Gendered issues for a move to a Republic – The Appointment of a Head of State

Kim Rubenstein
Associate Professor in Law, University of Melbourne
19 June 2004

Today I want to talk about the gendered issues associated with the different appointment processes of a Head of State in an Australian republic.

One of the issues in the appointment process of specific interest and concern for women is the accessibility of the position of Head of State equally for women. In the 104 years of Federation, no woman has been appointed to the position of Governor-General. The Queen is currently our formal Head of State, however the laws of succession in England do not guarantee women's equal access to the position.

A central aspect of the position of the Head of State is that person's ability to best reflect the identity and collective experience of the people. If men are always, or mostly occupying that position, then women's identity and collective experience will not be properly reflected. In a society where women make up 52% of the population, (not to mention the historic inadequacy of the system in representing their needs) then any new system of appointing a head of state MUST properly address the equal representation of women in the position of Head of State.

The following are some methods that must be considered in ANY appointment process:

ALTERNATING HEAD OF STATE

The most conclusive way of ensuring that women are properly included in the selection of Head of State is to mandate the alternating gender of the position. For instance, the Constitution could guarantee that the gender of the first person appointed as Head of State would then be the basis upon which gender would alternate for the position. Therefore, if a woman was appointed as the first Head of State in a move to a republic, then the Constitution would mandate that the next person appointed to the position would be a man.

Arguments in support of this proposal

The advantages of this system include that no matter what process of selection is chosen (election by the people or appointment by the Parliament) equality in outcome would be guaranteed.

This process would set clearly in our Constitutional document the fundamental importance of the equal opportunity for men and women to the most senior position in our Constitutional structure.

It would establish that all Australians could realistically consider that they have the opportunity of being considered for the position of Head of State.

The idea of placing such a condition on the position of Head of State is not without precedent. For instance, one can look at the US Presidency as an example where conditions are attached to who is entitled to be elected as Head of State. A person who has occupied the position of Head of State for two terms cannot be re-elected as President. This condition reflects the principle that no person should accumulate power for more than one term. The parallel principle exists on a broader level with this proposal - that no one gender should accumulate power over the other (which has been the experience with public positions in Australia). Both examples reflect the belief that the institution of President has built into it principles that need to be reflected in the appointment process.

Another related example is the Federal principles that currently influence the choice of appointments to the High Court. In choosing a new High Court justice, the system currently favours 'representation' of the States. That is, if a Queensland judge is not on the Court, this will be a factor influencing the new appointment. Or more specifically, our current democratic institutions skew a pure democratic system to take into account the representation of states in both our Senate and House of Representatives. These are examples illustrating positions of public power often incorporate other values that our important to us in best representing the community and its interests.

Arguments against this proposal (with answers!)

Some will argue that this consideration should not be put above 'merit' for the position. This argument suggests that the 'best' person for the position may miss out because of the mandate of gender for the position.

Underlying this argument are several assumptions that need unpacking. First is the notion that there will only ever be one 'best' person for the position of Head of State. This is not a fair or realistic reflection of the pool of people available to take up the position at any one time.

Another issue is that 'merit' in itself is complicated. What do we mean by merit when we look at the position of Head of State? Some of the characteristics we would put next to the position of Head of State are as follows: Integrity, Wisdom, Intellect, Judgement, Objectivity in exercising any Constitutional powers - these are all matters that could be equally found regardless of gender. (Although because men have traditionally exercised public positions of power, there is a subtle implication that men best reflect these characteristics!).

Other matters that are important to the position of Head of State (as opposed to a regular Company Chief Executive or School Principal) include: reflection of the community, responsiveness to the community's needs, life experiences reflecting those of the community. We need to ensure the diversity of our community is reflected in the position of Head of State. This is one of the meritorious matters needing consideration in the appointment of the person.

Some argue that this would in fact be an unnecessary exercise of affirmative action. Once again there are some assumptions about the current process in need of questioning. It could be argued, that we currently have a position of affirmative action favouring men. That reality can be seen in outcome where many men are appointed for positions where women could easily have been appointed, but have not. This system which is not transparent is arguable more insidious in its impact on society than one which openly proclaims the importance of men and women equally holding the position of Head of State.

The argument that women's position would be devalued due to the mandatory nature of women holding the position also needs to be unravelled. This has never been a problem for men who have benefited from a system working in their favour for so long. Moreover, this system would also have the benefit of showing the range of women who are available and competent and meritorious and worthy of the position of Head of State. It is not that there will only ever be one woman who is available - rather there is a pool of women from the 52% of women in society who should properly be regarded for the position of Head of State. This will also better emphasise the diversity of women's experience in society - women is not one monolithic group. The more women who occupy the position of Head of State, the more likely that this will be better understood and reflected in our public institutions.

THE ELECTED VERSUS THE APPOINTED HEAD OF STATE
The public debate has concentrated on the alternative between a popularly elected Head of State and one appointed by Parliament. I will now discuss the constitutional issues and the gendered implications.

Appointment by Parliament:
This model is put forward as a minimalist model for a republic. It is that a majority of 2/3 of the Parliament choose the Head of State. This is different to the current system of appointment of the Governor-General by the Prime Minister. A Prime-Ministerial appointment is seen to be a political appointment, and has not been given much attention in future models.

The advantage about this proposal is that the person appointed would have the support of both political parties. It is also argued that the person appointed would not have grounds for believing that their position has a separate democratic legitimacy over the government of the day (and hence the Prime-Minister as Head of the government), so that if there is any Constitutional crisis, the Head of State is not seen to be above the Parliamentary system of government.

This discussion however, needs to take into account the actual powers of the Head of State. Currently the powers of the Head of State, as exercised by the Governor-General are limited by the Constitutional Convention (not written in the Constitution) that the G-G acts on the advice of the Prime Minister. This is despite the range of powers actually set out in the Constitution for the G-G to exercise (such as proroguing and dissolving parliament - s 5, issuing writs for the general elections - s 32, resolving a deadlock with a double dissolution - s 57, assenting to bills - s 58, appointing Ministers - s 64, acting as Commander in Chief of the naval and military forces - s 68). Many argue that if this unwritten Convention is to continue, we need to have it written into our Constitutional document. This in itself is not difficult, nor is it likely to be controversial.

The more controversial area is the Reserve Powers - that is those powers the Governor-General exercises without the advice of the Prime Minister - the Dismissal of a PM. Given the events of 1975 there are many who argue that these issues need to be resolved and written into our Constitution so it is clear what the powers of the Head of State entail. The Broader those powers, the more reason not to have a popularly elected Head of State. The narrower those powers, the less controversial or problematic the direct election of a Head of State.

In considering the equal access of women to the position of Head of State as a fundamental principle, we should consider the implications of Parliamentary appointment:

•   Parliament is currently disproportionately male in its composition. Therefore, women are not adequately represented in our Parliamentary system. This means that women's voices would not be properly represented in the choice of Head of State.
•   Safeguards could be mandated in a Parliamentary appointment process to ensure women's equal access. The proposal of mandatory gender alternation would deal with this.