The campaign for an Australian republic is back. Last Wednesday, more than 22 years after its defeat in the 1999 referendum, the Australian Republic Movement launched a new “model”, developed, it says, “through extensive consultation and research.” You can read it here, and you can read the explanation by ARM chair Peter FitzSimons here.
As far as I can tell there was no significance to the date; the announcement seems timed not for any particular anniversary, but just to maximise exposure in a slow news period. In that it was quite successful – the media liked the story and gave it plenty of coverage. Unfortunately for the ARM, most of that coverage was critical.
For examples, see Guy Rundle in Crikey and Corbin Duncan in the channel nine papers. But perhaps the most cutting was yesterday from Malcolm Turnbull, who led the ARM at the time of the referendum. Turnbull said he would vote for the ARM’s proposal if that’s what was on offer. However:
I don’t think it is likely ever to be put to the people, let alone carry the day, if it were, because it will be seen by many to embody the weaknesses of direct election and parliamentary appointment models but the strengths of neither.
And he goes on to carefully explain how either direct or indirect election of a president can be made to work, but that “what won’t work is another referendum where the republicans are fighting on two fronts; against the supporters of the status quo and among themselves on which model is preferred.”
As I and others have been saying for 25 years, making the decision on a republic via just a single referendum isn’t going to work. We need an advisory plebiscite of some kind first to sort out some of the issues: either a republic vs monarchy question, or, as Turnbull suggests, a vote on direct vs indirect election. (Or both – there’s no reason you can’t have two questions on the same ballot.)
If the majority vote to keep the monarchy, we can save ourselves the trouble of pursuing the matter any further. But if they support a particular republic in principle, we can then put in the real work of refining it into a shape that’s ready for a referendum on actual constitutional change.
My personal view is that the choice between direct and indirect election is very much a second-order issue. If you look at well-functioning parliamentary republics throughout the world there is a mixture of the two, and much the same sort of people get chosen as presidents in both. I see no reason to think that Australia would be any different. The basic contradiction in the ARM’s proposal is that it claims to know what sort of president Australians want, but at the same time doesn’t trust them to actually make that choice in an election.
But that’s not the only problem. In addition to its half-hearted embrace of direct election, the ARM also proposes another major departure from the 1999 model: it wants to codify some of the reserve powers of the president.
In 1999 the proposal was simply that the president would inherit the position and powers of the governor-general, with a slightly improved security of tenure. At the time, that could have been seen (and was presented by the monarchists) as something of a threat; the governor-general’s powers on paper are very broad, and the conventions of responsible government by which they are constrained are mostly unwritten.
Since then, however, we have the British supreme court decision in Miller/Cherry in 2019 (the Brexit prorogation case). That made it clear, in reasoning that would almost certainly be followed in Australia, that the courts would enforce the unwritten conventions of the constitution. That doesn’t mean codification is a bad idea, but it deprives it of some of its urgency.
Sure enough, in trying to produce a quick user-friendly codification of reserve powers, the ARM has done a bad job. It says that its model “prohibits a Head of State from terminating the appointment of a Prime Minister who retains the confidence of the House [of Representatives].” That’s an attempt to lock in a particular interpretation of the crisis of 1975, and it has the usual problems of doing constitutional law in the light of partisan politics.
Labor’s partisans started from the (perfectly defensible) position that John Kerr’s actions in 1975 were unjustified, and proceeded to construct a constitutional theory around it – a theory that would rule out any repeat of the dismissal, but would also rule out any removal of a government, no matter how illegally it might be acting, provided it maintained its majority in the House of Representatives.
In many parliamentary systems that would not be a major problem. Governments are coalitions, party discipline is relatively lax, so bringing down a rogue government on the floor of parliament is not such a challenge. In Australia, with single-member electorates and tight party discipline, things are rather different. At the very least, the issue needs more thought than the ARM seems to have given it.