoidance industry, having long distracted community attention from the dangers of both presidential republic models, has lost control.
The equally insidious tax avoidance industry of the eighties, at least went as deep as the bottom of the harbour. This avoidance industry has been conspicuous by its shallowness. It diverts attention by not mentioning or glossing over the dangers I identified on 1 May.
Debate leaders have obvious reasons for shying away from debating which republic models would maintain and which would ruin our democracy. Most on both sides earlier dug themselves into untenable positions.
Many monarchists still say there is no safe way to a democratic republic. The McGarvie model which transfers the Queen’s remaining powers and functions to the Governor-General, who becomes actual instead of de facto head of state, is entirely safe. The Queen’s one active duty, appointing or dismissing the Governor-General, will be done on the Prime Minister’s advice by a Constitutional Council of three eminent Australians automatically selected by constitutional formula. My internet papers at http://www.chilli.net.au/~mcgarvie explain the model. If each State also had that model with its Governor its actual head of state, appointed or dismissed by its Constitutional Council on the Premier’s advice, Australia would be completely a republic.
The fatal flaw of the models many republicans still support, is that a President elected by Parliament or people could not be promptly dismissed. That sanction for breach, which gives binding effect to the convention of exercising the great powers of head of state as elected Ministers advise, would disappear. Oppositions do not support governments. The two-thirds majority necessary to dismiss would not be there. No federal government for fifty years has had that majority. Even if it did, a President could stymie dismissal by exercising the power to dissolve or adjourn (prorogue) parliament.
Our democracy depends on the sanction of dismissal and if it evaporates so will democracy.
The avoidance industry treats people as couch potatoes, not to be frightened by any mention of the dangers, but entertained and distracted by endless argument on general preference for republic or monarchy. Any discussion of the models is carefully confined to methods of appointment or election. It never enters the crucial area of dismissal.
Six months after my alert, two courageous men, at real cost to themselves, have broken ranks and taken Australians into their confidence. We should salute republican, George Winterton and monarchist, Tony Abbott.
In ‘A reply to McGarvie’ in the November issue of this Review, Winterton mentions two things the debate has treated as unmentionables. He concedes that I rightly highlight the weaknesses of dismissal by two-thirds majority and suggests other measures to take its place. He acknowledges that my model is most suited for dismissal of a head of state who misbehaves. He adds that if his suggested measures are considered inadequate ‘some variant of the McGarvie proposal could be considered’.
His suggested new measures would leave the models as unworkable as now. His proposed dismissal on the grounds of proved misbehaviour or incapacity by a simple majority in each house, overlooks that federal governments seldom have Senate majorities. The way Parliament would divide on a move for dismissal was demonstrated starkly by the division on party lines (with one notable exception) of the two Senate Select Committees which in 1984 investigated taking steps to remove Justice Lionel Murphy from the High Court.
Professor Winterton considers that dissolution of Parliament requires a Prime Minister’s signature. I doubt whether that is required by law or convention. He says that if not already required, this could be introduced as one of the new measures. But the President in the Keating model Winterton supports, would retain unilateral power to dismiss and appoint a Prime Minister. What would prevent a President prepared to frustrate dismissal, obtaining a Prime Minister from within Parliament (or outside it for up to three months) to advise dissolution or adjournment?
The other suggested measure would authorise the speaker to summon the lower house at the request of a specified number of members. If that occurred what would stop the President again dissolving or adjourning? I suppose it would be suggested that the President be precluded from dissolving or adjourning for a period.
Our smoothly-operating and well-balanced system resulting from years of practical experience would come to resemble a game of snakes and ladders with many more snakes than ladders.
It will be interesting whether, in view of Winterton’s concession, the debate avoiders continue to avoid or now attempt to patch the inherently impractical models.
Winterton’s second reference to a debate unmentionable, acknowledges that my views are shared by the majority on the South Australian Constitutional Advisory Council, which reported in September 1996. When we built federation a century ago South Australians were prominent among the leaders of national debate. It must make them sad in their graves that today, South Australians have not told the rest of Australia about South Australia and Proposals for an Australian Republic, although it is essential reading for any sensible resolution of the debate. It is the only public inquiry that has recommended the best republican model for Australia’s democracy. Chaired by a distinguished constitutional historian, including amongst its well-qualified members a representative of each of the political parties and some committed republicans and monarchists, not one member of majority or minority would give any support to dismissal by a two-thirds majority. Where some of its working parts differed from my model, its chairman has recently expressed preference for my model, (Peter Howell, ‘Improving the Keating Model for a Republic’, Quadrant, November 1997, p. 63).
It is important to identify why George Winterton and I, both lawyers, sharing a mutual respect and friendship, are in basic disagreement about the kind of constitutional system we should have if we decide to become a republic. We differ because Winterton would extend the law and its court enforcement so that it predominates in the political and constitutional processes of our system. I would not take it any distance further into that area. Instead I would concentrate on fashioning our constitutional structures so that their inherent incentives, sanctions, influences and form will have them work as they do now without court intervention.
Winterton is the foremost exponent of the constitutional theory originated by Dr. H.V. Evatt in The King and His Dominion Governors in 1936. Many lawyers share his view that our political and constitutional processes need to be regulated and controlled by law and courts. Many others, including most with actual political and constitutional experience, would side with me.
Winterton regards as practical Dr Evatt’s idea of putting conventions, including that of acting on ministerial advice, in legal codes. I regard it as a mirage whose attraction vanishes once you get as far as the reality of how it would actually work. Winterton relies on a provision in the Keating model that all the President’s powers would legally be exercisable only on ministerial advice. That sounds good so long as it is not investigated. It would cover one side of the present effective convention but not the other. It would prevent the President exercising a power without advice. In practice it would impose no more than an ineffectual paper obligation on a President to comply with the other side of the present convention — to exercise a power as and whenever Ministers advise. The debate has hardly recognised this gaping deficiency. A Governor-General refusing to exercise a power now would promptly be dismissed, but what of the undismissible President? The Prime Minister could start a court action to have the President ordered to exercise the power. Assume that when the case came on to be heard ,the judge exercised a discretion to make the order. Assume further that after all appeals were completed, that order remained. What is to stop a President who desires to frustrate the government, creating a media event and great political mileage by resolutely refusing and being cast into prison pending compliance with the order. In that way, union leader, Clarrie O’Shea, forced a government to delete from the Conciliation and Arbitration Act, a section which had long been anathema to the unions. Any system which provides political mileage and leverage through defiance of the law is fundamentally flawed.
To my observation that bringing the courts into the political process in this way would be as damaging to the process as to the courts, Winterton responds:
My first answer is: Ask someone with actual experience of politics. My second is that whether the court decision sides with the government or the President, numerous citizens supporting the losing side will regard the court as biased against their side of politics. The indispensable asset of a court is community confidence in its impartiality.Why should the courts be excluded from their customary function of enforcing constitutional requirements?The codification idea is a mirage also because it is in practice unattainable. In the sixty years since Dr Evatt advanced it, all attempts to reach consensus on the content of the code have failed.
Winterton follows Dr Evatt in another area. Evatt concluded that under the present system it is not open to a Governor-General to warn a Prime Minister the reserve power might have to be exercised because the Prime Minister would then immediately have the Governor-General dismissed. He relied on that to support his codification proposal. That erroneous view, absorbed by John Kerr from Evatt, was at the heart of what went wrong in 1975. Winterton puts that view in criticism of my model. Since 1975, almost everyone who has examined the proposition of immediate dismissal of the Governor-General which underlies the view, has concluded it is wrong. First, the community reaction against a Prime Minister who procured dismissal of the Governor-General, who at that time had the umpiring responsibility of considering whether to exercise the reserve power to resolve an intractable constitutional crisis, would be so complete that it is not a practical political opinion. Second, even if the Prime Minister advised the Queen to dismiss, it treats her as an inexperienced amateur to assume she would not use her entitlement of time to investigate and consider whether to counsel the Prime Minister against persisting with the advice. In reality there was no risk of instant dismissal if John Kerr had warned Gough Whitlam the reserve power might have to be exercised. Unfortunately he allowed himself to be guided by theory not reality. That is my response also to George Winterton’s view.
Although he says they are interrelated, Winterton considers separately the various attributes of elected Presidents. Realistically the President must be considered as the sum and compound of all those attributes. It is misleading to start by visualising someone like the Governors-General Australians have come to expect. Because undismissible, a President will for the first time in Australia’s history be able to use the great powers of head of state to exert a power of veto over the government by refusing temporarily or permanently to exercise powers when advised by Ministers. The convention that binds a Governor-General not to criticise the elected government or use speaking occasions to act as its rival in political influence, also depends on the sanction of prompt dismissibility for breach, so will not bind a President. The President will be encouraged to exert that power and influence through a personal mandate from election by parliament or people. When the Prime Minister and Leader of the Opposition agree on the person their parties will elect in Parliament or when the electorate elects a President, they will know they are not electing someone like a Governor-General with virtually no effective power. They will be electing to an office with great potential for effective power. Different people will make themselves available and different kinds of people will be chosen. Inevitably with a popularly elected President and from overseas experience of Presidents chosen by politicians, arguably under the Keating model, the President will owe obligations to a political party.
The dangers to our democracy of such Presidents must be assessed from a realistic appreciation of the effect the possession or drive for political power is likely to have upon a President combining the attributes mentioned above, having the opportunities the system will present and virtually free from the constraints of sanction.
George Winterton says I have been strident and I have. Having seen my own community to whom I owe much, being led with its head in clouds of theory towards a constitutional cliff, I have not thought it a time for dulcet tones or half truths.