A CLASH BETWEEN YES THEORY, NO REALITY Article published in The West Australian, 1 November 1999, p. 13
The republic model has been declared safe and an improvement by a former governor-general and two former chief justices. But former Victorian governor and former Supreme Court judge Richard McGarvie argues than an important safety device has been discarded from present constitutional arrangements.
The great republic clash is between a Yes case strong in theory and a No case strong in practical reality.The polls indicate that support for having our head of state in a country on the other side of the world has almost evaporated. But most Yes supporters are trying to keep the debate to that symbolic issue of an Australian for head of state, where they are strong. They are successfully avoiding debate on the impact of their model on our democracy - the issue on which they are clearly weak. This keeps public attention away from the fundamental flaws the so-called Turnbull model would introduce into our constitutional system.
The three jurists, Sir Zelman Cowen, Sir Anthony Mason and Sir Gerard Brennan, are to be commended for being prepared to argue the democracy issue. However, their open letter is strong in theory but not in practical reality.
They seek to defend the power of instant dismissal of presidents the model gives prime ministers. That cripples the fail-safe mechanism that enables exceptional constitutional malfunctions to be referred in the last resort to the Parliament or people for resolution. Surprisingly, the jurists do not mention the vital delay factor built into the dismissal of a governor-general which prevents a prime minister in the present system from jamming the fail-safe mechanism through dismissal of the governor-general.
The jurists rely on the requirement for prime ministers to seek approval of the House of Representatives after dismissing presidents as ensuring accountability and responsibility. In practical politics that procedure is virtually useless and little more than a comfort for the credulous. Whatever the House decides, the president remains dismissed. The prime minister usually controls the majority of that House. In the improbable event of wanting to move against the prime minister, a sensible government party would do so by replacing the prime minister by another party member through party room decision rather than joining with the Opposition in a vote in the House. Even if the government party did entirely disregard its self-interest and joined in a vote of no confidence in the prime minister on the dismissal issue, the Tasmanian experience of 1991 shows that would not produce a resignation of the government or an election, if the government could obtain the support of the majority of the House on other issues.
Sir Anthony Mason's earlier prediction that the referendum would fail, and his position that he could not wholly embrace the model because of the unsatisfactory relationship between the prime minister and president on the question of dismissal are more reliable. There is a full explanation of all these points in my recent book, Democracy: choosing Australia's republic.
Like most supporters of the Turnbull model, the jurists present the referendum as a choice between that model and a president directly elected by voters. The message is that unless the Turnbull model is adopted the people will be so unwise as to vote for an undesirable model later. I have more faith in Australians. When I first made public the McGarvie model, which makes only the changes necessary to convert to a republic and leaves the system operating as it is, it had far less support than any other model. Nine months later, uncommitted constitutional convention delegates were so impressed with its safety for democracy that it eliminated both direct election models and finished as runner-up to the Turnbull model. Australians will make wise constitutional decisions so long as the necessary information is not kept from them.