No reserve powers needed in a democracy

THIS week, the 40th anniversary of the dismissal, was an interesting one for Opposition Leader Bill Shorten to renew his call for an Australian Republic. In the same week, Prime Minister and former Australian Republican Movement leader Malcolm Turnbull was in Canberra meeting Charles Windsor, who if nothing changes will become Australia’s next monarch, by dint of birth alone.

The dismissal and the quest for a republic are linked.

When Governor-General John Kerr dismissed the Whitlam Government in 1975 he was exercising what are called the Reserve Powers of the monarchy.

The question is whether a new Australian Head of State should retain these powers or whether they should be codified with changes to the Constitution made at the same time as the creation of an Australian Head of State.

The reserve powers are essentially the power to dismiss a Prime Minister, dissolve Parliament and call an election, and to appoint a Prime Minister after an election in circumstances outside the ordinary following of the advice given by the person who commands the majority on the floor of the House of Representatives.

Bearing in mind that the whole dismissal crisis was caused by the Senate blocking Supply of money for the ordinary services of government, should the power of the Senate be reviewed at the same time?

Or would any change beyond the bare minimum scare the horses so much that a republic might be defeated?

It would be good to get rid of the reserve powers and the Senate’s government-destroying powers because they are fundamentally undemocratic. They stem from the so-called divine right of the hereditary monarchy.

In Britain sovereignty lies with the monarch who graciously allows for an elected House of Commons to run the show subject to occasional delay and interference by aristocrats in the House of Lords who are appointed by the monarch. In a democracy sovereignty should lie with the people.

This is not hypothetical or just symbolic as the events of 40 years ago attest.

The High Court has held that the Australian people’s approval of the Constitution in the 1890s means that sovereignty lies with the people. Nonetheless, the reserve powers, which are rooted in the doctrine of divine right, remain. They have no place in a modern democracy.

A good way to get rid of them would be to remove the need to use them. Fixed terms would help, with no early elections. The US has had them for 240 years. They would remove the Governor-General’s right to question the timing of an election as was done in 1980.

Also, the Prime Minister should be elected on the floor of the House of Representatives after an election, as in the ACT. This would remove any role for the Governor-General in deciding who is to be Prime Minister after the election of a hung Parliament with no definite coalition or majority support.

The Senate’s power to block Supply could be replaced with a default position of standing legislation to permit the previous year’s appropriation if any new appropriation is blocked.

Allegations of illegality against a Prime Minister should be dealt with by the courts, not the head of state’s reserve dismissal power.

With those things in place, there would be little or no discretion for the head of state to exercise.

Double dissolutions remain a problem. Perhaps they should be abolished. Instead, any legislation twice rejected by the Senate would sit on the table through the next election. After the election, the legislation could be passed by the House of Representatives alone. After all, the people would have known exactly what they were voting for.

That would leave the head of state as Chief Fete Opener and general apolitical national figurehead.

Finally, the appointment or election of the head of state must be done by Australians without any outsiders.

That is a lot of horse-scaring stuff.

The way through it without scaring the horses is to legislate most of it or apply it by agreement between the major parties before any referendum. After all, as Shorten points out, the leaders of both major parties support a republic, so why not get on with it.

Certainly the change to the selection of the Governor-General could be legislated. The legislation would simply provide that the Prime Minister must not put a person’s name forward to the Queen for the governor-generalship unless that person gains the approval of a two-thirds majority of a joint sitting of the Parliament.

Then Prime Minister Paul Keating could have done this before the appointment of William Deane in the early 1990s. A later constitutional referendum (which would also remove the Queen’s role) would then be seen as merely formalising the status quo.

The major parties could agree on fixed terms. A later referendum might move senators’ terms to begin on January 1 instead of 1 July (after a fixed election date of, say, the first or second Saturday in November). Again, similar to the fixed term in the ACT.

Fixed terms would be of great benefit to business and public administration.

Indeed, this sort of evolving legislative approach has been the way of the more significant changes in Australia’s constitutional set-up.

The eight approved referendums in our federal history have contributed precious little to constitutional change compared to legislative breakthroughs in things like the federal taxation or corporations power.

In any event, the haunting spectre of the dismissal, should alert us the importance of detail. We should not fall into the trap of a two-stage process – do you want a republic, yes or no, followed by a second vote, what sort of republic.

Rather it should be the other way around: what sort of republic (directly elected head of state with reserve powers through to indirectly elected head of state with reduced or zero reserve powers).

Only when the people have been forced to look at those details and approve them should there be a constitutional referendum.
CRISPIN HULL
This article first appeared in The Canberra Times and other Fairfax Media on 14 November 2015.

Leave a Reply

Your email address will not be published. Required fields are marked *