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University of NSW
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Republican authors have traditionally founded their republican state upon two distinct footings. The first is a faith that citizens will act with `civic virtue'.[1] That is, they act in ways that promote the good of the community (even when it is detrimental to their own self-interest).[2] These virtuous citizens are vigilant in the face of excess on the part of their governments. They are questioning, sceptical and incredulous as to the actions of their leaders. In this way they protect liberty by maximising this mind-set.
The other foundation that republicans have historically developed to protect liberty has been institutional design. Virtue is not enough when not all share that virtue. Thus self-interest on the part of the ruled and the rulers must be controlled. In other words, republicans have appreciated human frailty and designed the state to check and disperse power. So a separation of powers, federalism, an independent judiciary and the rule of law are all republican values. As James Harrington put it in his memorable (though gendered) phrase, it is an "empire of laws and not of men".[3]
In recent times the `republican revival' in academic scholarship has renewed interest in the workings of republicanism and the insights that it offers for modern governance.[4] Writers such as Cass Sunstein have extolled the virtues of a republican state that seeks to promote liberty through an emphasis on deliberation in politics, equality of political actors, universalism and citizenship.[5]
Against this backdrop it is possible to view and analyse the proposed Australian republic. The recent Constitutional Convention offers yet another step in a long journey to the republican promised land.[6] Whatever the ultimate outcome of the referendum on the `Bipartisan Appointment of the President Model', the Convention has already been successful in two respects. First, the Convention was broadly representative. Notwithstanding the disappointing political manoeuvring that led to its convening, the Convention had a representative feel to it. There were the faces of youth and the stoop of age. Women were represented and indigenous Australians reminded us of their historic place in the nation. The `head kickers' and the halos were all seen, new voices as well as the familiar were to be heard; this diverse group held a mirror up to contemporary Australia over the ten days in Canberra.
The Convention also represented a sigh of exasperation with constitutional change in Australia. Australia has been described as constitutionally "the frozen continent".[7] Despite a forest of reports[8] and recommendations, constitutional change has been difficult with eight successful referenda from 42 attempts. Thus the Convention was a return to a method that had the virtue of at least having worked. The 1890s conventions in Melbourne, Sydney and Adelaide demonstrated that this method of constitution-building could capture the public's imagination at the same time as providing a positive outcome.[9] The great failure of the 1998 version was the fact that it did not more directly follow the 1890s example. One of the key aspects of the 1890s was the pause between conventions (leaving aside the hiatus of 1891-1897).[10] This break (between the Adelaide, Sydney and Melbourne conventions) allowed delegates to rehearse and revise their opinions formed in the hot house of the convention. Moreover, the public took the opportunity to rally, lobby and petition their representatives. The reality is that the 10 day cooker of 1998 may have left the outcome somewhat `under done'.
The Communiqué of the Constitutional Convention made a number of recommendations to the Parliament which will presumably form the basis of the proposed law to alter the Constitution under s 128 of the Constitution. The Communiqué also left a number of major issues for Parliament to determine. These include:
The above list clearly indicates that Parliament will now be the driving force to shape the proposed republic. This was achieved, in part, by the Convention's own acquiescence. There is no recommendation on the part of the Convention that the Constitutional Alteration (Republic) Bill be sent back to the Convention for its final assent, or even sent to a standing sub-committee of the Convention. One can only assume that when the final Act is passed a large percentage of the 152 delegates will have questions, queries and concerns about outcomes of Parliament's deliberations. Yet these concerns will have no formal arena in which they can be voiced.
Unlike the lofty constitutional resolutions of the Convention, the resulting debate in the Commonwealth Parliament will resound with the din of converting aspiration into legislation. Compromise and strategy will be the order of the day. This will, however, allow Parliament to re-visit and make politically `palatable' what the Convention did not (or could not). The most obvious of these are the process of appointment and the dismissal of the president.
Under the `Bipartisan Appointment of the President Model', the president is to be appointed upon the recommendation of the `Nomination Committee' established by Parliament. The Committee, the objective of which is to "ensure that the Australian people are consulted as thoroughly as possible", will receive nominations and then report to the prime minister. The prime minister, "having taken into account the report of the Committee", shall make a single nomination (seconded by the leader of the opposition) to a Joint Sitting of both Houses of the federal Parliament. The appointment is confirmed by two-thirds majority of the sitting.
The dismissal of the presidency is far less complex. All that is required is the prime minister to present a signed `written notice' to the president at any time. Once this action is taken the president is removed from office. The prime minister's actions must be presented to the House of Representatives within 30 days of the date of removal. The House may then ratify this decision. If it fails to do so it is to be considered a vote of no confidence in the prime minister.
These two aspects of the president's appointment and dismissal raise a number of concerns. The first relates to the Nomination Committee. The Committee itself represents a compromise between the so-called `direct election' republicans and the Australian Republican Movement which favoured appointment by a two-thirds vote of a Joint Sitting of the Parliament upon the nomination of the prime minister. As such the Nomination Committee is somewhere between an `electoral college' and a sub-committee of the Parliament. The untested political assumption is that the Nomination Committee will quell the obvious electoral appetite for a say in the election of the president. It is perhaps significant that the `direct election' model (Model A) was supported by the Leaders of the Opposition in Queensland, Western Australia, South Australia and Tasmania. These States, it is assumed, will be the most difficult from which to garner a `yes' vote.[12] As Peter Beattie, the Leader of the Opposition in Queensland, stated:
I remind delegates of what I said last week. It is no good winning the argument at this Convention and losing the referendum. What we have to do is go out and win this referendum through a majority of people in a majority of States, and that includes States like mine. As you know, Queensland, Western Australian and South Australian leaders have been very strong on this issue because we have to win the referendum in those States, not just in Sydney and Melbourne. Therefore, it is not good enough just to win the argument at this Convention; it has to be won in the hearts of the Australian people.[13]
The appointment mechanism, as it stands, remains a hollow attempt to appease the electoral demands in States other than NSW and Victoria. As such it is doubtful that it will provide the reassurances to those republicans who want more input into the appointment of the president.
The second, and perhaps more concerning aspect of the model, is the dismissal of the president. While the system agreed to by the Convention could be said to mirror the current situation it is the added aspect of the parliamentary endorsement that breaks the analogy. As the Republic Advisory Committee noted in 1993 "[t]here would seem to be no practical reasons why a head of state appointed by Parliament should not be removed in the same way".[14] The fact that the Convention has not linked the method of election of the president with her dismissal cannot be explained on any other grounds apart from the outcome associated with combining two distinct models. On this issue we have the smorgasbord republic.
The problem associated with this can be seen with the practical operation of the model. The selection of the president is somewhat consultative and is endorsed by two thirds of a Joint Sitting of both Houses. The dismissal on the other hand, is a product of the political instincts of the prime minister. While there would be political damage to be weathered with the `sacking of the umpire', the prime minister's survival requires nothing more than party solidarity in the Lower House. Similarly the president, holding all the current reserve powers of the governor-general, can dismiss the prime minister in the manner of 1975. The proposed republic institutionalises suspicion with limited checks on that suspicion. This issue highlights what remains the critical constitution reform: the codification of the powers of the head of state.
With regard to the dismissal of the president, the model as it stands makes no provision, apart from the general acknowledgment of the position, for the appointment of the vice-president. This, coupled with the Convention's decision to allow a State to `decline to accept' the republic, could create startling outcomes. The current situation is that if the governor-general is out of the country or the position is vacant, the next most senior State governor fullfils the role of acting-governor.[15] What will be the situation if the most senior governor is the representative of a State that has `declined to accept' the republic? The Queen of Queensland could conceivably be the acting president of the republican Commonwealth of Australia! Clearly Parliament will have to turn its mind to the role and function of the vice-president.
As has been outlined above, the Commonwealth Parliament will be the next great staging post for those interested in freeing Australia from its monarchical clutches. It will be up to Parliament to come up with a workable and politically `saleable' republic to a nation that has traditionally resisted the lure of constitutional reform. In response to the above concerns I would make the following suggestions.
First, if, as Peter Beattie suggested, the current model will not be politically acceptable in the `smaller States', then those republicans in Parliament must make it so. One concern for those republicans who argued for an elected president was that it offered the model most likely to gain popular support. If the public want more of a say in the process, then the establishment of an elected `Nomination Committee' may be one means of achieving this. If the membership of such a committee was elected (say two members) at the various State and Territory elections then a continuously rotating body based on the federal principle could be established.[16] To this a gender or race representation could be added or required. The advantage of this approach is that it would go some way in meeting the demand for popular input into the process.
Lastly, the genuine independence of the president cannot be established if her tenure may be terminated with the passage of a signed notice and the confirmation of a Lower House more than likely dominated by a single party. The bipartisan assumption that is established in the appointment of the president must be maintained in the dismissal. While this may be seen as enlarging the dominance of the president over the prime minister, it is the only way to end the unedifying prospect of the prime minister and the president (exercising the current reserve powers) exchanging letters of termination as pre-emptive strikes in unsettled times.
[*] BA (Hons) (UTas), LLB (UNSW), PhD (ANU); Lecturer in Law, University of Adelaide. I would like to thank for their comments and assistance Wendy Riemens, Clement Macintyre and Heather Kerr.
[1] Q Skinner, "The republican ideal of political liberty" in G Bock, Q Skinner and M Viroli (eds), Machiavelli and Republicanism, Cambridge University Press (1990) 293 at 303.
[2] P Pettit, Republicanism: A Theory of Freedom and Government, Clarendon Press (1997) pp 258-68.
[3] J Harrington, "The Prerogative of Popular Government Book I" in JGA Pocock (ed), The Political Works of James Harrington, Cambridge University Press (1977) at 401.
[4] In the American context, see F Michelman, "The Supreme Court 1985 Term - Foreword: Traces of Self-Government" (1986) 100 Harvard Law Review 4, and C Sunstein, "Beyond the Republican Revival" (1988) 97 Yale Law Journal 1539; and in the Australian context, see B Galligan, A Federal Republic, Cambridge University Press (1995) and J Uhr, Deliberative Democracy in Australia: the Changing Place of Parliament, Cambridge University Press (1998).
[5] C Sunstein, note 4 supra at 1541.
[6] M McKenna, The Captive Republic: A History of Republicanism in Australia 1788-1996, Cambridge University Press (1996).
[7] G Sawer, Australian Federalism in the Courts, Melbourne University Press (1967) p 206.
[8] Report of the Royal Commission on the Constitution (1929), Report from the Joint Committee on Constitutional Review (1958) and the Final Report of the Constitutional Commission (1988).
[9] H Irving, To Constitute a Nation: A Cultural History of Australia's Constitution, Cambridge University Press (1997).
[10] See generally JA La Nauze, The Making of the Australian Constitution, Melbourne University Press (1972) ch 6 and JC Bannon, The Crucial Colony: South Australia's Role in Reviving Federation 1891 to 1897, Federalism Research Centre (1994) pp 6-12.
[11] Indeed it verges on a joke to announce that Australians hold certain truths to be self evident, yet not make them the subject of judicial consideration.
[12] Historically these States have been reluctant. Of the 42 referenda held since federation 8 have been successful overall. If the 8 successful are removed from the calculation then these States have voted "Yes": Queensland 13/34 (38 per cent), South Australia 8/34 (24 per cent), Western Australia 17/34 (50 per cent) and Tasmania 2/34 (6 per cent).
[13] Constitutional Convention, Transcript of Proceedings, 12 February 1998, p 567.
[14] The Report of the Republic Advisory Committee (1993) Vol 1, p 5.
[15] See s 126 of the Constitution and HE Renfree, The Executive Power of the Commonwealth of Australia, Legal Books (1984) pp 145-6.
[16] This suggestion comes from a discussion with Professor Cheryl Saunders and Hon Ian Baker. I am grateful to them both.