How should a Governor-General be chosen?
Below is a suggestion that does not involve a republic, a referendum or a change to the Constitution.
The appointment of Peter Hollingworth casts doubt on the present system under which the Prime Minister alone chooses and “advises” the Queen to make the appointment. The Queen always follows the advice. Under the present system the Prime Minister alone can decide to terminate an appointment.
In the 1999 republic debate the weakness of this system was mentioned but not taken seriously because we had that nice William Deane as Governor-General even though he had been chosen by that horrible Paul Keating. The republicans wanted to change the Constitution so the Governor-General was chosen by two thirds of a joint sitting of Parliament and the Queen was taken out of the equation. Monarchists, scare-mongers and direct-election opportunists stymied that plan.
So let’s leave the Queen where she is in our system. But let’s not have the Prime Minister alone choosing or terminating the Governor-General. Parliament should do it. The present Prime Minister is unlikely to allow it but a future Prime Minister (Labor or Liberal) might do it.
Here is the plan. Parliament passes a law as follows:
“The Prime Minister shall not advise the Queen to appoint a person as Governor-General unless that person has been approved by a two-thirds majority of a joint sitting of the Federal Parliament. Penalty: 12 months jail.”
Similarly for the termination of an appointment. There would be a definition section saying that the words “Prime Minister” includes any person appointed under Section 62 or Section 64 of the Constitution.
Can this be done without a change to the Constitution? Why a year’s jail? Why a definition section?
There is a precedent for an ordinary law of the Parliament to provide for a joint sitting of the Parliament to do something other than pass stalled legislation after a double dissolution. The Representation of Territories Act provided for a joint sitting to appoint a new senator for the ACT if an existing senator died or resigned. A joint sitting in 1981 appointed Margaret Reid to replace the late Senator John Knight. The ACT Legislative Assembly (created in 1989) now does this task.
There is a precedent for conditions to be imposed upon Ministers before they can make major appointments. The High Court of Australia Act provides that the Attorney-General must consult with state Attorneys-General before an appointment is made to the High Court.
There is precedent for a requirement of broad political support envisaged by the joint sitting proposal.
The Trade Practices Act provides that the Governor-General (on the advice – read, instruction — of the Treasurer) appoints the chair of the Australian Competition of Consumer Commission. Before the appointment can be made the Treasurer “must be satisfied” that a majority of states and territories support the appointment.
None of these precedents has a one-year jail term. It might be unnecessary because we should be able to presume the Prime Minister and Ministers will obey a penalty-free law. But in these mean and sneaky times it might be better to make sure.
A one-year jail term brings into force Section 44 of the Constitution. The Prime Minister would be disqualified from his seat in the Parliament if he or she tried to ignore or get around the joint sitting. Also, in those circumstances, it would be open to any citizen to prosecute.
The definition section in the proposal is necessary because our Constitution does not mention the words “prime minister” but it does allow for ministers to be appointed under the sections mentioned in the definition section.
The joint-sitting proposal has a lot of merit. The Hollingworth case led to a situation where the Prime Minister was inclined to support his appointment whereas the Leader of the Opposition wanted the appointment ended. In those circumstances the Governor-General could not be seen to be impartial if – quite separately – a constitutional crisis arose in which the Governor-General had to choose between them. As Professor George Williams has pointed out, this made Hollingworth’s position untenable.
The joint sitting approach avoids this. The Opposition would have to agree to the appointment and the termination.
The proposal does not require a referendum and it attendant wads of ignorance, stupidity, manipulation and red herrings.
Now, it may well be that after a few appointments under the new system people will see that it is not very difficult; that the sky will not fall in; that we will not always get “a politician for head of state” and that the basic political system is untouched. People will recognise the merit of having Parliament endorse any nomination made by the Prime Minister rather than have the Prime Minister do it on his own – given the Hollingworth experience.
Now, it may well be that after a time, we do have a referendum that simply removes the formal nod by the Queen of the choice endorsed by the Parliament. We might not even have to call ourselves a republic or even call our Australian-chosen and Australian-endorsed head of state a President.
But even if the Queen keeps her role, surely it would be better to have parliamentary endorsement of our governors-general than choice by prime minister alone.