The Hon Richard E McGarvie AC
Former Governor of Victoria and
Former Judge of the Supreme Court of Victoria
The Papers These papers identify the strengths and safeguards on which the democracy of our present system depends and outline my model for a republican equivalent of that system of democracy. They also outline my approach for deciding the republic issue in a way which will not strain our federation.
I do not side with monarchists or republicans. My deep concern is that with either system we must maintain one of the world’s best democracies which Australians have built. The papers in Part 1 identify the model for a republic which would maintain the strengths and safeguards of that democracy and those which would not.
Part 1 (Papers 1 to 35), deals with the various issues that had arisen up to and immediately after the referendum of November 1999. Papers 1 and 2 compare my model with the two models which in May 1997 were its rivals, the parliamentary-election model supported by Mr Malcolm Turnbull and the Australian Republican Movement, and the direct-election model of the type outlined in the Report of the Republic Advisory Committee. Those were the three main models receiving public attention until the Constitutional Convention in February 1998. Papers 3 and 4 explain what Governors-General and Governors do. Papers 5 and 6 outline my model and its operation. Paper 7 identifies the questions which underlie the republic debate and the way of assessing how safe the models would be for our democracy. Paper 8 outlines the responsibilities of citizens for their democracy. Papers 9 to 12 deal with what should be investigated in the republic debate and the particular need for business leaders to apply their skills to the issues. Papers 13 and 14 respond to criticisms of my model made from republican and monarchist viewpoints. Paper 15 reflects on the task of the Constitutional Convention. The other papers were written after that Convention which produced four detailed models, the subject of its final decisions. Paper 16 describes the growing support shown for my model. Paper 17 explains the main safeguards of our democratic system and looks at the challenges facing it. Paper 18 outlines the reasons for the likely failure of the referendum in 1999 and forecasts that a model such as mine, rather than one for a popularly-elected President, is likely to be the subject of a second referendum in about 2005 which would resolve the republic issue. Paper 19 discusses how the courts can continue to do their work, which is essential to our democracy, and surmount the daunting obstacles of next century. Papers 20 to 27 identify the five fundamental flaws which the constitutional changes of the 1999 referendum would have introduced into the actual operation of our constitutional system, their effect on our democracy and federation,and how to go about resolving the republic issue after failure of the referendum. Papers 28 and 29 emphasise the importance of the influence of women and business leaders on the outcome of that issue. Paper 30 shows how the positions taken by government, opposition, media, educators and yes case campaigners deprived Australians of information essential to making informed decisions upon the 1999 referendum. Papers 31 and 32 reflect on why the referendum package could not gain support, the continuing majority push for an Australian head of state and the safe way of resolving that issue by 2005. Paper 33 demonstrates that despite failure by government,opposition, intellectuals and the media to expose the fundamental flaws of the referendum package, the ordinary voter was not satisfied that it was safe and satisfactory and voted it down. The small percentages whose no vote was mainly motivated by insistence on keeping the monarchy,or on having a directly-elected president, are seen. The fact that Australia is already in substance a republic is shown in Paper 34 to have caused both sides to distort their arguments and usually avoid ever mentioning the McGarvie model. The paper explains why that model will prevail in the impending contest with a model for a directly-elected president. It emphasises that the McGarvie model continues the four essential features of the office of head of state crucial to our democracy but models for a directly-elected president do not continue even one of them. Because this is important to the ordinary Australian voter, the electorate would be confident their democracy would be safe in a republic based on the McGarvie model and be prepared to accept it, but would never accept one based on the direct election of presidents. In analysing the reasons why 55 per cent voted against the referendum package, Paper 35 draws on opinion polls. It identifies the process which has the best prospect of building the consensus necessary to enable the issue to be resolved by about 2005. It explains how that process would be greatly retarded by any political party adopting and promoting a particular model.
Part 2 (Papers 36 and later), concentrates on informed, fair and effective process for the early resolution of the head-of-state issue and the plan of the Corowa Peoples Conference 2001 to initiate such a process. Paper 36 explains how the move to federation was given fresh momentum when stalled in 1893. It draws on that experience to point to the practical process that would give fresh momentum to the presently-stalled move to resolve the republic issue, and lead to early resolution. Paper 37 elaborates on the practical process for early resolution of the republic issue indicated by the experience of federation and the 1999 referendum. Paper 38 explains how the Corowa Peoples Conference 2001, to be held on 1-2 December 2001, aims to recommend a process which would restart the stalled move to resolve the head-of-state issue. Paper 39 shows the categories of people to be invited to the Corowa Conference. Paper 40 remains relevant only to show the Draft Proposals referred to in other papers but now contained with slight amendments in Paper 47. Paper 41 explains why the Corowa Conference is limited to process and aims to operate in a non-partisan way, and how the process proposed for consideration would work. Paper 42 responds to an editorial in Quadrant which criticises the holding of the Corowa Conference. Paper 43 explains the need for early resolution of the head of state issue and a process for consideration by the Corowa Conference that would achieve that. Paper 44 outlines the practical advantages of that process and the weaknesses of other proposed processes. Paper 45 explains the final design of the Conference and how it will operate. Paper 46 is an executive summary of the process proposed in Paper 47. Paper 47 sets out the process proposed by Richard E McGarvie and Jack Hammond QC for consideration by the Conference, which would resolve the head of state issue for the whole federation. Paper 48 deals with the position of the states if Australia separates from the monarchy.
Resolving the Republic Issue
My interest grew from the request, while I was Governor of Victoria in 1993, to give my views to the Republic Advisory Committee on the minimum changes necessary to achieve a viable republic which would maintain the effect of our current conventions and principles of government. I realised that our democracy is so good that it must be preserved, that the less the change the higher the prospect of preserving it, and that evolution in Australia since 1788 has taken us to the position where we are almost a republic and only minor change is necessary to make us one.
The Queen is the formal head of state but the Governor-General and Governors are the operative or de facto heads of state of the Commonwealth and each State. They exercise the few remaining head-of-state powers that belong to the Queen, and the other head-of-state powers that now belong to them, on the advice of their Commonwealth or State Ministers. The Queen has no authority, control or veto over the Governor-General or Governors whatsoever.
In my model the positions of the Governor-General and Governors would continue unaltered and under the same names. The model would transfer to them the remaining powers, functions, rights and attributes of the Queen and the Crown so that they become the formal as well as the operative heads of state of their constitutional units. That makes legal changes but no operative changes and leaves them operating as they have for a century. Conventions are binding because the ordinary operation of the system provides practical penalties for their breach and, as the system will continue to operate in the same way and provide the same penalties, all conventions now binding will remain equally binding.
The Queen’s one remaining active constitutional duty, appointing or dismissing Governors-General and Governors, will be done in each system, on the advice of the Prime Minister or Premier, by its Constitutional Council of three experienced Australians automatically designated by constitutional formula under the Commonwealth or State Constitution. They would be persons retired from non-political positions of high constitutional responsibility and not over the age of 74. The earlier age limit of 79 was abandoned after criticism at the Constitutional Convention. There is now no minimum age requirement. Retired judges are eligible as members only if they have at least ten years’ service as a judge. For example, if my present model of the Constitutional Council for the Commonwealth system had been in operation at the time of the Constitutional Convention, the three eligible members would have been the two most recently retired Governors-General, Sir Ninian Stephen and the Hon Bill Hayden,and the former Governor of Queensland, Mrs Leanne Forde, the most recently retired State Governor.
It would still be the Prime Minister or Premier who would choose a new Governor-General or Governor and the Constitutional Council would be bound by convention to appoint or dismiss as advised. A Council neither suggests nor chooses a new Governor-General or Governor. Its only duty is to appoint or dismiss as advised. It would do no more and no less than the Queen does now and do it in exactly the same way.
Because it would operate in the same way and retain all its strengths and safeguards, democracy would be as safe in a republic under the McGarvie model as it is now. With the model in operation in the Commonwealth and each state system, Australia would be entirely a republic. Australia would then have no Queen. No monarch would have any formal or other part in any of Australia’s constitutional systems. As Head of the Commonwealth of Nations, the monarch of the United Kingdom would have the same relationship with Australia as now exists with Commonwealth countries which are republics, such as India and South Africa.
My approach is that the republic issue should be resolved in a way which would result either in the whole federation becoming republican together or all systems remaining monarchies. That can be achieved under ss.128 and 51 (38) of the Commonwealth Constitution and s. 15 (1) of the Australia Acts 1986 by requiring a referendum to be passed by a majority of Australian voters and a majority in every State, and a request from each State Parliament. While at first sight that seems a difficult process, it has to be remembered that, before federation, every State voted for it in a referendum; since federation seven of the eight successful referendums, all that have passed since 1910, have been carried by a majority in every State; and that if every State voted for a republic, their State Parliaments would be highly likely to make the request.
The scene changed and a new start was made at the Constitutional Convention. Detailed models were put forward and I refer to each of them by the name of the delegate moving its adoption. My model is outlined in vol.4 of the Report of the Constitutional Convention 1998, at pp. 838-9. To comply with the decision of the Convention the head of state is there called ‘President’ In the model that I advanced before that decision, and advance since the Convention, the head of state of the Commonwealth of Australia will still be called ‘Governor-General’ for reasons which appear from these papers. What I said at the Convention appears from vols 3 and 4 of the Report at pp. 27, 40-2, 137, 142-3, 345-7, 394-5, 516,696-8, 838-845, 870, 936 and 1000-1. The Turnbull model for parliamentary election attracted most votes, though not a majority of delegates, my model was next, followed by the Gallop model then the Hayden model, both models for direct election. The parliamentary election model and both direct-election models differed from the forms of those models previously advanced. They are set out in vol. 1 of the Report of the Constitutional Convention 1998, pp. 44-5, 47-9, 124-30. They all abandoned dismissal by a two-thirds majority of a joint sitting of Parliament and substituted other methods of dismissal. The Turnbull model added a committee representative of the community to prepare a short list from candidates nominated for President by citizens or community organisations. The Gallop model and the Hayden model added provisions to restrict those who could be candidates in an election. The Convention attracted a great deal of public attention and brought home to the community what the shallow debate had not previously revealed – that some models carry risk for the democratic system.
There are four essential features of a head of state in a system such as ours which a model must be structured to produce because they are crucial to the strength and quality of the democracy of the system:
1. Chosen in a way that gives no mandate to encourage rivalry with the elected Government;
2. Liable to prompt dismissal for breach of the conventions to (1) exercise powers as Ministers advise, (2) not speak politically and (3) not collaborate politically with the Opposition;
3. Chosen by a method and operate within a setting that provide a respected person who remains above partisan politics and exerts a unifying influence; and
4. In a position to exercise effectively and impartially the fail-safe mechanism of the discretionary reserve authority.
The first three requirements exist because our kind of head of state is a nominal chief executive with the legal right to exercise at will or refuse to exercise great constitutional powers at the centre of our system of government; and with numerous opportunities to speak or act against the Government on political issues. Effective democratic government depends on the system having inbuilt mechanisms to ensure that the headof state never becomes a political rival of the elected Government. Several mechanisms presently combine to achieve this in the case of the Governor-General and Governors. For example, the Governor-General,being selected by one person, the Prime Minister alone, is given no mandate or power base to encourage rivalry with the Government. The Governor-General must comply with the three constitutional conventions, which are made binding by the effective penalty of prompt dismissal for breach. The Prime Minister, in the interest of his or her own reputation, has every incentive to select a respected person likely to remain above politics and exert a unifying influence. Such persons are not discouraged from agreeing to serve, by the prospect of public objection and character assassination in the process of selection.
The fourth requirement is necessary because we have the safety device of a protective mechanism that enables the democratic system to be protected from stalling, damage or destruction in the exceptional circumstances of a constitutional crisis with which neither the political nor judicial processes are able to cope. When it is absolutely necessary for the effective operation of our constitutional system and its essential safeguards of democracy, that fail-safe mechanism gives the Governor-General authority in the last resort to act independently of ministerial advice and exercise a reserve power so as to refer an exceptional constitutional malfunction to the Parliament or people for resolution. Because I took it for granted that every model would guarantee that this requirement is fully met, my papers before the Constitutional Convention mentioned only the first three requirements. Since the Turnbull model adopted at the Convention would have crippled the fail-safe mechanism by giving Prime Ministers instant power to dismiss Presidents, it became necessary to emphasise the fourth requirement.
The present system and the McGarvie model, the only truly minimalist republic model now being considered, both satisfy those four requirements in full.
Australians are instinctively wise constitutional people. They know that we are trustees of our democracy and federation for future generations and that any constitutional change we make is likely to last for a century or centuries. The majority of voters in November 1999 were not satisfied that the Turnbull model would meet the above requirements. The substantial risks to the strength and stability of our democracy and federation which would have been introduced by the changed operation of the system under the Turnbull model and the likely existence of dissenting States, were fairly obvious to most of those who thought about it. My papers before the referendum predicted that it would fail.
Under the Turnbull model a committee representative of Parliaments and the community would have prepared from persons nominated by citizens and community organisations a short list of those it considered suitable. That was to be considered by the Prime Minister and Leader of the Opposition who were expected to move and second a motion before a joint sitting of both Houses of Parliament for the election of a person as President. If elected by a two-thirds majority of a joint sitting the person would become President for a term of five years, but could at any time be dismissed instantly by a document signed by the Prime Minister.
It is vital not to consider the model in theory but to look at the way it would actually have worked in practice. The President would be given the strong mandate and power base of selection by the Short-List Committee and the political parties on both sides of Parliament, and election by all or almost all the members of Parliament. In addition the title ‘President’ would encourage both the people and the head of state to regard the holder of the office as having a role similar to the President with whom Australians are most familiar, the powerful President of the United States. This would tempt the President to act as champion of the people against the elected politicians of Parliament and Government, without going so far as to be dismissed.
Because no federal Government for fifty years has had a two-thirds majority of a joint sitting, the Turnbull model would give the Opposition the power, by withholding its vote, to frustrate the Government from appointing anyone as President. That would leave the office vacant, its duties being performed by a temporary Acting President, and create the impression of a Government unable to govern.
There is general agreement that Prime Ministers of all parties have done well in their selections of suitable Governors-General. Under the Turnbull model, because peak organisations and Parliaments would be able to nominate candidates for President and because the membership of the Short-List Committee and the selection of candidates for the short list were both to take account of community diversity, the suitability of persons for the office of President would have been likely to become a secondary consideration. Members of the Committee would have seen their primary task as seeking to ensure that the candidate from the group or category they were regarded as representing be included on the short list. When the names got to the political party meetings veto and prejudice would have had full sway. Whatever confidentiality provisions were sought to be imposed, the identity of those being considered would leak from the Short-List Committee and the party rooms. Baseless allegations of discreditable conduct would be made against candidates and receive wide publicity. There would be pressure for as in the case of Supreme Court judges in the United States. There would be media polls and votes which would place great pressure on the political parties to choose the celebrity scoring the highest in public popularity. Many suitable people of high reputation such as those who have been our Governors-General, would not be prepared, near the end of their careers, to allow their names to be involved in that process and would refuse to be candidates. People of a different calibre would become President.
At the Constitutional Convention, dismissal by a two-thirds majority of a joint sitting, which would have meant that the President was undismissible in practice and the conventions no longer binding, was abandoned, but the substituted instant dismissal by a document signed by the Prime Minister have inhibited or paralysed the exercise of a reserve power when necessary in a constitutional crisis.
If the referendum had passed in November, it would automatically have converted the Commonwealth system to a Turnbull model republic on 1 January 2001 but have had no effect upon the state systems. There was a high probability that if it had passed, it would have been supported in only a majority of States and one or two States would have dissented. It would have created real tension between the units of the federation for the people of dissenting States to have been forced into a Commonwealth republic they did not trust with their democracy. No referendum which has passed since 1910 has had any dissenting State. Whatever the theorists say, dissenting States would have been under extreme pressure from circumstance and ridicule to change themselves to republics at State level, despite the vote of their majority in the referendum on the Commonwealth. If a State requiring a State referendum to change itself to a republic did not pass it, a most unsatisfactory situation within the federation would have resulted.
Failure of the referendum in 1999 has not resolved the republic issue. Numerous voters who favour a republic voted ‘no’ either because they realised the effect the flawed Turnbull model would have on our democracy and the potential strains on our federation if the referendum solely on the Commonwealth system were passed, or because they were not satisfied that the package was safe and satisfactory. The issue will only be resolved when voters are given a clear choice between the present system of democracy under a monarchy, and a republican model which would maintain the quality of that democracy with all its strengths and safeguards: and when the choice can be made for the whole federation. With the rejection of the Turnbull model, it has become necessary to consider whether a model such as mine,for the republican equivalent of our present system is preferable or one of the models for direct election. Paper 20 and Papers 31 to 35 indicate how that should be done.
When the two models for direct election are examined, it will be seen that they are quite incompatible with our kind of democracy. Inevitably a politician under the control of a political party (whether currently a party member or not), the President would have the enormous mandate and power base of the only office-holder directly elected by the whole country. When President and Prime Minister are controlled by the same political party the President’s checks and balances would be ineffective. When controlled by opposing parties there would be strong rivalry and two competing centres of political power and influence. In neither situation would the President be suited to act as constitutional umpire.
Under both direct-election models the method of dismissing a President would mean that in practice the penalty of prompt dismissal that gives binding force to the three conventions would disappear. A President could be dismissed on the grounds of misbehaviour or incapacity by an absolute majority of the House of Representatives under the Gallop model and of a joint sitting under the Hayden model. An investigation into whether there had been misbehaviour could take as long as the two years the similar investigation in respect of Mr Justice Lionel Murphy took in the 1980s. Minority Governments would have difficulty in obtaining the necessary majorities. A President facing dismissal could prevent that occurring by dissolving Parliament at a time electorally suitable to his or her party.
There is no proposal for any mechanism to replace the conventions which now firmly preclude the head of state from speaking politically or collaborating politically with the Opposition. It has been suggested that the models could replace the basic constitutional convention which now binds the Governor-General to exercise powers as Ministers advise, with a legal obligation to the same effect. That would validly and effectively preclude the President from exercising powers without Ministers’ advice but would , in practice, be ineffectual to bind the President to exercise powers whenever advised by Ministers to do so. Seeking to have the courts enforce that obligation would be as damaging to the courts as to the political process. A President controlled by the party opposed to the Government could exert an effective veto over the Government by refusing to exercise powers when Ministers advise. A President with that veto and free to speak politically and collaborate with the Opposition would be a powerful political figure. Democratic government would become unworkable.
Many people with a background and reputation equipping them for the post, such as some of our best Governors-General, would not be prepared,towards the end of their careers, to stand as a party candidate and campaign for election upon their personal qualities or the policies of their party or both. A President endorsed by a political party, obtaining 35 per cent of first-preference votes and elected with 52 per cent of the vote after distribution of preferences, would not be well placed to have the necessary unifying influence within the community.
When Australians become aware that, in reality, the direct-election models would be worse than the rejected Turnbull model in depriving our democratic system of strengths and safeguards, there will be little support for them.
It would be feasible for us to have a directly-elected President only if we fundamentally changed our head of state from a nominal chief executive to a chief-executive head of state as in the United States or a non-executive as in Ireland. Even if agreement could be reached to take either of those courses, it would involve a basic recasting of our constitutional system, be difficult, take a lot of time and have a most uncertain outcome.
The failure of the referendum in 1999 has produced widespread concern. Republicans who put their democracy and federation first and voted ‘no’ resent that they did not have a fair chance to vote for a viable republic. Others are concerned that by leaving this emotionally-charged issue unresolved we are taking the path of Canada, where twenty years of continued constitutional dispute is having a destablising effect upon the federation. There is embarrassment at Australia being seen overseas as having sought ineptly to resolve an important constitutional issue upon a model so obviously defective. There is a need to abandon shallow debate and have the Commonwealth and States work together in co-operation and with the community to look in depth and identify the workable republic model safe for democracy,and the referendum process enabling a choice to be made for the whole federation together. It would be practicable in about 2005 to resolve the republic issue on a model such as mine in a second referendum applying to the whole federation.
Since the Corowa Shire Council on 19 December 2000 decided to host the Corowa Peoples Conference 2001, I have not initiated promotion of my model and do not intend doing so until after the Conference. The papers in Part 2 concentrate on putting in place an effective process for resolving the head-of-state issue, before debating and deciding on whether the federation should separate from the monarchy and the merits of models to replace it.
Unless otherwise indicated, I am the author of the papers on this website.
Richard E. McGarvie
Reblogged by permission. Read the original documents here.