Michael Sexton: Don't rock the boat

The Australian
28 May 2003

Peter Hollingworth's resignation has provoked a debate about how the governor-general should be appointed – or removed – and what the functions of the office should be.

But there is a danger for republicans in this debate.

One advantage of the present system is that it allows the change to a republic with the simple substitution of a president for the governor-general, with the British monarch ceasing to be Australia's head of state at the same time. The reality is that the referendum at the end of 1999 was lost not because most of the electorate did not want Australia to become a republic but because there were differing views as to how any president should be chosen. As soon as different methods of appointing – or electing – the head of state are canvassed, there is a serious risk of repeating the failure of 1999.

If the office of head of state – with a governor-general or president – is essentially a ceremonial one, why has so much time and energy been expended by republicans on trying to devise a new method of appointment or election for a position that is expressly designed to be powerless?

Of course, if the position were designed to establish a high-profile political rival to the prime minister, that would be a different matter. But presumably no one wants this result, as it would only undermine the existing system of government where the prime minister, as the leader of the party winning the majority of votes, is the head of the country's administration. So what is the intrinsic significance of how the position is filled or vacated?

None of this means that the prime minister should not consult widely among his colleagues and outside the cabinet when a governor-general is to be chosen. Neither does it mean that, if the governor-general is to be retained as head of state, it would not be a good idea to spell out their powers – or lack of them – at the same time as a republic comes into existence. There is a large gap between the theoretical powers of the governor-general – for example, to call elections and commission ministers – and the political reality where these decisions are made on the advice of the government of the day.

This wide discrepancy between theory and practice is also present in the case of the various state governors, except in NSW where the introduction of fixed-term parliaments in 1992 resulted in the powers of the governor being largely codified in legislation.

If it is accepted that these positions are also essentially ceremonial, it is hard to avoid the conclusion that the powers should be spelled out and the realities of situation made clear.

Given the nature of the governor-general's role, there might seem to be an element of overkill in the appointment of so many highly qualified lawyers, including two High Court judges, to an essentially ceremonial position – a change that really began with John Kerr in 1974. But there seems to be general agreement that, except for Kerr, all of these lawyers – and particularly the last, William Deane – have been successful appointments. As might be expected, none of them have had to make a decision where they exercised political power. One of Kerr's legacies has been that no governor-general would want to do so again.

All of this suggests that republicans should be careful to keep the ultimate goal in mind. It is obviously possible to have a debate about the role of the head of state after the transition to a republic. But if this question is mixed with the straightforward proposition of whether Australia should become a republic, the result of any future vote may again be thrown into doubt.

Michael Sexton, the NSW Solicitor-General, is author of a number of books on Australian history and politics.