Introduction
and Background
For
Australia to turn its Republican aspirations into reality
requires the understanding and harnessing of the dynamics
of power.
The power of a sovereign nation to have one of its own
as its Head of State.
Power that draws its source and legitimacy from the
democratic commitment of the Australia people.
Power that is divided between the various arms and levels
of Government within a representative system of Government.
Power within a Republican Framework, assigned by law
and convention to the Head of State, the Parliament
and the Executive Government.
The Constitutional Convention focused on these issues
of power. The public debate to this point by and large
has not. Rather the public debate has been about the
threshold question of whether the Monarchy is any longer
relevant to modern Australia.
This stage of the debate has decisively reached the
conclusion that Australia must move beyond the Monarchy.
The Convention reinforced once again that a hereditary
Monarch is completely inconsistent with Australian ideals
and national self interest.
This is why the Convention witnessed only one way traffic
in the public stance of previously uncommitted or undeclared
leaders. The Federal Treasurer Mr Costello, the conservative
Premiers of Victoria, Western Australia, South Australia,
Tasmania, the Federal Attorney-General - all publicly
declared themselves for the end of the Monarchy. Equally
other leaders like Senior Company Director Helen Lynch
and Community Leader Archbishop Pell also declared themselves
for an Australian Republic.
But more importantly the election of delegates to the
Convention showed the relative strength of public support
on the threshold question. This support is strongly
in favour of a republic with close to 60% of the vote
in the Convention ballot going to pro republican delegates.
The Convention on this point was also clear with 89
delegates favouring a Republic in principle with 52
against and 11 abstentions.
Once the threshold question of change or status quo
is crossed the issue becomes one of the structure of
Government and the respective powers of a Republican
Head of State and the Legislative and Executive arms
of Government.
In other words the 4 Ps - the power of the People expressed
through the roles of the President, Parliament, and
the Prime Minister.
I think it is fair comment that the public debate has
not closely examined the question of the powers of the
head of state. The popular media to a large extent has
zeroed in on the method of appointment of the President
with the debate being reduced to simplistic sloganeering
between a choice between popular election and Parliamentary
appointment. The assumption is that all other things
are equal and this is a straight forward choice. The
problem is that the underlying assumption is wrong and
all things are not equal.
The core issue is not how do you pick the President.
It is not who the President is. The core issue is not
personalities or popularity but power.
What
are the powers of the office of Head of State?
How are these powers to be expressed i.e. by complete,
or partial codification or by reliance on unwritten
conventions?
What is the relationship between these powers and those
assigned to the Parliament and the Prime Minister and
the Ministry?
Is there a potential for conflict between the powers
given to each element of the Government?
How are such conflicts to be resolved?
Logically you need to determine the nature of the office
and its powers before you decide how to get the office
holder.
For instance, the United States vests executive power
in the President. The President is together with the
Cabinet effectively the Government of America. Of course,
such an office is elected directly by the people as
the people through the United States Constitution vests
this power in the President.
But what is our situation? Our Constitution vests power
notionally in the Queen and Governor General which is
exercised by the Parliament, Executive and Judiciary.
On the face of it the powers of the Government rest
with the Queen and Governor General. Yet we know this
is not the case.
Power of course, actually rests with the Prime Minister,
Executive Government, the Parliament and the Courts.
The ostensible power of the Governor-General is constrained
by some express provisions in the Constitution but largely
by unwritten conventions or rules on how the Governor-General's
power is to be actually used. These conventions in turn
stem from those which govern the relationship between
the British Monarch and the British Government.
In most circumstances the power of the Governor is exercised
on the advice or recommendation of the Prime Minister
and Ministers. But there are occasions when the power
can be exercised contrary to this advice. As we know
from the dismissal of Gough Whitlam the powers of the
Office are great.
In this paper I examine the three models which were
formulated at the Convention and explain how they dealt
with the issues of the powers of the President. In this
analysis the role played by the constitutional conventions
emerge as the key. I will then look more closely at
the conventions and their likely application to a President
gaining office by parliamentary appointment or by direct
election. Finally I will canvass the other element of
power - party political power - and how this will determine
whether a republic will be realised or not.
Alternate
models and questions of power
In the final days of the Convention three different
models of an Australian Republic were debated and voted
upon. In public presentation they were differentiated
by the method used to select, appoint or elect the President
but there were crucial differences between each in the
treatment of the powers of the President.
The first was dubbed the McGarvie model after its chief
advocate former Victorian Governor Richard McGarvie.
It proposed -
- Maintenance
of the existing roles of the Head of State, Executive
and Parliament
- The
creation of a "Constitutional Council" comprising
of retired former Governors and Judges. The role of
the Council would be to appoint and dismiss a President
on the advice of the Prime Minister.
- Apart
from a constitutional provision stating the Constitutional
Council was bound to follow the advice of the Prime
Minister, there would be no other alterations to the
powers of the Head of State or how these powers are
currently expressed and governed by law and convention.
The model adopted by the Convention, the Bipartisan
model deals with powers like this.
Firstly it proposes the respective roles of the Head
of State, Executive and Parliament remain the same.
It doesn't propose we have an Executive President like
the United States or a legally constrained President
like Ireland.
Secondly it provides for the non-reserve powers of the
President to be codified in the Constitution. These
are the powers which can only be exercised with the
advice of Ministers.
Thirdly the reserve powers - the occasions when the
President might act contrary to the wishes of the Government
and even dismiss the Government - should remain as they
are now, governed by unwritten conventions.
The third proposal was the direct election model. Like
the other models its starting point was that the existing
system of representative parliamentary government should
be maintained but it proposed a reduction in the powers
of the Head of State. In particular -
-
The
powers would be fully codified based upon the code
in the Republican Advisory Committee report
-
The
power to dismiss a Government which retained the
confidence of the House of Representatives would
be removed.
In the circumstances of 1975 where a Government retained
the support of the House of Representatives but was
unable to secure a budget through a hostile Senate,
the direct election model proposed a political and not
a constitutional solution. A Government could retain
power by simply not spending money. By suspending programs
like pensions and benefits and closing down the public
service. Provided the Government did not act illegally
by spending money which had not been appropriated, then
it remains in office until either the Senate or the
House of Representatives gives way.
But why did the proponents of the direct election model
believe it necessary to deal with the issue at all?
Why could not a directly elected Head of State adopt
the same constitutional arrangements regarding the relationship
between the President and the executive Government as
that proposed in the Parliamentary appointment model?
The answer lies in how the current control of power
operates and why this does not translate to a Republican
system with a directly elected Head of State.
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