REFERENDUM FLAWS CANNOT BE IGNORED: THE FULL IMPACT OF CONSTITUTIONAL CHANGES WILL NOT BE FELT FOR ANOTHER GENERATION

Article published in The Sydney Morning Herald, 28 September 1999, p. 15

Having squandered seven shallow years on the easy issue, six short weeks remain for the most crucial referendum issue since Federation.

The easy symbolic issue, whether an Australian should be head of state, virtually resolved itself on September 10 when the official 'no' case showed that resistance to that proposition has almost entirely evaporated.

We have hardly looked at the five fundamental flaws the changes of the November referendum proposal would introduce to our constitutional system, or their impact on the democracy and federation of future generations.

Abolishing the built-in delay factor of the present system (and the McGarvie model), and giving the prime minister instant power to dismiss the president, cripples the system's fail-safe mechanism. That mechanism enables an intractable constitutional malfunction to be referred in the last resort to the parliament or people for resolution. It is like building owners remodelling from monarchical to republican style in a way that makes the sprinkler system and fire extinguishers inoperable.

A president should be selected in a way which clearly gives no authority from the people or their representatives to rival the elected government.

In the present system (or the McGarvie model) the governor-general is selected by the prime minister alone. A president nominated by a community organisation, selected for the short list, chosen by the party rooms of both sides and elected by almost all the parliament will be seen to have great authority.

This authority, combined with the title 'president' would encourage rivalry with the government.

Prime ministers of both sides have selected suitable and respected governors-general. Top Cabinet ministers and High Court judges, who have provided seven of the nine Australians selected, would be unavailable under the Australian Republican Movement's Turnbull model.

People of the calibre expected of governors-general would be unlikely to let their names enter its farcical selection process with numerous ridiculous candidates, leaked names, media polls and votes, and allegations of disgraceful conduct.

The political parties would be under great pressure to choose a celebrity topping the media polls and votes.

In the present system (and McGarvie model) the reserve powers are exercisable under an exception to a convention, not a law. By converting that to constitutional law the November proposal would almost certainly propel the High Court into situations of intense political controversy and produce a great shift of constitutional influence to the court.

In my recent book, Democracy: choosing Australia's republic, I conclude that the supposed conventions the law of the constitution would require the president to follow do not exist and would be unworkable anyway.

Little thought has been given to the effect on the stability of our Federation of the November proposal to convert only the Commonwealth, not the States, to a Turnbull model republic.

If the referendum passes there is high prospect of the majority in one or two States voting against the flawed model, which could not draw half the votes at the Constitutional Convention. Only once in history, in NSW in 1910, has a referendum proposal been forced upon a dissenting State.

This proposal would force dissenting States into a Commonwealth republic they do not trust with their democracy and, whatever the theorists say, force them by circumstance and ridicule to change their state systems to republics.

Instead of taking the stability of our Federation for granted, we should remember that in 1933 a Western Australia referendum voted almost two to one to leave the Federation.

History teaches that the full impact of those flaws will not be felt for a generation, until about the 2020s, and what we would impose on future generations by the referendum proposal would typically last for centuries. The suggestion of adopting the deeply flawed proposal and fixing it all up later is fanciful.

Ordinary Australians immediately grasp the significance of those flaws if given the information. It calls for a knowledge of human and organisational behaviour, not constitutional law.

Never before have the people been so deprived of the information they need. Most supporters of the referendum changes are following the public relations mode of keeping the debate to the dead symbolic issue and avoiding debate on the effects of the flaws so as not to draw attention to them.

Anyone referring to them is ridiculed and labelled an alarmist running a scare campaign.

Within such a short time, only the media can generate the debate which will provide the necessary information. I am confident it will. Never has the country needed its media more, and history will look unkindly if it fails to put people in a position to consider the interests of future generations.

Next year the work must start to allow the whole question to be resolved in another referendum in about 2005 on a model safe for democracy and in a way that will not weaken the Federation.