Paper presented to the Australian Institute of International Affairs, Melbourne, 31 July 1997DemocracyThe title of this paper indicates that I regard the retention of our democracy as of much greater importance than whether we do so as a monarchy or a republic. Building on the original British foundation, Australians have produced one of the oldest, most stable and best democracies in the world. Our federation is the only democracy that spans a continent. It is our priceless possession. In our own interest and as trustees for future generations we must retain it. In the interest of our federal democracy we should seek to resolve the debate on republic or monarchy one way or the other as soon as practicable.
Resolving The Debate
The debate is about whether we should for the Commonwealth and each State have Australians as head of state instead of the Queen who is now their formal head of state, and patriate or transfer to them the remaining head of state powers which are now the Queen's rather than the Governor-
General's or Governors'. If we did that we would be a republic, as the monarch would have no part in any of our systems of government. It would require amendments to the Commonwealth and State constitutions.
It is a cause for real concern that the current republic debate has drifted on for five years, moving further from resolution each year. Prolonged, unresolved debate on constitutional change cuts deeper divisions in the community than if on a mere political issue.
We adopt our constitutions with a high degree of consensus as the structures through which we will resolve our future political differences in a way that both losers and winners will accept. Typically, a similar level of consensus is needed to amend them. Thus to get the numbers to change the Commonwealth Constitution by referendum, in practice virtually the whole political spectrum must support it. The State constitutions vary in their difficulty of amendment.
We have seen that the longer the debate goes, the more things people want to change. ANU Law Lecturer, Ian Holloway, who comes from Canada, has warned us of experience there. Their debate began in the late 1970s over an attempt to remove the constitutional anachronism that only the British Parliament could amend Canada's Constitution. It led to round after round of constitutional wrangling on an increasing variety of issues. The latest episode was Quebec's referendum on separation in 1996 which lost by about one per cent of the votes. Holloway notes that region has become pitted against region and group against group, so that Canada at times resembles the Balkans without guns. He cautions that he is not sure that divisions from the republic debate, say a State or two in minority in a referendum, could not weaken the bonds of our federation in a similar way.1 Unresolved constitutional dispute erodes the consensual acceptance of the constitutional system as the natural way of resolving political differences.
The greatest deficit of the debate here has been the unreal assumptions and expectations which it has raised in the supporters of both sides. Many people have come to support the two most popular models for an elected republican President, quite unaware of the disastrous effect either model would have on our democracy. Many opponents of a republic have come to believe that there is no way of going to a republic which would safely retain our democracy.
It is important for the health of our federation and democracy that the issue be resolved fairly, effectively and as soon as practicable. That requires a clear choice to be made between the present monarchical system and the model for a head of state of a republic which would best maintain the strengths and safeguards of our democracy. Concentration should move away from the fairly emotional joust on general preference for monarchy or republic and focus first on making a hard-headed assessment of the republican model safest for democracy and of the safest way, in terms of constitutional validity, of making the amendments to produce that model.
It is in everyone's interest to join in or support the making of those hard-headed assessments. There clearly is a possibility of Australia becoming a republic and if that occurs it is in everyone's interest, including monarchists' and republicans', that it be a republic which will keep democracy safe. Unless the model put forth is the safest for democracy and the method of constitutional amendment the safest for validity, a referendum is likely to fail. Australians will not vote themselves into a position which may have dangers for our democracy or the validity of our constitutional system. Many who would vote for a republic if the model and the method of constitutional amendment were both clearly safe, would vote against it. Supporters of a republic would then feel the issue was not fairly decided but had been distracted by side issues. The issue will not be regarded as resolved. Division will deepen. It is not in anyone's interest that many people, particularly young people, firm in their support for one or other of the models for an elected republican President without being given any idea of their fatal flaws that make them unsaleable to a perceptive Australian electorate in the necessary referendum. If a great majority favoured the general principle of a republic but a referendum failed because of the flawed model, their faith in the ability of our democracy to reflect public preference would be severely damaged.
There are reasons for making the assessment, which lie in the contingencies of the future. It is not impossible that the United Kingdom could at some time decide to end the monarchy. It is not impossible that some other circumstance could arise that would lead Australians quite quickly to form a consensus preference for a republic. With the complexities, time and consensus involved in amending Australian constitutions, it would be better for us already to know our preferred alternative and our preferred way of getting to it, rather than have to start consideration then when time may be running out.
The Questions
There are three quite separate questions embedded in the republic debate:
Whether, other things being equal, a monarchy or a republic is preferable. That is primarily a question of one's feelings of loyalty, sentiment, identity, aspiration and national interest. It is the easy question although it is the one to which most energy has been directed during the debate. I do not suggest that the answer is either unimportant or self-evident. It is easy, because everyone who has given it thought knows on which side they stand at the time. It does not require investigation or careful analysis. I do not take sides on that question.The ModelsWhich model for the head of state of a republic would best maintain the strengths and safeguards of our present system of democracy? That is a question of fact which needs a lot of investigation, analysis and careful consideration. The answer does not turn on theory but on knowledge that comes from observation and experience of the living realities of Australian constitutional and political practice and culture and the operation of our constitutional system. It is by far the most important question but it has received very little attention in the debate. Obviously the choice the community should make to resolve the issue of the debate is between the model identified by the answer to this question and our present monarchial system.
What constitutional amendments would be necessary to produce that model? That is a question of law to which I will return.
There are three models currently receiving public attention:
(a) The republican equivalent of the present system which I propose, will retain the Governor-General and Governors. The only system change provides for Australian bodies, rather than an external head of state, to appoint or dismiss them on the advice of the Prime Minister or Premier. That is the only responsibility the Queen now performs. This model, the first option discussed by the Republic Advisory Committee, was in substance, though not in every working part, the one recommended by the South Australian Constitutional Advisory Council in September 1996.2 It received little attention at first but support for it is starting to generate as the flaws of the other two models become known. It is the only model which would maintain the strengths and safeguards of our democracy and it would do so entirely.In each case the President would have all the powers of a Governor-General or Governor and be dismissible during that term only on a resolution of a two thirds majority of a joint sitting.The other two models propose the election of a republican President for a term of five years either
by a two thirds majority of a joint sitting of both houses of Parliament or
by the whole electorate.
Each of those models would ruin our democracy.
It is a reflection of the shallowness and lack of substance of the debate that from the people asked in the Morgan Poll in June 1996 their preferred model if Australia became a republic, the two models which would ruin our democracy shared 94 per cent support and the one corresponding to the republican equivalent model, which would maintain that democracy, drew only 3 per cent support.
Models Tested By Essential Requirements
There are three essential requirements for a person exercising the powers of head of state in our system and I will test each of the models by them. Because the State Governors are in much the same position as de facto heads of state in their systems as the Governor-General in the Commonwealth system, I will treat the Governor-General as typical of them all.
The basic constitutional convention must bind the head of state.The other essential requirement is:Our type of head of state, the Nominal Chief Executive, must be sharply distinguished from the other two types common in modern democracies. The Chief Executive such as the President of the United States, is head of government as well as head of state and acts in governing the country in a similar way to the way the Prime Minister does here. The Non Executive head of state, as in Ireland or Sweden, exercises relatively minor constitutional powers, most executive power being given directly to the government or parliament or its officers. It is important to note the basic difference because some publications state that both Australia and Ireland have Non Executive heads of state, thus masking the dependence of our system on the basic constitutional convention for its democracy.3
The Governor-General as Nominal Chief Executive is, under the Constitution, legally entitled to exercise as he or she chooses, executive powers at the heart of our system of government. They include power to prorogue (adjourn) Parliament, to dissolve it and bring about an election, to summon it after the election and to convert bills which have passed both houses into Acts by giving assent; power to appoint or dismiss the Prime Minister and other Ministers; the right to exercise the executive power of the Commonwealth; and the right to act as Commander in Chief of the defence forces.
Ministers cannot exercise those powers. We are a democracy because the basic constitutional convention binds the Governor-General to exercise the powers as Ministers of the elected government advise and only as they advise. That links those powers to the decisions of electors in elections. It is the glue that binds the Governor-General's exercise of the powers to the democratic process. The basic constitutional convention is not a law which could be enforced in a court. In Australia a constitutional 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 that it is binding in practice though not in law. The basic constitutional convention is backed by a most effective sanction. A Governor-General who did not comply with it would be dismissed. Our democracy depends on the head of state remaining readily dismissible.
In the republican equivalent model the Governor-General, who has been de facto head of state of the Commonwealth exercising the powers of head of state for decades, will be retained and become the actual head of state. The head of state powers in respect of the Commonwealth which are the Queen's rather than the Governor-General's will be patriated to the Governor-General. The Governor- General will continue to do the same things in the same way and subject to the same constraints as before. These changes have legal effect but involve no operational change.
The operational change will be the creation under the Commonwealth Constitution of a Constitutional Council of three eminent, retired Australians to perform instead of the Queen her one responsibility, the appointment or dismissal of the Governor-General on the advice of the Prime Minister. Like the Queen, the Constitutional Council will not select or decide who is to be Governor-General. That will continue to be done solely by the Prime Minister. Like the Queen, the Council could counsel the Prime Minister against an inappropriate appointment or dismissal which had been advised, but if the Prime Minister insists, the Council will be bound to act as advised. A convention backed by the sanction of dismissal from the Constitutional Council for refusal to act on advice will be specially created.
The members of the Constitutional Council will be chosen automatically by constitutional formula, so no-one will select or appoint them. Under the formula they will be people retired from a high constitutional position of trust which is non-political. Places would go first to retired Governors-General aged from 65 to 79 with priority to the most recently retired. Places left unfilled would go on the same basis in turn to retired State Governors, High Court Chief Justices, High Court Judges, Federal Court Chief Justices and Federal Court Judges.
Because in the past women have not been given the opportunity of reaching such positions upon their merits and because the Constitutional Council of high symbolic standing should have a member from the female half of the community, a temporary provision will operate for thirty years. If there is no woman in the first two places filled, the third place will go to the woman with the highest priority among the eligible persons.
Except that the Constitutional Council takes the place of the Queen, the Governor-General will be appointed or dismissed in the same way as now. The Prime Minister alone will select a new Governor-General. When a selected person agrees to serve, an informal and unenforceable arrangement will be made with the Prime Minister to serve for a period, usually five years. The Prime Minister will advise the Constitutional Council to make the appointment and it will appoint the person 'at pleasure'. That means that the Governor-General will be dismissed if the Prime Minister at any time advises the Constitutional Council to do so. The Governor-General has no legal security of tenure but has a political security. In announcing the new Governor-General the Prime Minister would usually mention the period the Governor-General had agreed to serve. If that was omitted someone on behalf of the Governor-General elect would do so as it is always of interest to the media and community. The community regards the Governor General as belonging to it, not to the Prime Minister. If a Prime Minister had a Governor-General dismissed whom the community regarded as complying with the constitutional conventions and the expected standards, there would be a strong adverse political reaction and loss of trust in the Prime Minister. In practice, a Governor-General will know that so long as there is compliance with those conventions and standards he or she will serve for the arranged period. The great strength of the system is that a Governor-General will also know that failure to comply with the basic constitutional convention would lead the Prime Minister, who has the greatest interest in having it followed, to advise the Constitutional Council to dismiss the Governor-General. The Governor-General would be dismissed from the high office with community approval and loss of reputation. That liability to dismissal will continue to guarantee that the basic constitutional convention remains binding and is complied with.
If the same changes were made in each State with the Governor becoming its actual head of state, appointed and able to be dismissed by a Constitutional Council created under the State constitution, Australia would be entirely a republic.
With both models for a republican President, whether elected by a joint parliamentary sitting or by the whole electorate, the President could be dismissed during the five year term only on a resolution of a two-thirds majority of a joint sitting of both houses of Parliament. This transfers the final say on dismissal to the opposition. No federal government in the last fifty years has had a two-thirds majority of a joint sitting of both houses.
If a republican President, at a time when the government's popularity was low, breached the basic constitutional convention and despite ministerial advice to do so, refused to assent to an unpopular government bill which had passed both houses or to make unpopular regulations, could the President be dismissed? The situation would be that recently described by former Prime Minister Malcolm Fraser:
The way our electoral system works and the way our political parties behave would make such a dismissal virtually impossible. The government would support it, the opposition would oppose it, the necessary majority would not be there. We would therefore have an elected president who could not be dismissed and who would therefore be in a position of immense and even arbitrary power.4A President with an instinct for self-defence who got wind of a move to dismiss, could frustrate it by exercising the power to prorogue (adjourn) Parliament or dissolve it.
The President not being dismissible, the sanction that makes the basic constitutional convention binding would have evaporated. The glue that binds the powers of the head of state to the democratic process would have dissolved. Our democracy would unravel.
Suggestions that a legal obligation to act in accordance with ministerial advice could be substituted for the vanished basic constitutional convention are quite unworldly in the Australian context. Bringing the courts into the political process would be as damaging to the courts as to that process. It would change the relationships and balances between head of state, government, Parliament and the courts. Its impracticability is demonstrated by contemplating how the legal obligation would be enforced through the courts if the President in the example above continued to refuse to assent to the bill or make the regulations.
2. I go to the next essential requirement. The head of state must not become a rival of the Prime Minister in political power or influence.
An important strength of our democratic system is that, within the constraints of the system's checks and balances, an elected government, headed by the Prime Minister, can govern effectively. That quality would disappear if the head of state emerged as a centre of political power and influence competing with the Prime Minister. That competition would be encouraged in the case of a republican President with the authority and mandate of being elected by the whole electorate or its representatives in Parliament.
Under the republican equivalent model the Governor-General, being selected by the current or a former Prime Minister, will have no mandate whatsoever.
A republican President elected by a joint sitting would usually have a greater mandate from Parliament than the Prime Minister. Many who support an election by a two-thirds majority of a joint sitting of both houses see virtue in two-thirds of the members of Parliament assessing the person as worthy. That disregards the living reality of Australian politics with its tightly disciplined political parties. In practice the selection will be made by an agreement between the Prime Minister and Leader of the Opposition, perhaps after some reference back to party colleagues. When the Prime Minister and Leader of the Opposition reach agreement, members of the government and opposition parties will be bound by party discipline to vote for the person, who will therefore receive all or virtually all the votes in the Parliament. The Prime Minister may have a small majority in the lower house and minority support in the Senate and have been elected leader by a small majority in the party room. Being called ‘President’, many in the community will expect and urge the head of state to exert the political power and influence exerted by the best known President - the President of the United States.
A President elected by the whole electorate would have the greatest mandate of anyone in the country, being the only official elected by the whole of Australia. Competition with the Prime Minister in political power and influence would be inevitable, particularly when the President belongs to and was the candidate of the opposite political party. Chaos in our system of government would result.
3. The head of state must remain above politics but have the capacity to exercise personal influence.Appointed And Readily DismissibleWith the republican equivalent model the Prime Minister can choose from the whole of Australia a suitable person willing to be Governor-General. The Prime Minister is well aware that his or her own reputation will be affected by whether the community regards a suitable choice as having been made on its behalf.
A republican President elected by a joint parliamentary sitting would have been chosen by the Prime Minister and Leader of the Opposition. No longer would the Prime Minister's reputation alone take the benefit or bear the brunt of community assessment of the quality of choice. The political deal between the two will tend to have political conditions. The opposition will be in an influential position because a President cannot be elected without its support. As the basic constitutional convention will no longer be binding, the President will be seen as a person of real power. In this media-powerful community it is inevitable that parliamentary inquiries into a candidate's suitability will be introduced similar to those which face a nominee for the Supreme Court in the United States. Baseless allegations of discreditable conduct will emerge and receive saturation media coverage. The sort of people of high reputation near the end of a career who have made good Governors-General in the past will be reluctant to subject themselves to that. A different type of person would become head of state.
The republican President elected by the whole electorate will be a party politician. Only a multi-millionaire could run an election campaign without the support and resources of a political party. Each party will want its candidate elected to the position of President. A President subject to the discipline or influence of an Australian political party will certainly not be above politics. A President who received 35 per cent of first preferences but had a small majority after distribution of preferences will not be well placed to act as a neutral symbol of the whole nation, encourage cohesion and have empathy with all.
People who immediately understand that the fatal flaw of both models for an elected republican President is the undismissible President, find it more difficult to accept that in a democracy the head of state should not be elected by Parliament or people but be appointed.
Of the four essential organs of government in our system, two of them, Parliament and government, must be elected and the other two, head of state and top courts, must not.5 The first two are the active, initiating, political organs which apply their policies in running the country. Democracy requires that they have a mandate from election to do that. The two non-political organs, head of state and courts, have mainly the instrumental role of implementing what others have decided. Thus the head of state assents to bills with provisions as decided by both houses, appoints the Prime Minister and government the electorate has decided to support and makes regulations as Ministers have decided. The judges apply to the facts as found, the law of Acts decided by Parliament, regulations decided by Ministers or the common law decided by earlier judges. If those filling the two non-political organs had the mandate and responsibility that comes from election by electors or their representatives, it would put them under pressure to depart from their constitutional duty, faithfully to implement the decisions of others.
Valid Constitutional Amendments
The question of what constitutional amendments would be necessary to produce the preferred model for the head of state of a republic must be looked at through both legal and political eyes.
Credible constitutional lawyers have expressed the view that none of the three models to substitute for the Queen a republican head of state, could validly be introduced by the ordinary procedure for amending the Commonwealth Constitution — a referendum under s. 128. The Constitution of the Commonwealth is set out under s. 9 of an Act of the United Kingdom Parliament, the Commonwealth of Australia Constitution Act 1900. That Act has a preamble and its first eight sections are known as the 'covering clauses'. Those constitutional lawyers consider that the preamble and covering clauses have the effect of making the monarchy an indispensable element of the Constitution and that a referendum under s.128 can alter only the Constitution set out under s. 9 but not the preamble or covering clauses. On that view the referendum procedure could never replace the monarchy with another head of state. Other credible constitutional lawyers consider that the High Court would hold that the referendum procedure under s. 128 can validly replace the monarch with a republican head of state.
Citizens' confidence in their democratic system is a vital component of a good democracy. If the Constitution was amended by the referendum procedure to substitute a republican head of state and the High Court held that to be invalid, citizen confidence would be severely crushed.
Assuming the High Court would hold that the referendum procedure can validly substitute a republican head of state, the credible views to the contrary would have an immense effect in a referendum campaign. All flaws and possible flaws would be exposed and emphasised. Voters would be most reluctant to put in place a head of state whose position credible lawyers claimed would lack the legitimacy and authority of constitutional validity. They would fear what would happen to the whole system.6 The resolution of the republic issue would be distorted away from objective decision because many voters favouring a republic if other things were equal, would vote against it.
There is a way of making the necessary constitutional amendments to substitute republican heads of state in the Commonwealth and State systems which would be valid beyond credible argument. The amendments would be made by the combined use of s.15 (1) of the Australia Acts 1986 (C'wealth and UK), and ss.51 (xxxviii) and 128 of the Commonwealth Constitution.7 That would involve the amendments being approved in a referendum and also being requested by each State Parliament. A State Parliament would be expected to act in accordance with the decision of the majority of its State's voters in the referendum, in deciding whether or not to request the amendments. The result would be that the Commonwealth and all States would either all become republics or all remain monarchies, no State would be forced to change if a majority of its voters opposed it, and the strains on the federation would be kept to a minimum.
The Future
In the interest of resolving the republic debate fairly, effectively and as soon as practicable, it is important to move the debate from theory to reality. So far, most of the energies of the debate have been directed to the hypothetical question, whether, other things being equal, a republic or a monarchy is preferable. Concentration on that has had the effect of moving the issue of monarchy or republic further from resolution each year. Most of those favouring a republic have firmed in their support for one or other of the models for an elected republican President. Nothing in the debate has made them aware of the fundamental flaws of both those models which render them unattainable from the perceptive and hard-headed Australian electorate voting in a referendum. Only enormous and basic restructuring of our constitutional system could make them acceptable and no-one is proposing that. Similarly, many who favour a monarchy have firmed in the comfortable but misplaced belief that a republic is unattainable because there is no republic which would maintain the strengths and safeguards of our democracy. Nothing in the debate on the hypothetical question has challenged that belief.
There would be great advantage for everyone if energies and debate were directed first to the other two questions embedded in the debate but generally overlooked. Identify the model for the head of state of a republic which would best maintain the strengths and safeguards of our present system of democracy. Then identify the way of making constitutional amendments to bring that model into existence, which would be most practicable and least open to credible arguments of invalidity.
When that has been done the debate can return to the first question, converting it from a hypothetical to a real question. That question and the simple choice for citizens in the later referendum would be whether the present monarchical system or the identified republican model is preferable for the future.
Notes
1 Ian Holloway 'Canada's republican warning', The Australian Financial Review, 13 February 1997, p.14.Return to top of page2 Report of the Republic Advisory Committee, vol. 1, AGPS, Canberra 1993, pp.65, 77-8; The South Australian Constitutional Advisory Council Report, First Report, September 1996, chaps. 3 and 6.
3 The three types of head of state are taken from Jim Duffy, 'Ireland', in Republic Advisory Committee, Report, vol. 2, pp. 154 - 5.
4 Malcolm Fraser, 'A republic with a constitutional council the best option', The Australian, 2 July 1997, p. 13.
5 In the Second Fringe Benefits Tax Case (1987) 163 CLR at p.362, Sir Gerard Brennan, later the Chief Justice of Australia, identified the essential organs of government of a State as 'the Governor, the Parliament, the Ministry and the Supreme Court'. It would follow that the essential organs of government of the Commonwealth system are the Governor-General, the Parliament, the Ministry (government) and the High Court.
6 Greg Craven, 'The Constitutional Minefield of Australian Republicanism,' Policy, Spring 1992, p. 33, discusses the potent effect of allegations of illegality and illegitimacy in a referendum campaign.
7 That method is recommended by the South Australian Constitutional Advisory Council, First Report, chaps. 5 and 7.