Australia is throwing away its life jacket … just how much should we throw away?

The obvious starting point when attempting to define a ‘republic’ is the dictionary. This was the approach taken by the Republic Advisory Committee (RAC), and by most authors who have attempted to provide this necessary starting point for the debate over Australia’s constitutional status. The RAC report cited the Macquarie Dictionary:

Professor Winterton cited instead the Oxford Dictionary:

It would be quite possible to cite hundreds of slightly different dictionary definitions without finding one that uniquely suits the Australia debate. As pointed out in the ARC report Australia already satisfies many of these definitions, as Sovereignty resides in the Houses of Parliament. However issues of Sovereignty, while at the heart of most definitions, are not at the heart of the Australian debate.

Australia’s primary republican motivations are aesthetic. Michael Ward from the Australian Republican Movement cites three major reasons for wanting a republic: identity, unity and democracy. The first two express a desire that the Australian people identify with the symbolic Head of State, and the third he goes on to clarify as an indictment of the hereditary throne. These motives do not express any dissatisfaction with the fundamental system we already have.

"Republic" in the Australian context means a system that creates an office of Head of State which will provide a sense of Australian identity and unity, while preserving our democratic State, and retaining sovereignty essentially as it is. Thus, a good measure of a republican model is how well it preserves the delicate balance of powers established by the Australian Constitution.

0. Our Constitutional Monarchy:

The fundamental precept of the Australian system is "responsible government". Entrenched in s64 is the idea that Ministers must be elected to office in either the House of Representatives, or the Senate. In theory, the Executive is a body whose task is to administer the law created by the legislature. We call Australia a ‘democracy’ because that legislature is elected to enact the will of the people. As executive power is vested in the Queen, the convention follows that the Queen acts only as asked to act.

However the combination of the Party system with this convention leads to a large gap between theory and practice. In choosing the Federal Executive Council, the Governor General selects the senior members of the Party in the majority, who become Ministers The Governor General acts only as asked to act by the Cabinet. Thus executive power (with the exception of the reserve powers) is wielded indirectly by the Prime Minister.

Another follow-on from the Party system is that the legislature is governed by the dictates of Cabinet. As the Prime Minister is the leader of the party with the majority in the House of Representatives, the policy that drives legislation does not come from the members, it comes from the Prime Minister and Cabinet.

Thus executive power (with the exception of the reserve powers) and legislative power have the same source, the Cabinet. Rather than the Executive administering the dictates of Parliament, the Executive is dictating to the Legislature. This trend was recognised by the Chief Justice of Australia, Sir Gerard Brennan:

"If our Constitution continues to deny the Governor General (or a republican President) executive power to be exercised independently of ministerial advice - leaving aside the reserve powers - the question we have to face is whether a concentration of such political power in the hands of a Parliamentary Executive is desirable … there are dangers in maintaining a structure which lends itself to the concentration of political power in the Executive Government. There is a risk of efficiency turning into tyranny."

When creating an office of President we must choose between responsible government, and a President who is sovereign. Australia now has a system somewhere between the Washington and Westminster systems – the executive power effectively lies with the Cabinet who are responsible, and who to some extent wield the power of the Houses of Parliament, however that sovereignty is limited by the Governor General’s reserve powers.

The ‘middle-ground’ reached in the current Constitution preserves two equally important ideals. The reserve powers are governed by convention, and are only exercisable in very precise circumstances. Thus they act as a ceiling to what Parliament, even with its’ Sovereignty, can do. On the other hand it ensures that executive function is regulated because Ministers responsible to the people exercise it. Thus government is constrained in two ways – first it is responsible, and second its’ function is limited by the reserve powers.

The crux of this two-fold limitation is the fact executive power operates within a set of constraints separate from the constraints imposed on the legislature. This is what makes the Australian system different, and this is what a good republican model should preserve.

1. Powers of an elected President:

The differences between the Haydan and Direct Election models are basically aesthetic. They regard nomination procedure, term of office etc. Both models for direct election leave the powers of the President the same as the powers of the Governor General. Non-reserve powers would still effectively reside in the Cabinet, as they are to be exercised only on instruction, and the President would exercise the reserve powers.

So the question pertaining to both of these models is should a popularly elected President exercise the reserve powers? There are a number of concerns about having an elected President who has the power to dismiss the Prime Minister and dissolve the House of Representatives.

By choosing an elected President, we are creating an office that represents the democratic sovereignty of the people. By giving that office the power to remove the Prime Minister it is clear that the President is the ultimate bastion of sovereignty, not the House of Representatives. Thus a model for a directly elected President, even where the House of Representatives can remove that President, makes the exercise of executive power an exercise of Sovereign power.

It is impossible to say that an elected President is more representative of the people than the House of Representatives. Members of the Lower House have much closer contact with their constituency than a President could hope to have. If the criterion for a good model is one which upholds the current system’s ideal that real power resides with the people’s representatives, then on this point any model for a directly elected President must fail.

Another compelling reason to avoid an election model which grants the President the same powers as the Governor General is that those powers have been "often discussed but never defined". If that undefined power "enables the crown to undertake all executive action which is appropriate to the position of the commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution" then future interpretations of this undefined power will be much broader given the fact that the exercise of executive power is now undertaken by someone with a mandate direct from the Australian people, a mandate the same as that from which Lindell thought the Constitution itself gains authority. Thus by granting the same powers as held by the Governor General, the scope for a much broader power is created.

2. Powers of an appointed President:

As argued above, a directly elected Presidency cannot preserve the delicate balance of executive and legislative powers in our Constitution. On that basis the details of nomination for a direct election campaign are not worthy of lengthy discussion. Suffice to say that should Australia turn away from a system of responsible government towards something similar to the Washington system, the Haydan model for nomination represents the only truly democratic alternative. This conclusion is reached largely by default, as Mr Hayden’s model is all that remains after dismissing the alternative proposed by the Direct Election Group.

The Direct Election Model leaves the largest part of choosing the President up to the Parliament. If the aim is to instate a President who will rule over and above the Prime Minister with a true mandate from the Australian people, then that mandate is what the President must have. Allowing as few as three nominations who may each have the support of only a single citizen to stand for election over another who had the potential support of every citizen but three defeats even the illusion of a democratic appointment.

The true debate is between the procedures put forward for the selection of an appointed President. The key distinctions between the bipartisan and McGarvie models are:

1. The composition of the body responsible for compiling a shortlist of candidates.

The Bipartisan model provides that a group representing a cross-section of the Australian community will compile a shortlist of nominations. By contrast the McGarvie model creates a ‘Constitutional Council’ comprised of retired judges, Governors and Governors General. The Constitutional Council, though not explicitly a ‘shortlisting’ body, will effectively restrict the nominations because of the influential status of the people who sit on it. As Mr McGarvie said in debate after presenting his model at the Convention:

A Prime Minister would be very reluctant to face the risk of being counselled by three people who have community respect that a particular person was inappropriate. Ultimately, if the Prime Minister insists, just as is the case with the Queen, the council would be bound to act on the advice, but the Prime Minister would have to accept political responsibility for that. Our history has shown that prime ministers have accepted and have acted with great discretion in exercising that responsibility as the elected head of the elected government.

The Bipartisan model seeks to satisfy the desire for a democratic appointment by creating a supposedly representative committee to sift through all the nominations. There are two primary objections to this approach: (1) the council is not elected and is therefore not in any way representative, and even if it was elected, the same objections would apply as noted above with reference to the election models, and (2) the whole advantage of the appointment models is that the Presidency is not democratic. Seeking to disguise it as a democratic appointment does nothing but weaken the credibility of the position – it becomes either a failed attempt at a democratic election model, or a flawed appointment model.

The McGarvie model on the other hand seeks to give the Prime Minister guidance as to the qualities needed to fill the position. It would appear, in light of the frequent criticism that the courts are ‘out of touch’ with the community, that a better way to provide that guidance would be some more comprehensive eligibility requirements. However, a constitution though created "for a people and for a time" is created to last. Over time the personal characteristics needed to do the job of the Governor General will change, and who better to know those requirements than recently retired Governors?

2. Whether the appointment must have the support of both the Government and the Opposition.

As the basic reason for a push to republic is to create an Australian Head of State who will provide a figurehead, the role of the President should primarily be a symbolic one. However, in removing the Queen from our system, we leave a space to be filled – if our aim is to preserve the checks and balances in the current system, someone must exercise the reserve powers. That obvious candidate is the President.

Therefore the aim of the Presidency is to replace Governor General with someone who has no ties to England’s Crown, and as such provide an Australia figurehead. Many questions about the President’s duties remain, such as who should deal with foreign Heads of State? Our President will be the symbolic leader, however they will not have the power to make commitments on behalf of the Legislature.

We are not hoping for an American President. We want an Australian as Head of State. To preserve the current system, the President must have no governmental function beyond what the Governor General has now. Such a President would have little significance to the Australian people beyond satisfying the desire to take the final step past the Australia Act 1986 and oust the Queen altogether. As this desire is the driving force behind the republican movement, the goal will have been achieved.

If Australia is to become a republic, it should not be by adopting any of the models suggested by the Convention. The models, particularly the McGarvie model, that went into the Convention had numerous positive aspects, as does the resulting Bipartisan model. However in the rush to find something that would attract enough votes from the Convention, crucial issues have been overlooked. The best result can be achieved through a synthesis of the two models suggested for an appointed President, preserving the reserve powers in a non-political Head of State.

The President should be a figurehead, whose role (beyond that of Governor General) should be as a community figure, not a governmental one.