After Prime Minister Keating’s response to the report of the Republican Advisory Committee, a model for an Australian Republic emerged, the first Keating -Turnbull republic.
APPOINTING THE PRESIDENT
The first Keating–Turnbull model has met with both practical and ideological criticism. Despite strong electoral support for popular election, the Keating government advocated parliamentary appointment and dismissal. Clerk of the Senate Harry Evans has argued against this method of appointment on principle:
Most people, not being intellectuals, are able to detect the massive contradiction at the heart of the elite orthodoxy: the monarchy must go partly because it is undemocratic, but the people must not be allowed to choose the replacement, because they would stupidly make the wrong choice. (News Weekly, 29 July 1997)Bill Hayden, a former governor-general, warns of the practical effect of election by special parliamentary majority:
Those who believe a president elected by both Houses of Parliament would attract nominations from the 'best people in the community', need to be reminded of the adversarial structure of our political system. The hectoring style of so many Senate Committee hearings is illustrative of the sort of grinding and very personal inquisition to which a nominee could be subjected. The process here would make the Supreme Court confirmation hearings of the USA Senate, such as in the cases of Dinks and Hill, look like a suburban manse morning tea party. The prospect of such an experience would discourage all but the stout-hearted. (Hayden, 548-549)
The election of the president would be by a joint sitting of both houses of the federal parliament. So the greatest say would be to the most populous states, effectively the Canberra, Sydney, Melbourne axis. A two-thirds majority would be required. It would be a strange election, at least outside of the totali¬tarian countries. There would only be one candidate, just as in the old Soviet Union. The thinking was that at least the government and opposition would have had to support the candidate. This is not guaranteed. The Fraser government came dose to having a two-thirds majority. A change by legislation of the method of election of the senate could easily increase the likelihood of governments commanding this majority. This does not need a constitutional amendment. It can be done by legislation.
In the meantime the attempt to force an agreement on government and opposition assumes that both will act in the best interests of the nation to choose the best candidate. What will obviously happen will be a deal. In return for support for a candidate, the other side will agree to support some measure or not take some action – secretly of course.
Australians have already seen, and are disenchanted by this wheeling and dealing.The American founders saw the danger of deals between politicians and with the candidate, both on election and re-election. So they decided to remove the politicians from the electoral process for the president.
THE CANE TOAD REPUBLIC
And even a single candidate election is still an election. As minister Bronwyn Bishop says, in an election the candidate has to stand for something – his or her platform. By winning he or she has a mandate. This is totally unlike the non-political governor-general who has neither a platform not a mandate. So what do we have under this republic? A politician chosen by politicians. And with an enormous mandate – two-thirds of parliament. The prime minister, by contrast, may have a little over half the house and a minority in senate. Who would have the biggest mandate?
DISMISSING THE PRESIDENT
Perhaps the most serious problem with the first Keating–Turnbull republic was that raised by one with first-hand experience of viceregal office, Richard McGarvie, who warns against the threat to democracy that would result from instituting a head of state who was not readily dismissible:
The fatal flaw of the models many republicans still support is that a president elected by parliament or the people could not be promptly dismissed. That sanction for breach, which gives binding effect to the convention of exercising the great powers of head of state as elected ministers advise, would disappear. Oppositions do not support governments. No federal government for fifty years has had that majority. Even if it did, a president could stymie dismissal by exercising the power to dissolve or adjourn (prorogue) parliament. Our democracy depends on the sanction of dismissal and if it evaporates so will democracy. (Adelaide Review, December 1997)
Professor Flint argued for ACM that without codification, this proposal would import into Australia something like the French Fifth Republic, where a powerful president "cohabits" uneasily with a parliamentary prime minister. The French have such a system only because their efforts to have a US-style republic, or the Westminster system failed. The ARM'S reaction to this and other ACM criticisms was to denounce our arguments as scare-mongering.
CODIFICATION OF THE RESERVE POWERS
The basis of the new presidency under the Keating government's model was that the new head of state would simply "slip in" to the role presently carried out by the governor-general. Republican Professor Patrick O'Brien argues that the governor-generalship cannot be stripped of its monarchical overtones:
Abolish the crown and you thereby also abolish the office of governor-general. Its political and metaphysical functions cannot simply be transferred to another office, regardless of what it is called. These powers are inseparable from the crown. The fashioners of the United States Constitution understood this simple point. Hence the creation of the brand new executive offices … following two decades of the most intense, polemical debate about the future constitutional shape of their proposed republic. (O'Brien, 159-160)
The staunchest of republicans and the staunchest of monar¬chists find themselves bedfellows in their common opposition to the Keating government's attempt to graft a republican institution on to our monarchical constitution. As Professor Lane observed, rather than attempting to graft a republic on to a monarchical constitution, republicans should develop a new constitution. Justice Lloyd Waddy, as Convenor of ACM, wrote that the way to achieve a republic is a radical rewrite of the constitution as the Americans did, not merely preserving the present arrangements but severing them from their source of legitimacy:
When I begin most speeches on republicanism, I make two basic state¬ments. First, I say, Of course, we can have republic if a sufficient majority vote for it. If the Americans can run a republic for two hundred years with only one (very bloody) civil war, Australians could run two republics before breakfast. Secondly, I add, If you want me to nominate a republican system I would presently favour, it is that of the USA; we know it is safe and that it works, in its way, and has done so for over two hundred years. But I must confess that I believe the operation of its system of government, with an executive-style presidency is infinitely inferior to our own. (Grainger and Jones, 101)
THE CANE TOAD REPUBLIC
One of the greatest sticking points of Prime Minister Keating's speech responding to the RAC's report, however, was his pre¬ferred treatment of the reserve powers of the crown – the powers which do not require the advice of the ministers of the crown. Under the first Keating–Turnbull republic, the reserve powers of the governor-general would continue to be exercisable by the president but they would remain uncodified. Rather, a provision would be inserted into the constitution providing that the informal conventions governing the operation of the vice-regal reserve powers – whatever they may be – would continue to operate to bind the new head of state.
The failure to codify the circumstances in which the reserve powers could be exercised was deemed catastrophic by some republicans. Writer Donald Horne explained shortly after the Keating proposal was announced that:
Since a president would be harder to get rid of than a governor-general, it is prudent for us to change our Constitution to say what powers a president has, and therefore, by inference, what powers a president does not have … after a referendum, we would insert into the Constitution a section saying that, except in specified circumstances, the president would act only on the advice of the government. (Sydney Morning Herald, 27 October 1995)
He said that: "Without a clear statement of the president's powers even I will vote No in a referendum." (Sydney Morning Herald, 3 June 1995)
Malcolm Turnbull similarly favoured codification although he supported Keating's method of appointment. He has emphatically declared that: "I support full codification of the powers of the president." (Turnbull, 166)
The ARM Platform adopted a similar stance: "The functions of the president shall be spelt out in the Constitution." There appear to have been two grounds for arguing against codification. One revolves around the difficulty of the exercise. As Senator Gareth Evans explained, the "definition [of the present controversial unwritten conventions would be] a labour of Hercules. Reformers would have to devote thirty years to the task to have an impact … Frankly, I think the task is impos-sible." (Australian Financial Review, 9 May, 1995) In other words, the problem about codification already exists in the present arrangements and concentration on the problem will only hinder progress towards a republic. Professor O'Brien argues that however desirable and effective non-codification has been, it is a creature of historical developments that will necessarily disappear.
The removal of the crown, he says, "will also mean the removal of these royal prerogatives and reserve powers, whatever they are". He asks in whose name will the powers be exercised —the prime minister's, the parliament's, the high court's, or the people's? What will be the source of those powers? How are they to be defined and in relation to what? What will be the due processes governing the office and its relationship with other major institutions of government? Surely, he writes, these and numerous other questions must be answered to the satisfaction of the people and be codified. And if these powers are not con¬ferred upon the president by a majority of the people at a free election, the president would be deprived of the respect of the people. The incumbent will correctly be perceived as parliament's and the executive's poodle.
It appears that the proponents of this republic have thrown up their hands in despair. They say that codifying the reserve powers is far too difficult. But if Australia is to become a republic, surely you have to set out the powers of each of the offices of the republic. The crown has been removed and these conventions depended for their life on the crown. Some might say that it is more a matter of luck than design that Australia's constitutional arrangements are as they are. But is that not the very advantage of evolution over revolution? Were it not for particular historical developments we might not now have the flexible arrangements presently enjoyed. A republic will and must change the existing structures. This was played down by the Keating government to make the product appear more marketable. Yet without the crown, we have an inherently unstable mixture.
On the one side we have those, such as Dr John Hirst the his¬torian who still wants the flexibility of uncodified powers to be carried into the Keating–Turnbull republic. On the other side are Horne and O'Brien and the warning that codification is necessary if a new institution is to be established. The crisis is between the desirability of flexible arrangements and the knowledge that a new order must provide all its own rules, not rely on the conventions of the one it supersedes. It is clear that republicans cannot have it both ways.
The Keating–Turnbull model expects that the new president would represent Australia overseas and be the embodiment of Australian identity.
High Court Justice Michael Kirby, for instance, rejects the suggestion that the president should of necessity, represent the nation's interests overseas in a way the queen does:
To the complaint that the Queen is not, when overseas, seen as a repre¬sentative of Australia, a ready answer may be given: the Prime Minister should be the main representative of Australia overseas. We can survive the shame of a nineteen-gun salute. Our system is Parliamentary. That means a Prime Minister. Let him or her be Australia's representative overseas. And in the unlikely event that the people of Asia, or anywhere else, care the slightest about our constitutional arrangements, let them mind their own business. Just as we mind ours in relation to their constitutions. Such things are the product of history and sentiment and are not always susceptible to easy explication to neighbours.
And when it is lamented that the queen never represents us overseas as Queen of Australia, a further answer is obvious. Her Australian ministers have never advised her to do this. In fact, the governor-general has occasionally represented us, but more frequently it has been the role of the prime minister and the ministers. The other key role of Keating's president is to be the embodiment of the Australian national identity. Chancellor of the University of Sydney Dame Leonie Kramer explained in a speech at the ACM launch on 4 June 1993 that there can be no one exhaustive expression of such an identity:
As for the question of identity, suffice it to say that there is no reason why individual Australians should subscribe to some common notion of what it is to be Australian. There is room for all the differences of opinion that a mixed society such as ours can contain … what does matter is that we share common values relating to democratic policies and practices, rep¬resentative government, a non-political legal system, private enterprise, educational systems committed to high standards in teaching and learning, equality of opportunity, and tolerance of others' views – in short, a free society. The best guarantee of the maintenance of these values is our indigenous form of constitutional monarchy.
In fact, to most Australians the national identity is about respect for democracy, the rule of law, tolerance, English as the national language and freedom of expression. For the small elite, a new presidency may seem to be a strong assertion of Australian identity and independence. But this is not at all true of the rank and file. As Geoffrey Horne said at the 1998 Constitutional Convention:
Becoming more competitive in trade with our Asian neighbours … would assert our freedom and independence more. Having the Wallabies beat the All Blacks or the Socceroos reach the World Cup finals would more effectively assert our independence as a nation, and fixing unem¬ployment and domestic matters would have more effect in asserting ourselves as free people in an independent nation. (Report of the Constitutional Convention, 2-13 February 1998, Vol III)
Our final problem before leaving the first Keating—Turnbull republic, is its treatment of the states. The states were to be involved in two ways. The first is that each state forms its own constitutional monarchy distinct from each other and the commonwealth. If only the part of the constitutional monarchy at the federal level is abolished, the question arises as to whether this would have any impact on the continuity of the six state monarchies. If not, ought the states be forced to change their constitutional arrangements? Secondly, the question arises as to what role, if any, the states might have to play in the changes required to bring about a republic at the federal level even if no change were to occur at the state level.
It was the view of the prime minister that there would be no necessary implications for the states were the commonwealth alone to become a republic, and the government had no intention of exerting any pressure on the states to make their arrangements consonant with those of a new republican commonwealth:
It is not our intention that the government's proposals should affect the Constitutions of the Australian states. It would be up to each state to decide how in future they would appoint their respective heads of state. It is reasonable to expect that if the Australian people opt for an Australian head of state, the states would follow suit. But the question would be for each state to decide.
In this way the difficulty of forcing the states to change was avoided and an ordinary section 128 referendum would be suffi¬cient to establish a federal republic requiring a national majority and a majority in only four rather than all six states. However there are good arguments that, this being a fundamental issue, the consent of the six states is necessary.
Should such a referendum be carried with only four states' support, it is conceivable that the legislation might be contested by one of the other two states on the basis that there is only one crown in Australia (albeit with seven manifestations). The destruction of that crown, it might be argued, would go to the heart of the original compact, thus constituting a renegotiation of the terms of the initial "indissoluble" compact to establish an indissoluble federal commonwealth under the crown. Furthermore, if the crown is one with various manifestations rather than seven separate crowns, destruction of it might constitute an action by the commonwealth disabling a state to operate in a fundamental sense.
Support for such a conception of the crown is to be found in Justice Rich's approach in Minister for Works (WA) vs Gulson (1944), 69 CLR 338 at 356 where he explains:
It is by the crown that all legislative and administrative authority is exercised throughout the Empire, although in each constitutional area such authority can be exercised by the crown only through the agencies of the appropriate Parliament and the appropriate group of constitutional ministers, so that legalistically, it would be more strictly accurate to speak of the state of Western Australia in right of the crown than of the crown in right of the state of Western Australia.
It is clear that the single indivisible imperial crown under which Australia federated had become several crowns, but only down to an Australian, or a Canadian, or a New Zealand crown. The crown in Australia is one and indivisible. If it were the seven crowns that the RAC suggests, the indissoluble federal common¬wealth established in 1901 would be effectively dissolved. Each state could go its own way. A devastating result, unless you tried to overcome this by constitutional amendments dividing the Australian crown seven ways and abolishing one of them.
These questions could require further determination by the high court, and the first Keating—Turnbull republic was criticised by both monarchists and republicans on these grounds. For five years, the ARM insisted on the rectitude of this model. They scoffed at any criticism. And then, in the last days of the Constitutional Convention, without any adequate explanation, they changed the model to prove that the Australian president, unlike any other in the world, would hold office at the whim of the prime minister.