Return to top of page.THE TIMELY RESOLUTION OF THE REPUBLIC ISSUE Paper presented to the National Conference of YAAR: Young Australians Against this Republic, Parliament House, Melbourne, 23 July 1999, and published in Rick Brown (ed.), The No Case Papers, Standard Publishing House, Sydney, 1999, p. 78YAAR and the Youth StakeYAAR, Young Australians Against this Republic, has a name and an aim utterly suitable for this time and issue. The name compels us all to focus on those who have the greatest stake in Australia getting it right on the republic issue - young Australians and future generations. History teaches that the effects of change to an unsafe model of republic would not be felt until current constitutional habits wear off and there is a new generation in electorate and government.1 History also brings home the finality of a choice to adopt a particular model of republic, because typically a constitutional change lasts for a century or centuries.
The word 'YAAR', with its distinctive spelling, has not yet found a place in the Macquarie Dictionary, but the word with the same sound is described as an exclamation of impatience. Young Australians have every reason for impatience with those pushing the proposal of November's referendum. Throughout the shallow debate many supporters of that proposal have been so entranced to see themselves as part of a historic change to a republic at the start of a new century, that they have not taken the trouble to inquire about its impact on the democracy and federation of the future generations who would have to live within it. Young Australians should make allowance for those struck by the bug of millennium euphoria. The symptoms are produced by what has been described as 'the strange, almost surreal optimism that accompanies the end of one century and the anticipation of another'.2 It is a time when people can be persuaded to make big changes with hardly a thought for the future. That attitude is multiplied manyfold at a change of millennium. As young Australians your interests go far beyond the instant gratification of an end of century constitutional change, and you concentrate on the long-term perspective. Your vital task is to bring the debate down to earth from the clouds of theory to practical Australian reality.
Your interest in the long term means that you have two inescapable tasks. You must bring to the notice of Australians the unfortunate effects upon the sound democracy we inherited, which would be likely to be experienced in about the 2020s if the November proposal passed: also the likely effect on the strength of our federation. That will not make you popular but the stakes are worth it. Australians, who sense that they are trustees of that inheritance for future generations, are hungry for the information of which they have been deprived by the seven shallow years of debate.3 If the people are able to obtain access to the information on the practical impact of the November proposal, I predict that the referendum will fail. For you that is only the start. The failure of the proposal for such an unsuitable model, with the decision to be made in such an unsuitable way, will resolve nothing. A major cause of the proposal failing, will be that numerous voters who favour a republic will put their democracy and federation first and vote 'no' to this particular proposal. They will feel cheated because they have not been given a fair chance to express their preference between a monarchy and a republic. There must be a timely resolution of the republic issue. Years of constitutional wrangling, such as Canada has had since the late 1970s, weakens a democratic federation.4 In Australia the republic issue will not be resolved until voters can make a clear choice between the present monarchic system and a model of republic that would equally maintain, secure and safeguard our democracy: and make the choice in a form of referendum that does not carry the substantial risk of opening up deep tensions between the units of our federation. You should not wait until the referendum fails before starting to think and work towards an effective resolution of the republic issue. You should start today.
Because I see YAAR members as having a very significant role in presenting the realities to an information-starved community, I will concentrate on the practicalities of the November referendum proposal and of taking the first steps now towards the later resolution of the republic issue. I identify republic models by the names of the delegates who moved their adoption at the Constitutional Convention last year. So that you can be sure of your ground I provide extensive notes to the main points made in the paper.
The main guide to your presentation is that you do not need to persuade Australians to take an interest in what you will be saying. There is already a solid resentment that the realities have been kept from the ordinary, typical practical Australian. Citizens readily grasp those realities if given an opportunity. Do not fall for the fallacy that to understand those realities you need a knowledge of constitutional law. It almost all turns on an appreciation of human behaviour and the way human organisations work, and lawyers have no advantage over others in that. The typical Australian has that appreciation from the experience of coping with everyday life. Your need is for a good understanding of the realities and an ability to put it clearly and simply. Although there are other defects in the November referendum proposal, I will concentrate on its five fundamental flaws.
The Five Fundamental Flaws
The starting point is that the sole and simple choice on the republic issue in the November referendum is between voting 'yes' to change the Commonwealth system (not the States) to a republic of the Turnbull model type, or voting 'no' to leave everything as it is. The Turnbull model would have a Short List Committee to prepare a short list from those nominated for President by community or parliamentary organisations or by individual citizens, and send it with a report to the Prime Minister. The Prime Minister and Leader of the Opposition are expected at a joint sitting of both Houses of Parliament to move and second that a named citizen become President. If elected by a two-thirds majority the person would become President for five years but could at any time be dismissed instantly by a notice signed by the Prime Minister.
1 An Instantly Dismissible President
From the outset the design of the Turnbull model has displayed a failure to grasp the sophisticated balance between the operative head of state, the Governor-General, and the Prime Minister in our system of democracy.5 That balance is crucial to the democracy of our system because its mechanisms provide the backing that gives binding force to vital conventions that bind the Governor-General and Prime Minister in ways that safeguard our democracy. The Prime Minister and Ministers have always been dismissible instantly by the Governor-General and none of the models propose that this be changed in a republic. The Prime Minister under the present system can bring about the prompt, but not the instant dismissal of the Governor-General by advising the Queen to dismiss. The necessary short delay in this dismissal is built-in, because the Queen is not bound to dismiss immediately on advice to do so but would have up to a week or two to make inquiries and decide whether to counsel the Prime Minister against persisting with the advice. If the Prime Minister does persist, the Queen is then bound to dismiss.
Although each has the capacity to dismiss or bring about the dismissal of the other, the Governor-General and Prime Minister both know that they would incur the damnation of the community and of history if they did that while the other was complying with constitutional conventions and the standards the community expects. However, if either breached the conventions on which the democracy of our system depends, public support would be lost and dismissal would follow. That liability to dismissal gives the conventions the backing which makes them binding in practice. Every Governor-General knows that failure to comply with the conventions that require a Governor-General in ordinary circumstances to exercise powers as advised by Ministers, and always to refrain from making political statements or collaborating politically with the Opposition, would lead to dismissal in disgrace.6 Every Prime Minister knows that failure to comply with the conventions of resigning upon clearly losing an election or on a no-confidence vote showing loss of support of the majority of the House of Representatives, would lead the Governor-General to use reserve authority and dismiss the Prime Minister and Government.7
The original Turnbull model would have removed the binding quality of those conventions that now bind the Governor-General. It substituted for a Governor-General liable to prompt dismissal, a President who was in practice undismissible. Dismissal was by a two-thirds majority of a joint sitting of both Houses of Parliament. As no federal Government for fifty years has had that majority, it would have needed support from the Opposition. In the way our politics are played, no Opposition would join to dismiss a President who had breached convention in a way that favoured the Opposition.8
Stung by the public criticism of the effect of an undismissible President on our democracy, the designers of the Turnbull model went to the other extreme at the Constitutional Convention and provided a President instantly dismissible. By removing the short but flexible delay factor built into the present system and the McGarvie model, the current dismissal mechanism of the Turnbull model cripples the President's use of reserve authority and in turn the conventions that Prime Ministers resign on clear loss of an election or an effective vote of no confidence. Those conventions possess their binding quality because of the availability of that reserve authority to dismiss a Prime Minister. These conventions are crucial to the people exercising their sovereignty through the majority elected to represent them in the Lower House, so as to choose who will be in government, or just as importantly, who will not be in government. There is no law that requires a Prime Minister to resign upon clearly losing an election or a no-confidence vote.9
Instant dismissal of the President impairs or paralyses the protective mechanism of the reserve authority which is the safety device of our system. In exceptional circumstances where neither the political nor the judicial processes of the system are able to cope, the Governor-General is authorised to exercise a reserve power so as to refer a serious constitutional malfunction to Parliament or the electorate for resolution, when that is absolutely necessary for the effective operation of the constitutional system and its safeguards of democracy. One of the worst features of the debacle of 1975 was that Sir John Kerr dismissed the Whitlam Government without warning because he erroneously believed that any warning would lead to his own instant dismissal and deprive him of the ability ultimately to bring about the election necessary to resolve the deadlock caused by the Senate blockage of supply. Kerr was wrong. Advice by the Prime Minister to dismiss the Governor-General would not in practice deprive the Governor-General of the opportunity of using reserve authority. The Queen would undoubtedly use the time available to make inquiries and decide whether to counsel the Prime Minister, before dismissing. During that time the Governor-General would inevitably learn of the Prime Minister's advice and be able, by immediate dismissal of the Prime Minister, to cancel the attempt to jam the protective mechanism.10 The position is the same under the McGarvie model where the Constitutional Council is expressly given up to two weeks to act on advice to dismiss. However, the Turnbull model inexplicably makes Kerr's unfounded fear the law of the Constitution by removing the vital built-in delay and empowering the Prime Minister, in self-protection, to jam the safety device by instantly dismissing the President. Under the Turnbull model in a situation similar to that of 1975, the President would have the repulsive options of risking immediate dismissal by warning the Prime Minister the reserve authority may have to be used, risking total loss of reputation by dismissing the Prime Minister without warning as Kerr did, or doing nothing and letting the system slide into chaos. The temptation to take the latter course would be extremely high. It is no answer to say that a dismissed President would be replaced by the senior State Governor as acting President because that person, being also immediately dismissible from that position by the Prime Minister, would move into the same triangle of repulsive options as the President occupied before dismissal.
If the protective mechanism of the reserve authority becomes paralysed, what is to stop a Government which loses its majority in the House of Representatives at a time of tense political passion, from legally obtaining finance from an extra-parliamentary source, such as a multi-national corporation, and continuing in government? It would be no cause for celebration to have our constitutional system enter the new millennium stripped of the workable protective mechanism which is the safety device essential to its operation and democracy. Almost every commentator has identified this flaw of the Turnbull model's dismissal mechanism.11
2 The President's Mandate
In sharp contrast to the chief executive President who is head of state of the USA, and the non-executive President who is head of state of Ireland, Australia has a nominal chief executive Governor-General as its operative head of state.12 That kind of head of state is by the law of the Constitution given the immense constitutional powers of a chief executive head of state exercisable at will, but the constitutional system has the effective mechanism of a constitutional convention which ensures that in ordinary circumstances the Governor-General exercises those powers only and always as the Ministers of the elected Government advise. The Governor-General has numerous opportunities in public speeches and otherwise to exert political influence but is restrained by the constitutional conventions which preclude speaking politically or collaborating politically with the Opposition. The present system and the McGarvie model supplement the restraints of those conventions by ensuring that the Governor-General is chosen and appointed in a way which creates no expectation in the community and no temptation in the holder of the office to use powers or political influence against the Government. The Governor-General is chosen by the Prime Minister alone and appointed on the Prime Minister's advice by the Queen at present, or by the Constitutional Council in the McGarvie model. Chosen solely by a Prime Minister, a Governor-General has no power base or mandate to create the temptation to act as the rival of the elected Government headed by the Prime Minister.
Under the Turnbull model those built-in tendencies are reversed by creating a power base and mandate that will arouse a community expectation and a temptation in the President towards action as the people's representative in rivalry with the Government. The person to become President will often have been nominated in the first place by the peak council of an influential community group. Every President will have attained office by obtaining the endorsement of the Short List Committee, of the political parties on both sides of Parliament and of virtually all, if not all, the members of both Houses of Parliament. The decision on who is to be President will actually be made in a deal between the political parties on both sides of Parliament. As no federal Government for fifty years has had a two-thirds majority of both Houses, the agreement of the Opposition on who is to be President will be essential. To ensure that the person in their motion will be elected by a two-thirds majority of a joint sitting, the Prime Minister and Leader of the Opposition will have to take the names to their respective party rooms and after any necessary negotiations between the parties, ensure that, by the decisions of their party rooms, the members on both sides of Parliament become bound by party discipline to vote at the joint sitting for the person named in the motion.
The parliamentary mandate of the President would usually far exceed that of the Prime Minister. The Prime Minister may have a small majority in the House of Representatives, have been elected party leader by a slim majority in the party room and have only minority support in the Senate. Normally of course, the Prime Minister has won an election and has the mandate of the electorate, but sometimes Prime Ministers owe their positions only to the support of the majority in the Lower House. This happened when Independents changed sides and John Curtin became wartime Prime Minister in 1941, and when party support changed and Paul Keating replaced Bob Hawke as Prime Minister in 1991.
After a century of experience, both the community and the holder of the office expect the restrained and unobtrusive conduct from Governors-General which has become traditional. There will be different expectations of a head of state called 'President'. The community, and Presidents would expect the role to have qualities of the republican President seen most often on television, the President of the United States, the most powerful politician in the world. That is why the McGarvie model would continue the name 'Governor-General'.
In these ways the Turnbull model would reverse the present built-in tendencies and place in office a President with a mandate and title prone to encourage exertion of political influence as champion of the people in competition with the Government. The President could not go too far, for that would court dismissal: but the tendency is in the wrong direction because it encourages rivalry. The creation of an office of head of state with a tendency to develop into a power centre rivalling the head of government, the Prime Minister, is to be avoided in the interest of effective democratic government.
3 The Calibre of Presidents
There is general agreement that the Prime Ministers of both sides of politics have served the nation well in choosing Governors-General who had the experience, respect and qualities necessary for the position. Prime Ministers know that the responsibility for the choice is theirs alone and that the community and history will judge them by the calibre of person they choose. Prime Ministers are able to approach any suitable Australian to take the position and the person is not subjected to a public process of selection before becoming Governor-General. That would all change under the Turnbull model where the real choice is transferred from the Prime Minister to the Short List Committee and the political parties, and would have an extensive public dimension.
Under the Turnbull model the process of selection would be one of high farce from the outset. Some of the most ridiculously unsuitable people would arrange to be nominated and conduct prominent campaigns as an advertisement for themselves or as a lark. Overseas tabloids would savour reporting on the qualities of candidates to be considered for President of Australia. The draft legislation gravely provides that members and staff of the Short List Committee are not to disclose the identity of candidates without their permission.13 That is another illustration of the prevalence of theory over reality in the design of the model. Anyone who hopes that will work and the names will not leak, should read Peter Costello's speech on that at the Constitutional Convention.14 Anyone who thinks that the names of those on the short list will not be in the media the evening after they go to the first party meeting, has not lived in Australia. When the names are out, the media would conduct public opinion polls on public preferences or enable readers, viewers or listeners to take part in a media - arranged vote on that. If, for example, a short-listed candidate currently regarded as a celebrity by the media, has been nominated by the peak council of an influential occupational or ethnic group, or members of a State Parliament, and is running high in the media polls and votes, that would put great pressure on the political parties to agree on that person as the one to be elected President. Similarly, at the earlier stage there would be pressures on the Short List Committee to include in the short list candidates with high support in media polls and voting.
Once names are public, allegations of disgraceful conduct, false or true, are bound to be made against some of the candidates by their enemies, by seekers of publicity or others. Are we to have inquiries into the suitability for office of those candidates, as is done in similar circumstances when allegations are made against nominees to the United States Supreme Court, or is the selection process to continue with those allegations hanging over them? How does the process continue if there are allegations such as those made against members of the International Olympic Committee, that members of the Short List Committee have received improper benefits in return for a promise to make every effort to get a particular candidate on the short list?
One of the most important tasks of a Governor-General is to encourage unity and cohesion among Australians. The selection process of the Turnbull model emphasises community diversity. The community members of the Short List Committee are to be appointed, taking 'into account so far as practicable considerations of federalism, gender, age and cultural diversity'.15 In preparing the short list of the most suitable candidates the Committee is required to consider 'the diversity of the Australian community' and 'the ability of the nominees to command the respect and support of the Australian community'.16 A member of the Short List Committee from one of the sectors of diversity would be expected and impelled to try to get the candidate nominated by the peak council representing that sector on to the short list and that would inevitably override consideration of the relative calibre of candidates.
Having the actual selection made in the political party rooms, where prejudice and veto are apt to prevail, is one of the worst features of the Turnbull model selection process. Unlike the present position and the McGarvie model where the Prime Minister has to accept total responsibility, no one would accept responsibility for the selection of a low calibre President disappointing community expectations - everyone would blame everyone else.
Of the nine Australians appointed as Governor-General, four, William McKell, Richard Casey, Paul Hasluck and Bill Hayden were cabinet Ministers when appointed and three, Isaac Isaacs, Ninian Stephen and William Deane were High Court judges. It is unlikely that people from those backgrounds would become Presidents under the Turnbull model. The model is expressly designed to exclude politicians.17 It would certainly exclude top ranking politicians such as the four above, because a party room on one side of politics would not endorse a 'star' from the other side for President. Most High Court cases involve the Commonwealth Government, and a judge who had accepted nomination and was seeking the support of that Government for election as President would have to withdraw from such cases or mention the candidature so as to allow a party to object to their hearing the case. This would occasion embarrassment, particularly if eventually the judge did not even make the short list, so High Court judges would be unlikely to be candidates. Indeed once it is seen how the selection process operates, it is unlikely that people of the calibre of the Australians who have maintained the high standards of Governors-General, would consent to becoming candidates for President. People with high reputations near the end of working life would be reluctant to involve themselves in that ridiculous process with its bizarre candidates, popularity polls and votes in the media, and allegations of misconduct. They would have no confidence that within the diversity politics of the Short List Committee their qualifications for the office would determine whether they made the short list, or that those qualifications would determine whether they got the numbers in the party rooms on both sides of politics. People of a very different calibre would be likely to be Presidents.
4 Bringing In the Courts
An important part of the Turnbull model is based on misunderstandings of the nature and operation of constitutional conventions in Australia. In particular there is a misunderstanding of the exception to the convention that a head of state exercises powers as Ministers advise. That exception gives the head of state in exceptional circumstances the discretionary reserve authority to exercise reserve powers independently of ministerial advice so as to refer an intractable constitutional malfunction to Parliament or electorate for resolution, where that is absolutely necessary to ensure the effective operation of the constitutional system and its safeguards of democracy. The authority is only to be used when the political and judicial processes of the system have shown themselves incapable of coping with the serious constitutional disorder. A head of state who used the authority when it was not absolutely necessary would suffer total loss of reputation.
The misunderstandings have led to the inclusion in the draft legislation of sections to amend the Constitution in a way which would give the President a reserve authority to 'exercise a power that was a reserve power of the Governor-General in accordance with the constitutional conventions relating to the exercise of that power'.18 That amendment would distort the constitutional system in two unfortunate respects. First, because conventions are not laws but constitutional obligations made binding by the penalties the constitutional system itself imposes, the courts have not been involved in declaring what they are or in enforcing them or their exceptions. This provision carries the high probability of bringing in the High Court to declare and enforce the exception to the convention.19 That involves a great shift in constitutional influence to the High Court from the other organs of government, which is no one's interest. It would bring the High Court into issues of intense political controversy and greatly slow down the political and constitutional processes. It is an error to think that such a provision is necessary. The constitutional system and its operation mould and give binding quality to the convention and its exception, and a statement in the constitution imposing a legal requirement to comply is as unnecessary as it is undesirable. The view that such a statement is necessary is based on the misunderstanding that somehow it is the existence of the Queen on the other side of the world that makes conventions binding, and that they would lose that quality if Australia became a republic and ceased to have a monarch.
The second undesirable feature is that the amendment would introduce an enormous amount of confusion into the law of the Constitution. During the constitutional crisis of 1975 there was the sharpest disagreement as to the existence and content of conventions claimed to relate to the exercise of the reserve powers. That highly qualified body, the Australian Constitutional Convention, later spent years trying to state them and failed. In the book I mention below, I reach the conclusion that, while the sound conventions on which the democracy of our system depends, clearly exist and bind, the conventions supposed to relate to the exercise of the reserve powers are spurious and do not exist. This amendment would introduce that muddle into the Constitution and the President and High Court would have to make the best of it they could.
5 Risking Weakening the Federation
For the November referendum to amend the Constitution and convert the Commonwealth system to a Turnbull model republic on 1 January 2001, the majority of Australian voters must vote 'yes' and majorities in at least four States. Having regard to the fundamental flaws in the model already mentioned, and the fact that at the Constitutional Convention in 1998 it drew support from only 73 of the 152 delegates, there is a high prospect that if the referendum were carried, it would create the unusual situation of having majority support in only a majority of States. Since federation seven of the eight referendums which have passed have had unanimous support from majorities in each of the six States. In 1910, New South Wales dissented in a referendum to give the Commonwealth unrestricted power to take over State debts, which was carried in the other five States.20 If the November referendum were carried with support from only a majority of States, it would place the dissenting State or States in a most invidious position of a type never created since federation. First, despite the majority vote to the contrary in the State, the Commonwealth system of the federation of which the State is an original member would be converted to a republic of a type it did not trust with its democracy. Second, despite the view advanced by supporters of the November proposal that a State itself could remain a monarchy despite the Commonwealth becoming a republic, that is not a feasible option and is quite impractical.21 In practice a dissenting State would be forced by circumstance and ridicule into the humiliating position of changing itself to a republic despite the State's majority vote against a republic for the Commonwealth. In the three States which have produced public reports on the republic issue, the reports are unanimous that the Commonwealth should only be converted to a republic if there is support for it from the majority of voters or the Parliaments of every State.22 The reports and the positions of the States have largely been ignored. The federation today is strong and united but it should not be forgotten that is has not always been so. In 1933 a referendum in Western Australia voted almost two to one to secede from the Commonwealth.23 To force dissenting States into a Commonwealth republic and into State republics they do not want, would involve a reckless disregard of the health and strength of the federation.
Contributing to Resolution of the Republic Issue
How can YAAR members contribute to the ultimate timely resolution of the republic issue, during the referendum campaign and after? Their essential task is to ensure that reality prevails over theory and that those who aim to bring the realities to the attention of typical practical Australians prevail over those who aim to distract attention entirely from those realities. Fortunately, in that your strongest allies are the typical practical Australians who readily grasp the realities if allowed access to the relevant information. Your task is to contribute to the provision of that information. How is the task to be done?
Counter Debate Avoidance
The obvious way of seeking to sell a proposal with the fundamental flaws of the November proposal, is to shift the issue away from rational debate to the world of slogans in which the professional experts of public relations are the masters.
You will be reminded that your case, based on information and reality, is mainly opposed by a case combining theory and spin, every time you see your organisation, 'Young Australians Against this Republic', deliberately misstated as, 'Young Australians Against a Republic'. That is the technique of spin doctors intent on misrepresenting your organisation as consisting only of monarchists. As I was informed when invited to present this paper, your members include constitutional monarchists, direct-election republicans, McGarvieites and any other Australian aged thirty or under who wishes to see the November referendum fail.
The supporters of the November proposal will avoid debate with you on the quality of that proposal and its impact on the democracy and federation of future generations. Debate on the fundamental flaws would draw community attention to them. The response to your exposure of the flaws will be directed against you personally. You will be labelled as hysterical and alarmist, and as grossly exaggerating and running a fear campaign. There will be no real attempt to counter your argument and refute it. It will scarcely be mentioned. Do not lose heart. Let the public know that debate is being avoided. Australians are perceptive people and when they see that the response to an argument is by personal abuse rather than counter argument, they readily conclude that there is no answer to the argument. You can also demonstrate this by asking people who speak or write in support of the November proposal about the practical realities mentioned in this paper, so the community will see they have no effective response.
The public relations people will concentrate on distracting attention from the flaws of the proposal by constantly repeating the assertions that the only important question is whether we show our independent maturity by having an Australian as head of state; that compromises must be made to get an acceptable republic proposal; that we should adopt this model now despite any defects and fix it all up later; that this is the only chance to get a republic because a failed referendum would not be followed by another for generations; and that, above all, we should give ourselves a monster millennium present of a new republic at the turn of the century. In your responses to these assertions you can be encouraged by the knowledge that Australians are becoming very resentful of being treated as couch potatoes who can be conditioned into passive acceptance of vague theories or paid advertisements upon the most crucial constitutional change the country has faced in a century. They sense that the quality of the democracy and federation they will pass to future generations is in issue. How do you respond to the assertions?
An Australian as Head of State
Whether we should have an Australian as head of state is an important part of the debate but you must draw attention to the way it is being used as an emotional appeal to smother rational consideration of the flawed proposal. Point out that there is far more to the head of state question than whether one prefers a lady in London or a resident for President, and whether any Australian child could become our head of state.
A Compromised Proposal
It is just not true that the strength of our democracy or federation needs to be compromised if Australia decides to become a republic. I illustrate that by the McGarvie model and the proposal advanced at the Constitutional Convention for a decision to be made at the one time on whether the whole federation together becomes republican or remains monarchic.
The McGarvie model starts with the constitutional system that has provided Australia's high standard of democracy and leaves it as it is, operating in the same way with the same conventions still binding, and the Governor-General and Governors, who have long been our operative heads of state, performing precisely the same role in precisely the same way, as actual heads of State.24 It would ensure in a republic the same strengths and safeguards of our democracy that Australia has as a monarchy.
The Queen's one remaining duty, the appointment or dismissal of a Governor-General or Governor on the advice of the Prime Minister or State Premier, would be done in the Commonwealth and each State system by its Constitutional Council of three members which would be bound to do precisely what the Queen does now, no more and no less. It is necessary to emphasise that Constitutional Councils will not propose, choose or approve a new appointment because there has been extensive misrepresentation that they would choose or select. The misrepresentations come from those who do not understand the model, or opponents who fully understand its strong appeal to the average Australian and deliberately misstate its structure so as to ridicule it. The membership of a Constitutional Council will be determined by automatic constitutional formula from those who have retired after serving the community in trusted constitutional positions as Governors-General, Governors, Lieutenant-Governors or judges and are not more than 74 years old.25 An expressly created constitutional convention will bind a Constitutional Council to dismiss a Governor-General or Governor, not instantly, but within two weeks of the Prime Minister or State Premier advising it. That continues in the same workable state as now, the protective mechanism of the reserve authority.
The republic issue can be resolved one way or the other for the whole federation at the same time by a method which poses no risk to the strength of the federation. The way to do that is by a referendum under which all systems would change to republics together if the change were supported by the majority of Australian voters and a majority in every State, and was requested by every State Parliament. Otherwise all would remain monarchies. The referendum provision of the Commonwealth Constitution and s. 15 (1) of the Australia Acts 1986 enable this to be done.26
Adopt Flawed Model Now and Fix Later?
The suggestion that the fundamentally flawed model be adopted in November on the basis that it can all be fixed up later, runs counter to the experience of history. Over the century of federation, only one of the eight amendments to the Commonwealth Constitution, the one passed in the 1910 referendum relating to State debts, has been further amended.27
As mentioned earlier, the defects of an ill-considered constitutional amendment typically do not change constitutional practice for about a generation. By then, however detrimental to the public interest, the new practice inevitably gives advantage to a number of influential people and it is difficult to produce the consensus that a change is needed, which must exist if there is to be a constitutional amendment. At that stage Australia would have been a republic for a generation, the fire would have gone out of the republic issue and there would be other pressing issues. Proposals that if the November referendum changed the Commonwealth to a Turnbull model republic from 1 January 2001, its operation should be reviewed three to five years from the referendum, miss the point. It would not be responsible to proceed on any basis other than that if we adopt the Turnbull model in November that is what we are imposing on future generations.
We started this century with a new federation of vigour, strength and potential, which has served us well, over changing times. If we decide to change to a new republic in the early years of next century, we should adopt a model that continues the robustness of the present system. It would be a pity to start with an unfit crock of a republic, hoping for miracle cures to remedy its infirmities during the century.
Only Chance for a Republic?
The position following the failure of the November referendum will be in sharp contrast to the position if it had been carried. There will be a general realisation that nothing has been resolved. The voters who strongly favour a republic but put democracy and federation first and voted 'no' to this proposal will feel incensed that they were deprived of an opportunity of expressing their real preference. Many Australians will be concerned that we have started down the Canadian path of perennial dispute on basic constitutional issues. There has been a great deal of support for a republic particularly among young people. The republic issue will maintain its head of steam until it is resolved one way or another by voters choosing between Australia as a monarchy and Australia as a republic equally safe for democracy, and choosing in a way that presents no threat to the strength of the federation.
It is important to stress from now on that this constitutional issue needs to be resolved in a constitutional way. That involves enlisting the services of those with the best practical knowledge of the working of our constitutional system - the Members of our Parliaments. The community is entitled to call upon them. It was Members of Parliament with their experience and understanding of constitutional realities, who planned, nurtured and guided the attainment of federation a century ago. Plans should be laid now for setting up within the Commonwealth Parliament an all-party committee including representatives from the States and Territories to identify the republic model that would best maintain our democracy, and the best method of deciding on the republic issue for the whole federation. It should start work early in the year 2000. Then in the light of its report the Commonwealth and each State and Territory could decide on the type of republic it preferred, so as to enable a referendum to be held on whether to make a simultaneous change of each unit of the federation to its preferred form of republic. In that way the republic issue could effectively be resolved for the whole federation in a second referendum in about 2005.
Approach
In their debates on the republic issue it is important that YAAR members treat opponents as genuinely believing the views they advance. There are no villains in the piece who wish to damage democracy or federation. Those who support the flawed model going to referendum the way it will in November, regard that as being in the best interests of the community. Disagree with them and give your reasons but do not challenge their integrity.
Direct all your persuasive efforts towards the typical practical Australian. Do not worry about the theorists who will disagree with you. Remember that you are concerned with what will happen in practice. They are interested in what will happen in theory.
It is worth bearing in mind that although you will approach the debate from the viewpoint of youth, you are likely to find ready allies in those of my generation. During our lives we have seen a number of democracies around the world deteriorate or disappear as a result of the people accepting proposed changes without going into the details or understanding their implications.28
I hope you will be assisted in your task by my book, Democracy: choosing Australia's republic, which Melbourne University Press will publish in September. It elaborates on all the points made in this paper, explains the constitutional role of the Governor-General and Governors and why the constitutional conventions and reserve powers are so important to our democracy. In the book I maintain the position of not siding with monarchists or republicans but pointing the way to a model and a method of choosing between monarchy and republic which would ensure that the strength of our democracy and federation would continue undiminished if we chose a republic. For further information about Democracy, please contact Carolyn MacDonald at Melbourne University Press, Ph: (03) 9347 3455, Fax: (03) 9349 2527, Email: c.macdonald@mup.unimelb.edu.au
Notes
1 Walter Bagehot, The English Constitution (1867), Fontana, Glasgow, 1963, p. 268. For example, the defect under India’s Constitution of 1950 that State Governors were expected but not effectively bound by constitutional convention to exercise powers as the Ministers of the elected State Government advise, was not significantly abused for the first fifteen to twenty years. Since then Governors have often defied the State Government and allowed a Government of India of a different political complexion to take governing power from the State Government by introducing President’s rule and governing the State through the Governor: James Manor, ‘India’, in David Butler and D.A. Low (eds), Sovereigns and Surrogates: Constitutional Heads of State in the Commonwealth, Macmillan, London, 1991, pp. 144-7, 162-5.2 Helen Irving, To Constitute a Nation: A Cultural History of Australia’s Consitution, Cambridge University Press, Cambridge, 1997, p. 212.
3 Compare Western Australian Constitutional Committee (Malcolm McCusker, Chairman), The Report of the Western Australian Constitutional Committee, Perth, January 1995, p. 8.
4 Peter H. Russell, ‘Mega Constitutional Politics: Canada’s Agony, Australia’s Warning’, Quadrant, October 1994, p. 15; Ian Holloway ‘Canada’s republican warning’ Australian Financial Review, 11 February 1997, p. 14.
5 The Queen is the legal and formal head of state of the Commonwealth and each State system: David Butler, ‘Introduction’, in David Butler and D.A. Low (eds), Sovereigns and Surrogates, pp. 1 and 9, n. 1; Constitutional Commission (Sir Maurice Byers, Chairman), Final Report of the Constitutional Commission, Australian Government Publishing Service, Canberra, 1988, vol.1 p. 311. The Governor-General and State Governors are the de facto or operative heads of state performing almost all the duties of head of state for their systems: Peter Howell, ‘The Office of Governor of South Australia’, in The South Australian Constitutional Advisory Council, South Australia and Proposals for an Australian Republic, Adelaide, September 1996, p. 154. The paper, ‘Ireland’, by Jim Duffy in Republic Advisory Committee, (Malcolm Turnbull, Chairman), An Australian Republic: The Options, AGPS, Canberra, 1993, vol. 2, pp. 176-7, describes the range of duties of a head of state. The Queen’s one remaining active duty is the appointment or dismissal of the Governor-General and Governors on the advice of the Prime Minister or the Premier of the State.
6 Geoffrey Sawer, Federation Under Strain: Australia 1972-1975, Melbourne University Press, Melbourne, 1977, pp. 183-5, 192; Reference re Amendment of the Constitution of Canada [1982] 125 DLR 3rd 1 at 85; Gough Whitlam, Abiding Interests, University of Queensland Press, St Lucia 1997, p. 10.
7 George Winterton, Monarchy to Republic: Australian Republican Government, Oxford University Press, Melbourne, 1994 Reprint, pp. 35, 41-4; Donald A. Dunstan, ‘The State, the Governors and the Crown’, in Geoffrey Dutton (ed.), Republican Australia, Sun Books, Melbourne, 1977, p. 205; Michael Coper, Working Paper, ‘An analysis of the effect on the Australian constitutional conventions and system of government of the two specific proposals made at the Hobart session of the Convention concerning the power of the Senate in relation to money bills’, in Australian Constitutional Convention, Standing Committee D, Special Report to Executive Committee, The Senate and Supply, 23 June 1977, p. 111; Geoffrey Sawer, ‘Paper by Professor G. Sawer on Conventions Governing the Appointment and Dismissal of Ministers of the Crown in the Constitutional System of the Commonwealth of Australia’, in Australian Constitutional Convention, Standing Committee D, Fourth Report to Executive Committee, 27 August 1982, vol. 2, app. D, p. 2; Reference re Amendment of the Constitution of Canada [1982] 125 DLR 3rd 1 at 81-7; Republic Advisory Committee, An Australian Republic, vol. 1, pp. 35, 91.
8 Malcolm Fraser, ‘A Republic with a constitutional council the best option’, Australian, 2 July 1997, p. 13.
9 Philip A. Joseph, Constitutional and Administrative Law in New Zealand, Law Book Co., Sydney, 1993, pp. 248-9, 603; S.A. de Smith and R. Brazier, Constitutional and Administrative Law, 6th edn (R. Brazier ed.), Penguin Books, London, 1989, p. 29; Reference re Amendment of the Constitution of Canada [1982] 125 DLR 3rd 1 at 82-3.
10 Advisory Committee on Executive Government to the Constitutional Commission (Sir Zelman Cowen, Committee Chairman), Report of the Advisory Committee on Executive Government, Constitutional Commission, Canberra, 1987, pp. 32-4; Geoffrey Sawer, Federation Under Strain, pp. 160 –1, 184; Bill Hayden, Hayden: An Autobiography, Angus and Robertson, Sydney, 1996, p. 294; George Winterton, ‘The Constitutional Position of Australian State Governors’, in H.P. Lee and George Winterton (eds). Australian Constitutional Perspectives, Law Book Co., Sydney, 1992, pp. 278-9; Peter Howell, ‘The Office of Governor of South Australia’, in The South Australian Constitutional Advisory Council, South Australia and Proposals for an Australian Republic, p. 169.
11 e.g. Sir Anthony Mason, reported in Tony Parkinson, ‘Republic “would fail” at first referendum’, Age, 2 March 1998, p. A2; Articles in The University of New South Wales Law Journal Forum, Sharath Srinivasan (ed.), The 1998 Constitutional Convention: An Experiment in Popular Reform, June 1998, by George Winterton, p. 4; Cheryl Saunders, p. 9; Sir Harry Gibbs, p. 16; and Linda Kirk, p. 20.
12 Jim Duffy, ‘Ireland’, in Republic Advisory Committee, An Australian Republic, vol. 2, pp. 154-5.
13 Presidential Nominations Committee Bill 1999, ss. 24 and 25.
14 Department of the Prime Minister and Cabinet, Report of the Constitutional Convention, Old Parliament House, Canberra, 2-13 February 1998, vol. 4, p. 975.
16 Presidential Nominations Committee Bill 1999, s. 22.
17 Malcolm Turnbull, in Report of the Constitutional Convention 1998, vol. 3, pp. 207-8.
18 Constitutional Alteration (Establishment of Republic) 1999, Schedule 1, s. 59 (at p. 3); Schedule 3, s. 8 (at p. 16).
19 Compare Geoffrey Lindell, ‘The Justiciability of Political Questions: Recent Developments’, in H.P. Lee and George Winterton (eds), Australian Constitutional Perspectives, p. 180.
20 House of Representatives Standing Committee on Legal and Constitutional Affairs (Kevin Andrews, Chairman), Constitutional Change: Select sources on constitutional change in Australia 1901 – 1997, AGPS, Canberra, 1997, p. 63.
21 The South Australian Constitutional Advisory Council, (Peter Howell, Chairman), South Australia and Proposals for an Australian Republic, pp. 93-101.
22 Western Australian Constitutional Committee, The Report of the Western Australian Constitutional Committee, pp. 69, 84; Tasmanian Advisory Committee on Commonwealth/State Relations, (Sir Max Bingham, Chairman), A Republican Australia? – Issues for Tasmanians, Hobart, June 1995, pp. 30, 38; South Australian Constitutional Advisory Council, South Australia and Proposals for a Republic, pp. 93-103, 118-121, 128-147.
23 Greg Craven, Secession: The Ultimate States Right, Melbourne University Press, Melbourne, 1986, p.1 and ch. 3.
24 The model is set out in Department of the Prime Minister and Cabinet, Report of the Constitutional Convention 1998, vol. 4, pp. 838-9. Although the model retains the office and title of Governor-General for the Australian head of state, the name ‘President’ had to be used there because the Convention had decided on that name.
25 Originally the upper age limit was 79 but in view of criticism at the Constitutional Convention it has been reduced to not over 74, the age to which reserve judges of the Supreme Court may serve under the Victorian Constitution (Constitution Act 1975 (Vic.)), s. 80A.
26 Report of the Constitutional Convention 1998, vol. 4, pp. 696-8, 823-4.
27 House of Representatives Standing Committee on Legal and Constitutional Affairs, Constitutional Change, pp. 63, 78. The experience of the United States over more than two centuries has been similar: R.V. Denenberg, Understanding American Politics, 2nd edn, Fontana, London, 1984, pp. 171-180.
28 The States of India: James Manor, ‘India’, n.1 above, p. 144; Sri Lanka: L.J.M. Cooray, Conventions, The Australian Constitution and the Future, Legal Books, Sydney, 1979, pp. 212-18; Germany: Norman Davies, Europe: A History, Oxford University Press, Oxford, 1996, pp. 966-9.
As with the related papers on my http://www.chilli.net.au/~mcgarvie website, I assert no copyright in this paper and anyone interested is encouraged to reproduce it or parts of it or to make and distribute copies to others. Comment may be posted to me at PO Box 2094, Hampton East, Vic, 3188 or faxed to (03) 9521 6803.