We come now to the so-called "bipartisan model" for a republic that emerged from the Constitutional Convention. It is essentially owned by the ARM, which had for years espoused the first version of the Keating—Turnbull republic. That is why it is best described as the second version of the Keating—Turnbull republic.
The fundamental question for Australians in the coming ref¬erendum is whether this model is better than, or at least as good as, the present constitution. The ARM argues that it is as good, and that the change is only symbolic. But if the ARM is questioned about the details of their model, the response usually is that opponents are engaged in the "mother of all scare campaigns". This will be a term used over and over during the campaign. It is clear the last thing the ARM wants is a debate on the detail of the model. Kim Beazley says he would become "terribly depressed" if this debate were to be about the "minutiae" of the election of the president and the president's power. (Australian, 26 November 1998) The principal issue, he says, is about having an Australian head of state and a republic. Whether or not we like the process that emerges, he argues we can deal with any problems down the road. (SBS News, 27 January 1999) These could be fixed up at future referenda! These details should not cloud the move to a more "mature" political system. (Australian, 26 November 1998)
An unbiased observer could not fail to come to the conclusion that this is an admission the Keating—Turnbull republic is inferior to the present system. Kim Beazley's suggestion of further referenda confirms this. But, surely, if a change of this nature is proposed — as Thomas Keneally says, the biggest structural change since Federation —we ought to end up with a constitution at least as good as we have. It is not as if there has not been enough time, or enough money spent. The taxpayers' money, not the ARM'S. In fact the ARM has had the best part of a decade, and by the referendum, about $120 million of the taxpayers' funds to produce their model and have it put to the people.
The first Keating—Turnbull republic was also a failure. It did not make the president a mirror image of the governor-general. It would have instead imported into Australia the essence of the 1958 French Fifth Republic, which allows the "cohabitation" between two powerful competing politicians, a president and a prime minister. The only reason France tolerates the inevitable tension between these two is that the dozen or so previous constitutions since 1789 were all failures too.
Displaying, as Sir Harry Gibbs says, a "remarkable pliability", the second Keating—Turnbull republic goes to the other extreme. It turns the president chosen by the politicians into the prime minister's poodle. And no explanation for this drastic change has ever been forthcoming. It bears all the marks of the frantic manoeuvring, wheeling and dealing, trade-offs and "back-of-the-envelope" drafting in the last days of the 1998 Constitutional Convention. All done just to achieve a majority of votes, which still eluded the ARM. The model puts the president at the absolute mercy of the prime minister. Unlike the constitution of any other democratic republic, the prime minister will be able to sack the president. At any time. For any reason. Or no reason. Without any notice or right of appeal. This is power that the prime minister certainly does not have now! To the question of why no other republic has such an arrangement, Clerk of the Senate Harry Evans gives the awesome answer. No other country has ever been so misguided as to accept such an obviously unbalanced arrange¬ment. Leading experts on the constitution, most of them republican — have identified a multitude of serious flaws in this model.
The Australian public is passionate about fair play. A rule change which allows one of the captains to send off the referee will be recognised as the rort it so clearly is. This republican model is not only another embarrassing failure — it is dangerous. To give effect to the model, two bills have been passed by both houses of parliament. They will not be submitted to the governor-general for the royal assent unless the principal bill, the Constitutional Alteration (Establishment of Republic) 1999, is approved in the referendum on 6 November 1999. The other bill is the Presidential Nominations Committee Bill 1999 (Nominations Bill). The people can see this but not vote on it. Other significant areas of detail are also left to the politicians to develop and change.
The Referendum Question
The manner in which a referendum question is put to the people is governed by the Referendum (Machinery Provisions) Act 1984. A referendum question must set out the title of the proposed law to amend the constitution and then ask whether the voter approves. The original title of the Referendum Bill, as introduced into parliament, read: "A Bill for an Act to alter the Constitution of Australia as a republic with a president chosen by a two-thirds majority of the members of the commonwealth parliament."
In its submission, ACM pointed out the long title does not refer to the unique and extraordinary aspect of the model. Unlike any other known republic, the prime minister can summarily dismiss the president. ACM therefore submitted that the fol¬lowing words be added to the title: "appointed for a term of five years but removable by the prime minister at any time by a signed notice with immediate effect". Clerk of the Senate Harry Evans and ARM patron Senator Andrew Murray made similar submissions. A range of submissions on the title were received by the Parliament's Joint Select Committee on the Republic Referendum. At a hearing in Sydney on 5 July 1999, ARM Chairman Malcolm Turnbull even argued for the deletion of the words "republic" and "president".
The Committee, whose membership was strongly republican, finally recommended the title be: "A Bill for an Act to alter the constitution to establish the Commonwealth of Australia as a republic, with the queen and governor-general being replaced by an Australian president." This was no improvement. It obviously excluded any reference to the method of choosing or especially dismissing the president. And while the president will replace the governor-general, the queen's functions certainly do not go to the president. They go to the politicians, particularly the prime minister. And the Committee wanted to state clearly and simply the essential purpose and outcome of the bill as it claimed, why did it put "Australian" before "president"? Surely the detail of the model is part of the essential purpose and outcome of the bill.
In the meantime polling had indicated that there would be substantially different results depending on the question. But it was probably not explained to those polled that all of the ques-tions were in fact about the same model! In any event the government chose an amended title which eventually prevailed: "A Bill for an Act to alter the Constitution to establish the Commonwealth of Australia as a republic with the queen and governor-general being replaced by a president appointed by a two-thirds majority of members of the commonwealth parliament."
The senate then approved an amendment by the Australian Democrats changing the title to: "A Bill for an Act to alter the Constitution to establish the Commonwealth of Australia as a republic." A meaningless title which the government rejected before both houses finally approved the bill.
Under the Nominations Bill, any Australian citizen may nominate just about any other citizen to be president. This procedure is quite pointless. Under the Nomination Bill the 32-person Presidential Nominations Committee, with a majority directly nominated or aligned to the prime minister, must give a confidential written report on nominations received, to the prime minister. This must include a confidential shortlist of the most suitable candidates (clause 20). The prime minister is not, under section 60, to do any more than consider the report. He may nominate any Australian citizen to be chosen as president. So why have this process? Before the convention election the ARM indicated it had not closed its mind on the question of direct election of the president by the people. They knew of course that opinion polls constantly show that if Australia were to become a republic, an overwhelming majority insist that the people should elect the president. So to camouflage the fact that the second Keating—Turnbull republic will be a politician's republic, we have a cosmetic nomination process. And it may well be worse than useless. Remember that Bill Hayden had said that only the "stout hearted" would be able to endure that "personal inquisition" to which a nominee might be subjected by a joint sitting of parliament.
As Sir Harry Gibbs says, this is likely to deter at least some suit¬able persons from allowing their names to be considered. (UNSW, 1998, 16) Those of the calibre of, say, Roma Mitchell, Zelman Cowan, Richard McGarvie, or Peter Sinclair are unlikely candidates. We can be sure that this process will come to resemble US senate nominations, which in recent years have involved witch-hunts against anyone who is perceived as having ideas unaccept¬able to members of the relevant committee. At the convention, Federal Treasurer Mr Peter Costello said that the nominations process would put people who are up for consideration in a very difficult position. But when he put this to Malcolm Turnbull, who had come "like Nicodemus, by night to try to steal my vote". Mr Turnbull replied, "Don't worry about any of that: the parlia¬ment can ignore it." ("Hansard", 1998, 975) Republican academic Professor John Williams writes that the untested political assumption is that the Nomination Committee will quell the people's obvious electoral appetite fora say in the election of the president.He concludes that it is a hollow attempt to appease electoral demands in states other than NSW and Victoria. In other words, it's a front. And a failed one at that. It certainly hasn't fooled the real republicans, Ted Mack, Clem Jones, Phil Cleary and Martyr Webb.
The next stage in the process is for the prime minister to make a single nomination to a joint sitting of the commonwealth parlia¬ment. Under a last minute amendment it is only at this point that politicians and members of political parties are excluded. In other words they can resign just before nomination. The nomination must be seconded by the leader of the opposition in the house of representatives. The joint sitting must then approve the nomination by a two-thirds majority. So this will normally require approval by the opposition.
Winterton warns that it could be difficult to identify the leader of the opposition constitutionally, as the non-government parties in the lower house may have equal numbers, or no members at all– as was the case in New Brunswick after the 1987 election when the government won all the seats. His solution is to give this responsibility to the speaker of the house. The speaker is the neutral presiding officer, the symbol and advocate of the house as a whole. As such, he or she could not be entrusted with a political discretion. The speaker could be given the role only if it was not political, merely ceremonial. But in this case, the seconder has no choice but to second the nomination, further strengthening the position of the prime minister. There seems to be no obligation on a prime minister to make a nomination. This could suit a prime minister who wishes to keep the office vacant, and is happy with the president continuing in office under section 61 or with an acting president or deputy president. Neither the support of the leader of the opposition, or of a joint sitting would be necessary to support this strategy.
A political deal can also take the form of a trade-off An opposition may well accept the government's nominee on the basis of some returned favour. The deal could be: We do not really like your presidential nominee, but we will support the nomination if you will do something in return for us. Public negotiations also tend to leak. The way in which the presidential nominee has been selected would inevitably become known to the public. The deals would be explained in the press. The selection process would then be looked upon unfavourably by outsiders and demeaning to the candidate selected.
Of course, politicians are well accustomed to deals. Northern Territory Chief Minister Mr Shane Stone argued that even on the subject of the proposed law to suppress the Northern Territory euthanasia law, a conscience vote was impossible. "What you'll see is the linking up of groups in factions, deals will be done and there'll be trade-offs with people ... in the senate in exchange for other bills. I know how it works, we're a soft target, we're an easy trade." (Sydney Morning Herald, 6 July 1996)
Perhaps one of the best known deals was the Kirribilli House Agreement made before the 1990 election. Prime Minister Hawke agreed that after the election, and unbeknown to the electors, he would hand over the prime min¬istership to Paul Keating. Witnessed by TNT CEO Sir Peter Abeles and ACTU Secretary Bill Kelty, the agreement was kept secret. But when Mr Hawke changed his mind after the election and Mr Keating went to the backbench to campaign against him, the agreement found its way to the press. (Hawke, 451-453)
The point was of course that the deal was of momentous public interest. The people thought they were electing a govern¬ment to be led by Bob Hawke, not Paul Keating. It is of course either naive or deceptive to think that politicians will use the power to elect a president only for the purpose of choosing a president above politics. The two-thirds vote will ensure that they enter into a series of deals and trade-offs as the price for accepting the prime minister's nomination. The Americans understood this. So when they founded their republic, they wanted to ensure that the process of electing the president was not corrupted by deals and trade-offs. The politicians were totally excluded from the process, especially re-elections, to ensure, as founder Alexander Hamilton insisted, there was no "sinister bias". (Hamilton, 457)
But in Australia the political deals and trade-offs surrounding the election of the president will not only be possible, they will be entrenched. The president will owe his office to politicians' deals. Worse, he is just as likely to be a party to the deals. Yet the ARM argues that popular election will inevitably produce a politician. Their presi-dent will not only be a politician, but one who emerges from shabby and secret political deals. As democratic republican Ted Mack says, "The president won't be one of us. He'll be one of them." This will no longer be a position beyond politics. The second Keating—Turnbull republic will most certainly be a politi¬cian's republic. And the president will most definitely be the politicians' president.
A new section 59 of the constitution would provide that: The executive power of the Commonwealth is vested in the president and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. The president shall be the head of state of the Commonwealth.
There shall be a Federal Executive Council to advise the president in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the president and sworn as Executive Councillors, and shall hold office during the pleasure of the president. The president shall act on the advice of the Federal Executive Council, the prime minister or another minister of state; but the president may exercise a power that was a reserve power of the governor-general in accordance with the constitutional conventions that related to the exercise of that power by the governor-general.
It will be noted that for the very first time the term "head of state" is to appear in an Australian constitutional document. This is a diplomatic term which has been used, or more correctly misused, by the ARM to create a case for change. This totally superfluous provision can have been inserted only to give some substance to the deception that the governor-general is not already a head of state and that the term is of some constitutional significance, which it is clearly not.
The first and second paragraphs continue, in a republican form, sections 61 and 62 of the existing constitution. However, the third paragraph differs both from the present constitution, and also from the Communique of the Constitutional Convention in two ways. First, the sources of advice to the president specified in the constitution are increased from the present one, the federal executive council. The sources of advice are now the federal executive council, the prime minister or another minister of state.
Although the addition of the prime minister and another minister of state to the federal executive council actually reflect current constitutional practice, their express inclusion creates a sit-uation where the president may receive conflicting advice of apparently equal validity from different sources. This would not matter if such advice were not legally binding, which is the position at present.
The second difference is the more important. The president is now legally bound to act on advice. This appears to deny the president the traditional rights of the governor-general to be consulted, to advise, and to warn. That is, as a constitutional auditor.
Thus, if any minister of state insisted that he act immediately, the president would probably be precluded from doing what governors-general have normally done — asked questions. requesting the executive council to obtain formal advice from the attorney-general or solicitor-general, or delay acting on questionable advice until satisfied that it was constitutional or legal. The Constitutional Convention did not recommend that the president be placed under a binding legal obligation to act on advice. We have previously referred to the case in India, where Mrs Ghandi had insisted the president sign an unjustified Declaration of Emergency. Under this constitution, a president could not refuse.
It is difficult to exaggerate the enormity of the change. At one stroke it denies the president the day-to-day power and duty that governors-general have enjoyed as auditors of proper process since federation. But that is not all. The reference to the reserve powers appears to make their exercise justiciable—that is, reviewable in the high court, a matter ACM raised soon after the Exposure Draft was released in April 1999.
The reserve powers are those where the governor-general may act on his own discretion as the constitutional umpire. Under the third paragraph of the new section 59 we have a tension. There is now a mandatory obligation on the president to act in accordance with the advice of the executive council and others. But there is an exception relating to the exercise of the reserve powers in accordance with the constitutional conventions governing their exercise by the governor-general. As the first part of this paragraph imposes a legal duty on the president, ACM and others argued it would be "justiciable" and thus enforceable in the high court. (See for example the high court decision in The Queen vs Toohey, ex parte Northern Land Council, 1981, 151, CLR 170) So the exercise of a reserve power must also be "justiciable". The traditional view is that the exercise of the reserve powers under the present Australian constitutions cannot be examined or reviewed by the courts. For example, Sir John Kerr's decision to dismiss Mr Whitlam and dissolve parliament could not have been reviewed by the high court.
Some Australian jurists say the law has developed so that now the exercise of the reserve powers is justiciable. On this view, Sir John Kerr's decision to dismiss Gough Whitlam in 1975 could have been reviewed by the high court. That could have extended the constitutional crisis for many weeks or even months. This was the Pakistan experience when the exercise of the president's powers were found to be justiciable. In the absence of a clear provision in the constitution, only the high court can give us the answer. And then only when someone with standing seeks a review.
More recently the former solicitor-general and attorney-general, republican Bob Ellicott QC, dropped a bombshell. He argued that it was likely that the high court would find that under the Keating–Turnbull republic the president had actually lost the power to dismiss the prime minister. This flowed from the proposed new section 59, which provides that the president may exercise a power that was a reserve power of the governor-general "in accordance with the constitutional conventions" relating to the exercise of that power.
But the attorney-general says in the Republic Bill Explanatory Memorandum, referring to 1975, that there is no generally agreed convention relating to the exercise of the reserve powers. New section 59 only allows the president to exercise a reserve power in accordance with convention. Ellicott concludes that if a president dismissed a prime minister under this republic the high court could review the president's decision, but guided by the Explanatory Memorandum, it could then find the power to dismiss no longer existed.
Just before the Republic Bill was to be passed in August 1999, the attorney-general introduced an amendment. Under clause 8 of schedule 3, the bill will not make justiciable the exercise of a reserve power if the exercise is not justiciable now. But as we have seen the law is now unclear on this point. And because of the "who shoots first scenario" which we are yet to discuss, high court involvement may be unavoidable. It would have been far better to have closed off the potential for a high court review of the president's exercise of a reserve power. After all, the exercise of the prime minister's power to dismiss the president is not reviewable. Why should the president's? This is yet another example of the failure of the Keating–Turnbull process to involve the people at all stages, and to ensure proper public discussion. It once again demonstrates that this model has been scrambled together without the careful consideration which was a feature of the federation process.
All democratic republics give the president a degree of tenure during his or her term. Where he or she presides over a Westminster system the president will ideally operate as a check and balance on the politicians. If she or he does not, then you have a system that leaves the same politicians in control of both the legislature and the government—an excessive and dangerous concentration of power.
Historical evidence demonstrates that in the Westminster system the crown, rather than a president, provides the better check and balance as an umpire and auditor against this concen¬tration of power. (Obviously there are others, the courts, a free press etc.) A Westminster president needs to have a clearly defined role. His powers must be codified —which, as we have seen, can bring in the problem of justiciability. How do we know the precise boundaries of his powers without a court ruling on them? And above all the president needs security of tenure, but obviously he or she should be removable for proven and serious breaches of the law or of her duties.
This is normally done through a three-stage process of impeachment. First there is a formal charge or impeachment on specified facts falling within grounds for dismissal set out in the constitution. So that this is not frivolously made, this usually has to satisfy, say, a house of parliament, as in the United States, or a specified majority of members of parliament. Then there is a fair trial. For example, before the senate as in the US, or before a tribunal of five judges presided over by the chief justice, as in Singapore. Finally, there is usually a parliamentary vote with a special majority (two-thirds in the US, three-quarters in Israel and Singapore).
Without an impeachment process you cannot have a democratic republic. The eerie words of the proposed new section 62 of the constitution demonstrate that this is not a democratic republic: "The prime minister may, by instrument signed by the prime minister, remove the president with effect immediately."
These are words which have no precedent in any constitution of any republic. The prime minister must seek approval from the house of representatives for this action within thirty days unless, (i) within the thirty days the house expires or is dissolved or, (ii) before the removal, the house has expired or dissolved, but a general election has not taken place. Note that the senate is not involved. Sir Anthony Mason thinks this goes too far in strengthening the house against the senate. The exclusion of the senate is especially significant in the light of the 1975 crisis. Had Sir John Kerr been a president under this republic, Gough Whitlam would have been able to instantly dismiss him without any reference to the senate. But if the house of representatives does not ratify the prime minister's action, the president is not to be re-instated. According to the Explanatory Memorandum, this ensures an opportunity for parliamentary scrutiny of the prime minister's action. This is not so, it only allows for scrutiny by the house.
The Explanatory Memorandum recalls that the convention had said a failure by the house of representatives to ratify the prime minister's decision to dismiss the president would constitute a vote of no confidence in the prime minister. The Memorandum says it is highly unusual to have a vote of no confidence in a single minister, particularly the prime minister. One consequence of a vote of no confidence in the prime minister might be loss of government. However, the constitution is silent on the issue. So it leaves the question unresolved. It is to be left "for resolution in accordance with parliamentary processes, which must in turn develop within the broader constitutional framework". Whatever that may mean. Yet another example of how little proper care and scrutiny has been given to this model.
Sir Harry Gibbs believes that just the knowledge of his own insecurity would prevent a president from taking valuable but uncontroversial initiatives. He recalls the decision taken in Tasmania in 1989 by Governor Sir Phillip Bennett, who would not accede to the request of the premier that an election be held. The governor was satisfied that the opposition could forma government with the support of the Greens. The model, Sir Harry says, fails completely to strike a balance between the offices and greatly strengthens the position of the prime minister at the expense of the president. A long list of criticisms is levelled against the procedure by Professor Winterton, some of which include: failure to stipulate grounds for removal; unnecessary exclusion of the senate from the dismissal procedure; the prime ministerial action may be thwarted by pre-emptive presidential action; failure to explain why a wrongly removed president should not be automatically reinstated; and presidential competency should not be linked to the house's confidence in the prime minister.
Gareth Evans, a minister in the Keating government and a prominent republican delegate at the Constitutional Convention, has been quoted as saying he could never live with having a pres¬ident who could be dismissed by the prime minister at the stroke of a pen — that this would make our president the most miserable head of state in the world. (Frank Devine, Australian, 12 February 1999)
Both Keating—Turnbull republics suffer from the fundamental deficiency that while they would dismantle the crown piece by piece, first federally and then at the state level, they offer nothing in its place. It is difficult not to come to the conclusion that the ARM just does not understand the role and nature of the Australian crown. Not understanding, they wish to destroy that institution, without putting anything in its place — except the absolute executive authority of the prime minister.
The proposition that the neutered office of president could be an adequate substitute for the crown confirms an inability or unwillingness to accept the subtleties of the present constitu-tional arrangements. The second Keating—Turnbull republic ensures that the president must emerge from deals and trade-offs between the politicians under this system. He is already guaranteed to be the politician's president. But this politician's president will hold office at the whim of the prime minister.
Anglo-American political thought and practice is suspicious of the proposition that an ideal political arrangement can be devised, and that the government established should be endowed with vast powers. Rather, our tradition is to be suspicious of potential abuses of power. This is reflected in the advice of Paul Keating's own Republic Advisory Committee, chaired by Malcolm Turnbull. They reported they had encountered an almost universal view that, regardless of the integrity of any prime minister, the head of state should not hold office at the prime minister's whim, and must be safe from instant removal to ensure appropriate impar¬tiality. The need to protect the head of state from arbitrary removal has particular force, they said, where the head of state has discretionary powers that can be exercised adversely to the inter¬ests of the prime minister or the government. (RAC, Vol 1, 77)
The traditional view is most famously enunciated in Lord Acton's dictum, "Power tends to corrupt, and absolute power corrupts absolutely." Thomas Jefferson once asked, "What has destroyed liberty and the rights of men in every government?" He answered: "The concentration of all powers into one body." And as we have noted, ARM patron Senator Andrew Murray warns that the second Keating–Turnbull republic gives the prime minister "absolute executive power".
When confronted with this the proponents of the Keating–Turnbull republic nowhere acknowledge their previous counsels against the president holding office at the whim of the prime minister. Their knee-jerk reaction is to talk of the "mother of all scare campaigns". But when pressed they answer the critique in three ways – and thereby accept that the fault exists. First, they say, no reasonable person would behave so unreasonably. Then they say that the prime minister will not be able to choose "the president's successor". Finally they claim that it merely replicates the current system.
No prime minister would dismiss unreasonably.
But people in power do not always act "reasonably". Emeritus Professor Geoffrey Blainey, in a speech on 10 March 1998, reminded us that in the 1930s one of the world's most civilised countries, Germany, fell into dictatorship because at the very top the constitutional checks and balances of the Weimar Republic were found wanting. Of course he was not saying, as one newspaper suggested, that another Hitler is possible. What he was reminding us was to those who say that authoritarianism could never come, one of the principal purposes of a constitution should be to ensure that excessive concentrations of power are not possible.
During the convention debates of the nineteenth century, Sir Richard O'Connor actually warned of the dangers of a supply crisis particularly where a double dissolution was not available. But the founders preferred to rely on the good sense and moderation of politicians rather than a special provision to cover this. (Galligan, 85,86) In 1975, good sense and moderation seemed to have flown the coop. It was fortuitous that the "trigger" existed for a double dissolution. If it had not, the governor-general could still have acted, but only by having a dissolution of the house of representatives and an election for half the senate. The new Senators, with the exception of those from the territories, would not have taken office for many months. What good would dismissal do the prime minister?
The ARM'S second response is that in dismissing the president the prime minister will not necessarily get his man or woman as acting president. Won't he? The Republic Bill makes it clear that the prime minister can dismiss any or all acting presidents, and that the prime minister could already have such deputy presi¬dents as he wishes, with such powers as he has specified. Proposed section 63 of the constitution assures this: 63 Acting President and deputies: Until the Parliament otherwise provides, the longest-serving state gov¬ernor available shall act as president if the office of president falls vacant.
A state governor is not available if the governor has been removed (as acting president) by the current prime minister under section 62. Until the Parliament otherwise provides, the prime minister may appoint the longest-sering state governor available to act as president for any period, or part of a period, during which the president is incapacitated.
The provisions of the constitution relating to the president, other than sections 60 and 61, extend and apply to any person acting as president. Until the parliament otherwise provides, the president may appoint any person, or any persons jointly or severally, to be the president's deputy or deputies, and in that capacity to exercise during the pleasure of the president (including while the president is absent from Australia) such powers and functions of the president as the president thinks fit to assign to such deputy or deputies; but the appointment of such deputy and deputies shall not affect the exercise by the president personally (including while the president is absent from Australia) of any powers or functions ... (These powers are exercised on "advice": section 59)
We have thus the most extraordinary aggregation of power in the hands of the prime minister ever known in the history of our country, or indeed of any democracy. This results from the following:
The prime minister's unprecedented power to dismiss the president.
The extension of this power even further, in ways not envis¬aged in the convention model, by giving the prime minister a further unprecedented power to engage in the "serial dis¬missal" of those acting presidents he does not want.
The fact that the constitutional provisions about acting presi¬dents and deputy presidents may be changed without any reference to the people by an ordinary act of parliament. Again, none of this was provided for in the convention model.
The prime minister is to be the sole judge of the president's incapacity. He doesn't even need a medical certificate.
The president can be required by the prime minister to appoint any number of deputy presidents with such powers as the prime minister advises.
The power of the prime minister to delay a new appointment indefinitely, thus keeping a crony president or acting president in office, or even having none.
The result is that the role of the president, as a check and balance on unconstitutional action by the prime minister, is weakened even further than in the 1998 convention communique. The politician's president will be well and truly the prime minister's apathetic poodle.
The prime minister can do it now.
The ARM'S final attempt to answer concerns about the prime minister's extraordinary concentration of power in this republic is to claim that he will have no more than the prime minister enjoys now. That this is untrue can be demonstrated by reference to the events of 1975. Sir John Kerr says that on 11 November 1975 he asked Gough Whitlam if he intended to govern without supply. When Whitlam replied that he did, Sir John said he intended to withdraw Whitlam's commission. Whitlam jumped up, looked at the tele¬phone and said: "I must get in touch with the palace." "It is too late," Sir John said. Whitlam asked "Why?" Sir John told him: "Because you are no longer prime minister; these documents tell you so, and why."
In a re-run of 1975, it would be possible under this republic for Gough Whitlam instead of saying: "I must get in touch with the palace," to have simply dismissed him. He could have scribbled and signed a note saying: "You're dismissed." Under this republic he may well carry a prepared note. The point is there is nothing — nothing Gough Whitlam could have done to have secured Sir John Kerr's dismissal at their meeting on 11 November 1975. It is completely untrue to say that the instant dismissal under the Keating—Turnbull republic replicates our current system. The procedure for the appointment and, by implication, the removal of governors-general was in fact settled at the Imperial Conference in 1930 where it was agreed that formal advice on an appointment (and thus removal) would come from the dominion ministers, usually the prime minister. But this would be after informal con-sultation. All of which takes time. It is true that the prime minister can recommend to the queen the removal of the governor-general. But that does not equate to the governor-general holding office at the whim of the prime minister.
In 1932 prime minister de Valera petitioned the king to dismiss the governor-general of the Irish Free State. The king did feel some doubt about whether he had to accept de Valera's advice. He declared that, while he was ready to act in accordance with constitutional practice respecting advice, in this case the advice was related to the position of the sovereign and to his personal prerogative and, therefore, the advice had a special char¬acter. So he asked for reasons to be given for de Valera's request. He also wanted Governor-General McNeill to be given an oppor¬tunity to resign and a longer period of notice. In this case, the King's decision had the effect of inducing a voluntary relinquish¬ment of office and so obviated the need for the King to exercise his prerogative.
How might this compare with the situation that could have arisen in 1975 had Whitlam attempted to act as de Valera did? Whether or not one believes the queen would have been bound to act on such a request, it is clear that Sir John Kerr would not have been dismissed immediately on the basis of a midnight tele¬phone call. Even if he had wanted to, which he denies, Gough Whitlam could not have had the governor-general dismissed in time to evade his own dismissal. In 1982 the queen's private secretary, Sir William Heseltine, confirmed this in a letter later cited at a session of the Advisory Committee of the Australian Constitutional Commission: "I can say that, while a telephone call from the prime minister might have frozen the situation, Her Majesty certainly could not have acted on the basis merely of a telephone conversation to dismiss her governor-general. Some formal instrument, whether transmitted by mail or cable, would most certainly have been required." And Sir David Smith points to the recent New Guinea example, where an original document, not a facsimile, was apparently thought necessary.
Professor George Winterton a professor of constitutional law, and a republican, accepts that the queen could take time to con¬sider any advice of the prime minister and even endeavour to persuade the prime minister to withdraw his advice. He says the queen would ultimately "be obliged to accede to that advice unless she were willing to countenance a general election in which her conduct was an issue". He accepts that under the Keating—Turnbull republic the president will lack "this slender shield" and that the president's vulnerability will be "unprecedented among world republics". ( Weekend Australian, 7-8 August 1999)
Fred Daly, who was the Leader of the House and Minister for Administrative Services at the time of the 1975 crisis, agrees and he ought to know. He confirms that the removal of a governor-general is not a speedy or simple process. (Daly, 237) Sir Anthony Mason believes that any assumption that the queen would act immediately on a prime minister's request is "quite incorrect". He believes that the queen would be entitled to consider the matter. She might well take the view that an Australian constitutional con¬troversy should take its course according to the judgement of the governor-general "without intervention on her part until that controversy was resolved". (Mason, 1998)
Author Sarah Bradford writes that while there is nothing the queen can do if a prime minister submits a name for appointment she is not happy with, she is not powerless. She recounts a story about a Dean of St Paul's who had asked what the queen could do if she received advice to make an unsatisfactory ecclesiastic appointment. The queen replied, "I can always say I should like more information. This is an indication a prime minister will not miss." (Bradford, 498)
But the strongest argument against the proposition that the governor-general holds office at the prime minister's whim comes from Gough Whitlam himself He suggests the proposition is "preposterous" and "ludicrous"! In The Truth of the Matter he ridicules Sir John Kerr's fears that he could have him removed by telephone. Whitlam referred to our recent experience in seeking the removal of Queensland Governor Sir Colin Hannah's "dormant" commission to act as administrator of the commonwealth. All state governors normally receive these. Sir Colin had publicly criticised the Whitlam government, that it engaged in political controversy–an act normally thought to be incompatible with viceregal status. An open and shut case for removal. It took ten days.
Whitlam says he merely asks: "Have you discussed this with the palace?" and that Kerr replied, "I don't have to and it's too late for you. I have terminated your commission."
At the very least then, even if she ultimately accepted her prime minister's advice, the queen would be entitled to the three rights recognised by the celebrated nineteenth-century constitu¬tional authority Bagehot: to be consulted, to encourage, and to warn. That means time, precious time. As we have seen some experts say the queen has a discretion to refuse unacceptable advice. Professor Tony Blackshield and Justice Kim Santow say it is generally accepted that if in 1975 there had been a race to the queen and Gough Whitlam had won, the queen would have exercised an independent discretion in deciding whether to remove the governor-general in what were already exceptional circumstances. (Australian Financial Review, 16 February 1998) However, those who have been closest to the question, Sir John Kerr and Sir David Smith, think that ultimately the queen must accept the prime minister's advice if he insists.
In any event, as former governor-general (and Labor Premier of New South Wales) Sir William McKell has pointed out, there is no guarantee as to when she will act. Sir William said that the queen is a very busy woman. She may be difficult to contact. She can always ask for more information. So by the time she acts the governor-general could have ensured an election takes place.
Indeed, the very idea that a prime minister could be automatically granted the removal of a governor virtually negates the reserve powers of the governor-general. Governors-general would be all but powerless if they could be removed any time they resisted the prime minister's will.
Who shoots first?
At this point we refer to a curious feature of this hurriedly put together constitution. Yet another example of the lack of care, and the need for public discussion in the drafting of such an important document. This is the practical difficulty of both the president being able to dismiss the prime minister and the prime minister being able to dismiss the president. This has just not been thought through. Who moves first will be absolutely crucial. Would a prudent president and prime minister carry signed notices of dismissal to future meetings, might either of them even backdate a notice of dismissal? There is not even the need fora witness on the prime minister's notice! If they met alone there could be different recollections of what had happened. Hadn't the authors of this considered what had actually happened in 1975? Because in 1975 Gough Whitlam and Sir John Kerr had different recollections of the events in the study at Yarralumla.
Sir John's claim that Gough Whitlam rose, looked at the phones and said, "I must get in touch with the palace," Whitlam denies. He says: This is a concoction and an absurd one. I had been in the governor-general's study at least half a dozen times when Lord Casey was governor-general and scores of times while Sir Paul Hasluck and Sir John Kerr had been governors-general. While Sir Paul and Sir John had made telephone calls and received them while 1 was there, I had no knowledge of the procedure for making calls. I did not know the number of the Palace. I had no staff with me. He had his aides, his secretaries, his telephonists, and his police. I was trapped in an ambush; my sole instinct was to escape, to depart at once from the place where the deed had been done and the presence of the man who had done the deed.
So Sir John Kerr says that Gough Whitlam was about to tele¬phone the queen to have him dismissed, and Gough Whitlam denies this. At a meeting in a similar crisis and under this republic, establishing who moved first could be equally disputed. The former Chief Justice Sir Anthony Mason worries about the ability of either to sack the other in a "who shoots first" scenario. Professor Cheryl Saunders writes that this ludicrous situation is, to say the least, undignified.
In the event of both claiming to have dismissed the other first, the president would appoint a new prime minister, and the old prime minister would have the acting president he wanted. In other words two claiming to be prime minister and two claiming to be president and, it should be stressed, two claiming to be commander-in-chief. That the phenomenon of two or more persons claiming to be president has happened in other countries is surely a good argument not to adopt a half-baked constitutional model that would allow this to be repeated here.
It is not surprising that this model has been criticised by consti¬tutional experts, many of them republicans. The following come from the 1998 University of New South Wales Law journal Forum:
The convention's model is flawed. Its presidential removal mechanism is both structurally unsound and entirely inappropriate. Professor George Winterton
I remain sceptical about the enduring qualities of the final recommendation for the so-called bipartisan appointment model. Professor Cheryl Saunders It is a weak model, with a number of serious deficiencies. Professor Greg Craven
This model does not prevent a politically motivated dismissal of a president. Professor Linda Kirk
In summary, the conclusion must be that the extraordinary unprecedented power to remove the president is unknown in any democratic republic. And in no way does it replicate our existing system.
AND THE CONSEQUENCES?
The model, let us remember, is not based on carefully considered, dispassionate and extended discussion. It was scrambled together in the last few days to get the maximum support at the conven-tion. It is full of holes. The most worrying aspect is the failure of its proponents to admit now that it is a model unworthy of our great democracy. Remember that the ARM refused to admit, for five years, that the first Keating—Turnbull republic was a recipe for instability. We have to assume that by now the proponents must be well aware of the fundamental and dangerous concentration of power, and the potential for instability that flows from this model.
Real republican former independent MP Ted Mack says many in the ARM, the media and academia are well aware of this. (Sydney Morning Herald, 24 December 1998)
And success in the referendum will result in pressure for other changes, apart from those changes that could occur because of a failure to prepare for them properly, such as on our membership of the Commonwealth of Nations. Certainly the flag, the chief national symbol, is next on the agenda. As Bill Hayden has said, if the referendum is successful, "the same gang of activists will be on the campaign trail to change the flag".
The states too are on the agenda. A minister in the Keating government, Alan Griffiths, pointed this out at the beginning when he said: "The republican issue is a threshold thing, to get people's attention ... the real business was achieving competitiveness in government arrangements which might, in the long run, entail the abolition of the state. (Australian Financial Review, 5 April 1993) But the worst consequences may be those which could flow from governmental instability that the model allows.
As we have seen, a president and a prime minister can sack each other. The president could say his dismissal was invalid or his was first and appoint the opposition leader as prime minister. An acting president could claim to be in office. There would be challenges in the high court that would inevitably become politicised. In the turmoil, with increasing civil disorder, both "presidents" (and perhaps both prime ministers) could call the Army for support. Whom should the Army obey?
Eventually, supply would run out, with government services and payments curtailed. This scenario wasn't dreamt up as part of a "scare campaign". It comes from the experiences of other countries that have drafted or changed their constitutions without thinking carefully about the consequences. Pakistan has actually lived through similar events over the last years.
So it would obviously be more difficult under the Keating–Turnbull republic to resolve a 1975-style crisis. It would have far more serious consequences. In 1975, the Australian economy was cordoned off from the world. Now all the regulatory barriers are down. As Paul Keating discovered a decade ago when in the course of warning about the state of the economy on talk-back radio, he uttered just two words, "banana republic". Foreign money was flushed out of Australia and international confidence collapsed. The dollar Plunged.
Australia cannot afford the luxury of constitutional instability. The resulting international judgement would be harsh and imme¬diate. As the dollar crashed, as Standard and Poor and Moody's reassessed their rankings most Australians would be the losers. The only people standing to gain would be speculators on our currency and those who buy up our property cheaply.
So the cost of this republic would not only be the $120 million to get to the referendum. It will not only be the hundreds of millions to change the currency, the uniforms, to upgrade everything; to pay for the president, deputy presidents, and the state presidents, who both in office and retirement with their new status will expect to be maintained in greater style than our retired governors and governors-general. It will be the cost to the nation of giving up its constitutional stability.
Australians are being engulfed with the argument that this change is only symbolic, only about an Australian head of state. That is not what it is about. It is not only about getting rid of the queen at any price, it is about a major transfer of power in Australia.