SYMBOLISM AND DEMOCRACY

Opening Address, The Australian’s Town Hall Meeting, Ballarat, 29 August 1999.

There could be no better time nor place for this meeting. The events and sentiments which led to the Eureka Stockade at Ballarat in 1854 have become a symbol of the value we place on our democracy. The republic issue that we meet to debate has dimensions of both symbolism and democracy.

The symbolic dimension is whether we should have an Australian as head of state. The Queen is now our formal head of state while the governor-general is the de facto or operative head of state of the Commonwealth system, performing almost all the responsibilities. Whether, instead, we should have an Australian as formal and operative head of state is an important part of the debate, but unfortunately it has such emotional appeal as to distract those who are attracted to theory entirely from the other dimension. Thus there are people who say that the fundamental question of the referendum is whether an Australian should be our head of state. Countless words have pushed the idea that the real question is whether you prefer a lady in London or a resident for president. However unrealistic that might seem, it must be accepted that the people who say that honestly believe it. There are no villains in the piece who seek to damage our democracy and federation and, after all, in theory the November proposal would not cause damage.

Focusing only on the symbolic encourages us to consider only our own interest. It tempts people to ask, 'How would I feel if I were able to celebrate at a millennium party that my vote was one of those deciding for a historic change to an Australian head of state?'

Meeting at Ballarat reminds us of the crucial importance of the other dimension - that any republic model to which we might change must retain the strengths and safeguards of one of the world's best democracies. We must never forget that in our kind of democracy the governor-general, while having a very important symbolic role, also has vital constitutional responsibilities in the operation of our constitutional system and its safeguards of democracy. For that reason I have entitled my book for publication next month, Democracy: choosing Australia's republic.

So far, most of the debate has concentrated on the easier symbolic dimension. It has been an act of high responsibility, particularly towards future generations, for the national newspaper, The Australian, to give the lead through today's meeting in shifting attention to the more difficult but more important dimension of the future of democracy. It is to be hoped that other media follow this lead.

The famous constitutional commentator, Walter Bagehot, stressed a century ago that the effects of a constitutional change are not felt until there is a new generation in the electorate and in government.¹ The effects of a change now would be felt in the 2020s when those born about now had just become adults. We are all trustees of this democracy for future generations. History teaches that a constitutional change usually remains unaltered for a century or centuries.

The November proposal would for the first time give the prime minister the practical ability to dismiss the president instantly and the effect of that upon our democracy is the central issue on which we focus today. This was the first of the five fundamental flaws of the November proposal which would change and weaken our constitutional system, that I identified in my paper, 'The Timely Resolution of the Republic Issue', to the National Conference of Young Australians Against this Republic, last month. As a lawyer I warn you against the fallacy of thinking that an understanding of the effects of this flaw needs a knowledge of constitutional law. It needs only the understanding of the way people act in public life, individually and within organisations, which the typical Australian has from life's experience.

The vice of this instant dismissal is that it cripples the protective mechanism which is the system's safety device. The governor-general has a reserve authority to exercise reserve powers independently of ministerial advice when a serious constitutional malfunction with which the normal processes of government have been unable to cope, makes it absolutely necessary in order to ensure the effective operation of the constitutional system and its safeguards of democracy. The effect is to refer the constitutional disorder to Parliament or electorate for resolution.

The November proposal would incorporate in the Constitution itself one of Sir John Kerr's most serious misunderstandings of the position in 1975. Kerr thought that if he warned Gough Whitlam he may ultimately have to use reserve authority to resolve the intractable deadlock by bringing about an election, Whitlam could, by advising the Queen, have Kerr instantly dismissed before he had the opportunity of ordering the election. Most unfairly, Kerr dismissed the Whitlam Government without a word of warning. As those who have considered it carefully since, such as Professor Geoffrey Sawer², and the Advisory Committee on Executive Government³, have concluded, Kerr would not have been dismissed instantly because a built-in delay factor comes from the time the Queen would take to make inquiries and decide whether to counsel the prime minister, before acting on advice to dismiss. Kerr would inevitably have learnt of the advice to dismiss him and, as the governor-general always has power to dismiss the prime minister instantly, he could by doing so have prevented the safety device from being jammed and have brought about an election.

Any republic model must build in the delay factor or it cripples the safety device. In the McGarvie model which I propose, a Constitutional Council is given up to two weeks to act on advice to dismiss the governor-general. The November proposal would abolish the delay factor altogether. Under it a president in a 1975 situation is placed in an intolerable position. The president would have the repulsive options of risking immediate dismissal by warning the prime minister, suffering total loss of reputation by acting without warning as Kerr did, or doing nothing and letting the system slide into chaos. There would be enormous temptation to do nothing.

It is no answer that a dismissed president would be replaced by the senior state governor as acting president, because the governor would also be instantly dismissible from that position and move into the same intolerable options.

A crippled reserve authority also cripples the constitutional convention which now binds a prime minister to resign upon losing support of the House of Representatives through an election or otherwise. No law requires that. The convention binds because it is backed by the reserve authority of the governor-general to dismiss a prime minister who did not resign. If this convention lost its binding power through paralysis of the reserve authority, the electorate would lose its power to decide through the majority it elects to the lower house, who would and who would not be in government. An essential safeguard of democracy would go. If a government could legally obtain finance from an extra-parliamentary source such as a multi-national corporation, it could continue in government despite loss of majority support in the lower house through an election or other events. 1 The provision that a prime minister who dismisses a president must within thirty days seek House of Representatives approval for that, is window dressing which appeals to theorists and the politically naïve but is virtually worthless in political reality. As A.G. Noorani reminded the Republic Advisory Committee, 'Experience has demonstrated … that the House in which the Prime Minister commands a majority is not a strong reed to rely upon to check his power'⁴. Even if the majority party disapproved to the extent of withdrawing support from the prime minister, only a self-destructive urge would lead it to take the issue to the house rather than earlier replacing the prime minister by another party member through a party-room decision. Then a house failure to approve the action of the former prime minister would have little impact. Even supposing the dismissed prime minister remained and was subject to a vote of no confidence on the issue, the suggestion that an election would follow is misconceived. That was demonstrated in Tasmania in 1991 when the Field government sustained a no-confidence vote on one issue but was able to obtain majority support on other issues and remained in government⁵. Anyhow, under the November proposal, whatever the house decides, the dismissed president remains dismissed.

I consider that so long as Australians are able to become aware of the realities of the November proposal and its fundamental flaws, the referendum will fail. A prime cause will be that numerous committed supporters of a republic will put the democracy and federation of future generations first and vote 'no' to this particular proposal. Those voters will feel cheated of an opportunity to vote for an acceptable republic. The vote will not diminish support for a republic. Parliaments and governments should then replace private organisations and take responsibility for resolving the republic issue by placing before electors by about 2005 a choice between the present monarchy and a republic for the whole federation safe for democracy, in a referendum of a form which poses no threat to the strength of the federation.

I express my appreciation for the invitation to state my own view on the dismissal mechanism in what I have said today.

Notes

1 Walter Bagehot, The English Constitution (1867), Fontana, Glasgow, 1963, p. 268.

2 Geoffrey Sawer, Federation Under Strain: Australia 1972-1975, Melbourne University Press, Melbourne 1977, pp. 160-1, 184.

3 Advisory Committee on Executive Government to the Constitutional Commission, Report of the Advisory Committee on Executive Government (Sir Zelman Cowen, Chairman), Constitutional Commission, Canberra, 1987, pp. 32-4.

4 A.G. Noorani, ‘India’, in Republic Advisory Committee, An Australian Republic: The Options (Malcolm Turnbull, Chairman) AGPS, Canberra, 1993, vol. 2, p. 84.

5 Bill Hayden, Hayden: An Autobiography, Angus & Robertson, Sydney, 1996, p. 536.