A REPUBLIC STRONG IN DEMOCRACY

A Report of Address to Classes of the Royal Melbourne Institute of Technology on 3 May 2000

'The main concern of responsible people considering change to a republic is to preserve the strengths, stability and safeguards of our kind of democracy', said Mr Richard McGarvie, former Governor of Victoria. 'Yet many intellectuals and most of the media have distracted attention from this by giving bland assurances that one or other of the models for presidents elected by parliament or the people would be safe', he added.

Speaking to RMIT University classes of Dr Andrew Scott, Lecturer in Politics, on 3 May, he stressed that despite that, the inherent constitutional wisdom of ordinary Australians, including its younger members, had rejected the flawed package of last November's referendum. The package would have introduced unacceptable risks to the democracy of our system. He explained that the prime minister's power of instant dismissal of presidents would have crippled the fail-safe mechanism that enables an exceptional constitutional malfunction to be referred in the last resort to the parliament or people for resolution: the selection process would have given presidents a great mandate encouraging rivalry with the elected government, and produced celebrity presidents of very different calibre from those who have been our governors-general: constitutional provisions relating to the reserve powers would have required presidents to follow supposed conventions which are non-existent and would be unworkable anyway, and have left it open to an activist high court to shift great constitutional influence to itself by exercising jurisdiction in respect of those powers: dissenting states would have been forced into a commonwealth republic they did not trust with their democracy, and forced by circumstance and ridicule to change to republics at state level, and the tensions produced by that would have weakened the federation. He said that these flaws are fully explained in his book, published last September, Democracy: choosing Australia's republic (Melbourne University Press, 1999, pp. 124-135, 145-7, 157-162, 189-190, 193-201), and in the republic papers on The McGarvie Model http://www.chilli.net.au/~mcgarvie website.

Mr McGarvie said the conclusion of Professor Brian Galligan in his book, A Federal Republic: Australia's Constitutional System of Government, that Australia is already in substance a federal republic, provides the key to the phoney debate we have seen on the republic. Galligan recognised that his book, 'might not be congenial to modern-day monarchists or republicans since it undercuts their often passionate debate and the claims that both sides make. If Australia is already in substance a republic, monarchists are overstating the significance of the monarchy in the present order and the consequences of regularising the republic by eliminating monarchic forms altogether. Likewise, Australian republicans make similar exaggerated claims in order to fire up themselves and the public to make what is in fact a relatively small but technically difficult change to the constitutional system'. (Cambridge University Press, 1995, p. 4: see also pp. 1-4, 21-5, 244).

Attempts on both sides to divert attention from the reality identified by Galligan have produced the shallow uninformative debate on the republic so far, Mr McGarvie said. Most monarchists have asserted in vague terms, without giving precise reasons, that there is no republic model that would be safe in our kind of democracy. Most supporters of republics with presidents elected by parliament or people have given little thought to the preservation of democracy, but have fired themselves up by promoting superficially attractive models thought likely to impress the electorate, but which would introduce great risk to the continuation of our stable democracy. When those risks have been pointed out they have avoided debate and relied on bland statements by intellectuals, celebrities and the media that the models are safe, he said. Additionally, he said, the minor change from substantial to formal republic has been sold as though it would have as great effect on Australia's independence, identity and place in the world as the American war of independence or the French revolution. The debate has done little to advance community knowledge of the realities of the issue and has drawn public attention away from concentrating on the safety of their democracy under the various models, he said.

He said that the approaches of those monarchists and elected-president republicans are both plainly wrong. He added that there are growing numbers, particularly among the astute rising generation, who are guided by realities rather than utopian theories. They know that there is a safe, simple, seamless and natural way of converting to a republic with all the strengths of the present system but that models with presidents elected by parliament or people can never do that. He stressed that the practically-minded younger generation know that it is their democracy which is in issue because constitutional changes usually last a century or centuries and they, their children and grandchildren will live in any republic chosen.

Mr McGarvie pointed out that by gradual evolutionary steps Australia's federal and state systems of government have become almost entirely detached from the United Kingdom. The slim connection remaining is that whoever is monarch of the United Kingdom is monarch and formal head of state of Australia and appoints or dismisses the governor-general and governors as advised by the prime minister or state premier. The governor-general and governors have long been the de facto heads of state of their systems, exercising their own constitutional powers and the remaining powers of the Queen as advised by their federal or state ministers. The Queen has no power to direct, control or veto a governor-general or governor. (Democracy, pp. 16-23)

'Australia would be entirely independent of the institutions of the United Kingdom and completely a republic if it untied the slim remaining connection so that the monarchy was no longer involved in the constitutional systems of the commonwealth or states', he said. 'That only requires updating the formal constitutional structure so that it catches up and corresponds with the practical substance of the operating system which Australians established years ago'.

He said that while the advantages of updating the formal to correspond with the established reality have to be kept in proper perspective, the republic issue should be resolved as soon as practicable. Opinion polls taken last year during the referendum debate were indicating by September that there is overwhelming support for having an Australian as formal as well as de facto head of state. Support for continuing the colonial legacy of having the formal head of state in another country on the other side of the world has almost evaporated. In those circumstances it is not healthy to allow dispute on this deeply-felt constitutional issue to continue unresolved for too long, he said. It would reduce people's respect and regard for the basic authority of the constitution. We must heed Canada's experience. It has had a series of running disputes on emotionally-charged constitutional issues since the 1970s, which has greatly weakened Canada's democratic and federal compact. (Democracy, pp. 5-6) We must not allow our dispute on the republic issue to develop into a constitutional running sore, he said.

Those who have exaggerated the positive benefits of eliminating the last vestige of the monarchy have usually overlooked, seriously underestimated or refrained from mentioning the risks to our democracy and federation of doing it the wrong way. He underlined that it is crucially important to future generations that we do it the safe way.

Looking to the future, Mr McGarvie said that with the rejection of the referendum model of a president elected by parliament there would be a contest between the McGarvie model which was the runner up to that model at the 1998 constitutional convention, and direct-election models such as the two that came last in the voting there.

He said the principle on which the McGarvie model is based is that, 'The smaller the change that would convert the system from monarchy to republic and the more obviously the change follows the trend of the evolution of our system, the less risk there is of damaging our democracy' (Democracy, p. 81). The model makes only the changes necessary to convert to a republic and is the only minimalist model on offer. It was the first of the options discussed by the Republic Advisory Committee. In Malcolm Turnbull's view, 'This model is a blindingly obvious minimal development … It is a perfectly sensible model if you start from the premise of having absolutely minimal change'. The model is the republican equivalent of the present system of democracy which has served Australia well. It is the sort of model that Premier Bob Carr supports. (Democracy, pp. 14, 207; Weekend Australian, 3-4/6/95, p. 4; Sydney Morning Herald, 8/11/99, p. 14)

He emphasised that the strength of the McGarvie model is that, while untying the remaining formal connection with the United Kingdom, it leaves the governor-general and governors operating in the same way, within the same constitutional structures and restraints as they have for years. The main change is that because their positions as de facto heads of state of their systems would be recognised legally, they would become the formal heads of state as well. The unassertive and apolitical role that our system needs and has received from its governors-general and governors - concerning themselves mostly with community activities, performing the almost-unnoticed tasks of constitutional auditors, and very infrequently acting as constitutional umpires - has been produced mainly by the Australian tradition of those offices and the way the holders of the office are selected, tenured and dismissible (Democracy, pp. 7-11, 26-33, 40-2, 44-5, 48-53, 64-71, 145-9). The McGarvie model keeps the tradition by continuing the offices and their present names, and ensures that the office-holders will still be selected, tenured and dismissible in the same way.

In the McGarvie model the Queen's one remaining active constitutional duty at commonwealth level, appointing or dismissing the governor-general as advised by the prime minister, will be performed in exactly the same way by a constitutional council of three members determined automatically by constitutional formula. The prime minister will still choose a new governor-general. 'It is important to emphasise that a constitutional council will not propose, choose or select a new appointment', he said, 'because there have been extensive misrepresentations that it would choose or select. The misrepresentations are made by those who do not understand the model, or opponents who fully understand it and its appeal to the ordinary Australian, and deliberately misstate its structure in order to ridicule it'. A constitutional council will be bound by an effective constitutional convention to appoint or dismiss within two weeks of advice.

The members of the constitutional council will be designated from those who have retired from non-political constitutional positions of governor-general, governor, lieutenant-governor, high court or federal court judge, and are not over 74. It accords with centuries of tradition throughout the world to have a high community responsibility, as important as appointing or dismissing the head of state on the advice of the prime minister, performed by a council of elders. It draws especially on the central principle of the oldest culture in this country - that of the Aboriginal people, he said.

Governors will be appointed or dismissed on the advice of the state premier by a constitutional council set up under the state constitution, said Mr McGarvie.

He explained that, in addition to exercising all the powers of head of state as they do now, the Queen's remaining powers would be added to the governor-general's and governors' own constitutional powers so that all the head of state powers of their system would also legally be vested in them.

Mr McGarvie stressed that Australia has one of the world's oldest and best democracies because office-holders are effectively bound by law or constitutional convention to exercise their constitutional powers in the way the democracy needs (Democracy, pp. 7,12, 46-8). He said it is a myth that our constitutional conventions are only binding because we are a monarchy. In Australia a constitutional convention is an obligation accepted by office-holders as binding them in the way they exercise their legal powers, because it is clearly necessary for the practical achievement of representative democracy and because it is backed by an effective practical penalty for breach (Democracy, pp.53-61). The operation of the system itself provides the practical penalty for breach. As the McGarvie model keeps the system operating in the same way, constitutional conventions continue to bind, he said (Democracy, pp.207-25).

Mr McGarvie noted that every referendum passed since 1910 has been supported by the overall majority of voters and a majority in every state. He put it that the obvious way of making a decision on the constitutional update without risking the tensions created by forcing a dissenting state into a form of government it distrusts, is to make a decision for the whole federation requiring the support of every state. He said that can be done by a referendum under which the systems of the commonwealth and each state would change together if supported by an overall majority and the voting majority and parliament of each state (Democracy, pp.255-9).

If that change is made Australia would still be called the 'Commonwealth of Australia' and we would remain a member of the Commonwealth of Nations, he said.

He stressed that if the update were made by the adoption of the McGarvie model at commonwealth and state levels, Australia would become completely a republic in form as well as substance, but in a way which wholly maintains the four essential features of the office of head of state which are crucial to the democracy of a system such as ours. These are that the head of state be (1) chosen in a way that gives no mandate to encourage rivalry with the elected government; (2) liable to prompt dismissal for breach of the conventions to exercise powers as ministers advise and to refrain from speaking politically and from collaborating politically with the opposition; (3) chosen by a method and operate within a setting that ensures a respected occupant of the office who remains above partisan politics and exerts a unifying influence; and (4) able to exercise effectively and impartially the vital fail-safe mechanism of the discretionary reserve authority (Democracy, pp. 12-13).

Mr McGarvie said that because only a model such as his would retain the strength of our democracy, it is the only one which could draw the support from the whole political spectrum necessary to pass a referendum. A referendum on such a model would effectively resolve the republic issue because people could express their genuine preference for a republic or monarchy knowing that whichever way the vote went their democracy would be secure. He said he expects the McGarvie model to follow the course identified by the philosopher who noted that an important idea makes three entries into public discourse. The first time it is ridiculed. The second time it is condemned in the most vehement manner possible. The third time it is received as blindingly obvious common sense. Mr McGarvie regards his model as about to make its second entry.

He explained that although it was runner up at the constitutional convention, drawing the vote of ten ministers in the voting for preferred model, the McGarvie model so undermines the position of so many on both sides that they carefully avoid even mentioning it. Most monarchists are embarrassed because it so clearly shows the safe way of converting to a republic, while they deny that any exists. Most supporters of elected-president models, including many intellectuals and media people, are embarrassed because it is obviously entirely free of the fundamental flaws which infest their models, and because it instantly appeals to ordinary practical Australians. He said the model has only once been mentioned in a published opinion poll - the Morgan Poll of February 1998. The test which matters because it indicates potential support in a referendum is the relative support for a particular model in contest with the monarchy alone. On that the McGarvie model and parliamentary-election model were virtually level, with the McGarvie model a whisker ahead. The preferences were: monarchy, 37%; McGarvie model, 50%; undecided, 13%: and monarchy, 38%; elected by parliament, 50%; undecided, 12% (The Bulletin, 17 February 1998, p. 23). He said that Bulletin carried no comparison between the monarchy and a direct-election model but the Morgan Poll of March-April 2000 shows: monarchy, 40%; republic with an elected president, 49%; undecided, 11% (The Bulletin, 18 April 2000, p. 27). On those figures the margins of percentage preference for the models over the existing monarchic system were: McGarvie model, 13%; parliamentary election, 12%; and direct election, 9%.

Turning to direct election, Mr McGarvie took as an example the Gallop model which secured more votes than the other direct-election model at the constitutional convention and finished in third place. It would abolish the office of governor-general and create instead the new office of president. Citizens could nominate persons for president, and from the nominations a joint sitting of the commonwealth parliament would choose at least three to contest an election at which all Australian electors would vote. At least one is to be a woman and one a man. The president would be elected at the same time as the house of representatives and hold office for two terms of that house. A president could be dismissed earlier by an absolute majority of the house of representatives on grounds of stated misbehaviour or incapacity.

Instead of a constitutional update which would maintain the operating system of Australian democracy, the Gallop model, by recasting our system along the lines of overseas republics, would distort its balance and operation and undermine its strength and stability, he said. It would not preserve in the office of head of state any one of the essential features referred to above.

He pointed out that most of the weaknesses of the Gallop model stem from the initial decision to destroy the office of governor-general and replace it with a head of state called 'president'.

Because Australians have known for decades that governors-general are not and cannot be politically powerful figures, they have been content with them being selected by the prime minister. It is common ground that prime ministers of all parties, knowing that their reputation will be affected by the quality of their choice, have chosen well, he said. The structures of the present system, which continue in the McGarvie model, have ensured that governors-general whether coming directly from politics or not have satisfied the community expectation of acting with political impartiality. Designers of models know that public expectations of a new head of state called 'president' would be very different. People will expect an Australian president to act like the presidents they know. The president of a republic who is best known to Australians is the powerful elected president of the United States. Many presidents of republics around the world who have been in the headlines during our time have been powerful political figures. People tend to think that if there is to be a president it should be one elected by the people or the parliament. As appears below, the Gallop model would produce a president much less powerful than the US president, but one with considerable political clout.

Our present system, replicated in the McGarvie model, ensures that the governor-general has no mandate or authority from parliamentary or popular election which would encourage political rivalry with the government. The governor-general is selected solely by the prime minister. Under the Gallop model a president, as the only official in Australia elected by the whole country, could claim an enormous mandate to use the powers and influence of the office in political rivalry with the government.

He said that under the Gallop model the successful candidate for president would inevitably have been the candidate of a major political party. Because the president will have the capacity to exert so much political leverage, a major party would aim to win the presidency as well as the house of representatives majority. By endorsing an inveterate party member with a lifelong party loyalty, or an ambitious younger member upon a promise of later political advancement, the party could in practice control the president, even though he or she had resigned from the party and any parliamentary seat before nomination (Democracy, pp. 137-9, 142-3).

The Gallop model would have laws for the public provision of advertising and campaign support for candidates, and limits on candidates' expenditure. The advantage of having the backing of the funds, influence and resources of a major political party would be so great that ways around the limits would be found (Democracy, pp. 139-140).

Mr McGarvie emphasised that there would be ample opportunity for a president who had been the candidate of the opposition party to act in opposition to the government and veto its measures by refusing to act on ministers' advice. Under our system of democracy the governor-general is the only one who can exercise vital constitutional powers central to the system of government, and numerous other governmental powers. Under the present system or the McGarvie model the governor-general is bound by the basic constitutional convention in ordinary circumstances to exercise those powers within a reasonable time whenever advised by ministers to do so. The convention is binding because it is backed by the penalty that a governor-general who refused to comply would be dismissed promptly - within a week or two (Democracy, pp. 61-3). The convention would lose its binding quality under the Gallop model because that penalty of prompt dismissal would in practice disappear. Dismissal by the house of representatives would involve an inquiry into the existence of the alleged misbehaviour or incapacity. Experience shows that the process would be politicised from the outset and even if dismissal resulted it would be inordinately slow (Democracy, pp. 103-7). A president not subject to a binding basic constitutional convention would be able to veto government measures, for example by refusing ministers' advice to assent to a bill which has passed both houses of parliament, or to make a regulation. Unavailability of the penalty of prompt dismissal would also deprive of their binding quality the important conventions which now bind the governor-general to refrain from making political statements and from collaborating politically with the opposition (Democracy, pp. 107-10). It would be quite impractical to impose on the president by legal obligations enforced by the courts, the same obligations which the three conventions now bind the governor-general to follow (Democracy, pp. 110-114).

A president elected as the candidate of the government party and under its control would be inhibited in carrying out the important continuing responsibility of constitutional auditor (Democracy, pp. 64-71, 138-9).

Mr McGarvie explained that an exception to the basic constitutional convention provides the vital fail-safe mechanism of the discretionary reserve authority which is workable and effective in the present system and the McGarvie model. It enables the governor-general in the last resort to refer an exceptional constitutional malfunction to the parliament or people for resolution. The governor-general is able to bring that about by acting independently of ministerial advice in respect of the exercise of the reserve power of appointing or dismissing a government or dissolving or declining to dissolve parliament for an election. The governor-general is authorised to use that discretionary reserve authority only when it has become absolutely necessary in order to ensure the operation of the constitutional system and its safeguards of democracy. (Democracy, pp. 145-50, 185-7, 191)

The existence of this responsibility to act as constitutional umpire is one of the main reasons for the present system and McGarvie model being structured to produce governors-general who are above politics and act impartially, he said. A president with the political clout given by the Gallop model, and controlled by a political party, would be most unsuitable to be entrusted with the discretionary reserve authority of a constitutional umpire. An opposition party controlling a president could exert pressure to have parliament dissolved for an election when the opinion polls showed that the opposition would win. The Gallop model, like other direct-election models, purports to codify the discretionary reserve authority to specify the situations in which a reserve power could be exercised. It is not feasible to codify the discretionary authority, and any code would be impractical and unworkable and leave the system without an effective fail-safe mechanism. Attempts to codify the reserve authority have failed. (Democracy, pp. 157-62, 189-90, 201-5) Another attempt to codify it would delay resolution of the republic issue for a very long time.

He said that introduction of a direct-election model in Australia would lead to an inevitable drift towards the United States' system without its checks and balances (Democracy, pp. 140-2).

Mr McGarvie stated that election by the people is compatible with the chief executive president of the United States who is head of state and also head of government and decides how to exercise, and exercises, great constitutional powers; or with the non-executive president of Ireland who has few important constitutional powers; but not with an Australian nominal chief executive head of state having and exercising the great constitutional powers of the governor-general, but, with one exception, constrained, mainly by a binding constitutional convention, to exercise the powers as ministers of the elected government decide. (Democracy, pp. 11-14, 88-9, 92-5, 143). He said that, theoretically, Australia could change to the US or Irish system, but why should the citizens of one of the world's best democracies, in the sensitive area of head of state, scrap the mechanisms that have worked well and engage in the chancy business of wholesale constitutional reconstruction, when a safe and simple constitutional update is all that is needed to become completely a republic?

Mr McGarvie said that the arguments of both sides in the referendum debate gave an exaggerated impression of the amount of community support for direct election (The McGarvie Model website, Paper 33). He added that its attractions last only while the debate remains theoretical and vanish once a detailed model is put forward. He stressed that when the direct-election models' actual structure was specified to satisfy the rules of the constitutional convention in 1998, their inherent defects became apparent. The temptation for supporters of direct-election models is to confine the debate to general theory and advance various excuses for not putting forward an actual detailed model. He stressed that once ordinary Australians learn of the practical risks a direct-election model would introduce to our system of democracy it will have little support.

Mr McGarvie said that rather than waste years in the futile search for a direct-election model that would not undermine our kind of democracy, we should set up an all-party parliamentary committee to advise on the model safe for democracy and the method of making a referendum decision which will not risk the stability of the federation. In the light of that report the commonwealth and each state could decide by plebiscite or otherwise the model it would prefer for its system if Australia became a republic. He said that then a decision could be made for the whole federation by about 2005. (Democracy, pp. 260-3) He stressed that Australia cannot afford to take the easy course of putting off resolving the issue in the hope that it will be easier later. We must heed Canada's warning.

Note

Mr McGarvie's book, Democracy: choosing Australia's republic, may be purchased at bookshops or (postage free in Australia) by sending name, address and $27.45 in an unstamped envelope to Reply Paid 1043, Melbourne University Press, PO Box 278, Carlton South, Vic. 3053 (Tel. (03) 9347 3455; Fax (03) 9349 2527).