Article published in (1998) 105 Victorian Bar News, p. 18February’s Constitutional Convention was enormously successful in revealing to the public for the first time the importance and complexities of the issue and the crucial differences in practical effect between the safe and risky ways of becoming a republic.
That the place in history of the model and the method of community choice which emerged from the Convention for the 1999 referendum, will be no more than that of an educational step contributing to the later resolution of the issue, is not the fault of the Convention process.
It is the result of the model’s basic structure having been designed in the warm glow of theory, promoted in the public relations mode designed to attract votes, and its actual impact on our system in the harsh realities of politics receiving little attention. At the Convention other structural parts were added on, so as to get the votes on the floor that enabled the model to draw the highest level of minority support there.
I consider that the referendum in 1999 will fail because Australians are instinctively a wise constitutional people. They are well-aware that they have the responsibility for maintaining for future generations one of the world’s oldest and best democracies which Australians have built. A referendum campaign tends to be all-revealing. By the time they vote, people will realise how the model would damage essential elements of our democratic system and how much it would strain our federation to have the Commonwealth become a republic while the States are left to fend for themselves. The referendum will not resolve the republic issue because numerous voters, at heart favouring a republic, will put their democratic system and federation first, and vote against it.
Turnbull Model
I will identify by the name of the person who moved its adoption, each of the four models finally considered at the Convention. The Turnbull model that will be the subject of next year’s referendum, would depreciate the quality of persons chosen as head of state by transferring the choice from the Prime Minister alone to the political parties; give the President the mandate of parliamentary election with its temptation to act as rival to the government; and inhibit or paralyse the protective mechanism relied on by the democratic system in a constitutional crisis.
These questions have little to do with constitutional law. They depend on an understanding of the realities of constitutional and political culture and practice in this country. That practice is played hard. In 1867 Walter Bagehot perceived the contrast between Australia’s political culture of harsh, merciless realism, and that in Britain.1 We also have some of the tightest discipline in the democratic world from our political parties, which typically follow their immediate political interests. Those and other factors, led Geoffrey Sawer in his classic, Federation Under Strain, to recognise that established constitutional customs are not binding conventions in Australia unless backed by so effective a practical penalty for breach as to make them binding in practice though not in law.2 Within that environment our constitutional and political achievement has been impressive. Any republic model must work within that environment. The task is to assess the practical effect a model would have on the complex and interacting dynamics and balances of our working constitutional system.
The Turnbull model would have a committee to consider community nominations for President and prepare a short list of suitable people. Among its members the committee would have representatives of each political party with party status in the federal Parliament. After considering the short list, the Prime Minister and Leader of the Opposition are to agree on a person, who would become President when elected on their motion by a two-thirds majority of a joint sitting of the federal Parliament. The President would be appointed for five years but could at any time be dismissed instantly by written notice from the Prime Minister.
At present, as part of our system of representative democracy, the elected head of the elected government, the Prime Minister, has the sole responsibility for the choice of a Governor-General. Seen as acting for the whole community, and alone receiving all the praise or blame, the Prime Minister’s standing and reputation are affected by the community’s assessment of the quality of the choice. Few challenge that our Prime Ministers have satisfied community expectations well. That will all be changed by immersing the selection decision in the processes of the political parties and making it just another political issue. No federal government for fifty years has had a two-thirds majority of a joint sitting. To get that majority, both Prime Minister and Leader of the Opposition will have to refer the choice to their party rooms where veto and prejudice are likely to combine to produce a mediocre President. While each side of politics would veto top ranking politicians from the other side, overseas experience, as in Ireland, points to the real prospect of a second rank politician emerging when politicians choose a President.
Unlike the present system, the names under consideration would be highly likely to leak to the media from the short list committee and later from the party rooms. As well as unofficial canvassing of suitability for office, there will be pressure for parliamentary inquiries similar to Senate inquiries into the suitability of nominees for the Supreme Court of the United states. In allowing his or her name to go forward, a person would be aware of the real prospect of facing baseless allegations of discreditable conduct within the glare of publicity. Allegations would be prone to surface from those opposed to the nominee or to the supporting Prime Minister, or from sheer seekers of publicity. Many, such as those who have been our Governors-General, would be reluctant towards the end of their career to subject their reputations and families to that.
It would be naive to think the effective choice of President would be made in the joint sitting. It would be made in a political deal between Prime Minister and Leader of the Opposition following reference to their party rooms. Political deals always have political terms and the opposition’s commanding position would enable it to demand a high price. It has the final say and if its price is not met it can refuse to agree and leave the government unable to have a President elected. The public would be unaware of the terms of the deal or of the actual reasons which led to the President’s election.
Far from the quality of the person chosen as President being the inescapable responsibility of the Prime Minister, responsibility will be unidentifiable, with everyone able to blame everyone else.
Under the present system a Governor-General, having been chosen by the current or a former Prime Minister, has no shadow of mandate that would encourage opposing the government. It would follow from party discipline that a President agreed between government and opposition will receive virtually all the votes of the joint sitting. That will usually far exceed the parliamentary mandate of the Prime Minister, who may have the support of a small majority in the lower house, have been elected leader by a small margin in the party room and have minority support in the Senate. Under our system, every influence of the setting within which the head of state works should counteract any temptation to exercise effective political power or influence. The Turnbull model instead gives the encouragement of the mandate from the people’s representatives to incite the temptation. The title ‘President’ would further fuel that temptation. The community familiarity with the office of the same name in the United States would generate expectations that an Australian President would pursue a similarly predominant role. The President would be under pressure to go as far as practicable without incurring the penalty of dismissal for breach of convention. Once the community accepted the President as a kind of political overseer of the Prime Minister, it would become politically difficult for the Prime Minister to impose upon the President the penalty of dismissal for breach of the conventions against exercise of political power and influence. It is essential to our kind of democracy that those conventions have practical binding force and it is the ready availability of the penalty of prompt dismissal for breach that makes them binding.
In the various versions of the model, the provision for presidential dismissal has gone from the extreme of an undismissible President, which would have ruined our democracy, through quickly abandoned changes, to the extreme of an instantly dismissible President, which will block the system’s protective mechanism needed in constitutional crisis. I pointed out on 1 May 1997, that as no federal government had for over fifty years had a two-thirds majority of a joint sitting, the provision for dismissal by that majority would in practice create an undismissible President.3 No change was made until the first day of the Constitutional Convention when Mr Turnbull proposed dismissal by a majority of the House of Representatives. Two days later he added that pending the House’s decision on dismissal, the President could not dissolve Parliament. The following week all that was abandoned. Under Mr Turnbull’s final motion the President is instantly dismissible by the Prime Minister’s written notice. The dismissal would be referred to the House of Representatives which could express lack of confidence in the Prime Minister but the Prime Minister would usually have a majority there so that would be a remote prospect. The House would have no power to cancel the dismissal.
The method of dismissal of a President could be of overwhelming importance in a constitutional crisis. Most constitutional systems have their provisions to deal with emergencies. In some systems the head of state takes over government. In our system a protective mechanism enables the head of state, as a last resort, to exercise reserve powers so as to refer an intractable constitutional situation to one or other of the decision-making centres of our democracy, Parliament or electorate, for solution. It is only to be done to protect the democratic system from stalling or from illegality or constitutional abuse of a grave nature and from the damage or destruction that could cause.
The Senate’s power to deny financial supply to a government, provides an example of the need for the protective mechanism. If a confrontation such as occurred in 1975 remains intractable, there comes a time when, in the long term interest of the democratic system, the head of state has no real option but to dissolve Parliament for an election. In order to do so it may also be necessary to dismiss the Prime Minister and appoint another. It is very much in the interest of the system and community confidence in it, that the head of state should neither take such action in a pre-emptive way without warning, so as to ambush the Prime Minister, nor refrain through fear of the consequences from taking the action when necessary.
Sir John Kerr thought that unless he dismissed Mr Whitlam without warning, the Prime Minister, on being warned of the prospect of the reserve powers being exercised, would have telephoned the Queen and advised her to dismiss Sir John, which the Queen would forthwith have done. He thought therefore, that if he warned the Prime Minister, he would lose the capacity of dissolving Parliament for an election. Sir John was wrong on that. First, effecting the dismissal of the umpire during a constitutional crisis would produce such an electoral backlash that it would be politically unwise to try. Second, an attempted dismissal would not in practice deprive the Governor-General of the capacity to dissolve Parliament. It treats the Queen as an inexperienced amateur to assume that if advised to dismiss, she would not use her entitlement of time to investigate and consider whether to counsel the Prime Minister against persisting with his advice. If the Prime Minister persisted she would be bound by convention to dismiss. While not bound by rules of natural justice, ordinary administrative fairness would demand that the investigation include obtaining the Governor-General’s version of events. The Governor-General, who has a right of immediate dismissal of a Prime Minister, would have adequate opportunity to use it and dissolve Parliament.4
The Turnbull model would convert John Kerr’s unfounded fear into the stark constitutional reality of the future. It would deprive the head of state of primacy over the Prime Minister in the capacity to bring about the other’s dismissal, which is essential to the effective operation of the protective mechanism. The President in a situation of deep intransigence such as that of 1975, would be faced by only repulsive options. Warning the Prime Minister, the fair and expected course and the one likely to optimise the prospects of a political solution of the impasse, would allow the Prime Minister to jam the protective mechanism and render it inoperable. A Prime Minister who allowed passion for the retention of political power to override good political judgment, could prevent dissolution by dismissing the President and, in turn, any replacement Administrator. If, to avoid this, the Prime Minister was dismissed without warning, it would damage public confidence in the system and the President would encounter the outrage and loss of reputation that Sir John Kerr did. It would be open to the President to do nothing and allow the democratic system to stall and slide into chaos.
When Australians appreciate the realities of the Turnbull model, they will agree with Sir Anthony Mason. In predicting that the referendum in 1999 is unlikely to succeed, he said of the model: ‘I don’t think it is satisfactory in terms of the relationship between the Prime Minister and the president, on the question of dismissal’.5
The Constitutional Convention recommended that the Turnbull model be put to referendum only to change the Commonwealth system to a republic. Only the amendment power under s. 128 of the Commonwealth Constitution is to be relied on. It is left to each State to decide whether, when and how to become republican. The ludicrous result of the Commonwealth and some State systems becoming republican, while one or more States remain monarchies, would produce pressures on the Commonwealth to act to force the monarchic States to become republican and provoke threats of secession.6
Constitutional lawyers of high credibility hold the opinion that s. 128 of the Constitution does not alone enable the Commonwealth to change to a republic and that s. 7 of the Australia Acts 1986, prevents a State making that change by the ordinary amendment provisions of the State constitutions. I do not share those opinions but recognise the potent use likely to be made in a referendum campaign of the argument that a vote ,‘Yes’, is a vote for constitutional invalidity.7
Post 1999
The Canadian experience of the last twenty years shows how continued, unresolved dispute on basic constitutional provisions can destabilise a democratic federation. We should resolve the republic issue in this country as soon as practicable.
If the Turnbull model fails at next year’s referendum, that will not resolve the republic issue and the community will look towards resolving the issue upon a model such as mine or upon a direct election model.
The experience of the Constitutional Convention demonstrates that, while at first sight there is attraction to a popularly elected head of state in a democracy, deeper thought reveals the incompatibility of that model with our kind of democracy. In our system the case for electing the head of state is no stronger than the case for electing our judges. A popularly elected head of state would have the enormous mandate of the only officeholder elected by the whole of Australia. The impracticality of even a multi-millionaire being elected without the support of the finances and resources of a political party, would ensure as President a politician who was a member of or obliged to a political party. Most people of the standing and reputation expected of a Governor-General, would not be prepared to run in such an election. When the mirage of codification of presidential conventions is seen through, it is recognised as little more than a panacea for the credulous. Only a substantial remaking of our constitutional system could accommodate direct presidential election. A political party candidate receiving thirty-five per cent of first preferences and elected with a majority of fifty-two per cent after preference distribution, would not be well placed to perform the unifying function we expect of a head of state. Both directly elected presidential models before the Constitutional Convention, the Gallop model and the Hayden model, would make dismissal of a President an inordinately slow and difficult process at any time and usually an impossibility at times of minority government.
The growing community realisation of the unsuitability of direct election models for the Australian type of democracy was reflected by the fact that the McGarvie model, which started as a rank outsider in May 1997, had by the time of the Constitutional Convention gathered the support to eliminate both direct election models and finish as runner-up to the Turnbull model. I will keep my model before the public eye so that, if next year’s referendum fails, it will be seen as the natural alternative for resolving the republic issue.
My model originated when the Republic Advisory Committee sought my views in 1993 on the minimum constitutional changes necessary to achieve a viable republic. I advanced the model as the natural way of taking the evolution of Australian democracy the further step to a republic. I do not side with republicans or monarchists but am concerned to maintain the quality of our democracy whether in a monarchy or a republic.
The model provides the practical and simple way of becoming a republic while maintaining in full, the quality and strength of our present system of democracy. It will transfer to the Governor-General and Governors the Queen’s remaining powers so that they become actual rather than de facto heads of state of their systems. The Queen’s only active duty, appointing or dismissing the Governor-General and Governors, will be done in each system, on the advice of the Prime Minister or Premier, by a Constitutional Council of three experienced Australians, set up under the Commonwealth or State constitution. The only operational change the model makes is to substitute for the Queen, Constitutional Councils to perform her remaining duty. They will do precisely what the Queen does now, no more and no less, and do it in the same way as she does. Because the Governor-General and Governors will be performing the same responsibilities, within the same setting and subject to the same incentives, penalties and influences, they will continue to operate in a republic the same way as they do now.
Most of the criticism of the model has concentrated on two areas. Many monarchists and republicans have an almost supernatural belief that the only thing that keeps the Governor-General and Governors complying with constitutional conventions is the exertion over them of some mysterious and unspecified power or influence of the Queen. It is said that without a monarchy the conventions would no longer bind. That is a myth. For decades the Queen has had no power or influence beyond that of good example. What keeps a convention binding is the backing of an effective practical penalty for breach. As the penalties come from the operation of the system and as the system will operate in the same way, all conventions now binding will remain so.
Criticism has been directed to the Constitutional Council and based mainly on emotional grounds. It has often been misrepresented that a Council will choose a head of state or be an advisory Council on that. Of course, the Prime Minister or Premier still chooses. The Constitutional Council, like the Queen, would be entitled to counsel against the appointment of an inappropriate person, but if the Prime Minister or Premier insists, will be bound by effective convention to appoint. The convention will be backed by the practical penalty that failure to appoint within fourteen days of written advice to do so would result in automatic dismissal from the Council and the public humiliation that would involve. The Council’s only power or function is to appoint or dismiss on advice. Ordinarily it would only meet about every five years when a new head of state is to be appointed.
The Council has been criticised as elite or elderly but there are good reasons for its membership. The community would not accept anyone choosing the members, so they will be determined by automatic constitutional formula. To avoid conflict of interest with an existing position, they will be retired people. Because a Constitutional Council will be essential to the working of the constitutional system over the century or more that new constitutional provisions are likely to last, there must always be an ample supply of members. This is best ensured if they are retirees from constitutional positions which will last for that time. They need the constitutional experience and community respect that go with high constitutional positions of trust. People experienced in the responsibilities of head of state or judiciary have advantages over those from the two political organs of government, the Parliament and government.
To meet these requirements the Commonwealth Constitution will provide for places on the Constitutional Council first to go to retired Governors-General with priority to the more recently retired. Places left unfilled will go on the same basis in turn to retired State Governors, Lieutenant-Governors, High Court Judges and Federal Court Judges. For thirty years there will be a temporary provision that if there is no woman in the first two places filled, the third place will go the woman with the highest priority amongst the eligible persons. My earlier proposals for age limits revealed a great deal of ageist prejudice against community elders. I now propose for all members an upper age limit of 74 or such age as Parliament prescribes, and no lower limit. Retired judges would be eligible only if they had served for ten years.
State Constitutional Councils would have similar membership and operate in the same way.
I consider that Australians will not be attracted to the approach of treating the Commonwealth system as the only one on which the community should concentrate with regard to the republic issue. My proposal is that the issue be resolved at the same time for the whole federation. To resolve it in that way would involve the production of a great deal of consensus and co-operative federalism. It would be pointless to seek consensus on whether or not we change to a republic. Consensus on how to go about resolving that issue should be achievable. Consensus would be needed on the model for head of state in a republic which would best maintain the strengths and safeguards of our present system of democracy, and on a method of making a clear choice between that model and the present system in a way which does not overstrain our federation and is constitutionally valid beyond credible argument.
The referendum campaign and decision in 1999 is likely to reveal to voters the lasting advantages which a dull, tried and reliable model for republican head of state, like mine, has over the untried novelty of the exotic imported models. It is significant that in the Morgan Poll taken throughout Australia during the first week of the Constitutional Convention, the answers to one of the questions gave the following percentage preferences: Monarchy - 29; Republic with President elected by two-thirds majority of joint sitting - 34; Republic based on the McGarvie model - 26; Undecided - 11. Answers to another question revealed that only 23 per cent of respondents said they were aware of the McGarvie model before being told of it by the pollster.8
By relying on s. 15 (1) of the Australia Acts 1986 (Commonwealth and U.K.) in addition to ss. 128 and 51 (xxxviii) of the Commonwealth Constitution, Australians could make a clear referendum choice between the best republic model and the present system. It could be made in a way that, according to the choice, the Commonwealth and all States would together become republican or would all remain monarchic. The mechanism would be a referendum upon Commonwealth legislation to amend the Commonwealth and each State constitution to the republican form, which would only have any effect if approved by a majority of voters in Australia and each State and if requested (or concurred in) by each State Parliament. Amendments made to Commonwealth and State constitutions in that way would be valid beyond credible argument.9
Daunting though that method is, it seems to me the only practical way of resolving the republic issue.10 I consider that a second referendum could be held in about 2005. The referendum of 1999 will have impressed on the public mind both the difficulty and importance of resolving the issue. It will also have demonstrated that the way to resolution is not through the shrill disputation of ordinary political contest but by the approach appropriate to the resolution of a constitutional issue — the building of consensus. By the perspectives of constitutional history, if Australia resolves the issue by 2005, it will have acted with expedition.
Notes
1 Walter Bagehot, The English Constitution (1867), Crossman edn, Fontana, London 1963, pp. 237-8.2 Geoffrey Sawer, Federation Under Strain, MUP, Melbourne 1977, pp. 133, 177-192.
3 ‘Our Democracy in Peril: The Safe Way to a Democratic Republic’, Paper published substantially in the Australian, Age and Herald Sun, 1 May 1997 and fully in (1997) 101 Vic B.N., p. 31.
4 Sawer, p. 184; Bill Hayden, An Autobiography, Angus & Robertson, Sydney 1996, pp. 293-4.
5 Tony Parkinson, ‘Republic "would fail" at first referendum’, The Age, 2 March 1998, p. A2.
6 Former Solicitor-General, Dr Gavan Griffith QC, has expressed the opinion that, if the Commonwealth becomes republican, a law of the Commonwealth Parliament could sever the links of a State to the monarchy: Bernard Lane, ‘QC rules out State monarchies’, The Australian, 10 March 1998, p.6.
7 The arguments that s. 128 is inadequate are outlined by Professor Greg Craven, ‘The Constitutional Minefield of Australian Republicanism’, Policy, Spring 1992, p.33. In respect of State constitutions the argument is that s. 7 entrenches the monarchy.
8 Morgan Poll, conducted 4-5 February 1998 throughout Australia, Finding No. 3054, Questions 4 and 7.
9 This mechanism has much in common with that recommended by the South Australian Constitutional Advisory Council, First Report, South Australia and Proposals for an Australian Republic (Associate Professor Peter Howell, Chairman), September 1996, chaps 5 & 7.
10 My internet papers at http://www.chilli.net.au/~mcgarvie give additional information on my model and approach.
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