Article published in The Adelaide Review, No. 173, February 1998, p. 14
 

Tony Abbott’s book, How to Win the Constitutional War ¾ and give both sides what they want, and his article, ‘What sort of a republic’, in December’s Adelaide Review, contain the first critical assessments of the McGarvie model from the monarchist viewpoint. I welcome them and the opportunity to answer.

The McGarvie model, recognising the paramount need to maintain our democracy, changes the present system only so far as necessary to convert it to the republican equivalent of that system, with the same operation and safeguards. The Queen’s remaining powers and functions will be transferred to the Governor-General who becomes actual instead of 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 automatically selected by constitutional formula. My internet papers at http://www.chilli.net.au/~mcgarvie give further details. With the model also applied so that the Governor becomes the actual head of state of each State, Australia will be entirely a republic.

Abbott contends the model does not convert to a republic. He relies on the argument, shared with equal enthusiasm by many republican and monarchist leaders, that in the absence of the monarchy a Governor-General (or Governor) as actual head of state would lack the capacities or be freed from the controls that ensure their satisfactory operation now. It is a myth fuelled by looking at Australian constitutional practice through the eyes of writers of constitutional texts on England and by reliance on mysteries verging on the supernatural. Republicans use it, to assert that Australian constitutional evolution has nothing to offer and an imported presidential model must be sought. Monarchists rely on it to show that the monarchy must be retained because the imported presidential models would ruin our democracy, (as they would), and without the monarchy the Governor-General (and Governors) would not continue to give the satisfaction they have long given.

All that is required to make Australia a republic is the elimination of monarchy from our democracy. The McGarvie model eliminates every element of monarchy. Tony Abbott distinguishes between the Crown, the Queen (or monarch) and the head of state. He says that I have not produced a republic but at most I have

removed the Queen but not the Crown; or produced, if this is possible, a monarchy without the monarch because, in the absence of a safe alternative, it would be necessary to keep the Crown to guarantee the continuance of the conventions governing the head of state’s powers.

If written about England, that statement might carry weight but it is inapplicable to Australia.

Obviously, faith is being expressed in virtually a divine right of monarchs and Crown to ensure compliance with the conventions, because he never examines the process or mechanics of achieving that. He goes no further than references to the mystique and tradition of the Crown, and the Governor-General being its representative.

We must examine specifically the anatomy of Australia’s constitutional system, its political culture and constitutional practice and, in the light of experience and writings on that system, make ourselves aware of the living realities of its dynamics.

Experience and Australian writings such as Geoffrey Sawer’s classic, Federation Under Strain, demonstrate clearly the chasm of difference between a convention in England and here. In Australia a 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 practical sanction that confers binding effect on the convention that head of state powers are exercised as Ministers advise, is prompt dismissal for breach. That is also the sanction which backs the convention that a Governor-General does not criticise the government or act as its rival in political influence. Other conventions are backed by other practical sanctions, for example, the convention that the leader with clear support in the lower house be appointed Prime Minister, has its own sanction. The practical sanction that binds the Governor-General to use a reserve power only in exceptional circumstances, as a last resort, after duly warning the Prime Minister, and solely in order to protect the democratic system from stalling or grave illegality or constitutional abuse, is the disastrous effect on the Governor-General’s standing and reputation if exercised otherwise. I have never suggested as Abbott assumes, that all conventions binding the Governor-General depend on the sanction of prompt dismissal from that office. I have emphasised that sanction because it backs the convention that head of state powers be exercised on ministerial advice, which is basic to the existence of our democracy.

Our constitutional conventions are binding because of the operation of our system and its practical sanctions. Because the McGarvie model will operate in the same way and have the same sanctions, whatever is a binding convention now will remain one. No constitutional statement to that effect will be necessary.

For these reasons there will be no more need under a McGarvie model republic to attempt the undesirable course of codifying the conventions or the reserve powers than there is now.

There is a mystical belief abroad that somehow, in some unidentified way, the Queen herself, or being the Queen’s representative, exerts influence on the conduct of a Governor-General or Governor.

For decades the Queen has had no control or veto over Governors-General or Governors and her influence has been confined to good example. The urge to high standards in these times comes from representing the Australian or a State community.

The present relationship is well illustrated by the exercise of powers. Most of the more important head of state powers are given directly by the constitutions to the Governor-General or Governor and could never be exercised by the Queen. They are not exercised as the Queen’s agent. Whether in exercising them the Governor-General or Governor ‘represents’ the Queen in any sense other than having an independent role similar to that of the Queen, is a moot point. Some head of state powers such as assenting to a parliamentary bill passed by both houses or ordering the pardon or release of a criminal offender, remain powers of the Queen but are exercised by the Governor-General or Governor.

Whether a power is their own or that of the Queen, it is exercisable without any reference to or input from the Queen and solely on the advice of federal or State Ministers.

Drawing on my five years as Governor and speaking as one with an immense personal regard and respect for Queen Elizabeth II, I firmly hold the opinion that if constitutional ties with monarch and Crown are eliminated, it will make no difference to the conduct of a Governor-General or Governor operating in a McGarvie model republic. The Queen’s example of the way she performs her duties as head of state of the United Kingdom will still be available although her only connection with this country will be as Head of the Commonwealth of Nations.

Once the mirage of a mysterious power being exercised in an undisclosed way by monarch or Crown from the other side of the world is dispersed, the other difficulties raised by Abbott also vanish.

I agree with him, that the office of monarch is to be distinguished from its holder for the time being.

Because of Britain’s history and substantially unwritten constitution, it is not surprising that, as Abbott mentions, it adopted the idea of the Crown as the state, or the governmental entity. There is no need for that in Australia. A reading of the Commonwealth and State constitutions makes it clear that the governmental entities of the Commonwealth of Australia and the six States are created by those constitutions and possess the powers of such entities.

When the idea of the Crown as the state is put aside for Australian purposes, the remainder of Abbott’s concept of the Crown is the same as the ordinary concept of head of state. It is only necessary to notice that progressively since early colonial days powers and functions of the Crown or head of state have been transferred from monarch to Governor or Governor-General. Now they are shared in such a way that while the monarch remains constitutionally ‘the’ head of state, the Governor-General and Governors are the de facto heads of state who exercise the head of state powers within their respective systems. Under the McGarvie model all the powers, functions, rights and attributes of the monarch, Crown and head of state in respect of their systems, not already vested in the Governor-General or Governor, will be transferred to them. They will have precisely the same powers and functions as they exercise now and be subject to exactly the same democratic controls.

In Appendix One of his book, Abbott sets out constitutional provisions he has designed to introduce the McGarvie model. He has my respect and friendship and I accept the good faith of his attempt, but regret that it would not introduce my model but his misunderstandings of it.

He also puts forward his own model for an ‘ultra-minimal monarchy’. His model and mine would both operate in the same way and maintain the strengths and safeguards of our democracy. The difference is that under his, Australia would be a monarchy: under mine it would be a republic. As I side neither with monarchists nor republicans but with democracy, I express no preference between those models.
 

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