Debating the republic, again

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.

7 thoughts on “Debating the republic, again

  1. As Gough Whitlam points out here, https://whitlamdismissal.com/2000/11/11/constitutional-changes-after-1975.html , much scaremongering was made in 1999 about how the PM could have sacked a President but under our current system, the PM can also sack a GG (and, indeed, a state Premier, a governor) for any reason or no reason. The Queen would follow the advice of her PM as is proper for a constitutional monarch, even when that advice is bad.

    Like

    1. Thanks Patricia – Yes, that’s quite right; under the present system the governor-general has no security of tenure at all. I think it’s fair to criticise the 1999 proposal for not solving that problem as well as it might have, but it certainly didn’t make it any worse.

      Like

  2. Charles, if i may raise this issue, please – it may have been lopsided but the last WA state election was democratic, however i am very unnerved that WA Labor has not taken the initative to do what Bonn did in 1949 and put in safegards to prevent a smarter and more evil WA version of Sir Joh, let alone a WA right winger doing a NSDAP type “legalite” strategy, to legally or constitutionally cripple or end democracy.

    Like

  3. The 1998 Constitutional Convention recommended minimal change to our system of government. The Convention simply sought to replace the Queen and Governor-General with a President. As a consequence, it recommended dismissal processes for the President which are essentially the same as those which currently apply to the Governor-General.

    Currently the Governor-General serves at the Queen’s pleasure. He or she has no tenure of employment and can be dismissed by the Queen at any time without reason. Under the Westminster conventions of responsible government, the Queen is bound to follow the Prime Minister’s advice in respect of the Governor-General’s appointment. If the Prime Minister wants to dismiss the Governor-General, the Queen must do it. By convention, she has no choice. In effect, the Prime Minister can already dismiss the Governor-General, instantly, for no reason at all. The Governor-General serves at the Prime Minister’s pleasure and can be dismissed upon his displeasure.

    Having said that, it should be noted that in Australia’s history no Governor-General has been summarily dismissed. There is no reason to seriously suggest that when the Queen and the Governor-General are replaced by a President, there will be a change to the practice to date. Presidents can reasonably expect to serve full terms just as the Governors-General before them, if for no other reason than the political consequences for summarily dismissing a President.

    The 1999 claim that, for example, “the normal checks and balances of the Senate are missing in the dismissal model”, fails to mention that such checks and balances are missing in the current system. However, the proposed model did have a feature absent from the current system; the House of Representatives must endorse the Prime Minister’s decision to dismiss. If they do not, it would be a vote of no confidence in the Prime Minister, and under the Westminster conventions the Prime Minister should resign.

    Some claim that the requirement for the Prime Minister to affect dismissal through the Queen introduces an element of delay, whereas the proposed dismissal arrangements would be instantaneous. However, Paul Kelly notes that in 1975 the then Governor-General acted secretly in his plan to dismiss the then Prime Minister because he feared that the Prime Minister could have initiated and won a competitive dismissal contest. In other words, the Governor-General feared that the advice from the Prime Minister to the Queen recommending the Governor-General’s dismissal could be tendered and acted upon immediately. This fear demonstrates that there is no guarantee of a delay in a dismissal under the current arrangements.

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.