*Pic: An iconic moment in Australian history … PM Gough Whitlam waves to the crowd outside old Parliament House after his dismissal …
We need an Australian head of state but not a republic or a president. A republic is headed by a president with political power, often a great deal. But democratic theory tells us those who exercise political power should be elected by the people and common sense reminds us that such elections are inherently divisive.
This is a fundamental departure from the Westminster system where the head of state has no political power. There is no political power because the role of this office is to unite, not divide, the nation. This neutrality makes it possible for the head of state to exercise a unique quasi-judicial power, which is to act as a constitutional umpire when disputes arise over the right to govern the nation.
There is a growing sense that Australia should sever the link with the British Crown when the Queen’s reign ends. With premiers and party leaders in support, there has been a pro-republic media buzz in recent times, at least until the Prime Minister, mindful of past efforts, insisted the next move come from the grass roots. This is unlikely, however, unless and until the grassroots have a better understanding of the difference between the president of a republic and the head of state of a constitutional monarchy.
For the media and most politicians have repeatedly framed the debate in an unnecessarily confusing way – as a choice between keeping the present system of representative democracy and ‘becoming a republic’ headed by a president. This immediately raises the question of how to appoint the president, and it is on this rock that the 1999 referendum foundered, with 55% against, and 45% in favour. This was despite polls showing most people had supported the move for some years. As it turned out, they were opposed to, or suspicious of, ceding this power to a party in government, or even a two-thirds majority of Parliament – the compromise offered in the referendum.
One can hardly blame the public for wanting to elect the President, even before a republic is considered. Everyone saw how this quasi-judicial power could be abused when John Kerr dismissed the Whitlam government in 1975. But many voters would have been anxious or sceptical or at best confused, since it was never clear how the ‘republic’ would differ from the present system of constitutional democracy, despite the emphasis on a ‘minimalist’ model.
That uncertainty, arguably compounded by a sense of frustration at not being allowed to vote for the President, made it easy to ignore the fact that there has never been serious debate about electing the Governor-General, much less an Australian-born monarch.
There was also the Howard decision to put two questions. The first asked if Australia should become a republic with a President appointed by Parliament; the second asked if the Constitution should include a preamble to highlight Australian values. But it read like a motherhood statement devised by media advisers for a marketing campaign – no one uncertain about the new model of government would have found it reassuring.
However that may be, because the President’s role was not clear, few members of the public understood the difference between a President with executive power, as in France or the USA, and a Governor-General acting as a constitutional umpire in the Westminster tradition. To appreciate this, we need to recall the unique role of this office, a tribute to the genius of a system which has evolved over centuries of British constitutional history.
The essence of this role is seen in a governor’s routine duties, which include celebrating contributions by citizens and organisations to the public life of the community. In doing so he or she symbolises the civic virtues which unite, rather than divide, a nation. The office commands public respect for this reason and because it transcends divisions which define the political life of the community and the competing interests of parties. Over time this respect and public support helps to discourage abuse of power by those in government.
The office also represents government in its official relations with other nations and their representatives. It plays a central role in the protocols of courtesy which guide these relations, regardless of who is in power. Both roles call for a non-political stance which is why, when the Governor feels the need to comment on matters of public concern, the appeal is to ideals we share and virtues we admire – rarely to the policies which do, or do not, give them effect.
But a governor or governor-general in the Westminster tradition remains a servant of the government and must carry out the duties and functions, and read the speeches, as instructed by a Premier or Prime Minister. He or she has no executive or political power whatsoever. There is, however, one seeming exception, which also goes to the heart of the office, and may explain some of the apprehension and confusion which the 1999 referendum gave rise to.
The exception is the role of this office as constitutional umpire in a Westminster system. He or she is the servant of government on all matters other than the question of who is entitled to hold the office of Prime Minister and thus exercise the power of government. That question arises whenever the result of a general election is unclear and whenever the right to govern is disputed because there is a vote of no-confidence in the lower House or a refusal to grant supply.
We saw this power abused in 1975 when John Kerr, for reasons which have been canvassed ever since, pre-empted a developing constitutional crisis by dismissing Gough Whitlam before the issue of supply was considered by the Senate and several days before the time for a vote expired, when it was unclear if the Liberal -Country Party coalition would hold ranks. The experience saw a long-running debate over the so-called ‘reserve’ powers, which reflect constitutional principles arrived at during the long and complex struggle between the British crown and elected government.
In taking sides on this issue, and on the wisdom of ‘becoming a republic’, we need to weigh the value of the present system when the risk of abuse comes from unscrupulous or strong-minded politicians rather than from misuse of the power of a head of state. In the 1989 Tasmanian election then Premier Robyn Gray, having lost a majority in the lower House but with more seats than any other party, refused to resign and asked the Governor, Sir Phillip Bennett, to call another election. He wanted to stop Labor taking office in a ‘balance of power’ deal with the Tasmanian Greens.
Bennett refused to accept his advice, believing Gray had lost the support of the House and was no longer in a position to ask for a dissolution. But when the new parliament rejected Gray’s choice of Speaker, he realized he could not survive a vote of no confidence and sensibly resigned. But he had fought hard to hold on to power and, with his Attorney-General, sought to procure opinions from mainland counsel and academics who might back his advice to the Governor.
The three opinions he secured were very expensive but have never been made public. They could, however, be read by those with a professional interest at the discretion of the State Librarian subject to no photo-copying. They should be studied by all students of constitutional law because they help clarify a distinction which is often overlooked in political conflicts. This is the difference between an opinion by counsel defending government, and an opinion by a judge or senior counsel to settle a dispute. The former may put arguments they believe a court might accept, but the latter must give the advice he or she finds compelling, after weighing the arguments on both sides.
None of this is likely to influence those who want Australia to be a republic with an elected President, presumably with the authority to defend constitutional principles against charismatic and intimidating political leaders. We would, however, be better off if we retain the office and title of Governor-General just as it is – with the interpretation of reserve powers left to her or his judgment, mostly well-understood but not precisely or comprehensively spelled out.
This is a brief sketch of why Australia should not ‘become a ‘republic’, but stick to the familiar concept of a constitutional democracy, retaining the office of Governor-General as Head of State. A central part of this case is the need for an independent umpire to resolve constitutional crises in a timely and decisive way, instead of months of uncertainty dragging matters through the courts and inflaming tensions. The system is not perfect but at least the risks are well understood.
On this issue it helps to look at the US ‘republic’ where the President has executive power and Congress exclusive legislative power. Because both are elected by the people we end up with two constitutional expressions of the popular will, often in opposition. It invites meaningless academic debates based on false dichotomies, such as whether America is a republic or a democracy – clearly it is both.
More seriously, it has seen the Obama administration paralysed for months at a time when Republicans refuse to pass legislation for which it can reasonably claim a mandate. This break down, a result of the US doctrine of ‘separation of powers’, is exacerbated by the Citizen’s United Case, which allows members of Congress to be bought and sold on the open market, so long as there is no corrupt ‘deal’. This commodification of political power (and the need for protection against vicious media attacks) helps explain why almost all Republicans and many Democrats accept funding from the National Rifle Association.
The French Republic is different, and complex. The President, directly elected by the people, is executive head of state and Commander-in-Chief of the armed forces, with extensive powers over both defence and national security. He or she also appoints the Prime Minister, but has no power of dismissal. There are, however, special powers to dissolve the National Assembly, to require review of proposed legislation, to pardon criminals and order use of nuclear weapons. The Prime Minister, who in practice needs the support of the Assembly, carries on the business of government and the passage of legislation.
These examples illustrate the complexity of choice in any proposal to ‘become a republic’ with an elected president, and why national constitutions take years to draft, decades to repair and perhaps centuries to mature. It is a rare example of the wisdom of Edmund Burke’s conservative philosophy, and the case for incremental progress rather than radical change.
They suggest Australia should not experiment with a model which gives significant political power to a president or indeed any reason to suppose he or she represents the will of the people. This idea is clearly alien to the office and role of Governor-General under the Westminster system.
All of which argues for a simple verbal formula to cut the link with Royalty and leave the Governor-General as Head of State not just in fact but in constitutional theory. And if the case in favour of an elected Head is to avoid corruption of this office, we must ask why no one seriously argues we should elect High Court judges. Judges are not elected to represent the people – their job is to interpret and enforce the law made by the peoples’ elected representatives.
The analogy is actually very close because, as discussed above, the only real power a Governor-General has is a rarely-used quasi-judicial power to interpret and if necessary act on those principles of constitutional law which define the right to rule.
In conclusion, we do not need to choose between a ‘republic’ and a constitutional monarchy. America, France, Germany and Italy are republics with presidents having political power. The UK, Australia, Canada and New Zealand are constitutional monarchies with a head of state with no political power. But all these are constitutional democracies, including the UK, which has no written constitution. If we make this change Australia will simply be a constitutional democracy but without a president or a royal family.
*Max Atkinson is a former teacher at the University of Tasmania Law School with interests in legal theory and and international law.
Karl Stevens
February 26, 2016 at 09:42
With a glorious European history, such as the forced deportation of 75,000 convicts to Tasmania and the near complete ‘genocide’ of the indigenous first Tasmanians, why would we change anything?
phill Parsons
February 26, 2016 at 12:27
As a construct the law in Australia remains strong but in the end State power is triumphant although it usually finds itself in conflict with the wishes of the voters right or wrong after some time has passed.
It is why we have elections to allow that to vent. Constructing and legislating a republic to avoid pitfalls cannot be beyond out wit.
However, whilst the Australian people continue to want a fourth umpire, a President with power over the government I cannot agree to a change.
Expectations would arise with a process that reflected the current partisan political one with elections contested by personalities.
Appointing and dismissing a buffer to office by government is only a shallow reflection of the current system without the constraints.
I want a Republic with a ballot so any Australian could serve provided they pass the test of knowledge and of the people without any campaign, just a simple postal ballot provided they have passed the knowledge. 6 candidates should be enough to elect one from with a defined purely ceremonial role.
Otherwise the President would be drawn into the day to day fray of the polity and loose the impartiality and respect that the office should hold.
Leonard Colquhoun
February 26, 2016 at 14:18
A remarkable survey of that most important issue – whether or not to change our constitution by becoming a republic. And such a surprise to see in Tasmanian Times – congrats to Mr Ed, who is indeed an “individual [not] overwhelmed by the tribe”. And as well, congrats to Mr Atkinson who equally clearly stands apart from the sad herd-think of much of today’s academia.
The essence of the ‘republic’ issue is that it entails a significant change to a constitution which (overall – every well-working human set of arrangements has flaws) does what it was designed to do, and has evolved to keep doing: being a balanced and pragmatic foundation for the nation’s executive, administrative and judicial arms of government. Few of the 198 UN member nations have one of these, and we are one of that happy few.
Nations and peoples with such constitutions need to be constantly vigilant that the inherent balancing acts in their constitutions are not mindlessly upset, particularly by ephemeral trendoid nonsense ignorant of human nature and human history.
Whoever came up with “The price of freedom / liberty is eternal vigilance”, variously attributed to Thomas Jefferson, Thomas Paine, Abraham Lincoln, and George Marshall, got that exactly right, and our constitution should be one such subject of that degree of vigilance.
BTW, apart from a few sad geezers from somewhere in the Balkans longing for the return of King Zog or Empress Qyg, we have no ‘monarchists’ in Australia, but it is handy shorthand (albeit inaccurate and a bit silly) for those committed to defending the constitution. ‘Republic/an’ is a similar bit of shorthand, as Mr Atkinson makes clear.
T Keane
February 26, 2016 at 20:42
So do I understand this article to suggest republic=bad, constitutional democracy=good and by-the-way we don’t need a head of government who is a citizen of a foreign country?
A foreign country in which we have no standing eg can’t live there, can’t work there, can’t vote there and so on.
Not sure of the argument re republic v constitutional democracy but can we please get rid of the foreigners from our government.
Mike Adams
February 26, 2016 at 21:53
Well known fact: the candidate that spends the most on advertising wins the seat.
Well known fact 2. What ain’t broke don’t need fixing.
Well known fact 3. Few Australians can understand any presidential contest other than in terms of those in the U.S.
max atkinson
February 27, 2016 at 12:20
T. Keane: I probably could have summarised the article better.
I agree we should cut the link with the monarchy for the usual reasons, but especially so as not to confuse our sense of community and national honour with the interests of the British government. I also argue that we do not need a president or a republic and should not go down this path. We can avoid both a monarchy and a republic by cutting the link between Governor-General and Queen, but otherwise leave things as they are.
As for the question whether our Westminster system is better than a republic, this is not an easy one because both have flaws. But their seriousness will depend on many factors, including a free press and other institutions designed to ensure citizens are treated as having equal worth But the history of the American republic in the last half-century, and especially in more recent times, suggests its flaws are likely to prove incorrigible.
Steve
February 27, 2016 at 23:07
Many thanks for a thoughtful article Max.
I have to say, Mike @ #5 presents a good argument.
max atkinson
February 28, 2016 at 05:10
I agree with Mike and think the point he makes is fundamental and deserves far more attention from the media in general and political journalists in particular.
I hope to write something on this abuse of the democratic process in the near future.
Stu
February 29, 2016 at 20:43
Why change? I live in the best country on earth with the freedom to pretty much do as I please, so long as I don’t interfere with others well being and freedom. I don’t care less that the Queen or future King is head of state under our constitution and I bet 99.99% of people who live overseas don’t care or give it a thought, most probably just wish wish they lived in such a great place. The last thing I want to see is US style presidential elections!
Leonard Colquhoun
March 1, 2016 at 02:31
This Comment 9 claim, “I bet 99.99% of people who live overseas don’t care or give [our Head of State / our flag] a thought”, is a welcome reminder to our new age cultural cringers to stop whining about what foreigners might (but probably don’t) think about us and our ways – who cares what the hell they think?
Mike Adams
March 1, 2016 at 09:30
And in the unlikely event that I reach 100, I would rather not have a telegram (or whatever) from an Australian ex politician President, elected following the usual wheeling and dealing…
max atkinson
March 1, 2016 at 12:49
Readers may be interested in comments posted on this article in yesterday’s Online Opinion,
http://www.onlineopinion.com.au/view.asp?article=18058
especially Phillip Howell’s argument that my paper is ‘defeatist’.
The aim, however, was not to pursue the most ambitious reform – whatever that is – but for the least worst reform likely to win a referendum.
Leonard Colquhoun
March 1, 2016 at 13:39
Responses to Comment 4’s allusion to “republic=bad, constitutional democracy=good”:
~ such a polar-opposite dichotomy is simplistic nonsense, as Comment 4 implies;
~ ‘monarchy’ in our set of such arrangements = ‘constitutional’ monarchy, and is at the other end of the spectrum from ‘absolute’ monarchy (as in Louis XVI’s France, the “après moi le deluge” dude);
~ republics, too, are much varied and are not inherently democratic as we understand that term, as in
~ ~ a those historically famous oligarchic republics of Rome (‘SPQR’, 509-31 BCE) and Venice (‘La Serenissima’, 697-1797 CE), and in
~ ~ b those infamously undemocratic ‘Democratic’ / ‘Peoples’ totalitarian republics based on marxism, as in Democratic Kampuchea (1975-1979), the Union of Soviet Socialist Republics (1921-1991 – which was a ‘have one, get 15 free’ sort of tyranny) and in the ongoing Democratic Peoples Republic of Korea (North Korea, 1948-now), and in
~ ~ c right-wing, often army-ruled nations such as your average Latin American republica until the last quarter of the 20th century, as in the Republic of the Union of Burma (1962-2011), and still in many of the Arab / Muslim jumhūriyya.
Hope that’s a clarification or three.
Leonard Colquhoun
March 1, 2016 at 15:42
Apropos of Comment 12, “the least worst” is often the only option, particularly in triage-type situations which ambos face weekly or monthly, and fireys every summer.
Not convinced, however, that our constitutional situation is at ‘least worst’ stage, although former PM Keating, he of the famous “unrepresentative swill” judgment, might reckon it is in that matter.
(Not a clue why some of my 13 has been ’emboldened’. Hope it’s not ‘offensive’, but.)
Doug Nichols
March 1, 2016 at 20:06
#14, it’ll be the point that comes between [a] and [c], Leonard (which appears to have gone missing). In my understanding of HTML it usually requires angle brackets to turn bold on, but maybe in TT land square brackets will do it as well. So if I add a here, maybe it will fix the problem?
Ed: you are right doug … it does …I’ve added a slash to turn it off!x
Leonard Colquhoun
March 1, 2016 at 21:08
Thanks, Doug.
In IT-land, I am a ’67 Kombi^ driver in an era of (so-called) driverless cars!
^ which got us thousands of miles (yes, that what its odo said) all over south-eastern Australia including five tours of Tas, from which it took back dozens of boxes of Cascade longnecks.