It might sound like astral travelling, but when the members of the Republic Advisory Committee flew across the ACT border yesterday they entered a body politic under the Crown.
We know this because it says so in Section 7 of the Australian Capital Territory (Self-Government) Act. For all intents and purposes that Act is the Constitution of the ACT.
The ACT’s Constitution could provide a very useful model for the committee as it looks for options for an Australian republic. The reason is that the ACT Constitution avoids nearly all of the ephemeral and uncertain elements that imbue the Federal Constitution.
Section 7 is the first and last reference to the Crown in the ACT Constitution. It could be repealed tomorrow and the ACT would be a republic. Moreover it would be a republic without a head of state.
I don’t imagine that a head-of-stateless republic is an acceptable option for the committee or for the people of Australia. However, it is important to either reduce the head of state’s powers or to define them precisely if Australia is to be a republic with the same form of government we have now _ that is a parliamentary democracy where the executive government is formed by those who have the confidence of the Lower House of Parliament and where the head of state performs largely ceremonial functions with no day-to-day power.
Our present form of government federally is much like that, but for the fact the Governor-General (the de-facto head of state) has reserve powers. These powers offer a discretion in some circumstances on who to appoint or sack as ministers (including Prime Minister) and when to dissolve the Parliament and call and election. Those circumstances come into play when the Prime Minister loses the confidence of the House or cannot get Supply from the Senate.
The ACT has overcome much of the uncertainty surrounding those events by three simple expedients.
The first is that the House itself elects the Chief (or Prime) Minister who in turn appoints Ministers. Thus there is no need for the Head of State to have any discretion in the matter. If the House votes no confidence in a Chief Minister, it must elect a new one.
The second is that the House runs for a fixed term, so there is no discretion on the part of a Head of State on when or whether an election should be held.
The third is that there is no Upper House.
These expedients could not be applied in their entirety federally; the states would scream at the abolition of the Senate and no Prime Minister would deny him or herself the power of deciding the election date.
However, they offer some help. For a start, the Constitution could provide (as the ACT one does) that the Prime Minister shall be elected by the House, and not appointed by the head of state. It could further provide that any no-confidence motion in the Prime Minister must name the new Prime Minister. That would wipe a great deal of uncertainty from the Head of State’s position if there is a hung election.
We know this works in practice because we have had a mid-term transition of power and two minority governments in the past five years in the ACT, and the matters have been resolved without recourse to any reserve powers of a head of state or representative of the Crown. The ACT provides a sound, practical example of how the reserve powers can be reduced or cut out altogether.
As to election dates, the Constitution could wrest the nominal power over the setting of the date from the Governor-General and formally vest it in the House of Representatives itself.
The Constitution could say that the House or Representatives shall be dissolved automatically after three years from the date of its first sitting and an election held, say, five Saturdays thereafter, unless the House votes to dissolve itself by majority vote on the motion of the Prime Minister. And there goes another one of those uncomfortable reserve powers of the Head of State.
Beyond that, the ACT model does not offer much further help. The power of the Senate to reject money bills is a real sticking point in this debate. It is fundamental to the republican issue because it involves the head of state’s powers. Would the Australian people come at an amendment saying the Senate cannot reject a money bill for the ordinary appropriation of government? If the people have elected a dud government you have to wait three years to throw them out unless you get a sufficient number of parliamentary defectors.
If Malcolm Fraser had been patient enough to wait a trifling 18 months in 1975, none of this concern would have happened. Even here, the Senateless ACT body politic offers some guidance. Rosemary Follett unlike Fraser had the patience to put up with what was publicly perceived as an unstable, erratic Alliance Government for 18 months, knowing that power would fall into her lap. There was no need for a Vice-Regal coup.