Keith Jones Memorial Oration for 1997, Mentone Grammar School, 16 May 1997
It is good for the Australian community to remember the heroes and heroines of its past. The dictionary reminds us that they are people of distinguished courage or performance admired for their noble qualities. While those qualities may be displayed at a dramatic moment they may also be displayed by years of constant but outstanding contribution to the welfare of the community. Keith Jones was such a hero.Educated in Sydney at Fort Street High School, he graduated from the University of Sydney with first class honours in History in 1949. He taught history at Barker College, Hornsby before commencing his twenty-seven years as Headmaster of Mentone Grammar School. He died in 1988 a few weeks after retirement. Guided by the conviction that the future of the youth of this country and indeed, of the country itself, can only be secured by insistence on the highest standards in all phases of education, he became one of Australia's great Headmasters.
He served education in many fields. He was three times Chairman of Associated Grammar Schools of Victoria, a member of the ABC's Education Advisory Committee, of the Senate of the University of Sydney, and of the Faculty of Education Board, University of Melbourne.
Before leaving education I mention that in the five years that I was Governor my wife and I visited numerous schools throughout Victoria, State, Independent and Catholic. What we saw built an enormous admiration for what the teaching profession is doing.
Governorship Future
In turning to the future of governorship my message is that it has a good future. As Professor Brian Galligan, Professor of Political Science at the University of Melbourne, has reminded us, the office of Governor, the oldest part of the machinery of government in Australia is the part that has gone through the greatest evolutionary change in developing its distinctly Australian character to serve this country's needs. The office has changed from its autocracy in 1788 when Governor Phillip arrived with the First Fleet as Governor of New South Wales, to the present position where the Governor-General and Governors are the foremost to serve, support and strengthen our system of democracy.
If we remain a monarchy obviously those offices will remain. I am confident that if Australians decide to become a republic, before they do, they will insist on taking the debate below the surface level to which it has largely confined itself so far in the fairly emotional contest whether in general principle a monarchy or a republic is preferable. Australians have been very astute and very successful, politically and constitutionally. They have built one of the oldest, most stable and successful democracies in the world. They will not decide to change to a republic without taking the debate to a depth where the living realities of the dynamics of our system which give and safeguard that good democracy are investigated. They will only change to a republican system which will preserve our present democracy with all its strengths and safeguards. Of the models for becoming a republic which have been propounded so far, the one which will do that involves continuing the offices of Governor-General and Governor and taking the two centuries of their evolution the small distance further that would make us a republic.
I take no side in the debate whether we should become a republic or remain a monarchy. I regard the retention of our democracy as the paramount consideration.
I am glad to address an audience including so many students whose stake in the outcome of that debate is as immense as is their potential to influence that outcome.
I turn to describe the model which would give us a securely democratic republic.
Change to Democratic Republic
I outline the one structural change of substance necessary to patriate the remaining powers of head of state of Australia to the Governor-General. It involves the creation under the Australian Constitution of a Constitutional Council to perform in substitution for the Queen the one constitutional duty the Queen now performs. That duty is to act on the advice of the Prime Minister and appoint as Governor-General the person chosen by the Prime Minister for that office and, again on the advice of the Prime Minister, to dismiss a Governor-General from office.
The Constitutional Council will do no more and no less than the Queen does now, will do it in the same way as the Queen does, and, like the Queen, will have no decision-making power but will always appoint or dismiss a Governor-General as advised by the Prime Minister. That does not involve adding anything to our constitutional structures or processes because the Constitutional Council exactly substitutes for the one current constitutional function of the Queen.
The other main changes in my proposal of a safe way to go to a republic, should Australia decide to do so, involve constitutional changes of a legal nature but no operational change. As the de facto head of state of Australia the Governor-General has for many years exercised the powers of head of state on the advice of Australian Ministers. I propose that the Governor-General be made the actual head of state of the Commonwealth of Australia and such of the powers of head of state as are now the Queen's rather than the Governor-General's be transferred to the Governor-General. The powers and functions of head of state will then all belong to the Governor-General who will continue to exercise them in the same way as now. The Queen will have no constitutional powers or duties in respect of Australia. Her relationship with Australia as head of the Commonwealth of Nations will continue in the same way as it does with other member countries, whether monarchies or republics.
On the making of similar changes for the States and the Northern Territory, Australia will become entirely a republic. Then each Governor of a State will become its actual head of state, the State will have its own Constitutional Council and the remaining powers of the Queen in respect of the State will be patriated to the Governor who will continue to exercise them in the same way as now.
In creating a republic in this way by adopting the republican equivalent of our present system, we will be maintaining, with all their strengths, the safeguards that ensure the basic constitutional convention that binds heads of state to exercise their great powers on the advice of elected Ministers will continue to bind. That convention is the linkage on which our democracy depends. It ensures that the many powers at the heart of our system which our Constitution gives the head of state are exercised responsively to the decisions of the community in elections.
The vital strength of the system I propose is that, unlike the models for a republican President elected by Parliament or the electorate, it continues unimpaired the sanction of dismissal for breach of that convention. That sanction is crucial to our democracy because a convention is not a law which can be enforced by the courts. A constitutional convention is a constitutional custom so uniformly followed and expected to be followed as to create a sense of clear obligation, and backed by so effective a sanction as to be binding in practice though not in law.
Constitutional Council
The three members of the Constitutional Council will be selected automatically by constitutional formula. No one will select them. The Commonwealth Constitution will provide that they be persons retired from non-political, constitutional positions of trust, aged from 65 to 79 and willing and able to serve. First preference will go to retired Governors-General with priority to those most recently retired. Then to retired State Governors on the same basis. Priority in filling any remaining places will go in turn to retired High Court Chief Justices, High Court Judges, Federal Court Chief Justices, and Federal Court Judges in the same way. For example the members might be two retired Governors-General and a retired Governor.
At present under that formula it is unlikely that a woman would be a member of the Constitutional Council. There should be someone from the female half of the community on the Council which will obviously have a place of symbolic high standing within the community. The problem exists because usually in the past women have not had equal opportunities with men to reach the positions their merits deserved. That is changing and there is not likely to be any real problem in thirty years' time. There will be a constitutional provision to operate for only thirty years that if no woman occupies either of the first two places, the third place be taken by the woman with the highest priority under the constitutional formula for members of the Council.
There is advantage in the members of the Constitutional Council being persons who have retired from the high constitutional offices mentioned above. They will be persons accustomed to performing constitutional duties impartially on behalf of the whole community. They will have held the type of offices which Australian practice has regarded as fitting people in the absence of a Governor-General or Governor to stand in temporarily and exercise their powers. Thus in the absence of the Governor-General the senior State Governor usually exercises the powers. In the States the usual position is similar to that under the Victorian Constitution where, in the absence of the Governor and Lieutenant-Governor, the powers are exercised by the Chief Justice or the most senior Supreme Court judge who is available.
It is prudent practice to have essential constitutional duties performed by persons in or retired from offices which are brought into existence by a constitution. In making a constitutional amendment it has to be borne in mind that it is likely to remain in operation for a century or more. During that time there will be great changes in the community's attitudes, practices and organisations. Positions created outside the constitution might cease to exist or be filled. If essential constitutional duties were to be performed by people in or retired from such positions, this would leave a gap in the constitutional machinery. There would be no certainty that there would be sufficient consensus to allow the gap to be filled by a new mechanism introduced by constitutional amendment through referendum. That is a problem which underlies suggestions that constitutional functions be performed by those who are Companions of the Order of Australia. While that order has wide support now, history shows that systems for the award of honours do change.
If Australia decides to become a republic by adopting my proposal for a republican equivalent of the present system, there would be the highest prospect that all the high constitutional offices mentioned above will continue for the foreseeable future. They are basic components of the system.
Members of the Constitutional Council will be retired people within the proposed age range to avoid the conflict of interest or function which could arise if they were still in their offices, to have people who are likely to be free of any motivation arising from a desire to obtain further employment or office, and to impose an upper age limit.
I mention briefly some of the working details of the Constitutional Council. Membership will be open to those who have retired from the offices but not to those dismissed or removed. The serving Chief Justice of the High Court will have a constitutional responsibility to maintain an authoritative up-to-date register of the current members of the Council and the next three eligible persons entitled to serve in the event of a vacancy or absence. This will involve no exercise of discretion by the Chief Justice. It will involve only the recordings of findings of fact as to eligibility to serve if willing and able. The High Court will have jurisdiction to declare ineligible to serve on the Council a person unfit to serve because of misbehaviour or incapacity.
Those who are members of the Constitutional Council at the time it receives advice will continue as the members until the Council acts on the advice of the Prime Minister to appoint or dismiss a Governor-General. That will prevent the disruption that would occur if a retirement from office after the advice was given, gave the retiree a higher priority to membership of the Council than one or more of those who were members at the time the advice was received. The Council could act by a majority of two members. The only payment the members of the Council will receive is a specified lump sum in respect of each occasion when they receive advice from the Prime Minister to appoint or dismiss a Governor-General. The members of the Council will never rank in precedence as high as the Governor-General.
Convention Binding Constitutional Council
The Constitution will by express statement bind the members of the Constitutional Council to act in accordance with the same convention as now binds the Queen to act on the Prime Minister's advice. While entitled to counsel the Prime Minister against advice to make an inappropriate appointment or dismissal, if the Prime Minister insists they will be bound to act as advised, within a reasonable time. The Constitution will not permit the courts to investigate or enforce compliance with the convention. In other words, the exercise by the Constitutional Council of its constitutional function of appointing or dismissing a Governor-General will not be justiciable by the courts. The exercise of that function by the Queen is not justiciable now.
The convention to appoint or dismiss as the Prime Minister advises will bind members of the Council in practice though unenforceable in law. Being stated in the Constitution it will create a sense of clear obligation. It will be backed by an effective sanction. The Prime Minister will have a right to choose to give written advice to the Council to make the appointment or dismissal within fourteen days. Then, unless within that time either the Prime Minister withdraws the advice or the Council makes the appointment or dismissal, the three members themselves will automatically be dismissed and no longer eligible to serve on the Council. Their places would be taken by the three next in line of priority.
It is extremely unlikely that members of the Council, having held high constitutional office and with a natural concern to preserve their reputations, would ever defy the convention clearly stated in the Constitution to bind them. If they were ever tempted to do so, the prospect of humiliation and loss of reputation involved in public dismissal for breach of a clear constitutional obligation would be a very effective sanction indeed. Having a practical sanction rather than a legal sanction is much more effective. It keeps the courts out of the political process and that is most desirable.
Articulated Process
It is important to give full weight to the advantage of having appointments and dismissals of Governors-General made by the Constitutional Council as part of an articulated process. In that articulated process the effective decision upon appointment or dismissal is made by the Prime Minister and the legal and constitutional power to appoint or dismiss is exercised by the Constitutional Council on the Prime Minister's advice.
A Prime Minister advising the appointment of a Governor-General will know that the advice will be scrutinised carefully by the Constitutional Council which could ask the Prime Minister to show that the appointment is appropriate and could counsel against it if not satisfied of that. This is not a prospect any Prime Minister would relish. Because Prime Ministers know that their reputation with the community and with history will be affected significantly by the assessment made of the quality of person the Prime Minister chooses, good choices are usually made. It is an additional incentive for the Prime Minister to know that an inappropriate choice is likely to encounter counselling and adverse comment from a body of high standing and reputation such as the Council.
Actual appointment by a body such as the Constitutional Council places the Governor-General in a position which enhances the capacity to perform the duties of that office. Although the effective decision has been made by a political leader, the Prime Minister, appointment by a non-partisan Constitutional Council emphasises the non-partisan nature of the office of Governor-General. In almost all that a Governor-General does, influence rather than effective power is exercised. An aura of high community standing and respect comes to a Governor-General through appointment by a person or persons with high community standing and respect. That aura which currently comes from appointment by the Queen would in the republican equivalent system come from appointment by the Constitutional Council. A Governor-General with that aura is the better able to exercise influence in the community interest.
In respect of the dismissal of a Governor-General the articulated process is of particular importance. Because of what we have learnt from the events of 1975 I am confident that never again will a Prime Minister or Premier be dismissed by a Governor-General or Governor without ample warning that such a course might become necessary. Avoidance of that situation depends on there being the time and room to manoeuvre which the articulated system gives. That is a topic of its own which I do not seek to expound here.
Maintaining the Basic Constitutional Convention
The basic constitutional convention which binds Governor-General and Governor to exercise powers as advised by elected Ministers will be as securely binding under the republican equivalent system as it has been for years in our present system. For convenience I deal with the position of the Governor-General.
The Prime Minister alone will still select a new Governor-General. When a selected person agrees to serve, an informal arrangement will be made with the Prime Minister to serve for a period, usually five years. The Prime Minister will then advise the Constitutional Council, instead of the Queen as now, to appoint the person Governor-General. The Council is entitled to counsel the Prime Minister against an unsuitable appointment but, if the Prime Minister insists, is bound by the convention stated in the Constitution to make the appointment. The appointment will be made and the Prime Minister in announcing it will say, as occurs now, that the new Governor-General will serve for five years or whatever period has been arranged.
The appointment by the Constitutional Council will still be an appointment 'at pleasure'. That means that at any time if the Prime Minister advised that the Governor-General be dismissed the Constitutional Council will be bound to do so. Again there would be the opportunity of counselling the Prime Minister against an inappropriate dismissal but if insisted on, the Constitutional Council would be bound to dismiss within fourteen days of written advice to do so.
The Governor-General will have no legal right to serve for the arranged period because the informal arrangement has no force in law and could not be enforced in a court. The realities of politics will make the Governor-General's position secure because the community regard the Governor-General, who is central to their system of government, as belonging to them, not to the Prime Minister. A Prime Minister having a Governor-General dismissed whom the community regarded as complying with the constitutional conventions and meeting the standards it expected, would encounter an immense adverse political reaction. A Governor-General knows that while in theory dismissal is possible, in reality his or her service will last for the arranged period so long as the expected conventions and standards are satisfied. In Australia no Governor-General or Governor has been dismissed during the arranged period over the last eighty years.
The Governor-General will also know that if he or she does not comply with the basic constitutional convention, the Prime Minister, who has the greatest interest in having it complied with, will advise the Constitutional Council to dismiss the Governor-General. Within a couple of weeks or so the Governor-General would be dismissed with public approval and great loss of reputation. That sanction will continue to keep the basic constitutional convention on which our democracy depends firmly binding.
For reasons which I outlined in the paper 'Our Democracy in Peril' which I released to the media on Mayday, the models for a republican President elected by Parliament or the electorate would deprive the basic constitutional convention of its binding force. That is because in those models the President can only be dismissed by resolution of a two-thirds majority of a joint sitting of both Houses of Parliament. In the living realities of Australian political culture the President would usually not be dismissible. The sanction of dismissal for breach of the basic constitutional convention which now gives it binding force would evaporate. Without that convention having effective binding force our democracy would unravel.
Conclusion
These circumstances make me confident that Australians, when they have carefully considered the issue, will either decide to keep the present monarchic system or will decide to adopt the republican equivalent of the present system which I propose. Either way the offices of Governor-General and Governor will continue. Australians will never choose to become a republic by adopting models that would destroy our valued democracy.