Republican paralysis with a solution

by Crispin Hull on January 6, 2017

THE republic debate has been trickling along at the same time as dissatisfaction with democracy and political elites grows and voters show a predilection for outsiders. Along with marriage equality, it is another example of political paralysis. A majority of people and parliamentarians favour both, but our politicians seems incapable of delivering either.

The do-nothing option prevails. Our avowedly republican Prime Minister prefers to wait until the Queen is dead before anything is done. He also prefers a plebiscite first on whether the Australian Head of State should be elected directly by the people or indirectly by Parliament.

Both proposition lack merit.

The first is a gratuitous insult to Prince Charles and is illogical because the timing of an Australian republic should not be dependent on who happens to be monarch at the time.

The second proposition invites a boycott by monarchists on the argument, “Who said we wanted a republic, anyway.” Rather than exclude the monarchists from the debate it would be better to have a plebiscite on whether Australia should be a republic first. When that is decided and accepted, a second plebiscite would be held on whether the head of state is elected by the people or the Parliament.

The message to monarchists would be: “Look, the people have decided they want a republic. That being the case, how about you stop the old 1999 divide-and-rule tactics and join in to decide what sort of republic.”

That choice would then have to be approved in a referendum to change the Constitution.

All or some of those votes could be held with elections to reduce cost. And the marriage plebiscite could be abandoned in favour of the Parliament doing the job with the power it was given in the Constitution “to make laws with respect to marriage”, among other things.

As things stand, the Prime Minister has an utterly unfettered power to propose to the monarch in London whomever he or she likes to be Governor-General of Australia. Son, daughter, union mate. big corporate donor, political nuisance to be got out of the way, quirky thought bubble of the moment, a British aristocrat, or occasionally, a passable legal or military identity. Highly elitist stuff.

Some of these have happened.

Surely we can now capture the anti-elitist sentiment of Brexit and Trump to dump this most elite institution in Australia – the hereditary British monarchy.

As a first step we could restrict this huge ambit power of the Prime Minister to appoint anyone he or she likes to be Governor-General?

As a first step, Parliament could pass a law saying that the Prime Minister can only recommend to the monarch in London that an Australian citizen be Governor-General. Penalty for breach: up to one year’s jail – so a breaching Prime Minister would be disqualified from sitting in Parliament.

When such a law proves innocuous, we could go further.

Parliament could pass a law saying that there will be a process to determine who the Prime Minister can recommend to the Queen to be Governor-General.

The process could demand that the people or the people’s representatives – not just he Prime Minister – get a say.

It would even be a hybrid system. The Prime Minister could nominate someone to be Governor-General and if no-one else nominates that person would become Governor-General upon approval of a two-thirds majority of a joint sitting of Parliament. Otherwise there would be an election.

In these populist times, it is difficult to see much support for a purely indirectly elected President. But in these populist times many people might see some danger in a directly elected President. What if some narcissistic demagogue stands and gets elected? What if that person ignores the convention that the Governor-General stays out of politics and gives the words of the Constitution their literal meaning – that the Governor-General choses and sacks ministers, sets election dates, and approves or disapproves laws passed by Parliament?

Another difficulty with a direct election is that many good people – particularly former judges and military people – will not take part. Further, each political party would probably stand a candidate, politicising the whole process.

But all that said, ultimately it is a democracy, so the people should choose. Moreover, the words “directly chosen by the people” are the words used in our Constitution for the election of Members of Parliament.

Further, direct election for the President has worked well in the parliamentary democracy of Ireland.

It can be done.

It would be a good idea to harness this anti-elite populism to point out that all ordinary Australians are excluded from the possibility of being Australia’s Head of State. Pauline Hanson cannot be Australia’s Head of State.

Further, ordinary Australians get no say in choosing the Governor-General, the monarch’s representative in Australia.

And at the apex of our system of government is the British monarchy, one of the most elitist and wealthiest institutions on earth.

Australians should revolt against this.

There are signs of that happening. Former Howard Government Minister Amanda Vanstone wrote a spirited piece this week denouncing the monarchist right of her own party for assuming everyone should think the way they do.

Expect more. And also expect some early disillusionment among people who have supported people espousing simplistic, insular solutions to economic problems or who ignore and deny the existence of profound environmental problems.

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On the subject of big ideas in politics, former Prime Minister Bob Hawke called this week for the abolition of the states.

Bizarrely, this idea is usually propounded by the left in Australia. But conservatives have been in government federally for more years than Labor, and the states have often been a voice against them.

Moreover, state government have been responsible for a lot of progressive and reformist measures in the past century or so – measures that would have either not been done or come much later if there had been no states.

Victoria’s euthanasia proposal is about to become another example.
CRISPIN HULL
This article appeared in The Canberra Times and other Fairfax Media on 7 January 2017.

{ 4 comments… read them below or add one }

Chris 01.06.17 at 10:02 pm

What if I want one kind of republic, but not the other kind, at pains of preferring the monarchy instead? That seemingly happened last time, most people probably want it, but ONLY if it was the right kind, which wasn’t on offer. I’d vote for sure NO CHANGE without first knowing what the model is.

Secondly, neither an elected nor appointed head of state are remotely acceptable. The former because it politicises it. The latter because it crony-ises it.

What I want is the PM as head of state, and the high court to adjudicate any appointments or sackings of governments based on clear rules.

peter 01.08.17 at 8:19 am

no more elections please. i also see no benefit in swapping a gg for a president. will it save money?, no.

Yes parliament should vote for the gg, simple and cheap.

I used to want republic but now i cannot see any benefit, and we have way too many other issues to worry about.

I also want to see state governments abolished that could save us up to $50 billion a year, bye bye debt, bring on high speed rail, real nbn and a proper health system housing, energy, science.

Whilst the bonnet is up i would want citizen initiated referendums for things like, legal marijuana, euthenasia etc. Life is too short, why should a religous minority dictate the laws.

David 01.08.17 at 6:46 pm

It should now be clear, following the marriage equality plebiscite debate and Brexit, that plebiscites to express popular political will are not binding on the nation and don’t necessarily bind anyone to change laws or constitutions.

Some suggestions informed by knowledge of the law, the constitution and the political realities of plebiscites and referendums should be useful here.

Former Australian High Court Chief Justice Sir Gerard Brennan in his 2011 George Winterton Memorial Lecture “Pathway to a Republic” tells us that referendum/s to legally achieve a republic need to authorise:

(a) the Commonwealth to pass a law to repeal the Constitution as a British law and to replace it with the operative provisions of the Constitution in an Australian constitution with a new preamble (cue opportunity to recognise indigenous Australians in preamble) and with some necessarily altered provisions – see (b) and (c) below. That requires repeal of section 8 of Statute of Westminister (UK but applicable to Australia under our constitutional arrangements) using the power set up in section 15 of the Australia Act 1986 which can be activated by section 128 of the Constitution (i.e. a constitutional referendum) or by laws passed unanimously by the Commonwealth and all States.

(This authorisation at a referendum could be a functional de facto plebiscite on whether Australians want a republic with a YES [on a majority and in a majority of states] giving the Commonwealth the constitutional machinery so Australia can legally change to a republic.)

(b) replacement of section 61 of the Constitution (vests executive power of the Commonwealth in the monarchy) and section 64 of Constitution (about Commonwealth ministers holding office as the monarchy’s ministers of state).
(c) repeal of section 106 of the Constitution and section 7 of the Australia Act 1986 so that the States can break with the monarchy under their constitutions – so we are not left with a “two-headed” federal republic and a monarchy at state level!

Sir Gerard also tells us that setting up a system to appoint an apolitical non-executive head of state (unlike the US which has an executive head of state) is a relatively straight forward matter, compared to changing the constitution by referendum or addressing the question of the reserve powers (Sir Gerard suggests a model solution for that too) which can be achieved at low cost ideally using an electoral college (not necessarily like in the US) rather than relying on the Commonwealth Parliament or the PM who have other functions under the Australian system.

See https://is.gd/rOWJ3j and transcript http://sydney.edu.au/law/events/2011/Mar/Sir_Gerard.pdf

PeterL 02.04.17 at 2:35 pm

I favour a system where the public nominates candidates who are then voted on by a joint sitting of parliament with a large majority required for election – say 66% or 75% – and a majority of both government and opposition sitting members. If no candidate receives the required number of votes on the first ballot, the candidate/s with the fewest votes drop out and a second ballot is held. Like a papal election. Candidates would need to have at least 1000 voters nominate them; would need to pay a substantial non-refundable nomination fee; would need to be an Australian citizen; and would need never to have been an elected mp who was elected as a member of a currently existing party; have not been a member of a party in the last ten years or the spouse of such a member. This would ensure the person elected was impartial and had the confidence of both major parties. I differ from Crispin in thinking that it would make good sense to change the role of GG/Preident to a substantive one – namely, to take over responsibility for all the duties and functions currently enjoyed by mps which involve conflicts of interest such as setting their own conditions of employment, effectively choosing judges, auditors ombudsmen, etc.

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