Return to top of page.RESOLVING THE REPUBLIC ISSUE AFTER THE 1999 REFERENDUM Paper written by Richard E McGarvie in July 2000 for the McGarvie website (revised September 2000)The Newspoll of Australian voters in city and country areas in September 1999 showed 95 per cent agreeing that the head of state should be an Australian, 88 per cent strongly agreeing.1 Support for the colonial legacy of having our head of state in another country on the other side of the world has almost evaporated. Yet only 45 per cent voted for the republican package in the referendum the following November. Clearly a very large proportion of those voting no, deeply desired an Australian head of state but felt deprived of the opportunity of voting for it because they did not regard themselves as having been offered an acceptable republican package. People deceive themselves if they believe the main question dividing voters was whether they desired to retain the Queen rather than whether they were satisfied the package offered was safe and satisfactory.It is unhealthy to leave the body politic with a constitutional running sore where over 85 per cent do not identify with a central feature of their constitution close to national sentiment. The succession of long-lasting disputes over Canada's constitution since the late 1970s has weakened the authority of that constitution and accordingly the democratic and federal compact of the country.2 We should now initiate a planned process for resolving the republic issue as soon as practicable and not later than about 2005. Events could force a decision on us without much warning. Britain could abolish its monarchy or something could quickly produce an urgent consensus here to separate from the monarchy. With the complexities involved and the time and consensus necessary to amend Australian constitutions, the sooner we know our preferred form of republic for the next referendum, the better. We should not risk having to make a pressured and ill-considered decision while time is running out.
Referendum's failure to resolve
For a number of reasons rejection of the referendum package failed to resolve the issue raised by the republic debate. The issue will not be resolved until people by their votes can express their genuine preference for monarchy or republic, free of partisan political impulse and satisfied that whichever way the vote goes their democracy and federation will remain strong for future generations.
Referendums pass only if they have consensus support right across the political spectrum and support from the major parties. As John Button has written, Australians like to think of the republic issue as something above or beyond politics. He adds that Paul Keating woke up republican sentiment in 1993 and understood its symbolic power. 'He held it in his hand like the Welcome Stranger gold nugget. Then he dropped it in the murky waters of acrimonious partisan politics'.3 To negate the political advantage Keating derived from promoting a republic and criticising the coalition for not supporting it, John Howard undertook to hold a convention and put to referendum a model which had clear support, and the referendum followed from that. Although it received some extras and alterations from the constitutional convention in 1998, the referendum model was Paul Keating's original one and never lost the identity of its birth. For a political party to brand a model as its property for use in extracting political advantage from its opponents, is to brand it a referendum reject. This would have to be a major factor in the extent of correlation between party support and referendum vote appearing from a Newspoll of voting intention taken in the week before the referendum. It indicated 53 per cent of ALP voters voting yes with 2 per cent uncommitted but 63 per cent of coalition voters voting no with 2 per cent uncommitted.4
There were obvious indications that the designers of the referendum package were not doing sufficient homework to ensure that the strengths and safeguards of Australian democracy would continue in a republic. The original model had presidents dismissible by a two-thirds majority of parliament. In our political culture that meant that a president who breached convention in a way that favoured the opposition was for practical purposes undismissible and therefore not bound by the vital conventions that ensure the democracy of our system.5 This flaw was brought to public attention, and at the constitutional convention the design lurched to the other extreme, providing presidents instantly dismissible by the prime minister. This would have crippled the fail-safe mechanism of the discretionary reserve authority which now enables the governor-general in the last resort to act independently of ministerial advice and refer an exceptional constitutional malfunction to the parliament or people for resolution where that is absolutely necessary to ensure the continued operation of the constitutional system and its safeguards of democracy. That power of instant dismissal would not only render unworkable the safety device which allows the democratic resolution of an intractable constitutional crisis with which neither the political nor judicial processes are able to cope, but it would free the prime minister from the binding conventions that require resignation on losing an election or a no confidence vote.6
There were other fundamental flaws which would have introduced unacceptable risks to the democracy of our system. 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.7 Constitutional provisions relating to the reserve powers would have required presidents to follow supposed conventions which do not exist 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.8 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 this would have produced tensions weakening the federation.9
Voters were left without the usual quality assurances available in a referendum. Usually a government puts forward a referendum proposal and in the interests of its political future is careful to ensure that it is a sound one. An opposition only gives the support essential for a successful referendum if it has critically scrutinised the proposal and is satisfied there are no major flaws. In 1999 the coalition government had not put forward the model and accepted no responsibility for its quality. For every coalition member who identified a flaw in it, another denied the flaw existed. As it was Paul Keating's model with modifications, the opposition was protective of it and not prepared to concede, much less expose its flaws.
The most troubling thing was the lack of respect for ordinary voters shown by those promoting the referendum package. Whoever proposes constitutional change has the responsibility of persuading a constitutional majority to vote for it, by satisfying them that it is safe and satisfactory. Voters were not treated as sensible and responsible citizens who regard themselves as trustees for future generations of one of the world's best democracies and know that a constitutional change usually lasts a century or centuries. Showing scant respect for their commonsense, people were told they should concentrate on the question whether an Australian should be head of state. When flaws in the package were identified, debate on them was avoided and reliance placed on the bland assurances of those who had made big names in public life, the media or sport, that the package was safe and they were supporting it.
A widely-used argument revealed little faith in voters' commonsense. People were told, correctly, that a model for a directly-elected president would greatly damage our kind of democracy. Then it was urged that unless the 1999 referendum passed we would get direct election. That amounted to telling the electorate that unless it passed the referendum it would in future be so stupid as to pass a referendum introducing a very dangerous model.
Unfortunately, a chilling contempt for the ordinary voter emerged with the referendum result. Apologists for the failed package, including many in the media, blamed flawed voters not the flawed package for their loss. The people's decision was treated as less credible because most of the financially insecure and those without higher education voted no.
Life experience has given me a deep respect for the capacity of the ordinary practical Australian to make good decisions on issues as important as whether to vote for constitutional change. Years as defence counsel or trial judge in cases with complex and conflicting evidence, and strong arguments mounted on both sides, have taught me that Australian juries almost always get it right. The wealthy and those in the elevated positions that usually follow from high education, beside a tendency towards fascination with theory, have security and influence from their wealth and positions and are less conscious of reliance on the security that comes from a stable constitutional democracy. Those without that personal security are more conscious of the protections their democracy gives and most concerned to maintain the strength of those protections. Most people living on inadequate resources necessarily become vigilant, streetwise and practical. They are used to having shoddy products urged upon them, but recognising and rejecting them. It is repugnant to democratic principle to treat the votes of those in the country and outer western metropolitan areas as the votes of unwise people of little account. We are fortunate that Australians a century ago had faith in democracy as a practical working system and made constitutional amendment depend ultimately on satisfying the ordinary voters that the change is safe and satisfactory. They guard our stable democracy from thoughtless or careless change that would undermine it.
While we must not read too much certainty or reliability into opinion polls, one of the most useful indications of why the majority voted no is the Newspoll of voters in city and country areas of Australia who intended the weekend before to vote no.10 They were asked which of four statements best described why they would vote no. For 9 per cent it was that they would like to retain the Queen as head of state. These are fairly described as monarchists because it was their insistence on a monarchy that would lead them to vote no. The vote the following weekend showed that those voting no constituted 55 per cent of the electorate. That indicates that of the total electorate about 5 per cent are monarchists, a view consistent with the finding of the Newspoll first mentioned in this paper. Media and other portrayals of most of those advocating or recording a no vote as monarchists are quite misleading. The statement, 'You would only vote Yes for a directly elected president', was chosen by 16 per cent. That indicates that direct electionists constitute about 9 per cent of the total electorate. A reason related to the operation of the constitutional system was adopted by 78 per cent. Of these, a positive concern about the referendum model was shown by the 33 per cent who chose, 'There is too much uncertainty about the proposed republic model': and 45 per cent indicated they were not satisfied that change was desirable, by choosing, 'The current system is fine, and if it ain't broke don't fix it'. Three per cent were uncommitted.
The rising generation, with confidence in their own mental powers, instead of seeing what they would like to believe, looked through clear enlightenment daylight and believed what their perceptive eyes saw. Newspolls of teenagers, aged 13 to 19, in Sydney and Melbourne showed growing doubts as the referendum campaign proceeded.11 Percentage support in favour of Australia becoming a republic went from 49 in favour, 20 against and 31 uncommitted in November 1997, to 45 in favour, 19 against and 36 uncommitted in August 1999. It is interesting that three months before the referendum vote the division among teenagers was 45 per cent supporting change to a republic and 55 per cent not satisfied to do so. In the AC Neilson Poll during the week before the referendum the percentage of the age group, 18-24, who were not at that stage satisfied to vote yes (47, no; 14, don't know = 61 per cent) was higher than any other group except 55 and over (65 per cent).12 That poll also indicated a higher percentage of women (64 per cent: no, 51; don't know 13) than men (54 per cent: no, 43; don't know, 11) were not satisfied to vote yes. Perhaps this reflected women's traditional caring concern for the wellbeing of the younger and future generations. The Roy Morgan Research Centre has noted: 'Experience from previous Morgan Polls on referendums since 1946 has shown that undecided voters usually vote against change'.13
The Australian democracy solution
To decide what would be necessary for Australia to become a republic we start from our present position. That was stated by the Republic Advisory Committee:
Australia is … a state in which sovereignty resides in its people, and in which all public offices, except that at the very apex of the system, are filled by persons deriving authority directly or indirectly from the people … All that is required to make Australia completely republican is to remove the monarch; no other constitutional change is required.14That is consistent with Professor Brian Galligan's conclusion in 1995 in his book, A Federal Republic: Australia's Constitutional System of Government, that Australia is already in substance a 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'.15This has led monarchists to assert in vague terms, never giving precise or detailed reasons, that there is no republic model that would be safe. It has led republicans to propose involved and showy structures with elected presidents to replace the present simple machinery, and to portray the change to a republic as an event of the significance and magnitude of the French revolution or American war of independence.
By gradual and evolutionary steps Australia's federal and state systems have become almost entirely detached from the United Kingdom. The slim remaining constitutional connection 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 authority to direct, control or veto a governor-general or governor.16 Eliminating the monarchy from any involvement in the systems of the commonwealth and states and making Australia entirely a republic, 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. The difficulty is that although the change is a small and formal one it carries a high risk that unless it is thought out and done with great care it will distort the sophisticated balances that provide our good democracy. Many practical people do not become involved with the issue which they see as a formality, and most of the theorists who take it up do not see the practical risks if care is not taken.
With the referendum's rejection of the model for a president elected by parliament the choice is between a model such as the McGarvie model and models for a directly-elected president.
The McGarvie model, also called the Australian democracy model, makes the necessary update by untying the remaining connection with Britain and patriating the office of formal head of state to Australia. It makes only the changes necessary to do that. It does not aim to make Australia a 'real' republic with typical characteristics of republics around the world. It concentrates on the essential objective of maintaining the strengths of our present democracy by ensuring that our system continues to operate in the same way. That Australia will have the status of a republic is merely an incident of achieving total independence of Britain, in form as well as substance, in a way that keeps every strength of our democracy. The model is the natural way of achieving that. Malcolm Turnbull acknowledges that, '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'.17 It is the sort of model that Premier Bob Carr supports.18 It was designed in the knowledge that Australians value the unexciting strength, safeguards and stability of their current democracy much more than the appeal of novel grand designs copied from overseas which would undermine that.
The model is as simple as it is safe. The monarchy is eliminated and its remaining powers go to the governor-general and governors who become the actual instead of de facto heads of state of their systems. They continue operating under the same names, in the same way, on the same advice and within the same constitutional controls and restraints as they have for years.19
There is good reason for retaining the name, 'governor-general', and not changing to 'president'. Because Australians have known for decades that governors-general are not and can not be political figures exercising political power, they have been content with them being selected by the prime minister. It is common ground that prime ministers of all parties, knowing their reputation will be affected by the quality of their choice, have chosen well.20 Designers of models know that public expectations of a new head of state called 'president' would be very different. People would expect an Australian president to act like the presidents they know. The president of a republic best known to Australians is the powerful elected president of the United States. Many presidents of republics around the world in 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. Designers of models for presidents provide for them to be elected one way or the other. People would expect a president they had elected, to act as their champion and stand up for them against the government, and the president would be under great pressure and temptation to do so. Bob Carr argues convincingly that the name 'governor-general' is suitable and should be retained.21
In an Australian republic based on the McGarvie model the Queen's remaining active duty will go in each system to its constitutional council of three Australians bound to act precisely as the Queen does now - to appoint or dismiss a governor-general or governor as advised by the prime minister or state premier. Thus at commonwealth level, to ensure no-one is overlooked, citizens could at any time nominate another Australian for governor-general but the prime minister will still choose a new governor-general from those nominated or others. It is important to emphasise that a constitutional council will not propose, choose or select a new appointment, 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. An effective constitutional convention will bind a constitutional council to appoint or dismiss within two weeks of advice.22
The members of the constitutional council will be determined by automatic constitutional formula from those who have retired from the non-political positions of governor-general, governor, lieutenant-governor, high court or federal court judge and are not over 74. For thirty years a temporary provision will ensure that at least one woman is included in the membership of a council. By then disparities in occupation of the positions from which membership is drawn should be corrected.23 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.
Governors will be appointed or dismissed on the advice of the state premier by a constitutional council set up under the state constitution.
An essential safeguard of our kind of democracy is that office-holders are bound to exercise their legal powers in the way that democracy needs, either by law or by constitutional conventions made binding by the penalties which the operation of the system would impose upon breach.24 This is important because our governors-general (and governors) are de facto heads of state of the nominal chief executive type with basic constitutional powers which only they can exercise and which at law they can exercise at will. We are a democracy because three conventions bind a governor-general (or governor) to act consistently with the decisions of the elected government. These conventions, binding the governor-general to exercise powers as advised by ministers and to refrain from political comment and from political collaboration with the opposition, are binding because if they were breached the ordinary course of operation of the system would lead to dismissal of the governor-general within two weeks. It is entirely a myth that somehow they are kept binding by the existence of a monarch on the other side of the world. Because it keeps the system operating in the same way, the McGarvie model keeps these conventions binding.25
Concentration on overseas systems has led to claims that people will only identify with a head of state who has the standing and respect that comes from being either a monarch or an elected president. As with so much in the republic debate, this entirely overlooks Australian experience. As I learned in the first few months as governor of Victoria, at this stage of history the considerable respect and support accorded to the office owes practically nothing to the very limited and minor extent to which one represents the Queen. It is due to respect for the standards of the office of governor established by one's predecessors as governor and the fact that governors are now seen as representing their community not the Queen.26 It is the same with the office of governor-general. Sir Ninian Stephen as governor-general saw his primary symbolic function not as representing the Queen in Australia but as representing 'the Australian nation to the people of Australia'.27
It is only a referendum on a model such as the McGarvie model which can resolve the republic issue by enabling people to vote according to their genuine preference for republic or monarchy, knowing that whichever way the vote goes their democracy will be safe. It is the only type of model which has a reasonable prospect of obtaining a constitutional majority in a referendum. For this to occur every criticism which is part of the intense scrutiny of a referendum campaign must be fully and fairly answered by those supporting the change, so that voters can be satisfied that it is a safe and desirable change. That includes criticisms which are invalid or untrue which always surface in a referendum.28 It is not suggested that such a model is perfect. Human endeavour has never so far produced a perfect constitutional model. However, because there is absolutely minimal change to the structures, and no alteration to the operation of the present system which produces the inherent strengths and safeguards of our democracy, it is not difficult to show that those strengths and safeguards will still be produced in the same way, and to answer all criticisms satisfactorily. The McGarvie model so undermines the position of so many on both sides that usually they carefully avoid even mentioning it. Most monarchists are embarrassed because it so clearly shows a 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 free of the fundamental flaws which infest their models, and because it instantly appeals to ordinary practical Australians. The referendum model of a president elected by parliament would have given the media an immense role and influence.29 So would a model for a directly-elected president. The media like elections.30 Imagine the position if an heir to a media empire were a nominated candidate. Like the present system, the McGarvie model gives the media virtually no role in the selection of a governor-general. It is not surprising that during the referendum campaign most of the media supported models for presidents elected by parliament or electorate and managed hardly to mention the McGarvie model.
While many have heard little of that model in its unmisrepresented form, it immediately appeals to people who do. It was first advanced in public on 1 May 1997, a week after I ended as Governor, when my paper which compared its retention of the strengths of our democracy with the deficits of the other models was published in the Australian, Age and Herald Sun.31
The prevailing preferences then, indicated by the Morgan Poll of June 1996, were 74 per cent for direct election, 20 for parliamentary election, 3 for the model closest to mine (appointed by the federal government of the day), with 3 per cent not stating a preference.32 After advancing my case over the nine months without organisational or funding backing, relying on what I wrote and said, the model attracted sufficient votes at the constitutional convention in February 1998 (including the votes of ten ministers) to eliminate both of the direct-election models and finish second to the parliamentary-election model.
The McGarvie model has only once been mentioned in a published opinion poll - the Morgan Poll of February 1998.33 On the test which matters because it indicates potential support in a referendum - the relative support by those of voting age for a particular model in a contest with the monarchy alone - the McGarvie model was a whisker ahead of the parliamentary election model. The preferences were: McGarvie model, 50 per cent; monarchy, 37 per cent; undecided, 13 per cent: and, elected by parliament, 50 per cent; monarchy, 38 per cent; undecided, 12 per cent. On a similar but not identical question asked of those aged 14 and over, 52 per cent favoured Australia becoming a republic with an elected president, 37 per cent favoured remaining a monarchy and 11 per cent were undecided. On those figures the margin of percentage preference for the models over the existing monarchic system were McGarvie model, 13; parliamentary election, 12; direct election, 15. However the Morgan Poll of electors in March and April 2000 shows the margin of percentage preference for direct election to have fallen to 9 (elected president, 49 per cent; monarchy, 40 per cent; undecided, 11 per cent).34 Newspolls over the period show little change in the percentage in favour of Australia becoming a republic when asked that general question.35 If voters shown in the latest polls as undecided are allocated on the basis that they usually vote against change, as concluded above by the Roy Morgan Research Centre, and, say, four-fifths are allocated to monarchy and one-fifth to the republic model, the figures are: McGarvie model, 53; monarchy, 47: parliamentary election, 52; monarchy, 48: and direct election, 51; monarchy, 49. That shows the margin of preference for the McGarvie model at 6, parliamentary election at 4 and direct election at 2. Because of the manner in which these figures are derived they must be regarded as a very approximate indication of preferences.
The McGarvie model has appeal across the whole spectrum because it provides a win-win solution all round. For republicans it is a model capable of winning a referendum and converting Australia to a republic. For monarchists it provides a system that operates like our constitutional monarchy and preserves all its strengths. For the whole community it has obvious advantages. It carries the real prospect of early resolution of the republic issue. It provides the obvious formal capping to the process of evolution towards independence developed in Australia over two centuries. Apart from the structural change that within each system the Australian entity of a constitutional council, usually at intervals of about five years, will act on advice in precisely the same way as the Queen has done, the whole system remains and continues to operate as the tried and familiar one that has secured the strength and stability of our democracy. A century ago Australians preserved the quality of our democracy and created a uniquely Australian system which integrates Westminister government, federation and referendums. We could do the same by integrating the operative strengths of a constitutional monarchy with the substantive and formal independence of a republic. Those who from the outset, or after reassessing their earlier positions, have given support to the McGarvie model are best regarded as Australian democracy constitutionalists.
I am encouraged by the words of 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 commonsense. My model is making its second entry.
The McGarvie model has been described as conservative.36 In the important sense of conserving or preserving the strength, safeguards and stability of our present democracy, it is. There was another occasion when proposals I supported were called conservative. That happened in the years to 1970 in the Victorian branch of the Australian Labor Party, when 'the participants', of which I was secretary, supported the democratic changes which the policies of Gough Whitlam would bring, and the replacement of the hard-left controllers of that branch, a necessary condition for Whitlam to win government in 1972. The proposals we supported were conservative in the sense mentioned above. However in the sense of nullifying, in political reality, any real prospect of change, it was our opponents, the Hartleyite hard left, who were the conservatives. As Mark Taft described them in a passage quoted by Dr Andrew Scott, they were 'extraordinarily conservative. They believe that to change something they must change everything, hence they do nothing'.37 On the republic issue the same may be said of the supporters of direct election. Whatever their intent, the practical result of their efforts would be the same as that sought by the monarchists - no change from the monarchy. When ordinary voters (and the majority are in this category) become aware of the corrosive effect of the best of the direct-election models upon our democracy, there is no prospect other than in utopian imagination, of a referendum on such a model passing. In June 2000 Bob Carr told the NSW conference of the ALP that one fundamental fact had to be borne in mind in the quest for a republic: 'A referendum more radical than last November's, bound to be even more strongly and deeply opposed, has not the remotest chance of being carried.38
A 'real' republic
Direct-election models seem to be designed to change Australia to a 'real' republic by introducing novel features patterned on overseas republics and thought to appeal to the electorate. There are no villains in the republic debate who wish to damage our democracy. However, many designers and promoters of direct-election models appear to assume that constitutional change is easy and that little attention needs to be given to retaining the constitutional mechanisms that bind democracy into our present system. Concentration on moving to a 'real' republic instead of on keeping the foundations of our democracy, shows a misjudgment of Australian voters. While they know there are republics with good and stable democracy like the United States and Ireland, Australians have lifetime knowledge of the republics that allowed Hitler, Stalin, Mao Tse-Tung, Idi Amin, Pinochet and Mugabe to take control with disastrous consequences to many ordinary people.39 That largely explains why, although the Newspoll mentioned earlier showed 95 per cent agreeing (88 per cent strongly) in September 1999 that the head of state should be Australian, the Newspoll taken the month before showed only 51 per cent in favour of Australia becoming a republic.40 Australians are much more concerned to retain their democracy than to become a 'real' republic and a model will only pass a referendum if a constitutional majority are thoroughly satisfied their democratic protections will be secure.
I use the Gallop model, which obtained more votes at the constitutional convention than the other direct-election model, as an example to illustrate why no model with a president directly elected by the people would obtain a constitutional majority in an Australian referendum. The Gallop model 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 as least three to contest an election at which all Australian voters 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.41
It is enough to concentrate on the four essential features of a head of state in a system such as ours which a model must be structured to produce because they are crucial to the democracy of the system.42 I will discuss them in turn and point out that the present system or the McGarvie model fully maintains each of them but the Gallop model would not maintain even one of them.
1. Chosen in a way that gives no mandate to encourage rivalry with the elected government
Our present system, replicated in the McGarvie model, ensures that the governor-general, being selected solely by the prime minister, has no mandate or authority from parliamentary or popular election to encourage rivalry with the government. Under the Gallop model a president, as the only official in Australia elected by the whole country, would have the backing of an enormous mandate and power base and be motivated to use the powers and influence of the office in rivalry with the government. Being called 'president', people would expect him or her to have the clout of some of the most prominent presidents around the world. In our system active rivalry between the president and government would produce chaos.43
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.
In the present system and the McGarvie model these three conventions bind the governor-general because they are backed by the penalty that upon serious breach, in the ordinary course of operation of the system, the prime minister, who has the greatest interest in having them observed, would advise the Queen now, or in the McGarvie model the constitutional council, to dismiss the governor-general and dismissal would occur within two weeks. Under the Gallop model the conventions would not bind the president because that penalty of prompt dismissal would 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 eventually resulted, it would be inordinately slow.44
Suggestions that enforceable laws could effectively impose on the president the same obligations the three conventions do now are quite impractical. It would be ineffective and as damaging to the courts as to the political process.45
Would the system work without binding conventions or effective equivalents? It might for a number of years. But a system is not to be assessed on how it operates when it suits everyone to behave. It must be able to cope in unusual circumstances when political passions and ambitions impel powerholders to follow their own interest contrary to that of democracy.46 Democracy is hard to build, easy to lose and difficult to regain. Without the support of its central conventions, binding and strong, it would only be a matter of time before our democratic structure deteriorated or collapsed.
3. Chosen by a method and operate within a setting that provide a respected person who remains above partisan politics and exerts a unifying influence
The present method of selection, to be continued in the McGarvie model, has provided governors-general who have satisfied community expectations, because prime ministers know that their own reputation will be affected by the community's assessment of the person chosen. Even governors-general appointed straight from politics, like Sir William McKell and Sir Paul Hasluck, have been exemplary in their impartiality.47
Under the Gallop model the successful candidate for president would inevitably have been the candidate of a major political party. Because a president would be able to exert so much political leverage, major parties would aim to win the house of representatives majority to form a government and to win the presidency as well. By endorsing an inveterate party member with lifelong party loyalty, or an ambitious younger member upon the promise of later political advancement, the party could in practice control the president even though he or she had resigned from the party before nomination. Proposed laws for the public provision of advertising and campaign support and limits on candidates' expenditure would not work, there would be so many ways of getting around them.48
A president elected as the candidate of the opposition party could be pressured by that party to exert considerable political clout to frustrate the government. Not being bound by the three conventions mentioned above, it would be open to the president to refuse to assent to government bills which had passed both houses, refuse to make regulations advised by ministers, make public political attacks on the government and collaborate politically with the opposition against the government.49
A president elected as the candidate of, and subject to the control of the government party would be inhibited in performing the important continuing responsibility of constitutional auditor.50
A president elected as the candidate of a political party and subject to its control, who had attracted 35 per cent of first preferences but gained a 52 per cent majority after distribution of preferences, would not be well placed to symbolise and represent the whole nation and encourage community cohesion. Many of our best Governors-General would never have been prepared to contest the position as an election candidate of one of the political parties. Direct election would be likely to produce celebrity presidents of a different calibre.
4. In a position to exercise effectively and impartially the fail-safe mechanism of the discretionary reserve authority
The convention binding the governor-general to exercise powers as ministers advise has an exception which confers the discretionary reserve authority mentioned earlier. This authorises the governor-general in the last resort to act independently of ministerial advice and exercise a reserve power of appointing or dismissing a government, or dissolving or refusing to dissolve parliament for an election, in such a way as to refer an exceptional constitutional malfunction to the parliament or people for resolution. A president elected as the candidate of, and controlled by a political party would be most unsuitable to be entrusted with this discretionary reserve authority of a constitutional umpire. An opposition party controlling a president could pressure the president to dissolve parliament for an early election when the opinion polls showed that the opposition would win.51
The Gallop model, like other direct-election models, attempts to codify the reserve authority to specify the situations in which a reserve power could be exercised. It is not feasible to codify the discretion of the reserve authority and any code would be impractical and unworkable and leave the system without an effective fail-safe mechanism. A lot of time and talent has been spent on trying to reach agreement on a code without success.52
An appreciation of the combined effect of all the inherent impulses operating in the Gallop model to sap the strength and stability of our democratic system confirms Paul Keating's conclusion that a president elected by popular mandate 'would inherit a basis of power that would prove to be fundamentally at odds with our Westminster-style system of government'.53 Those advancing direct-election models have not heeded the perceptive observation of the constitutionally-wise Professor Stanley de Smith many years ago when considering the movement of former British colonies to republics: 'It is surely prudent so to arrange matters that republicanism can manifestly be introduced without any major disturbance of the existing constitutional structure'.54 Supporters of direct-election models are tempted to avoid drawing attention to the major disturbance such models would introduce to our existing constitutional structure and to confine their argument to general theory, advancing various reasons for not identifying the structural details of a model they support. Once details are given, the inconsistency of the model with our system becomes apparent. It would be irresponsible to waste years in the futile search for the utopian dream of a direct-election model consistent with our type of democratic system.
Theoretically our system with its nominal chief executive head of state could be changed fundamentally to one which has an elected chief-executive president who is head of state and of government as in the United States, or to one which has an elected non-executive president with few constitutional powers of importance as in Ireland. But why would Australians, with one of the world's best democracies, in the sensitive area of head of state, scrap the mechanisms that have worked well and embark on the chancy business of wholesale constitutional reconstruction, when a seamless, safe and simple constitutional update is available and all that is needed?55
Resolving the issue
It has been suggested that there should first be a plebiscite on whether we wish to become a republic, then another plebiscite on which model we prefer and finally a referendum on whether to change the constitution. That is a process of drift, leaving the country without leadership and postponing resolution for a long time. What use would it be if we learnt in the first vote that, despite overwhelming support for an Australian head of state, only a bit over half were prepared to vote in the dark in favour of an unidentified republic which they could not be satisfied would actually preserve our democracy? Unless a vote is on a model described in sufficient detail for people to decide whether they are satisfied it would safely preserve their democracy in a republic and be otherwise satisfactory, it does little to advance resolution of the issue. Different republic groups would use the debate on the first plebiscite to promote the models they support. There would be great pressure on political parties to give some form and substance to the debate and seek political advantage by stating their preferred models. Once they did that they would in practice regard themselves as committed to promote their model against other models. The debate would revert to adversary politics which would in practice place the issue beyond referendum resolution. Instead of the partisan conflicts which are appropriate for the resolution of ordinary political issues where people have conflicting interests, on this constitutional issue where all Australians share the same interest of preserving our democracy, the nation sorely needs the sort of leadership from parliamentarians that produced our federation a century ago.
The republic issue can only be resolved if several pre-conditions exist. Resolution will only be achieved when people can vote exercising their own judgment uninfluenced by loyalty or antagonism to any political party and where they are satisfied that however the vote goes there will be no increased risk to our democracy or federation. That means that voters must positively be satisfied that any republic model on which they vote would maintain the strengths, safeguards and stability of our present democracy and that any outcome of the referendum would maintain the strength of our federation. They will only be satisfied regarding the model if in the referendum campaign and before, they are treated as responsible concerned citizens of commonsense and the model is clearly and fully explained and any criticism of it, valid or not, is clearly and fully answered. They will never be satisfied if they are treated as ignorant couch potatoes to be lured into a yes vote by celebrity endorsements and other techniques used to sell soap powders.
The only way the republic issue will be resolved without wasting years in futile wrangling, is if practical steps are initiated to build a national consensus on the model safest for democracy and on the method of deciding the issue safest for federation. If the issue is again immersed in the murky waters of partisan politics nothing will be achieved in a long time. If the leaders on the federation issue, instead of adopting the common objective of seeking the best constitutional structure within which to continue their political contests in future, had divided into freetraders campaigning for one system and protectionists for another, the Australian nation would not have been born when it was. An obvious approach is an all-party committee in the commonwealth parliament with representatives from the state and territory parliaments, to identify the model that would best maintain our democracy, and the best method enabling the people to make their decision without unduly straining the federation.56 The committee should consult a lot with practical people. The model recommended by the majority, and any with minority support, should be described with the detail required by the 1998 constitutional convention, and its supporters give full reasons for favouring it over the other models. All political parties share an interest in preserving the strength of our democracy and federation if we become a republic and the community is entitled to expect this consensus approach from its parliamentarians. Much of our best legislation results from all-party committee reports.
Then the commonwealth and each state (and territory) system could decide which model it would prefer if Australia eliminated the monarchy. It would be practical to hold within each system a plebiscite of its voters upon a model or models described in the detail mentioned above. That would give the commonsense of the people of each system, informed by the committee report, the vital role of showing by the vote public preference within that system. Ascertaining that preference would maximise the prospect of building political consensus on the model that system should have if Australia, in form as well as substance, untied the remaining constitutional tie to Britain. While in reality it is most unlikely to occur, there is no constitutional reason why different systems could not have different models.
Australia usually makes constitutional change with the support of all states. We moved to federation only after all states (then colonies) approved in referendums. Every successful referendum since 1910 has been supported by the overall majority of voters and a majority in every state. The parliamentary committee would be likely to recommend that instead of voting on the commonwealth system alone as in 1999 and risking tensions from the position of dissenting states, weakening the federation, the second referendum be on the whole federation and require support from every state. There could be a single referendum on eliminating the monarchy from the whole federation, with one question to be answered yes or no. Then the systems of the commonwealth and states would each convert at the same time to its preferred model if there were support from an overall majority of Australia's voters and the voting majority and parliament of every state. The support of each state parliament, necessary to enable the whole federation to change together, would be expected to follow as a matter of course if majorities in every state voted yes.57
By that process it would be practicable to make a decision on the constitutional update eliminating the monarchy and providing an Australian head of state, by a referendum in about 2005 on a change that goes no further than make Australia the republican equivalent of our present strong democracy.
Information
The author asserts no copyright in this paper and quotation from or copying and distribution of it is encouraged.
Richard E. McGarvie was Governor of Victoria 1992-7 and is author of the book, Democracy: choosing Australia's republic, 1999, and the republic papers on the website mentioned in the heading of this paper.
The book may be purchased at bookshops or (postage free in Australia) from the publisher by sending name, address and $27.45 (which includes GST) 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).
Endnotes
1 Weekend Australian, 9-10 October 1999, p.8.
2 R.E. McGarvie, Democracy: choosing Australia's republic, Melbourne University Press, Melbourne, 1999, pp. 5-6.
3 John Button, On the Loose, Text Publishing, Melbourne, p. 131.
4 Australian, 2 November 1999, p. 6.
5 Democracy, pp. 36-8, 89-92, 95-100.
6 Ibid., pp. 145-51, 158, 168-77, 183-4, 185-7, 190-201, 224-5.
8 Ibid., pp. 157-62, 170-1, 189-90, 213-6; Constitutional Alteration (Establishment of Republic) 1999, Schedule 1, substituted s. 59; Schedule 3, Transitional provisions, ss. 7 and 8.
10 Herald Sun, 4 November 1999, p. 4. As explained to the author by Newspoll the percentages total 106 instead of 100 because a small proportion of those interviewed were unable to choose one statement and chose more than one. This emphasises the need to treat the preferences shown as approximate only.
11 Australian, 18 August 1999, p. 5.
12 Age, 5 November 1999, p. 12.
13 Morgan Poll, Finding 3054, Bulletin, taken 4-5 February 1998, p.2.
14 Republic Advisory Committee, An Australian Republic: The Options (Malcolm Turnbull, Chairman), Australian Government Publishing Service, Canberra, 1993, vol. 1, p. 39.
15 Brian Galligan, A Federal Republic: Australia's Constitutional System of Government, Cambridge University Press, Melbourne, 1995, p.4.
18 Mike Steketee, 'Let PM choose head of State: Carr', Weekend Australian, 3-4 June 1995, p. 4; Bob Carr, 'Perfectly plausible system sunk by fear of unfamiliar', Sydney Morning Herald, 8 November 1999, p. 14; Michelle Grattan, 'Republic-lite only chance, says Carr', Sydney Morning Herald, 12 June 2000, p. 4.
19 Democracy, pp. 86-7, 207-12, 232, 236.
21 See references in n. 18 above.
22 Democracy, pp. 209, 217-8, 221-4.
24 Ibid., pp. 7, 46-8, 53-61, 264.
25 Ibid., pp. 11-12, 36-8, 42, 61-3, 88-92, 210-12.
26 Ibid., pp. 21-2, 29-30, 63, 216-7, 234.
27 Ibid., p.28: see also p. 32.
28 John Hirst, Discovering Democracy: A Guide to Government and Law in Australia, Curriculum Corporation, Melbourne, 1998, p.42; Dick Morris, The New Prince: Machiavelli Updated for the Twenty-first Century, Renaissance Books, Los Angeles, 1999, ch. 37.
30 John Button, On the Loose, n. 3 above, p. 134.
32 Morgan Poll, Finding No. 2915, taken 1-2 June 1996.
33 Morgan Poll, Finding No. 3054, taken 4-5 February 1998 and partly published in The Bulletin, 17 February 1998, p. 23.
34 The Bulletin, 18 April 2000, p. 27.
35 The Australian, 7 April 2000, p. 5.
36 Gareth Griffith, 'Republican intimations: McGarvie's conservative model', Constitutional Law and Policy Review, vol. 2, November 1999, p. 52.
37 Andrew Scott, Running on Empty: 'Modernising' the British and Australian Labor parties, Pluto Press, Sydney, 2000, p. 196.
38 Michelle Grattan, 'Republic-lite only chance, says Carr', Sydney Morning Herald, 12 June 2000, p. 4.
39 Compare Bob Carr in the second reference in n. 18 above.
40 Australian, 17 August 1999, p.2.
42 Ibid., pp. 7-11, 13-14, 76-82.
44 Ibid., pp. 89-91, 102-10, 169.
46 Ibid., pp. 53, 77-9, 117-9.
49 Ibid., pp. 95-6, 97-8, 108-9, 117-9, 139.
50 Ibid., pp. 26, 64-71, 138-9.
51 Ibid., pp. 144, 145-6, 190-3, 201-2, 205-6.
54 S.A. de Smith, The New Commonwealth and its Constitutions, Stevens & Sons, London, 1964, p. 86.
55 Democracy, pp. 11-13, 92-5, 119, 140-2, 144, 265-6.