As the debate continues over whether Australia Day should be celebrated on January 26, this series looks at the politics of some unresolved issues swirling around Australia Day – namely, the republic and reconciliation. And just for good measure, we’ll check the health of Australian slang along the way.
Whether Australia should become a republic or remain a monarchy is a perennial topic of debate, particularly around the time of Australia Day. Prime Minister Malcolm Turnbull briefly floated the idea of a plebiscite on an Australian republic earlier this year.
Many would have questions about how such a change would affect our system of government. But the questions and answers below show there is nothing unique about Australia’s situation, and the issues that need to be addressed are not particularly difficult.
1. Who is Australia’s current head of state?
Possible answers to this question range from “no-one” to “the governor-general” to “the Queen”: it all depends on what you mean by “head of state”.
The term is not used in the Constitution, so there is no office of “head of state”. Section 61 of the Constitution vests executive power in the Queen, and says power is exercised “on her behalf” by the governor-general.
What is incontrovertible is that the Queen is undoubtedly the source of executive power, even though the governor-general exercises it. So, if there were no Queen, there would be no governor-general. The governor-general’s powers are therefore entirely derivative.
So, you can say the Queen is head of state, as long as by “head of state” you mean “the person who is the ultimate source of executive power”.
2. What benefit would there be in Australia becoming a republic?
Such a move would be purely symbolic in that it could be effected without any change to the way functions are distributed under the Constitution. The Queen and governor-general would be replaced by an Australian president.
It would mean that any Australian could aspire to be the person embodying the ultimate source of executive authority in Australia.
It would also signal to the world that we are wholly independent, both in appearance and in fact, because we would no longer have a foreigner as our monarch.
3. Would having a president change the functions of the office?
No. Whatever changes were necessary to substitute a president for the Queen and governor-general could be made without changing the powers of the office.
Many Commonwealth countries have done this over the past 50 years, and have become republics while retaining the system of parliamentary government in which day-to-day power is vested in a prime minister.
4. What method of selecting a president is most likely to be supported by a majority of voters?
Surveys show that most voters favour the popular election of a president.
In that sense, the 1999 referendum was doomed to fail – not because a majority of Australians wanted to maintain the link with the Crown (polls showed a clear majority in favour of a republic), but because the Howard government put to voters a model (selection of a president by parliament) that most republicans did not want.
5. Would an elected president be compatible with our parliamentary system of government?
Both Ireland and Germany are parliamentary democracies that have an elected head of state who performs the same limited role as Australia’s governor-general. Because the way these presidents exercise their powers is determined entirely by the constitution, presidential candidates cannot make campaign promises.
Campaigning for president in these countries does not revolve around party politics or political platforms, but around who voters think would best personify the country and represent it on the world stage.
6. Is there a danger in having a popularly elected president?
Some argue that a popularly elected president might think they had a mandate equal to that of the government, and so disregard the conventions that govern the role currently discharged by the governor-general.
7. What are the conventions and how do they operate?
There is a difference between a legal rule and a convention. A legal rule is enforceable by the courts; a convention is not – it is a rule whose effectiveness relies purely on customary compliance.
Further reading: How unwritten rules shape ministerial accountability
Confusion arises from the fact that what the governor-general may do according to the law can be very different from what they can do according to convention. For example, Section 58 of the Constitution says the governor-general can decide whether to assent to legislation “according to his discretion”. In reality, convention dictates that the governor-general must always assent to bills passed by parliament.
Almost all the powers given to the governor-general by the Constitution are either expressly stated as being exercised on the advice of the government or are exercised on advice by convention.
However, the governor-general has four powers they exercise independently – that is, not on anyone’s advice. These are to: appoint a prime minister, dismiss a prime minister, dissolve parliament, and refuse to dissolve parliament.
The circumstances in which these powers should be exercised is governed by convention. Therein lies the problem that led to the 1975 constitutional crisis.
Further reading: Australian politics explainer: Gough Whitlam’s dismissal as prime minister
There was no doubt that, under Section 64 of the Constitution, the governor-general had the legal power to dismiss the prime minister. What was in dispute was whether, under convention, failure to get supply passed by the Senate justified the exercising of that power.
8. How would we prevent a president from acting contrary to the conventions?
A governor-general or a president could act contrary to the conventions. The obvious solution to either of them doing this is to codify the conventions – that is, clarify what they are and put them into the Constitution, so they become rules of law enforceable by the courts.
There is nothing new in this: codification has been effected by many Commonwealth countries.
Some have retained the link with the Crown and have codified the powers of a governor-general. Others have become parliamentary republics, with presidents with codified powers.
9. How should reform be conducted?
To ensure genuine majority support for change, there should be a compulsory plebiscite legislated for by parliament, followed by a referendum.
The plebiscite should have two questions:
The first should ask whether voters want Australia to become a republic.
The second should ask which of a list of methods of selecting a president voters would prefer, assuming the first question showed a majority in favour of a republic.
If a majority had favoured a republic, the ensuing referendum should ask voters to approve the model that obtained most votes in the plebiscite.
Many other parliamentary democracies have become republics over time. We should broaden our thinking to take their experiences into account.
Catch up on others in the series here.
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 grass roots 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 consistently 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.
Max Atkinson is a former senior lecturer of the Law School, University of Tasmania, with Interests in legal and moral philosophy, especially issues to do with rights, values, justice and punishment. He is an occasional contributor to the Tasmanian Times.
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