Thoughts on the republic question.
Russell Degnan

Being rather agnostic on whether Australia actually becomes a republic or not, I tend to shy away from debates on the issue. But as the slow train of republican movement gets shunted out of the Howard government holding yard, and winds itself up for another referendum, I think it is worth noting a few things.

The vexed question is invariably the model proposed, seeing as it needs to be both robust in times of stress (when traditionally, constitutions fall by the wayside faster than you can say "right to a fair trial"), and workable in the day to day grind of government. But I also can't help but think that, as amusing an exercise it is for constitutional lawyers and advocates, we are somewhat over-thinking the issue.

Note, for instance, the key phrase on how the current governor-general is appointed, and their place under the constitution:

2. A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.

From which two things should be noted. Firstly, that there is a separation between the offices of the Queen and the Governor-General. While the latter is a representative, when it comes to questions over what happens when some future President and some future Prime Minister seek to simultaneously remove each other from office, the constitution neatly sidesteps the issue by placing it before the Queen. Moreover, from a republican perspective, the goal is in fact to remove the office of the Queen, not the Governor-General, and that many of the problems arising from a constitutional rewrite stem from trying to conflate the two together.

Though much pronounced sentiment revolves around the need for an "Australian Head of State", we could leave the office of Governor-general "as-is" and still achieve that goal. The issue is finding a suitable replacement for the Queen, a person (or body) whose primary role is to be permanent, above politics (at least in modern times), and able (presumably, though it has never come up) to use sound judgement in the resolution of any crisis between the executive and parliament.

Permanent apolitical bodies are thin on the ground in Australia. We could, and it has even been proposed, appoint one, but it is perceived as elitist, and in any case, only removes by one step the problem of appointment. The High Court could serve, but perhaps it is unwise to mix constitutional interpretation with constitutional action.

Australia's Federalist tradition offers an alternative however. Each State has their own, appointed, apolitical Governor, the most senior of which deputises for the Governor-General already. Replacing the Queen with the governors, constituted as a council from which a two-thirds majority was needed to appoint or replace the Governor-General, would provide a solution to replacing the Queen, while maintaining the office of the Governor-General above politics. The question then only becomes, what means must they use to "appoint"?


This brings up the second point of note from the constitution above. The question of method is nowhere to be seen. The Queen "appoints" the Governor-General. The method, be it directly from the Queen, or as is now convention, by recommendation of the Prime Minister, is elsewhere proscribed, much as the details for election to Parliament are left for the Electoral Act. Surprising as this seems, we could choose to elect our Governor-General as of tomorrow (republic or no), through an act of Parliament that constrains the appointment.

The minimalist position that we should become a republic and work out the details is, at least on this question, correct. It need not be considered amongst the constitutional changes, provided the constitutional changes mirror the existing system whereby that permanent, apolitical body officially "appoints" the Governor-General.


Thus, while the eventual republic model will matter, in the sense that it redistributes powers and mandates, it need not actually specify the method of appointment for the head of state. The 1999 model did, and was ultimately rejected on those grounds. Future proposals may too, and Paul Norton may be correct that they too will be rejected, should they fail to take heed of the voters will.

The role of the head of state, and whether that head should be elected is one that may not resolve itself either during or after the republic debate. I am sympathetic to the argument that an elected head would receive a mandate from the Australian people, and therefore, have the potential to over-step their bounds as figure-head and become what they effectively are: the head of the executive.

I am less sure of whether this, in itself, is a bad thing. Granted, it is different to our current arrangements, but it could not be further from the truth, to say it is contrary to the Westminster System itself. That system, arguably, has been pushed out of kilter, by changes to the democratic mandate over the course of the 20th century. The idea of a "States House" was still-born, but has shifted (everywhere) from the conservative bulwark that characterised the House of Lords and Victorian Legislative Council, into the true democratic heart of Parliament, the other place being mostly a staging ground for political manoeuvring and show-boating.

Similarly, the monarch of the 17th and 18th centuries, and even the Governor of the mid-19th centuries, maintained a degree of power - the former by convention and control of the military (though not spending), the latter by colonial fiat - that off-set complete control of the executive by the Parliamentary majority (in those days, a fluid and unstable majority).

While most people shy away from an American Presidential system, there is merit in having more than one source of power and influence. Our current party-based malaise works against the generation of new ideas in Parliament, and it may be worthwhile to provide that extra check against control of both houses. Unlike the American system, the requirement that the executive be drawn from Parliament, would act to curb the more powerful Presidential impulses of the American system (as would Parliamentary control over the terms of election). If the President chose to exercise their power to appoint and sack ministers it could radically change Parliament, creating an arena of discourse more closely aligned with that of the 19th century than the controlled spectacle it has become.


Which is not to say I think an elected head of state is a good thing. Merely that if we are going to consider it, that consideration should be done outside the bounds of a sentimentally inclined republic debate; and that supporters of the minimalist, Republic-now-Election-later school of thought need to be more clear with both what they mean by "Republic now" in terms of constitutional change, and what they hope to achieve by "Election later" in terms of radically shifting our existing balance of powers.

Sterner Matters 18th April, 2008 15:42:54   [#] 

Comments

Thoughts on the republic question.
Good post Russell. Very thought provoking and some lateral thinking. The public will only say yes in a referendum if they have a say in who is appointed and then it becomes a popular contest. The positions of GG and his/hers state henchmen/women could be maintained if the connection to English sovereignty could be cut. Symbols, such as the Union Jack on our flag, should be removed forthwith. If monarchists hold sway for long enough, the living memory of GG Kerr will die, and maybe the demand will dissipate. But probably now, 35% of the population feel hatred towards Kerr and what he did, regardless of the whether the Whitlam government was right or wrong. Personally, because the Queen can sack out governments via her GGs, I reckon we should be a republic. And please no one say that she did not know nor approve.
Andrew  18th April, 2008 21:38:07  

Thoughts on the republic question.
Thanks Andrew,

I don't think demand will dissipate. If anything, it is stronger amongst people who don't remember what the 'reserve powers' of the Governor General entail.

I fear you are right though, that there is an expectation that the republic will produce a 'popular' head of state. Though I also think there are enough people who worry that a popular head of state will be a political head of state (including most politicians) for even a direct election model to have trouble in a referendum.
Russ  21st April, 2008 19:54:48