A Republic Hypothetical or ‘Paul Keating’s Banana Republic’ Play

If anything epitomises British, American and Australian constitutionalism is its an awareness of – indeed a suspicion of – the dangers of concentrations of power. Lord Acton’s dictum succinctly summarises this: “Power tends to corrupt and power corrupts absolutely.”

This assumes that any society will throw up a rogue (or a band of rogues) who will take power when he should not. He will hold on to power when he should relinquish it, improperly seek to expand his power when he should not. A principal object of a constitution therefore is to put in place barriers to such abuses. That is, adequate checks and balances on power.

This play, this hypothetical, is about the republican model which Australians were to reject on the 6th of November 1999. This was the preferred model of the republicans, superseding the one their best minds had developed at Paul Keating’s insistence in 1993, but which was shown to be seriously flawed. In particular it seeks to examine how the model would work in a crisis.

This hypothetical tests aspects of the republican model, in particular whether it would ensure that the president would be a constitutional umpire above politics.

• How would the process for the dismissal of the President actually work?
• How would what Sir Anthony Mason calls the “who shoots first scenario” work out?
• Was there a capacity for “serial dismissal”?
• And something not before considered, was there a potential to aggregate the power of a Deputy President with a Minister?
• And yet another possibility not previously considered, was there a potential to bring together the power of the Prime Minister with an Acting President who is an executive Governor of a State?
• And above all, how would this model have coped with constitutional crises and the impact of that on the economy?

The hypothetical was performed during the referendum campaign in the evening of 18 October 1999 in the Stranger’s Dining Room, Parliament House, Sydney. It featured in Trevor Sykes, Pierpont, column in the Australian Financial Review on 21 October 1999. Mr Sykes introduced his column with these words:

“Being a loyal monarchist, Pierpont will, of course, be voting against the republic on November 6. He sees no good reason why we should remove Queen Victoria as head of state.

So your correspondent was delighted to take part in a hypothetical this week staged by Professor David Flint to rehearse what might happen in the event of Australia’s adopting the Keating-Turnbull model for the republic.

As David is the most prominent member of Australians for Constitutional Monarchy and author of The Cane Toad Republic (Wakefield Press, $19.95), his hypothetical did not spend much time praising the republic but instead concentrated on its potential horrors.

The hypothetical assumed that the Keating-Turnbull model had been approved by the voters and that subsequently a new party called the Radical Party had won office in a landslide under a Prime Minister Grogan.

Once in office, it appeared the only political textbook Grogan had ever read had been written by Laurie Connell. Grogan began a massive program of government assistance to selected white-shoe entrepreneurs, resulting in a blow-out in government debt and expenditure to finance a string of tottering businesses.

Grogan tried to borrow $20 billion overseas to patch the holes in the Government’s funding. By law, any long-term borrowing had to be approved by all the state governments in the Loans Council but Grogan evaded that requirement by describing the $20 billion as being for short-term purposes. Pierpont sighed nostalgically, overwhelmed by warm memories of Strangler Connor, Tirath Khemlani and the insanities of 1975.”

Pierpont tells the rest of the story in the play. The story is not an exaggeration – I have merely taken the facts which led to the dismissal of the Whitlam government and indicated what could be done under the republicans preferred model, the weaknesses of which were obvious when it was first pulled out of the hat during the last hours of the Constitutional Convention in 1998.

During the campaign the referendum proposed to reconstitute Australia as a republic was, to my surprise, strongly supported by most of the capital city and national press, other significant media and about two-thirds of all sitting members of parliament, state or federal.

As we have seen, the referendum was defeated, with about 43% of electors voting Yes. The referendum was lost in all six states, the Northern Territory and in 73% of all electorates. As Dick McGarvie said, Australians are wise constitutional people. Readers are invited to contemplate what might have happened had the referendum passed.

This was not the first republican model which the taxpayers funded the republicans to draft. Their first, in 1993, was recommended by the Republic Advisory Committee appointed by Mr Keating. Thanks to Justice Ken Handley, we know this would have been a disaster too –as it was in Trinidad (see www.norepublic.com.au; Quadrant, June 2003).

CAST

The characters are:

Moderator – David Flint

Prime Minister Grogan – John Armfield

Leader of the Opposition – Adam Owens

President Felix – Peter Cavanagh

Aide de Camp, Graham Wing – Murray Happ

Chief of Defence Staff, General Khaki – David Elliott

Deputy President Murphy – Tasha Maclaren

Financial Expert, Pierpont – Trevor Sykes

Chief Justice – Sir Harry Gibbs

President of the Federated Asian States – Abraham Constantin

Governor Longman – Philip Gibson

Attorney General O’Reilly – Kerry Jones

Electoral Commissioner Turner – Amy McGrath

Special Prosecutor – Barry O’Keefe

Financial Adviser – Connie Wells

Editor of the Daily Bugle – Christopher Pearson

Professor Summersby – Julian Leeser

The characters are of course fictitious.

Moderator:

Ladies and Gentlemen. You will recall that Prime Minister Grogan led the new radical Party to a victory in 2005. They won 84 of the 128 seats in the House – a landslide. They also won 16 of the 34 Senate seats contested. (Another 30 senators continue until the next election).

You are Prime Minister Grogan, what was the reason for your victory?

Prime Minister Grogan:

The Radical Party offered, as you would expect, radical solutions to Australia’s growing economic problems. People had turned away from the traditional parties.

Moderator:

Pierpont, you are indeed a leading financial journalist. How did the government try to solve Australia’s economic programs?

Pierpont, Financial Expert:

Once in office, the government engaged on a massive programme of government involvement and assistance to selected entrepreneurs who were able to offer what the government saw as “innovative solutions”. Government expenditure in the first financial year increased by 50% in comparison with the previous year. Even with increased taxation and inflation, government debt rose substantially to $20 billion.

But many of the government assisted businesses lost money. The government ended up financing crooks and no-hopers. It began to show itself incapable of picking winners. The government then resorted to extremely nationalistic policies both in relation to the economy and in international affairs. It initiated a programme to “buy back a form”. It became difficult in its relations with nearby countries.

Moderator:

A question now to President Azlan, President of the Federated Asian States. Prime Minister Grogan wanted you to stop the flow of boat people from refugee camps. You refused, did you not?

President Azlan:

Yes. When I refused to accept Prime Minister Grogan’s proposals concerning refugees he described me as a “refractory regent” – Prime Minister Grogan was attracted to alliterations). This unleashed a major diplomatic dispute which isolated Australia in the region which was exacerbated by the Australian government’s financial policies.

Moderator:

A question now to the Leader of the Opposition, Fraser Peters. You only have 25 seats in the House, but you have 28 Senators. You seem to be building an alliance of MP’s worried by the Radical Party’s programmes.

Leader of the Opposition Mr Fraser Peters:

Yes. At the beginning we were all shell shocked by the Radical landslide. We accepted their mandate. But more recently we’ve all become wary — Coalition, Labor, Democrats and others. An informal anti-Radical alliance seems to be developing. So the Senate, hitherto willing to accept the government’s legislative programme as part of its mandate, is beginning to look more closely at legislation. For example, it refused to pass an amendment to the Flag Act which would have removed the requirement for a plebiscite before the flag could be changed. The Prime Minister was keen on a flag with a cockatoo on it.

Moderator:

Was it like this? (Holds up “Flagging the Republic”, a brochure for an exhibition of new flags).

Mr Fraser Peters:

Yes. That brochure was for an exhibition for new flags which went around New South Wales. It was supported by the Australian Republican Movement and sponsored by Turnbull and Partners.

There was a fuss over that brochure, because one of the flags had these words in big letter on it: F*** OFF BACK TO FAGLAND. Fortunately the press virtually ignored it.

Moderator:

President Felix, you’ve also become wary of the Prime Minister haven’t you? Tell us about yourself.

President Felix:

Yes, I’ve become uneasy about the Prime Minister’s behaviour. I had been a Senator elected in the landslide. But I didn’t like what Grogan was doing, so they took away my pre-selection for the next election. When I lost preselection I resigned from the Radical Party. As an independent, I then often voted with the opposition. In the meantime the major opposition party became anxious to forestall action on a Special Prosecutors Committee report into branch stacking. It agreed to a government proposal to appoint me as President, in return for no action being taken on the Special Prosecutor’s recommendations for a series of recommended prosecutions. Then the Prime Minister and Leader of the Opposition disregarded the shortlist of the Presidential Nominations Committee. I was appointed. This helped the government — they got back my Senate seat which could then be filled by a Radical. The opposition was happy because there was no action on the Special Prosecution Committee report. They were both happy with the deal.

Moderator:

And now a question to the Special Prosecutor. What was your role?

Special Prosecutor:

I had found branch stacking by interests associated with crime, domestic and international crime. These criminal groups saw advantages into getting their own people into politics. Although I made strong recommendations the politicians refused to make my report public. To get Felix out of the way the present government agreed with the opposition not to act on my report. By kicking Felix up stairs, his senate vacancy was filled by a government nominee.

Moderator:

Now, the Editor of the Daily Bugle. What were you telling your readers? You had a scoop didn’t you?

Editor:

Yes. The government’s ham fisted attempts to wiretap President Azlan’s presidential Palace had been leaked to us by someone in the government who wanted to undermine Prime Minister Grogan. He accused me and other editors and journalists of treason for publishing this.

Amendments to the Crimes Act were introduced to make such actions punishable by imprisonment, and by mandatory fines of $500million. A Press Complaints Commission Act was introduced to allow for the rulings to be made on breaches of press ethics. It also provided for corrections to be published and substantial fines for breaches of the ethical code it adopted. That really scared us.

Moderator:

Let’s go to our financial expert, Pierpont. What is happening to the economy now? There have been unfavourable reports from Standard and Poor and Moody’s, haven’t there?

Pierpont:

Well the country’s financial situation has deteriorated. The Australian dollar began to fall well below parity with any significant currency including New Zealand. In the face of growing debts, and the failure of government sponsored enterprises, including those bought back from foreign interests, the government decided to borrow substantial sums overseas. These were for $200 billion over 20 years. But under the then prevailing requirement of the Financial Agreement with the states, any long-term borrowing had to be approved by all the state governments in the Loans Council. So to get around this they were described as being “for short-term purposes”.

Moderator:

Mr Editor, what are you telling your readers about this?

Press:

Well on the one hand we said that the government should be more transparent. But we pointed out it did have a mandate.

Moderator:

President Felix. You had to authorise this loan didn’t you?

President Felix:

Yes. When the authorisations came to me, I hesitated. I didn’t want to sign the documents. I argued they should be referred first to the Loans Council. In the face of the Prime Minister’s insistence I said I had similar rights to a Governor-General. So the Prime Minister needed to satisfy me as to the legality of the proposal. I think David Flint in the Cane Toad Republic describes the Governor-General as not only a constitutional umpire but also an auditor. Philip Adams – or was is it Mike Secombe in the Herald – dismissed Flint as a toffee nosed, toffee voiced, cockalorum and Malcolm Turnbull said he wasn’t a constitutional lawyer at all, but I think he was right.

Moderator:

What happened then?

President Felix:

Both the Prime Minister and the Attorney-General drew my attention to the provisions of the new Constitution. They had long abandoned the pretence that the 1999 referendum was merely about symbols while keeping the essential features of the 1901 constitution.

Moderator:

Let’s got to the Attorney General Lois O’Reilly. What did you advise the President?

Attorney-General O’Reilly:

I pointed out the clear terms of section 59. “the President shall act on the advice of the Federal Executive Council, the Prime Minister and another Minister of State…” “Shall act” means there was no longer any discretion. So the President had to sign. But I did warn the Prime Minister that the President could use the reserve powers without advice. In brief he could sack the Prime Minister first. And he doesn’t need to give reasons. So I recommended the authorisation be kept secret until the funds were secured through our agent Mr Tarit Inalmek.

Moderator:

Mr Tarit Inalmek, you are a Financial Adviser. How did you become involved?

Mr Inalmek (Financial Adviser):

I’m a futures dealer based in the Cayman Islands. I had met Barry Bushby there. He was President of the Sydney branch of the Radical Party. I’d helped him with a lot of deals. Barry and I had dinner in Tokyo with Prime Minister Grogan and some of his Ministers. I explained to them I had access to substantial sums in various tax havens.

Moderator:

Prime Minister Grogan is becoming more suspicious of the President. He decided that he should take precautions against a replay of 1975. He asked the Attorney-General what to do. Ms O’Reilly, what did you advise?

Attorney-General O’Reilly:

My advice was to appoint two Deputy Presidents, as the new constitution allows. They should be authorised to exercise any or all of the President’s powers and functions. I suggested that the Deputy Presidents be John Murphy and I. John Murphy was already the Special Minister of State. I suggested that we be empowered, separately, to exercise any presidential power.

Moderator:

President Felix, what happened then?

President Felix:

I objected. I thought it improper for a Minister to be a Deputy President. I remembered what happened in 1974. Relying on David Flint’s book I pointed out that a Sovereign had actually rejected proposals to appoint a Governor-General in breach of the separation of powers. I thought it was dangerous. But the Attorney-General pointed out that unlike a Governor-General under the amended Section 59 I had no alternative but to sign the authorisation.

Moderator:

Is it possible to appoint a Minister as Deputy President? In the event of there being no president or Acting President could the Deputy President act?

Chief Justice:

Yes. The Constitution clearly places no restriction on these appointments.

Moderator:

During the course of the Whitlam Government (1972-1975) the so-called Khemlahni loans deal was authorised by an Executive Council meeting presided over not by the Governor-General, but by the Vice-President of the Executive Council. These large long stem loans were to be arranged by a Mr Tirath Khemlahni, and were described as being for short-term purposes. Allowing the Vice-President was usually a Minister, but any such action has to be subsequently approved by the Governor-General. Sir John Kerr was not warned that something of that magnitude was coming up, but it must have put him on his guard in his future dealings with the government.

Attorney-General O’Reilly. You’re now also Deputy President. But Prime Minister Grogan is still worried that the President may act against him. He asks you what he should do.

Attorney-General O’Reilly:

Yes, the Prime Minister asked for advice as to what would happen if the President were to be removed. Under the Constitution, (until the Parliament otherwise provides) the longest serving state Governor available is to act as President. (s 63). But a Governor is not available if removed by the Prime Minister (s 63).
I advised that the first three eligible Governors would be:-

Governor McTeague (Tasmania)
Governor Malcolm (Victoria)
Governor Longman (New South Wales)

Moderator:

Under the 1998 Constitution it was possible for states not to become republics. Most commentators were critical of this, the republican Attorney General even describing it as a “constitutional monstrosity”. In any event neither Tasmania nor Victoria had become republics. Governor McTeague had been an RAAF Air Marshal, and Governor Malcolm a RAN Rear Admiral. Both were seen as impartial and punctilious in performing their duties.

Moderator:

Governor Longman, you are Governor of New South Wales. Your position is different from the other Governors, isn’t it?

Governor Longman:

Yes. I belong to the same party as the Prime Minister, the Radical Party.
Under changes to New South Wales Constitution the Governor is now appointed by the Legislative Assembly, (we also abolished the Legislative Council). I’m an Executive Governor. In other words I combine the functions of the former Governor and the former Premier. But I am not elected by the people, and I control Parliament so I am much more powerful than a US Governor.

Moderator:

But if you were to become Acting President, wouldn’t you be simultaneously running the New South Wales government?
Together the Prime Minister and you as Governor, the two of you would have extraordinary powers wouldn’t you?

Governor Longman:

Yes. But it’s all quite legal. You’ve got to remember the 1999 constitution was drafted in four days — all behind the scenes at the Canberra Hyatt. The best way to draft a constitution, if you ask me! That way you get what you want. The poor old monarchists weren’t there — Waddy, Jones, Flint and Dame Leonie Kramer were all in an $85 a night motel, the mugs! Typical of those amateurs. Anyway we got it through the Constitutional Convention.

Moderator:

You mean there was no public scrutiny?

Governor Longman:

No. The public wasn’t involved. In the Convention elections the ARM even suggested their minds weren’t closed to direct election. They soon were after the Convention met! Getting the new constitution was a pushover. They did a number the deals in Old Parliament House and the Hyatt Hotel. They needed to get all the votes they could, especially from the politicians. They also tried to get the real republicans on side. They who wanted the people to elect the president to change their votes. That’s why we put in the nomination process. Just window dressing of course.

Moderator:

Well, back to the current crisis. Attorney General, what did you do next?

Attorney-General:

I prepared three blank notices. These were to dismiss the President and to remove the Governors of Tasmania and Victoria. Once the Prime Minister decided to use them, I suggested he tell the press he only removed the Governors because neither of them were eligible to be appointed as President.

Moderator:

Why?

Attorney-General:

Because they are all ex-servicemen. In the rush to draft the new constitution only a few people noticed section 44 actually precluded most ex-servicemen. When the monarchists raised this they were accused of scare-mongering.

Moderator:

Professor Summersby, you were a leading proponent of this constitutional model. More recently you’ve become concerned about what was happening. I believe you’ve been influenced by a book by Richard McGarvie, ‘Democracy”. Is this true? Are these dismissals possible? Are they appropriate?

Professor Summersby:

Yes. I’ve now realised I was wrong to support the model. I had even signed a letter to the press during the campaign. These totally improper dismissals of State Governors are within the Prime Minister’s power.

Moderator:

Now to the Editor of the Daily Bugle. Would you like to comment?

Editor:

Well its true to say the press gave the 1998 constitution its full support. And now the government was now testing the constitution. We were become extremely critical of those lawyers who had assured us the new constitution was as good as the old. After all, we had relied on their professional advice. Perhaps the monarchists had been right on this technical point. But Australia had to be rebadged. It was time to get rid of the monarchy and the flag. Otherwise we would be a laughing stock. Anyway, the Prime Minister was a reasonable man and would not exercise them.

Moderator:

In the meantime, Mr Inalmek’s negotiations were leaked in the US press. Mr Fraser Peters, what was your reaction?

Mr Peters:

Well we’d discussed it with the other parties in the Senate and we all decided that we had no option, we had to act. A Supply Bill was before the Senate. The opposition parties were unanimous. The Bill would not be allowed to pass unless an election was ordered. This government was so reprehensible the people had to decide whether it should continue.

Moderator:

President Felix, you are now in Sir John Kerr’s shoes. What did you do?

President Felix:

Having just read Mr Richard E McGarvie’s book Democracy (1999, Melbourne), I decided that I had the reserve power to order an election. But unlike Sir John Kerr, I neither needed to dismiss the Prime Minister nor to have advice from anybody to call an election. I could do it myself. So I called the Prime Minister to the Presidential Palace with a view to informing him of my decision.

Moderator:

What happened then?

President Felix:

I told the Prime Minister I was going to call an election, but that he could remain as Prime Minister. I gave it to him in writing.

Moderator:

What did he do?

President Felix:

He said he’d sack me first. Didn’t even look at my letter.

Moderator:

Prime Minister, is that what happened?

Prime Minister Grogan:

It dawned on me. He’s going to do a Kerr on me! But I got in first. I carried around a stack of signed dismissal notices Lois had prepared for me. Each day I dated a new one. So I pulled it out of my pocket and gave it to him. Then I filled in blank forms sacking those old royalists McTeague and Malcolm. Longman and I could do what we liked now.

Moderator:

President Felix. Is this your recollection?

President Felix:

It didn’t happen that way and Grogan knows it didn’t. I wasn’t born yesterday. So behind the letter letting him know I was calling an election I put a second letter sacking him. My plan was to withdraw this if he didn’t try to sack me first.

Prime Minister Grogan:

You’re a liar Felix. You gave me the dismissal notice after I sacked you. You were too late. I went back to my office — Longman was there waiting and I had him sworn in.

Moderator:

Mr Longman. You are Governor and Premier of New South Wales, but you also claim to be Acting President. All at the same time. What is your next move?

Governor Longman:

Made sure everybody who counted knew who’s in charge. Especially the federal and state public services and the police. And as I was now Commander in Chief, I let the chiefs of the Presidential Guard, the RDF (Republican Defence Force – we did away with the RAAF and the RAN and amalgamated them).

Moderator:

President Felix, you claim you are still President. What was your next move?

President Felix:

Well first I had the Proclamation of the Dissolution of Parliament read.

Moderator:

You are Captain Graham Wing, President Felix’s Aide de Camp. What did you do?

Captain Wing:

Acting on His Excellency’s instructions I went to Parliament House and stood at the public entrance to read the Proclamation.

Before I had finished the first paragraph two members of the Presidential Guard, a couple of shady characters, manhandled me. They bundled me in a police van. I finished reading the Proclamation there – they laid into me but I still finished it.

Moderator:

President Felix, what do you say happened?

President Felix:

When Longman’s men took Captain Wing away, he kept reading the Proclamation, even in the police van. He must have shouted, people could still hear it.
Then I called Fraser Peters, and made him Prime Minister.
When I heard about Longman’s message to the police and the RDF I sent a message to all of them reminding them I was still President. I went on television to speak to the people, but they cut that off half way.

Moderator:

This is extraordinary. While there has been different contenders for President in banana republics, but we did expect this. After all we were until this one of the world’s seven oldest continuous stable democracies. Sir Harry Gibbs, the High Court would have to rule on this wouldn’t you? How would you do it? Perhaps more importantly how quickly could you do it? And if the President did move first, could a court review his decision. As lawyers say, was his decision justiciable? And was Parliament truly already dissolved? I notice Mr Grogan had Mr Longman call the House of Representatives together to approve of the alleged dismissal of Felix. They had the numbers. But wasn’t the House dissolved? Sir Harry it seems you will have to decide several questions. How long would that take?

Chief Justice:

Well this raises issues of fact which would be difficult to resolve. As issues of fact they could be sent to a single judge to hear. The Court would have to decide if the Governor-General’s reserve powers to dismiss still exists and is vest in the President. I note that Mr Ellicott QC thinks they would not survive. It’s hard to say how long all this would take.

Moderator:

Let’s got to the Electoral Commissioner Cheryl Turner. You’ve already upset the government because of your campaign against electoral fraud. Now you have another problem. The President has dissolved Parliament. Prime Minister Peters tells you to prepare an election. But the Acting President and the other Prime Minister, Grogan, are telling you there must not be an election. What do you do?

Electoral Commissioner Cheryl Turner:

I think the only thing I could do is to go to the High Court and ask for a Declaration as to who is President and who is Prime Minister, I’m not sure what I should do while I wait.

Moderator:

You are General Khaki, Chief of the Republican Defence Staff. The chiefs of the 200 man Presidential Guard (that was one of the unexpected costs of the change), and the RDF all report to you. You have two men claiming to be President and therefore Commander in Chief. Two men claiming to be Prime Minister. Two Ministers of Defence. What on earth do you do?

General Khaki:

Again, I’d have to go to the High Court. But unless they gave me some interim order, I’d have to accept one of them, or just try to do the best I could. I’m not a lawyer — just a soldier.

Moderator:

I’m now going to invite the Editor of the Bugle, then our Financial Expert, Pierpont.

Editor:

Well it’s a confusing situation. And there does seem to be something wrong with the Constitution – what we need is order – General Taft may have to do something.

Pierpont, Financial Expert:

The situation is chaotic. There’s no confidence in the system. Investment has stopped. We must have a return to authority.

Moderator:

Perhaps, as we leave this scene of confusion, I should call on the architects of this model to give us their views.

First, Mr Keating. Are you there Mr Keating? (No answer)

Well, Mr Turnbull. How does your constitution work Mr Turnbull? (No answer.)

Ladies and Gentlemen, the facts you have heard up to the dismissal are broadly based on events which have actually occurred in Australia and in other countries.

There’s one final question. And that is to the people of Australia. Does this model do what the constitutional models of the world’s seven oldest do in providing adequate checks and balances against power?

Is it, if not better than, at least as good as the present constitution? Will you be the first people in history to throw out a constitution that works, and works very well?

In summary, would you vote for this model?

(CURTAIN)

POSTSCRIPT

On the first night, Captain David Elliott, who played General Khaki announced that, to my surprise, and to the great amusement of the assembly, that to settle the confusion he would immediately take over government until further noticed. As Pierpont reported in the Australian Financial Review on 22 October 1999 “Australia had now travelled the full road to Paul Keating’s banana republic”.

Pierpont added some interesting facts. From 11 November 1975, the day Sir John Kerr dismissed Gough Whitlam until the election of Malcolm Fraser a month later, the Melbourne sharemarket gained 8%. The $A lost two cents, going down to $US1.25, being “vastly overpriced at the time”.

Pierpont says the audience wanted Pierpont to predict how the markets would have reacted to the Grogan-Felix imbroglio. That was easy, he wrote. This would have sent the market into free-fall and shredded the $A. “But the takeover by General Khaki would steady them. International capitalist like order, and generals are familiar figures around the world.”

That Australians rejected this model confirms the author’s conviction that Dick McGarvie was right – Australians are indeed a wise constitutional people.

(THE END)