*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.