Article published under another heading in The Canberra Times, 1 January 1998 p. 9February’s Constitutional Convention owes the community the crucial responsibility of bringing the republic debate back to earth.
A man with great experience in selling by direct mail, once told me that the secret of success is to persuade customers that the product is both new and free. The republic has been sold in that way. The models prominently on public display depart so basically from Australian constitutional practice as to offer the exciting allure of imported novelty. Their cost to the democracy we hold on trust for future generations has not rated a mention.
Both sides have confined the debate to an entertaining, emotional joust on general preference for republic or monarchy. Few people have been made aware that going to a republic by the wrong model would ruin our democracy.
The Constitutional Convention must point Australia to the best way of resolving the republic issue. Early resolution is important. Canadian experience shows prolonged, unresolved constitutional debate to be harmful to a federal democracy. Effective resolution requires a process structured so as not to carry inherent bias against either side. Bias will be absent only if electors can choose between the present system and a republic model which will equally maintain our democracy; if the constitutional amendments will be valid beyond credible argument; and if the method of making them preserves the cohesion of our federation. Unless all those characteristics are present, many favouring a republic would vote against it rather than put our democracy or federation at risk.
The debate must be brought back to reality. So far, the republic has been sold on models that could not be delivered, because they would not pass the scrutiny of the constitutionally cautious electorate in a referendum. The campaign would lay bare their flaws and their exorbitant cost to democracy. Unless reality prevails, we face years of constitutional frustration. It is not good for the health of the nation to have large numbers striving to become a republic by models in practice unattainable.
Both models for an elected President share the fatal flaw that, for the first time in Australia, the great powers of head of state would be exercised by a person not readily dismissible. Only the Governor-General, not any Minister, can now dissolve Parliament and bring about an election, summon it after the election, appoint or dismiss Prime Minister and Ministers, or convert a bill passed by both houses into an Act by giving assent. In law those powers can be exercised as and when the Governor-General chooses. The link with the democratic decisions of voters in elections is the convention that binds the Governor-General to exercise powers as Ministers of the elected government advise. Our democracy depends on that. The convention is not a law and cannot be enforced by a court. It is a constitutional custom so uniformly 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 extremely effective sanction that guarantees compliance, is that a Governor-General knows that failure to act on ministerial advice would bring prompt dismissal by the Queen on the Prime Minister’s advice.
The models for a republican President elected by two-thirds of Parliament or by the whole electorate, each would install the President for five years with the same powers as the Governor-General and dismissible only by resolution of a two-thirds majority of Parliament. In practice a President who refused to exercise a power advised by Ministers would be undismissible because oppositions do not support governments and no federal government for fifty years has had that majority. Even if it were available, a President who got wind of a move to dismiss, could frustrate it by adjourning or dissolving Parliament.
With the dismissal sanction gone, the convention would cease to bind and our democracy unravel. Proposed substitution of a codified legal obligation enforceable by the courts, would be ineffective and as damaging to the political process as to the courts. It is enough, to contemplate what would actually happen if a President resolutely maintained defiance of Ministers’ advice to assent to an unpopular government bill or to make unpopular regulations.
The constitutional convention that now precludes a Governor-General from public criticism of the elected government or acting as its rival in political influence, also depends on the sanction of prompt dismissal and would not bind an elected President.
The ability of an undismissible President to resist Ministers’ advice to exercise powers, and to criticise the government in public, would confer an immense political capacity to veto the elected government, which no Governor-General has ever had.
A President would be encouraged to exercise that veto by the mandate from election by the community or its parliamentary representatives. It would be certain that a popularly elected President would be a politician controlled by a political party and there would be a real prospect of a President elected by Parliament being or becoming one.
The debate must also be brought back to earth on the other side, where the monarchic system has been over-sold as the only one which can maintain our democracy. The McGarvie model which I advance would keep our democracy entirely safe in a republic. It changes our present system, which has given us one of the world’s best democracies, only as far as is necessary to become a republic. The Queen’s remaining powers will be transferred to the Governor-General who becomes actual instead of de facto head of state. The one active duty of the Queen, 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 outline the details of the model.
It merely takes the Australian evolution of the office of Governor a small distance further so as to convert our system into a republic while continuing its present nature and operation.
In addition to powers received directly from the Constitution, the Governor-General will possess the Queen’s powers which Governors-General have for decades exercised on the advice of Australian Ministers. The Governor-General will remain liable to prompt dismissal for breach of convention. Constitutional conventions are made binding by the operation and sanctions of the system and there will be no change. The Queen has long had no control over Governors-General or Governors. Her influence has been confined to good example.
If that model is also adopted by each State, with the Governor becoming its actual head of state, appointed or dismissed on the advice of the Premier by a Constitutional Council created under the State Constitution, Australia will be entirely a republic and safe for democracy.
I do not side with either republicans or monarchists but concern myself with ensuring that we maintain the strengths of our democracy if we become a republic. If the Constitutional Convention is to serve this nation well, that will have to be the main objective of delegates who are republicans, monarchists or neither.