The theory is that by taking the minimalist approach you can keep almost exactly the same form of government we have now. You just cross out “”Governor-General” and insert “”President” and delete all reference to the British Crown.
Under this theory you create a ceremonial President with few if any powers. The reality is different; the president would get potentially very large powers _ those of the present Governor-General and more.
A literal reading of our Constitution shows that the Governor-General has huge powers: the power to appoint and dismiss Ministers (including the Prime Minister), the power to dissolve Parliament and call fresh elections, the power to appoint a great raft of executive positions.
The only reason that the Governor-General does not exercise these express powers is convention. But there is no check against the use of them. The High Court is in no position to call the exercise of them into question, or to overturn any action by the Governor-General.
So if we cross out the word “”Governor-General” and replace it with the word “”President”, the president would have these powers. And only convention would stop the President from exercising them.
But with a very large difference. The Governor-General can be removed by the Prime Minister by the Prime Minister simply telephoning Buckingham Palace and asking the Queen to remove the Governor-General, and she will do it. Under a Republic, there will be no Queen, and presumably, the power of removal of the President will take a similar form as that laid down for High Court judges. Whatever it is, it will not be removal at the whim of the Prime Minister, as now.
The committee appointed last week to look into precisely what minimal changes to the Constitution are needed to effect a Republic is therefore presented with a fundamental difficulty. If the bare minimum textual change is made, the Crown would be removed and the President would retain very wide-sweeping powers on paper, but based on a much stronger platform than the Governor-General: no removal from office without some sort of process.
While political events move smoothly, this is of no moment. But the whole debate about the appointment, dismissal, role and powers of the President under a Republic is directed precisely at what should happen when political events do not run smoothly.
Australian history (state and federal) shows half a dozen situations where political events do not follow normal procedure and where a Head of State might have some discretion. If a Prime Minister does not get a majority after an election, but the Opposition would have to rely on a shaky coalition to form a majority, should there be a new election, should the Prime Minister continue in office until Parliament meets, should the Head of State call the Opposition Leader to be Prime Minister or even the leader of a minor party if nominated by the Opposition Leader?
What if the Senate blocks Supply? How long is the Government to continue? Should both Houses or just the Reps go to the election?
On what grounds, if any, should the Head of State call an early election? What if part of the Prime Minister’s party defects to the Opposition giving it a majority? Should the Head of State listen to the Prime Minister’s urging to call an election or should the Head of State allow the Opposition Leader to be Prime Minister for the rest of the term?
These are not fanciful questions. They have arisen in the past, and they will no doubt arise again, as will other unprecedented political cauldrons calling for constitutional settlement.
The point is that Keating’s minimalist approach in fact is a maximumist approach. But restricting constitutional changes virtually only to the words “”Governor-General” and “”Queen”, the big constitutional uncertainties remain untouched. More significantly, their resolution, under the so-called minimalist approach, are placed squarely before the new President.
Under the minimalist approach, the new President will be very powerful at the time it counts: when political events do not run smoothly.
The committee is on a lose-lose. It cannot recommend that the Prime Minister have summary power to appoint and dismiss the President. Such a proposal would be condemned as prime ministerial power-hunger. So there has to be another way for dismissal, which the committee will have to recommend.
Once that happens, the President is more powerful than any Governor-General. The President has an independence to exercise the huge powers in the Constitution given to the Head of State without fear of dismissal _ a fear that every Governor-General since Kerr has had to countenance, given all Prime Ministers since Whitlam have been forearmed and forewarned about the potential power of Governors-General.
The only way around this conundrum is to recommend some other constitutional changes to address the questions posed above: remove the Senate’s power over supply; have fixed election dates; demand that no-confidence motions in the Reps name a new Prime Minister, and so on.
Once you do that the electorate and Opposition freak and the referendum could fall in a heap.
Either the electorate will have to cop a potentially very powerful president (or be conned into believing the President is not powerful) or they will have to be persuaded that other changes are necessary.
Either of these is a difficult task. However, they are not impossible. Many commentators reflect on the difficulty of getting referendums passed. That is true, but has only been true in referendums about politician’s power; it has not been true in referendums of great historical and sentimental importance: federation; social security after the great sacrifices of war; recognition of indigenous people. The Republic is in this class. The power of sentiment and historic occasion should not be underestimated; it could to be enough to carry whatever baggage is necessary to go with it _ other changes or a president with large dormant powers.