By Bruce Barbour (Version 2 - updated July 2022*)
Without the Queen as Head of State it is necessary to rethink all the relationships between the various offices and the Constitution and their functions.
The Hierarchy should be:-
The Constitution becomes central to the whole operations of Governance. It is pre-eminent as the expression of the will of the People which can only be changed by the People.
The powers of the Governor General, the Prime Minister and the High Court would all be defined under the Constitution. It would be preferable not to rename the position of Governor General to President. "President" has connotations of a person with significant power (as in the USA). The Governor General in the new scenario would have basically the same, largely ceremonial, powers as the existing Governor General.
The Governor General should be seen as the Keeper of the Constitution. Most powers of the Governor General should be codified under the Constitution. If the Governor General is able to dismiss the Prime Minister most of the rare situations that this can occur should be written into the Constitution. Never the less some (unwritten) reserve powers would still exist - it is very difficult to foresee all eventualities over say centuries so some contingent flexibility may be warranted.
As stated the High Court is the Interpreter of the Constitution. Bills presented to the Governor General from Parliament could be challenged in the High Court for their opinion on conformity to with the Constitution. If an adverse opinion is gained then the Bill would be sent back to Parliament for amendment.
I would like the Constitution to contain a “Bill of Rights and Responsibilities” and a statement on the values of the Australian people against which bills could be judged. This may prevent the Government putting up bills which would be against the Will of the People as expressed in the Constitution, unless it is willing to go directly to the people for a change in the Constitution. However again it may be difficult to codify all rights - especially as society and technologies change over time - so it should be written on the basis other rights in addition to the codified rights may also exist.
The Governor General as the “Keeper of the Constitution” would also have powers to call together groups of people to consider beneficial Constitutional changes which could be put to the People, keeping the Constitution as a living document. This might get some of the politics out of Constitutional change.
Mode of Election
The mode of election of the Governor General that I prefer is 2/3 majority of a joint sitting of both houses of the Parliament (and similarly for dismissal).
This method of election should also be used for the appointment of members of the High Court as well. This will prevent stacking of the High Court with members favourable to one party or the other. We have seen how disastrous this is in America and while it does not seem to happen here by convention, the rules need to change to ensure it is not a possibility.
Direct election is possible under this model however I think it would be expensive to the taxpayers for little gain, and would contain an element of risk. If a compromise is necessary I would suggest the direct election of a group of people who would then select the Governor General. But again - what a waste of money for no gain what-so-ever.
On another point there was a proposal that the President be elected by 67% of Parliament but can be dismissed by the Prime Minister or 51% lower house. This is fraught with potential disaster.
Take example, Prime Minister, with a minimal lower house majority, sacks the President. The PM then has to appoint a new President. The Opposition doesn’t agree with the original dismissal and refuses to agree to any other nomination than the original President, an option that cannot be agreed to by the Prime Minister. No 67% support, therefore no President. But we do have something:- CONSTITUTIONAL CRISIS!
To work effectively dismissal of the President by Prime Minister it must also be ratified by 67% of Parliament or original dismissal must be by 67% of Parliament.
* * * * * * * * * * * * *
*July 2022 update. I have had two significant changes of opinion from when this was first written:
(1) For a long time I was horrified by the fact that the Governor General dismissed a the elected government of Gough Whitlam and the Labor Party in 1975. I use to think that this was virtually a bloodless coup! But over time I have come to recognise that the power to dismiss was not as horrific as first thought. After all the dismissal was very closely followed by the calling of an election, to allow the people to decide who was to govern.
Imagine if dismissal had not been possible and the stalemate in the Senate had continued and supply not passed - for an additional month or two months - or indefinitely. Government would stop. Public Servant and Government contractors would not be paid. No Commonwealth government services would be supplied. So there had to be a way to break an impasse like this.
It could feasibly be argued that the Governor General acted too soon and should have allowed the political process to play out longer - it might have been resolved by the politicians themselves as the situation became more dire. However if it could not - for what ever reason - be resolved by the politicians then ideally what I would have liked to have seen was that the Governor General would bring the parties together to negotiate a compromise - while holding the stick of dismissal or the stick of being able to call an election even though a government maintained the confidence of the lower house (another change I would make to the constitution).
This was not possible for the then Governor General, John Kerr. If the Prime Minister had learnt that the Governor General was considering dismissal, the Prime Minister would have attempted to sack the Governor General and appoint someone who would not sack him. This may also be part of the reason that John Kerr acted with haste, perhaps earlier than he may have otherwise done.
If the Prime Minister had sacked the Governor General it would have involved the referral to the Queen who going by convention would have had to agree to this, though may not have - who knows. More constitutional crisis! And getting the Queen directly involved to sort out our problems would have been disastrous for an independent country like Australia.
The proposal (in the main text) that the Governor General be appointed by a two thirds majority of Parliament would have meant that the Prime Minister by himself could not (usually) sack the Governor General. Under this arrangement the Governor General would have been freer to act to organise a negotiated solution between the parties. Hopefully an outcome could have been achieved that would not have involved the dismissal of an elected Government. Much better for our democracy.
(2) I originally suggested away out of the impasse of the republican vote being split by those that want direct election of the Governor General to those that want a model under which the Governor General is appointed by the Prime Minister or, as suggested, by the Parliament. I now consider that the direct election model involves too much risk for Australia and would be a very expensive waste of money. So much so that maintaining the current arrangement (constitutional monarchy!) would be preferable to the direct election model, as much as that pains me to say this as a republican.
If this is the case then it is my opinion changing to a republic could only occur (a) once Charles is the King of England and therefore, by default, the King of Australia and (b) the Labor and Liberal parties - and most of the smaller parties - all agree on the parliamentary appointment model for the head of state (Governor General) and are willing to stand side by side to convince the Australian public that parliamentary appointment of the head of state is the best model for Australia.
It is necessary to have unambiguous support from both parties because history has shown that referendums are notoriously difficult (impossible?) to be adopted unless there is bi-partisan support. And to have a second republic referendum that was not supported would be a very bad outcome and would probably mean that Australia would not become a republic until very late into the century - perhaps not until the Brits themselves abandon the monarchy!
We need both major parties standing side by side in support of the parliamentary appointment model for the governor general, with both parties clearly laying out the risks and waste inherent in the direct election model. I believe that both parties, provided that they are not playing politics, would prefer parliamentary appointment to direct election. Direct election would mean that they would have to fund and run an additional election campaign for the appointment of person to a position which, except on rare occasions, is ceremonial.
If support cannot be obtained from both of the political parties we will remain a constitutional monarchy, with a person who is not Australian and is the head of state of a foreign country, as the Australian head of state. I don't like it but as stated the main impact of the head of state is largely ceremonial. Australia will go on regardless of the head of state being the monarch via the Governor General or a parliamentary elected Australian.
As Labor is already committed to the Republic this gives the power to the Liberals to decide the timeline - so be it. Over time as more and more Australians start calling for a republic there will be come more pressure on the Liberals to come on board. Especially when Labor make it very clear to the public that the Liberals are the sole reason for the delay in putting the referendum question to the public. And in time the Liberal leadership team will be lead by a Republican - after all former leader Malcolm Turnbull was an avowed Republican. Another will arise eventually - and will drag the Liberals along with them.
It is worth the wait to ensure the correct model is adopted.
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