Linda Kirk Address to the Constitutional Convention Old Parliament House, Canberra Wednesday 11 February, 1998 Linda Kirk is an ARM Delegate from South Australia

At this Constitutional Convention, we are charged with the important responsibility of deciding whether Australia should sever its links with the British monarchy and become an independent republic. At the outset I should say that I am firmly of the view that Australia should adopt a republican Constitution. It is no longer acceptable that the executive power of the Commonwealth is vested by section 61 in a foreign monarch who is not resident in Australia.

I, like many delegates, have written this address a number of times. As the days pass, I become more and more conscious of the significance of the task that we face and the enormous responsibility we have been given by the Australian people. As a constitutional lawyer, I want to see a republican model emerge from this Convention that not only will be embraced by the Australian people in a referendum but also will serve this nation well into the next century and beyond.

I agree with the sentiments expressed yesterday by Professor Craven in the chamber, that is, the choice which confronts delegates is not between the status quo and the republic. The mood of the Australian people is, and has been for some time, that Australia should move to a republic. As delegates, we must design a model which will reproduce and build on the strengths of the existing system.

I have decided to confine my comments today to three of the models that have been proposed and that we must vote for in the next two days. The contribution made to this Convention by Sir Richard McGarvie is to highlight what is the linchpin of existing arrangements. As he has observed, it is the sanction of immediate dismissal of a governor-general who acts without, or contrary to, advice that has given us our stable and secure democracy. Professor Craven has called this 'the McGarvie principle'. I believe that this must be reproduced in a new republican Constitution.

It is to the method of dismissal under each model that I will direct my comments. The McGarvie model itself provides for dismissal of a head of state by a constitutional council on the advice of the Prime Minister. The council may advise the Prime Minister but, ultimately, must accept and act on advice to dismiss the president. The sanction for failure to act on advice within 14 days is instant dismissal of the members of the council. As I said in the chamber last week, the weakness of this model is that it is little more than a rubber stamp on the Prime Minister's decision to dismiss a president. As Professor George Winterton said today, it provides no protection whatsoever against a Prime Minister who dismisses a president who warns of an intention to exercise the reserve powers to, for example, dismiss a government.

It is for this reason that I believe the delegates should give serious consideration to the ARM's model. This model has now received support and endorsement from a broad cross-section of delegates at this convention. The ARM's model reproduces what McGarvie has identified as the strength of the existing arrangements. It provides for the removal of a president at any time by written notice signed by the Prime Minister. Dismissal of a president who acts without or contrary to advice under this model is prompt and effective. This satisfies the McGarvie principle.

However, the model goes further and requires the Prime Minister's action to be ratified within 30 days by the House of Representatives. This is an improvement upon the McGarvie model and, indeed, on existing arrangements. It submits the Prime Minister's decision to dismiss a president to scrutiny and questioning by the people's representatives. The Prime Minister will be required to account to the House of Representatives for his or her actions.

I would like to briefly refer to the method of dismissal proposed by the direct presidential election group. Its proposal provides for dismissal of a president by an absolute majority of the House of Representatives on the grounds of stated misbehaviour or incapacity or behaviour inconsistent with the terms of his or her appointment.

The problem with this model is that it does not satisfy the McGarvie principle - that is, dismissal of a head of state is not immediate but relies on a vote of the House of Representatives. If the president under this model retains the power to prorogue or adjourn parliament, the president could stop his or her own dismissal by preventing parliament from meeting. This is unlike the ARM model, which requires mere ratification of the Prime Minister's decision by the House of Representatives.

The ARM's model for removal of a president promotes prime ministerial government and the supremacy of parliament. Furthermore, it satisfies the McGarvie principle of providing for prompt and effective removal of a president who acts without or contrary to advice. But unlike the McGarvie model, which makes the Constitutional Council a mere puppet of the Prime Minister, the ARM's model puts the onus on the Prime Minister to account to the Australian people through their representatives. Delegates who wish to promote representative democracy in a new republican Constitution should closely examine the ARM's model.

Delegates, I urge you to look beyond the simplicity of the McGarvie model and ask to where it shifts the balance of power. My preference and that of the ARM is that a republican Constitution be designed to promote and enhance representative democracy. Delegates, I urge you to take the responsibility that we have been given by the Australian people very seriously over the next two days. We have the opportunity to define the terms on which we will live as a nation into the 21st century. Let's work together to get it right.